State v. Zawodniak

The majority correctly holds that “gang activity” is not an essential element of the simultaneous-possession offense created by Ark. Code Ann. § 5-74-106 (Repl. 1993). The Trial Court concluded otherwise and “reduced” the simultaneous-possession charge to a charge of possession of methamphetamine due to the State’s failure to establish that Mr. Zawodniak simultaneously possessed drugs and firearms while engaging in “gang activity.” That was error.

Upon remand, Mr. Zawodniak may be retried consistently with the Double Jeopardy Clause of the United States Constitution. My analysis of the…