Publisher's Notes. Acts 1975, No. 928, which became effective simultaneously with the Arkansas Criminal Code on January 1, 1976, repealed former criminal provisions. Section 2 of that act provided that, although all or part of a statute defining a criminal offense was amended or repealed by the act, the statute or part thereof so amended or repealed would remain in force for the purpose of authorizing the prosecution, conviction and punishment of a person committing an offense under the statute or part thereof prior to the effective date of the act.

For Comments regarding the Criminal Code, see Commentaries Volume B.

Effective Dates. Acts 1975, No. 280, § 101: effective Jan. 1, 1976.

Acts 1975, No. 928, § 1: effective simultaneously with the Arkansas Criminal Code on Jan. 1, 1976.

Case Notes

Purpose.

Purpose of the 1976 Criminal Code was to eliminate archaic statutes, replace the profusion of overlapping statutes, and develop an evenhanded method of grading offenses. Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988).

Subtitle 1. General Provisions

Chapter 1 General Provisions

Preambles. Acts 1987, Nos. 484 and 586, contained a preamble which read:

“Whereas, in many instances, child victims are threatened or intimidated to prevent the prompt reporting of abuse or sexual offenses; and

“Whereas, it is in the best interest of the State to extend the statute of limitations for certain offenses involving child victims;

“Now therefore …”

Publisher's Notes. For Comments regarding the Criminal Code, see Commentaries Volume B.

Effective Dates. Acts 1994 (2nd Ex. Sess.), No. 45, § 6: Aug. 25, 1994. Emergency clause provided: “It is hereby found and determined by the Seventy-Ninth General Assembly of the State of Arkansas, meeting in the Second Extraordinary Session of 1994, that minors commit many serious criminal offenses by the use of deadly weapons or by the use of prohibited weapons. The criminal penalties for furnishing deadly weapons to minors and for furnishing prohibited weapons, must be increased in order to decrease the availability of such weapons. Therefore, in order to immediately enhance the penalties for furnishing a deadly weapon to a minor and for furnishing a prohibited weapon, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Research References

ALR.

Automatism or unconsciousness as defense to criminal charge. 27 A.L.R.4th 1067.

Am. Jur. 21 Am. Jur. 2d, Crim. L., § 1 et seq.

Ark. L. Rev.

1976 Criminal Code-General Principles, 30 Ark. L. Rev. 111.

C.J.S. 22 C.J.S., Crim. L., § 1 et seq.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Criminal Law, 1 U. Ark. Little Rock L.J. 153.

Survey of Arkansas Law: Criminal Law, 4 U. Ark. Little Rock L.J. 189.

5-1-101. Title.

This act shall be known as the “Arkansas Criminal Code”.

History. Acts 1975, No. 280, § 101; A.S.A. 1947, § 41-101.

A.C.R.C. Notes. For application of the Arkansas Criminal Code to a prosecution for an offense defined by a statute not a part of the Arkansas Criminal Code, see § 5-1-103(b).

Meaning of “Arkansas Criminal Code”. Acts 1975, No. 280, as amended by Acts 1977, No. 360, codified as §§ 5-1-1015-1-115, 5-1-116 [repealed], 5-2-2015-2-209, 5-2-3015-2-313, former 5-2-314, former 5-2-315, 5-2-316, 5-2-4015-2-406, 5-2-5015-2-503, 5-2-6015-2-614, 5-3-1015-3-103, 5-3-2015-3-204, 5-3-301, 5-3-302, 5-3-4015-3-407, 5-4-1015-4-104, 5-4-201, 5-4-202, 5-4-203 [repealed], 5-4-204, 5-4-3015-4-307, 5-4-3085-4-311 [repealed], 5-4-4015-4-404, 5-4-5015-4-504, 5-4-505 [repealed], 5-4-6015-4-608, 5-5-101, 5-5-102, 5-10-1015-10-105, 5-11-1015-11-106, 5-12-1015-12-103, 5-13-2015-13-208, 5-13-301, 5-14-1015-14-103, 5-14-1045-14-109 [repealed], 5-14-1105-14-112, 5-25-101, 5-26-2015-26-203, 5-26-401, 5-27-201, 5-27-202, 5-27-205, 5-27-206, 5-27-209, 5-36-1015-36-108, 5-37-101, 5-37-2015-37-214, 5-38-101, 5-38-2025-38-205, 5-38-3015-38-303, 5-39-101, 5-39-2015-39-203, 5-52-101, 5-52-102 [repealed], 5-52-103 [repealed], 5-52-1045-52-107, 5-53-1015-53-116, 5-54-1015-54-113, 5-54-114 [repealed], 5-54-1155-54-121, 5-60-101, 5-62-101 [repealed], 5-62-122, 5-70-1015-70-106, 5-71-101, 5-71-2015-71-215, 5-71-216 [repealed], 5-73-1015-73-110, 12-29-109.

Case Notes

Cited: Johnson v. State, 261 Ark. 714, 551 S.W.2d 203 (1977); Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979); Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979); Woodard v. Sargent, 806 F.2d 153 (8th Cir. 1986); Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003); Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003).

5-1-102. Definitions.

As used in the Arkansas Criminal Code:

  1. “Act” or “action” means the same as defined in § 5-2-201;
  2. “Actor” includes, when appropriate, a person who possesses something or who omits to act;
  3. “Conduct” means the same as defined in § 5-2-201;
  4. “Deadly weapon” means:
    1. A firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious physical injury; or
    2. Anything that in the manner of its use or intended use is capable of causing death or serious physical injury;
  5. “Element of the offense” means the conduct, the attendant circumstances, or the result of conduct that:
    1. Is specified in the definition of the offense;
    2. Establishes the kind of culpable mental state required for commission of the offense; or
    3. Negates an excuse or justification for the conduct;
    1. “Firearm” means any device designed, made, or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use.
    2. “Firearm” includes:
      1. A device described in subdivision (6)(A) of this section that is not loaded or lacks a clip or another component to render it immediately operable; and
      2. Components that can readily be assembled into a device described in subdivision (6)(A) of this section;
  6. “Included offense” means the same as defined in § 5-1-110(b);
    1. “Knowingly” or an equivalent term such as “knowing”, “with knowledge”, “willful”, or “willfully” means the same as knowingly as defined in § 5-2-202.
    2. However, if the statute clearly indicates a legislative intent to require a culpable mental state of “purposely”, “willful” or “willfully” means the same as “purposely” defined in § 5-2-202;
  7. “Law” includes a statute or court decision;
  8. “Law enforcement officer” means any public servant vested by law with a duty to maintain public order or to make an arrest for an offense;
  9. “Negligently” or an equivalent term such as “negligence” or “with negligence” means the same as defined in § 5-2-202;
  10. “Omission” or “omit to act” means the same as defined in § 5-2-201;
    1. “Person”, “actor”, “defendant”, “he”, “she”, “her”, or “him” includes:
      1. Any natural person; and
      2. When appropriate, an organization as defined in § 5-2-501.
        1. As used in §§ 5-10-101 — 5-10-105, “person” also includes an unborn child in utero at any stage of development.
        2. “Unborn child” means offspring of human beings from conception until birth.
      1. This subdivision (13)(B) does not apply to:
        1. An act that causes the death of an unborn child in utero if the act was committed during a legal abortion to which the woman consented, including an abortion performed to remove an ectopic pregnancy or other nonviable pregnancy when the embryo is not going to develop further;
        2. An act that is committed pursuant to a usual and customary standard of medical practice during diagnostic testing or therapeutic treatment;
        3. An act that is committed in the course of medical research, experimental medicine, or an act deemed necessary to save the life or preserve the health of the woman;
        4. Assisted reproduction technology activity, procedure, or treatment; or
        5. An act occurring before transfer to the uterus of the woman of an embryo created through in vitro fertilization.
      2. Nothing in this subdivision (13)(B) shall be construed to allow the charging or conviction of a woman with any criminal offense in the death of her own unborn child in utero;
  11. “Physical injury” means the:
    1. Impairment of physical condition;
    2. Infliction of substantial pain; or
    3. Infliction of bruising, swelling, or a visible mark associated with physical trauma;
  12. “Possess” means to exercise actual dominion, control, or management over a tangible object;
  13. “Public servant” means any:
    1. Officer or employee of this state or of any political subdivision of this state;
    2. Person exercising a function of any officer or employee of this state or any political subdivision of this state;
      1. Person acting as an adviser, consultant, or otherwise in performing any governmental function.
      2. However, this subdivision (16)(C) does not include a witness; or
    3. Person elected, appointed, or otherwise designated to become a public servant although not yet occupying that position;
  14. “Purposely” or an equivalent term such as “purpose”, “with purpose”, “intentional”, “intentionally”, “intended”, or “with intent to” means the same as purposely as defined in § 5-2-202;
  15. “Reasonably believes” or “reasonable belief” means a belief:
    1. That an ordinary and prudent person would form under the circumstances in question; and
    2. Not recklessly or negligently formed;
  16. “Sawed-off or short-barreled rifle” means:
    1. A rifle having one (1) or more barrels less than sixteen inches (16") in length; or
    2. Any weapon made from a rifle, whether by alteration, modification, or otherwise, if the weapon, as modified, has an overall length of less than twenty-six inches (26");
  17. “Sawed-off or short-barreled shotgun” means:
    1. A shotgun having one (1) or more barrels less than eighteen inches (18") in length; or
    2. Any weapon made from a shotgun, whether by alteration, modification, or otherwise, if the weapon, as modified, has an overall length of less than twenty-six inches (26");
  18. “Serious physical injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ; and
  19. “Statute” includes the Arkansas Constitution and any statute of this state, any ordinance of a political subdivision of this state, and any rule or regulation lawfully adopted by an agency of this state.

History. Acts 1975, No. 280, § 115; A.S.A. 1947, § 41-115; Acts 1994 (2nd Ex. Sess.), No. 45, § 2; 1999, No. 1273, §§ 1-3; 1999, No. 1476, § 1; 2005, No. 1994, § 442; 2007, No. 827, § 11; 2013, No. 1032, § 1.

Amendments. The 2013 amendment substituted “offspring of human beings from conception to birth” for “a living fetus of twelve (12) weeks or greater gestation” in (13)(B)(i)(b); added the ending to in (13)(B)(ii)(a) beginning “including an abortion”; and added (13)(B)(ii)(d) and (13)(B)(ii)(e).

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Research References

ALR.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery. 124 A.L.R.5th 657.

Ark. L. Rev.

The Fetal Protection Act: Redefining “Person” for the Purposes of Arkansas' Criminal Homicide Statutes, 54 Ark. L. Rev. 75 (2001).

U. Ark. Little Rock L.J.

Davis, Survey of Arkansas Law: Criminal Law, 2 U. Ark. Little Rock L.J. 193.

Annual Survey of Caselaw, Tort Law, 24 U. Ark. Little Rock L. Rev. 1085.

Case Notes

Constitutionality.

Defendant's argument that this section was unconstitutional was not considered by the appellate court where defendant failed to present a record or abstract on appeal that informed the appellate court of the arguments made below; failure to produce a critical document on appeal precluded the appellate court's consideration of any constitutional issues. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003).

Deadly Weapon.

Jury's finding that an automobile driven by defendant was a deadly weapon was supported by evidence. Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976).

A gun is a deadly weapon, even if it has faulty ammunition that could not inflict serious injury. Mitchell v. State, 290 Ark. 87, 717 S.W.2d 195 (1986).

Five foot length of iron pipe was capable of causing death or serious injury. Jones v. State, 292 Ark. 183, 729 S.W.2d 10 (1987).

Scissors clearly fall within the definition of a deadly weapon. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996).

Evidence was sufficient to find that the object used in a stabbing was a deadly weapon in the manner of its use, even though it was not identifiable, because it was sharp, pointy, and when stabbed at the victim was capable of penetrating his torso and puncturing his lung. Medlock v. State, 2013 Ark. App. 609 (2013).

Because there was evidence that defendant’s accomplice caused injury to the victim using a deadly weapon, and because the jury was instructed on accomplice liability, there was sufficient evidence presented to support defendant’s second-degree battery conviction as the baseball bat swung by the accomplice, while not specifically designed for the purpose of inflicting death or serious physical injury, could clearly be used in a manner capable of causing death or serious physical injury when it was swung at the victim with the intent to strike her, and did strike her and fracture her hand. Wimbley v. State, 2014 Ark. App. 405, 437 S.W.3d 132 (2014).

State sufficiently showed a beer bottle was a deadly weapon because the bottle, being glass, was capable of greater damage than was inflicted. Wheeler v. State, 2017 Ark. App. 540, 532 S.W.3d 602 (2017).

Element of Offense.

Because defendant presented evidence arguably supporting self defense or a justification defense to a charge of aggravated assault under Arkansas law, the government had to negate that defense by a preponderance of the evidence for an enhancement for using the firearm in connection with another felony offense under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) [now (b)(6)] (2005), to apply because whether circumstances negated defendant's excuse or justification was an element of the offense under subdivision (5)(C) of this section, which had to be proved by the state under § 5-1-111(a)(1), and the definition of aggravated assault expressly excluded any person acting in self-defense or the defense of a third party under § 5-13-204(c)(2). United States v. Raglin, 500 F.3d 675 (8th Cir. 2007).

Substantial evidence existed to support a second-degree murder conviction because defendant's justification defense could have been reasonably rejected; the jury could have credited testimony indicating that defendant walked towards the victim holding a gun after being told that the girls present did not want to fight. Moody v. State, 2014 Ark. App. 538, 444 S.W.3d 389 (2014).

In a trial for manslaughter under § 5-10-104, the circuit court erred when it did not instruct the jury on justification because, under § 5-2-614, if defendant was reckless or negligent in forming the belief that force was necessary, then, and only then, was the defense unavailable; however, if defendant was not reckless or negligent in forming his belief, the defense was available, and that was a decision for the jury. Schnarr v. State, 2018 Ark. 333, 561 S.W.3d 308 (2018).

Firearm.

An M-1 rifle used by the Veterans of Foreign Wars for ceremonial purposes was a “firearm” within the meaning of this section, notwithstanding that it had been modified to shoot only blanks, because it could be easily converted to fire live ammunition with no special tools. Ward v. State, 64 Ark. App. 120, 981 S.W.2d 96 (1998).

Court did not err in declining to direct a verdict on the charges of felon in possession of a firearm and simultaneous possession of drugs and a firearm because the firearm in question met the statutory definition of firearm under this section; hence, defendant's convictions were upheld. Hunt v. State, 354 Ark. 682, 128 S.W.3d 820 (2003).

Jury Instructions.

The trial court did not err in refusing to instruct the jury on the statutory definition of “sawed-off shotgun” where such definition was not enacted at the time of the offense. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997).

Prosecutor did not clearly and unequivocally misstate the state's burden of disproving self-defense beyond a reasonable doubt during voir dire and, therefore, the trial court did not manifestly abuse its discretion by failing to instruct the jury not to consider same; the prosecutor relied on the Arkansas Model Jury Instructions — Criminal as the basis for the definition and explanation of proof beyond a reasonable doubt and his statements to the jury about conflicting testimony were not technically incorrect, however, his statements represented a subtle attempt to shift the burden of proof by equating defendant's burden of proof with the state's burden. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003), cert. denied, Anderson v. Arkansas, 540 U.S. 1050, 124 S. Ct. 832 (2003), appeal dismissed, — Ark. —, — S.W.3d —, 2006 Ark. LEXIS 109 (Jan. 12, 2006), dismissed, Anderson v. Norris, — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 10114 (E.D. Ark. Feb. 8, 2008).

Person.

District court concluded that the Arkansas Supreme Court would extend its decision in Aka, which held that wrongful death suits could be brought on behalf of unborn, viable fetuses, to allow a negligence suit to be filed on a child's behalf, seeking to recover for alleged negligently inflicted injuries that the child sustained in utero. The district court noted that the state supreme court had found persuasive the state legislature's decision to expand the definition of “person” in the homicide and probate laws, subdivision (13)(B)(i)(b) of this section, § 28-1-118(a), to include viable fetuses, thereby giving statutory protection to unborn children, and that it would be absurd to think that less protection would be provided under Arkansas law to children who suffered in utero injury, but nevertheless managed to be born. Crussell v. Electrolux Home Prods., 499 F. Supp. 2d 1137 (W.D Ark. 2007).

Arkansas Criminal Code expressly limits criminalizing conduct with respect to an unborn child to homicide offenses, and even then, does not allow a mother to be charged or convicted of any homicide offense while her child is in utero. Therefore, a conviction under § 5-13-210 for introduction of a controlled substance into the body of another person based on defendant's ingestion of drugs while pregnant could not stand. Arms v. State, 2015 Ark. 364, 471 S.W.3d 637 (2015).

In a death penalty case, defendant's argument that the circuit court erred in permitting the jury to consider the death of the victim's unborn child as an aggravating circumstance under § 5-4-604 was abandoned below and could not be raised on appeal because defendant did not conclusively show prejudice, and he failed to show that the Supreme Court would unquestionably grant him Rule 37 relief on the issue. Smith v. State, 2018 Ark. 277, 555 S.W.3d 881 (2018).

Wicks exception for matters essential to consideration of the death penalty did not apply to the circuit court's failure to bring to the jury's attention that a “person” could not be an unborn child as it applies to the aggravating circumstances listed in § 5-4-604; while the prosecutor chose not to file a separate homicide charge for the death of the victim's unborn child, he could have. Smith v. State, 2018 Ark. 277, 555 S.W.3d 881 (2018).

Physical Injury.

Evidence was insufficient to establish that victim's physical condition was impaired or that victim was inflicted with substantial pain. Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983), superseded by statute as stated in, Conner v. State, 75 Ark. App. 418, 58 S.W.3d 865 (2001); Hundley v. State, 22 Ark. App. 239, 738 S.W.2d 107 (1987); Johnson v. State, 28 Ark. App. 256, 773 S.W.2d 450 (1989).

Injuries were sufficient to demonstrate that there was “substantial pain” within the meaning of subdivision (14). Middleton v. State, 14 Ark. App. 92, 685 S.W.2d 182 (1985); Armstrong v. State, 35 Ark. App. 188, 816 S.W.2d 620 (1991).

In determining whether an injury inflicts substantial pain for purposes of subdivision (14), the trier of fact must consider all of the testimony and may consider the severity of the attack and the sensitivity of the area of the body to which the injury is inflicted; the finder of fact is not required to set aside its common knowledge and may consider the evidence in the light of its observations and experiences in the affairs of life. Holmes v. State, 15 Ark. App. 163, 690 S.W.2d 738 (1985); Cole v. State, 33 Ark. App. 98, 802 S.W.2d 472 (1991).

Where the two-year old victim had bite marks on her buttocks and pinch marks and apparent fingerprints on her face, and there was testimony by the babysitter that the child appeared to be terrified of the defendant, the jury could reasonably find that the infliction of the bruises was accompanied by the infliction of substantial pain and the victim suffered “physical injury.” Spencer v. State, 17 Ark. App. 149, 705 S.W.2d 454 (1986).

Fact that victim does not verbalize his pain is not conclusive as to whether substantial pain has been inflicted. Cole v. State, 33 Ark. App. 98, 802 S.W.2d 472 (1991).

Evidence was sufficient to show that the victim sustained a physical injury, even though she was not hospitalized, where she testified that she was stabbed in the shoulder, back, and arm and that the knife penetrated the muscle in her shoulder area, that she felt faint and “felt this warmness run down my body,” that she was scarred as a result of the attack, and that she continued to receive treatment for those scars. Farrelly v. State, 70 Ark. App. 158, 15 S.W.3d 699 (2000).

In determining whether a “physical injury” occurred, the trier of fact may consider the sensitivity of the area of the body to which the injury is inflicted and the severity of the attack; thus, where victim testified that defendant beat him repeatedly with a steel pipe, resulting in his face and nose being “busted up” as well as considerable facial bleeding, the trial court did not err in finding that defendant's purpose was to inflict substantial pain with the pipe. Stultz v. State, 92 Ark. App. 204, 212 S.W.3d 42 (2005).

Defendant's suspended sentence was properly revoked under § 5-4-309(d), where the state proved that defendant committed third-degree domestic battery under § 5-26-305(a), by showing that defendant inflicted physical injury under subdivision (14) of this section by pulling his wife's hair and throwing her against a vehicle. Andrews v. State, 2009 Ark. App. 624 (2009).

During a hearing on the state's petition to revoke a defendant's suspended sentence, defendant admitted that he slapped his pregnant wife and a responding officer testified to a personal observation of the swollen knot on the wife's cheek and knot over the wife's right eye from being hit; this evidence was sufficient to find that defendant inexcusably violated a condition of that suspension and that defendant had committed the offense of domestic battery in the third degree. May v. State, 2009 Ark. App. 703 (2009).

Teacher's testimony alone was sufficient evidence of physical injury to support defendant juvenile's adjudication for second degree in violation of § 5-13-202 for striking the teacher in the arm because the teacher testified that after appellant hit her, the pain she suffered in her arm was of a sufficient nature to cause her to seek medical treatment, and she also testified that her arm was “very sore” for at least a week; while medical treatment is not required in order to establish a physical injury, the fact the pain was of a sufficient nature to cause the victim to seek medical care constitutes evidence that she experienced “substantial pain.” M.T. v. State, 2009 Ark. App. 761, 350 S.W.3d 792 (2009).

Revocation of defendant's suspended imposition of sentence for two felony convictions was appropriate because the circuit court's finding that she committed third-degree domestic battering and thus violated the condition that she break no laws, was not clearly against the preponderance of the evidence. The testimony was sufficient to prove that, either purposefully or recklessly, she struck her nephew and caused him physical injury in the form of substantial pain under § 5-26-305(a) and subdivision (14) of this section. Westbrook v. State, 2011 Ark. App. 615 (2011).

Suspension of an earlier sentence was properly revoked because defendant committed domestic battery in the third degree where an infant child suffered an arm fracture in defendant's care, and a medical examination revealed healing fractures other places; moreover, there was evidence that other injury incidents had occurred while the child was in defendant's care, and there was testimony that defendant was too rough with the child. The standard for reckless was what a reasonable person in the circumstances would have observed. Singletary v. State, 2013 Ark. App. 699 (2013).

Evidence was sufficient to support the revocation of a probationary sentence based on defendant's commission of domestic battering in the third degree. Defendant's boyfriend reported the incident to police, and photographs of his injuries were admitted into evidence without objection; defendant did not contest that her boyfriend was a household member or that his injuries met the statutory definition of “physical injury”, and the boyfriend's testimony was sufficient to show that defendant caused the injuries recklessly or purposefully. Glennon v. State, 2016 Ark. App. 25, 480 S.W.3d 894 (2016).

Evidence supported the second-degree domestic battering conviction under § 5-26-304 where neighbors heard sounds of loud banging and yelling, and defendant beat the child with a leather belt repeatedly for at least five minutes, causing welts and lashings. Jefferson v. State, 2017 Ark. App. 492, 532 S.W.3d 75 (2017).

Circuit court did not err in denying defendant's motion for directed verdict on the charge of battery in the second degree because the victim, a jailer, testified he suffered an abrasion on his forehead during the altercation with defendant; scratches and abrasions are sufficient to meet the definition of physical injury, and the jury was entitled to give credit to the victim's testimony. Chambers v. State, 2020 Ark. App. 54, 595 S.W.3d 371 (2020).

Possess.

Possession (possess) as defined in this section concerns the actual dominion, control or management and includes constructive possession with knowledge of presence and control of the substance, rather than literal or physical possession. Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981).

Possession excludes a passing control, fleeting and shadowy in nature; however, this exclusion does not insulate from prosecution those who seek to dispose of contraband upon discovering that the police are approaching. Turner v. State, 24 Ark. App. 102, 749 S.W.2d 339 (1988).

Evidence was sufficient to support defendant's conviction of possession of drug paraphernalia with intent to manufacture because the jury could reasonably conclude that defendant constructively possessed the paraphernalia with intent to manufacture where defendant owned the property jointly with his wife, defendant was the only person in the house when the police arrived, and defendant admitted to the officers that the methamphetamine lab in the home was his. Cantrell v. State, 2009 Ark. 456, 343 S.W.3d 591 (2009).

When a rape victim testified at defendant's probation revocation hearing that he had a gun at the time of the rape, that testimony was sufficient for the court to find that he had possessed a firearm within the meaning of § 5-73-103(a)(1) and subdivision (15) of this section. Craig v. State, 2010 Ark. App. 309 (2010).

Evidence that there was a funnel, plastic tubing, coffee filters, camp fuel, syringes, gloves, a metal spoon, a smoking device, a bag of ammonia nitrate, and a pill crusher in the master bedroom of defendant's home, along with a burn barrel in the back yard, was sufficient to support a conviction for possession of paraphernalia with intent to manufacture. Gowen v. State, 2011 Ark. App. 761, 387 S.W.3d 230 (2011).

Evidence supported the State's assertion that the cocaine was found in a place immediately and exclusively accessible to defendant and was subject to his control, as the container with the cocaine was found clearly visible in the passenger seat of defendant's car, and he was alone. Although defendant claimed he had no knowledge of the container and that another person had been a passenger, the circuit court did not find his testimony to be credible. Clark v. State, 2015 Ark. App. 679, 477 S.W.3d 544 (2015).

State did not have to prove that defendant physically held the contraband because he had constructive possession of the contraband; all of the contraband was immediately accessible to defendant and in his exclusive control as the only occupant of the vehicle. Thus, counsel's no-merit brief was proper and his motion to be relieved was granted because counsel correctly asserted that there could be no meritorious challenge to the trial court's determination that defendant was in possession of the firearm, methamphetamine, and drug paraphernalia. Gill v. State, 2017 Ark. App. 22, 511 S.W.3d 865 (2017).

Evidence was sufficient to convict defendant of possession of three controlled substances because the substances were all found in a boot owned by defendant in the bed of his pickup truck; and there was no evidence that anyone else was in the truck or exercised any form of control over the truck. Vonholt v. State, 2018 Ark. App. 53, 540 S.W.3d 312 (2018).

Purposely.

Evidence presented was substantial enough that the jury did not have to resort to conjecture to convict defendant of first-degree murder, given in part that witnesses testified that defendant and the victim had been fighting, and although defendant claimed self-defense, the victim was shot in the head, which supported the idea that the victim was shot intentionally, not during a struggle for defendant's life. Toombs v. State, 2015 Ark. App. 71, appeal dismissed, 2015 Ark. 471 (2015).

Reasonable Belief.

Because a juvenile's father had not resorted to use of a deadly weapon during an argument, because there had been an interlude of approximately five minutes since their last confrontation, because the father, at the time he was struck, had turned away from the juvenile, and because the juvenile did not testify as to whether the juvenile's beliefs were reasonable, the juvenile lacked justification under subdivision (18) of this section and §§ 5-2-606(a)(1), 5-2-607(a)(1), (2), and was properly adjudicated as a delinquent for second-degree domestic battering. D.W. v. State, 2011 Ark. App. 187 (2011).

Serious Physical Injury.

Issue as to whether the victim's injuries constituted a temporary or protracted impairment of a function of a bodily member or organ was for resolution by the jury. Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976).

Serious physical injury, as defined in this section, meets the constitutional standards for definiteness and is not vague or overbroad since it states the extent of harm that the victim must endure in order for the injury to constitute a “serious physical injury.” Lum v. State, 281 Ark. 495, 665 S.W.2d 265 (1984).

Evidence was sufficient to support a finding of serious physical injury. Lum v. State, 281 Ark. 495, 665 S.W.2d 265 (1984); Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990); Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991); Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996).

Where defendant held child-victim's hands under hot water long enough to cause second- and third-degree burns, victim suffered a “serious physical injury” as defined in subdivision (19) of this section, but where defendant lacked the mental state required for first-degree battery, defendant was guilty of second-degree battery. Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994).

Where victim was hit repeatedly in the head and face with defendant's fist, was kicked repeatedly, has a permanent scar on her forehead, remained in the emergency room for three and one half hours, and subsequently remained in the hospital for thirty-six to forty-eight hours, there was substantial evidence to support defendant's conviction for second degree battery. Black v. State, 50 Ark. App. 42, 901 S.W.2d 849 (1995).

There was substantial evidence that defendant acted with the purpose to cause serious physical injury to the victim under circumstances manifesting extreme indifference to the value of human life where he kicked the victim in the head repeatedly after the victim was down. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000).

Defendant caused “serious physical injury” to his wife, as defined in subdivision (19), where he shot her in the buttocks and the bullets pierced her small intestine, causing her to spend nine days in the hospital. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001).

No serious injury under § 5-13-102(19) or 5-13-201(a)(1), or injury by means of a firearm under § 5-13-201(a)(7), was shown where defendant hit the victim with the butt of a pistol because the injury did not require stitches and because striking a person in such a manner did not constitute injury to another person by means of a firearm under § 5-13-201(a)(7); rather, the injury was covered by § 5-13-202(a)(1). Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003).

Officer's testimony that when he opened the side door and looked in the driver's seat he observed a .22 Derringer pistol in plain view, which was loaded with two rounds, constituted substantial evidence that the .22 pistol was a firearm within the meaning of subdivision (6) of this section. Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003).

Where the victim, a child, was bathed by defendant and received second-degree burns, the physicians at the hospital determined that the child had sustained an intentionally-inflicted immersion injury in which she was forcibly held in position while immersed in scalding water, and the child still bore scars from the incident two years later, there was substantial evidence to show that the victim sustained a serious physical injury as required by subdivision (19), and defendant's conviction for first degree battery under § 5-13-201(a)(6) was proper. Britt v. State, 83 Ark. App. 117, 118 S.W.3d 140 (2003).

Evidence was sufficient to show that defendant acted “under circumstances manifesting extreme indifference to the value of human life” and to sustain his conviction for first degree battery because defendant admittedly placed a child in a tub of water so hot that it severed the skin from his feet, and defendant's own statements, although inconsistent, supported the conclusion that he knew that it was his responsibility to properly supervise the child during a bath and to ensure a safe water temperature and that he consciously disregarded the risks involved. Bell v. State, 99 Ark. App. 300, 259 S.W.3d 472 (2007).

Where defendant stepped out of his motel room and fired a .45 caliber semiautomatic pistol through the windshield of a nearby car, striking all three occupants and killing two of them, the evidence was sufficient to support defendant's conviction of committing a terroristic act under § 5-13-310(a)(1)(A) and (B) as to the third victim because the evidence established that the third victim was shot in the foot, and the court rejected defendant's argument that the evidence was insufficient for failing to establish that the victim suffered a “serious physical injury” as that term is defined in subdivision (21) of this section. The evidence was sufficient to establish that the victim suffered a serious physical injury because the victim suffered a gunshot wound from a .45 caliber semiautomatic pistol that was serious enough to warrant emergency medical care, the victim continued to experience pain and tenderness while walking and was often unable to wear shoes due to the lasting effects of the wound, and the victim was unable to participate in activities that he enjoyed before sustaining the injury, such as playing basketball, and had visible scarring from the entry and exit of the bullet; this evidence was sufficient to support the jury's factual finding that the victim suffered a serious physical injury as a result of defendant's actions. Butler v. State, 2009 Ark. App. 695, 371 S.W.3d 699 (2009).

Defendant's conviction for aggravated assault was proper because there was evidence that defendant's conduct created a substantial risk of serious physical injury, as defined in subdivision (21) of this section; defendant hit the victim with the butt of a pistol with sufficient force to knock the victim down, breaking facial bones and causing the victim's eye to swell shut. Pitts v. State, 2012 Ark. App. 228 (2012).

During parents' trial for first-degree battery against their infant, the court did not err in refusing to instruct the jury on the lesser-included offense of third-degree battery because the physical injury the infant sustained could only be described as serious under subdivision (21) of this section; the infant was severely malnourished to the point of starvation and death would have occurred within days without medical attention. Bruner v. State, 2013 Ark. 68, 426 S.W.3d 386 (2013).

Trial court did not err in denying defendant's motion for a directed verdict on the aggravated-robbery offense as the State presented evidence that the victim suffered serious physical injury; as a result of the attack, the victim had little control over his right side, suffered partial memory loss, was confined to a wheelchair, and would require constant care for the rest of his life. Britt v. State, 2015 Ark. App. 456, 468 S.W.3d 285 (2015).

Sufficient evidence supported defendant's aggravated assault conviction, given that defendant had beaten the victim repeatedly while she was bound in such a position that she had to hold her head up in order not to choke, photographs depicted serious injuries to her face, head, and neck, and defendant threatened to kill her and talked about disposing of her body. Reynolds v. State, 2016 Ark. 214, 492 S.W.3d 491 (2016).

Conviction for aggravated residential burglary was reversed because there was insufficient evidence that defendant attempted to inflict a serious physical injury under § 5-39-204(a)(2). Serious physical injury could be inflicted during a sexual assault, but under current Arkansas law, a sexual assault does not necessarily constitute a serious physical injury; even assuming that defendant did intend to sexually assault the victim, defendant's intention, combined with his grabbing her shoulder and causing a minor scratch to her baby's face, did not constitute a substantial step under § 5-3-201 toward inflicting a serious physical injury, as defined by this section. Inskeep v. State, 2016 Ark. App. 135, 484 S.W.3d 709 (2016).

Evidence was sufficient to show that a baby sustained a serious physical injury for purposes of § 5-13-201(a)(9) where the medical testimony described the skull fracture, the pain potentially caused by the subdural bleeding, and the greater risk of developing further complications. Suchey v. State, 2016 Ark. App. 225, 490 S.W.3d 320 (2016).

Evidence was sufficient to convict defendant of unlawful discharge of a firearm from a motor vehicle and battery as the victim suffered a serious physical injury. The victim testified that he received three gunshot wounds, was hospitalized, lost a kidney, and suffered further infections as a result of the wound; and the victim's injury caused protracted impairment of his health as the victim testified about the complications that resulted in infection and required him to return to the hospital, receive antibiotics, and have drainage tubes placed in his body. Johnson v. State, 2017 Ark. App. 71, 510 S.W.3d 298 (2017).

Trial court did not abuse its discretion in ruling that defendant, charged with first-degree battery, was not entitled to a second-degree battery instruction under § 5-13-202(a)(1) because defendant provided no rational basis for a second-degree battery instruction, as (1) the victim's bullet wounds creating a substantial risk of death were a serious injury, (2) defendant's claim that the victim's injury was not serious was no basis for the instruction, as first- and second-degree battery both required a serious physical injury, and (3) evidence that defendant shot the victim in the neck and in the back as the victim fled showed intent to inflict serious physical injury. Dixon v. State, 2019 Ark. 245, 581 S.W.3d 505 (2019).

Cited: Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977); France v. State, 262 Ark. 193, 555 S.W.2d 225 (1977); Rust v. State, 263 Ark. 350, 565 S.W.2d 19 (1978); Sbabo v. State, 264 Ark. 497, 572 S.W.2d 585 (1978); Fink v. State, 265 Ark. 865, 582 S.W.2d 3 (1979); Killman v. State, 274 Ark. 422, 625 S.W.2d 489 (1981); Kendrick v. State, 6 Ark. App. 427, 644 S.W.2d 297 (1982); Hall v. State, 11 Ark. App. 53, 666 S.W.2d 408 (1984); Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986); Lair v. State, 19 Ark. App. 172, 718 S.W.2d 467 (1986); Henderson v. State, 291 Ark. 138, 722 S.W.2d 842 (1987); Shells v. State, 22 Ark. App. 62, 733 S.W.2d 743 (1987); Johnson v. State, 26 Ark. App. 286, 764 S.W.2d 621 (1989); Campbell v. State, 300 Ark. 606, 780 S.W.2d 567 (1989); Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991); Enoch v. State, 37 Ark. App. 103, 826 S.W.2d 291 (1992); Anderson v. State, 312 Ark. 606, 852 S.W.2d 309 (1993); Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994); Hagen v. State, 47 Ark. App. 137, 886 S.W.2d 889 (1994); Forrest v. Ford, 324 Ark. 27, 918 S.W.2d 162 (1996); Sykes v. State, 57 Ark. App. 5, 940 S.W.2d 888 (1997); Beulah v. State, 352 Ark. 472, 101 S.W.3d 802 (2003); McCoy v. Crumby, 353 Ark. 251, 106 S.W.3d 462 (2003); Wells v. State, 93 Ark. App. 106, 217 S.W.3d 1455 (2005); Kale v. Ark. State Med. Bd., 367 Ark. 151, 238 S.W.3d 89 (2006); Autrand v. State, 2010 Ark. App. 245 (2010); Stalnaker v. State, 2014 Ark. App. 412, 437 S.W.3d 700 (2014); Coger v. State, 2017 Ark. App. 466, 529 S.W.3d 640 (2017); Wade v. State, 2017 Ark. App. 157, 516 S.W.3d 772 (2017); Caldwell v. State, 2018 Ark. App. 588, 565 S.W.3d 539 (2018).

5-1-103. Applicability to offenses generally.

  1. The provisions of the Arkansas Criminal Code govern a prosecution for any offense defined by the Arkansas Criminal Code and committed after January 1, 1976.
  2. Unless otherwise expressly provided, the provisions of the Arkansas Criminal Code govern a prosecution for any offense defined by a statute not part of the Arkansas Criminal Code and committed after January 1, 1976.
    1. The provisions of the Arkansas Criminal Code do not apply to the prosecution for any offense committed prior to January 1, 1976.
    2. An offense committed prior to January 1, 1976, shall be construed and punished in accordance with the law existing at the time of the commission of the offense.
    1. A defendant in a criminal prosecution for an offense committed prior to January 1, 1976, may elect to have the construction and application of any defense to the prosecution governed by the provisions of the Arkansas Criminal Code.
      1. An election under subdivision (d)(1) of this section shall be made by motion to the court that is to conduct the trial.
        1. The motion shall be timely filed but not later than ten (10) days before the date set for the trial of the case.
        2. However, the court for a good cause shown may entertain the motion at a later time.
  3. When all or part of a statute defining a criminal offense is amended or repealed, the statute or part of the statute that is amended or repealed remains in force for the purpose of authorizing the prosecution, conviction, and punishment of a person committing an offense under the statute or part of the statute prior to the effective date of the amending or repealing act.

History. Acts 1975, No. 280, § 102; A.S.A. 1947, § 41-102.

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Case Notes

Applicability.

The application of subsection (d) is governed by § 5-1-111(c). Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).

Since the Uniform Controlled Substances Act is silent as to procedures for enhanced sentencing in cases involving multiple offenses, this section applies. Prichard v. State, 300 Ark. 10, 775 S.W.2d 898 (1989).

Applicable Law.

Where an offense was committed before the effective date of the criminal code and the defendant did not file a motion electing to have his trial governed by the code, preexisting law was applicable to the defendant's defenses. Johnson v. State, 261 Ark. 714, 551 S.W.2d 203 (1977).

Where defendant was convicted of and sentenced after the passage of the Criminal Code but prior to its effective date, it would have been improper for the trial court to have followed the Criminal Code. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980).

Where crime was committed prior to the effective date of the criminal code, the courts would look to the statute applicable at the time the crime was committed to determine whether the passage of time prevented prosecution of the defendant. Iberg v. Langston, 286 Ark. 390, 691 S.W.2d 870 (1985).

Election.

Court was not required to proceed under the new code where a timely request for the application of the new criminal code as required by subsection (d) had not been made and since no good cause was shown as to why the motion should be entertained at a later time. Clark v. State, 260 Ark. 479, 541 S.W.2d 683 (1976).

Although a defendant in a prosecution for an offense committed prior to the effective date of the code may elect to have the construction and application of any defense to the prosecution governed by code provisions, the state has no election. Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979), overruled in part, Iberg v. Langston, 286 Ark. 390, 691 S.W.2d 870 (1985).

Repealed Statutes.

Defendant convicted on a plea of nolo contendere to sexual misconduct was not entitled to an arrest of judgment; although § 5-14-107, the statute defining sexual misconduct as a criminal offense, was repealed before defendant entered his plea of nolo contendere, the statute was in effect at the time he committed the offense. Holt v. State, 85 Ark. App. 151, 147 S.W.3d 699 (2004).

Cited: Long v. State, 260 Ark. 417, 542 S.W.2d 742 (1976); Butler v. State, 261 Ark. 369, 549 S.W.2d 65 (1977); Walker v. State, 263 Ark. 485, 565 S.W.2d 605 (1978); Thompson v. City of Little Rock, 264 Ark. 213, 570 S.W.2d 262 (1978); Cox v. Hutto, 476 F. Supp. 906 (E.D. Ark. 1979); Mabry v. Klimas, 448 U.S. 444, 100 S. Ct. 2755, 65 L. Ed. 2d 897 (1980); Klimas v. State, 271 Ark. 508, 609 S.W.2d 46 (1980); Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985); Elders v. State, 321 Ark. 60, 900 S.W.2d 170 (1995); Johnson v. State, 331 Ark. 421, 961 S.W.2d 764 (1998); Ark. Dep't of Corr. v. Williams, 2009 Ark. 523, 357 S.W.3d 867 (2009).

5-1-104. Territorial applicability.

  1. A person may be convicted under a law of this state of an offense committed by his or her own or another person's conduct for which he or she is legally accountable if:
    1. Either the conduct or a result that is an element of the offense occurs within this state;
    2. Conduct occurring outside this state constitutes an attempt to commit an offense within this state;
    3. Conduct occurring outside this state constitutes a conspiracy to commit an offense within this state and an overt act in furtherance of the conspiracy occurs within this state;
    4. Conduct occurring within this state establishes complicity in the commission of, or an attempt, solicitation, or conspiracy to commit, an offense in another jurisdiction that is also an offense under the law of this state;
    5. The offense consists of the omission to perform a legal duty imposed by a law of this state based on domicile, residence, or a relationship to a person, thing, or transaction in the state; or
    6. The offense is defined by a statute of this state that expressly prohibits conduct outside the state and the conduct bears a reasonable relation to a legitimate interest of this state and the person knows or should know that his or her conduct is likely to affect that legitimate interest of this state.
  2. When the offense is homicide, either the death of the victim or the physical contact causing death constitutes a “result” within the meaning of subdivision (a)(1) of this section.

History. Acts 1975, No. 280, § 103; A.S.A. 1947, § 41-103.

Case Notes

Jurisdiction.

When reviewing the evidence on a jurisdictional question, the court of appeals need only determine whether there is substantial evidence to support the finding of jurisdiction. Dunham v. State, 315 Ark. 580, 868 S.W.2d 496 (1994).

There was jurisdiction to try and convict defendant of pandering, pursuant to § 5-27-304(a), where he emailed photographs of himself, nude, and other minors engaging in sexual activities from his home in another state to an address in Arkansas; there was jurisdiction pursuant to subdivision (a)(1) of this section because defendant's conduct, as well as the result of his conduct, occurred within Arkansas, where the photos were received. Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003).

Arkansas trial court had jurisdiction over defendant, a Georgia resident, during his trial for theft of property and computer fraud where defendant caused the victim, an Arkansas resident, to access her computer by virtue of his email correspondence for the purpose of obtaining money with a false or fraudulent intent, representation, or promise. Powell v. State, 97 Ark. App. 239, 246 S.W.3d 891 (2007).

Where defendant was tried on alternate theories of capital murder—rape felony murder and child-abuse murder—and a general verdict form was used, and extraterritorial jurisdiction did not extend to the alleged rape that occurred in Missouri, the appellate court was unable to determine which theory the jury based the conviction on and therefore the conviction was reversed. Although death was the consequence or result of the rape, rape is not defined to include death as a consequence, and thus, under the plain language of this section, extraterritorial jurisdiction did not extend to the alleged rape that occurred in Missouri. Torres v. State, 2019 Ark. 101, 571 S.W.3d 456 (2019).

Cited: Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985); Sanders v. State, 312 Ark. 11, 846 S.W.2d 651 (1993).

5-1-105. Offenses — Court authority not limited.

  1. An offense is conduct for which a sentence to a term of imprisonment or fine or both is authorized by statute.
  2. An offense is classified as follows:
    1. Felony;
    2. Misdemeanor; or
    3. Violation.
  3. Nothing in the Arkansas Criminal Code shall be construed to limit the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order, judgment, or decree.

History. Acts 1975, No. 280, § 111; A.S.A. 1947, § 41-111.

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Case Notes

Cited: McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992); Vachon v. City of Fort Smith, 308 Ark. 636, 826 S.W.2d 277 (1992).

5-1-106. Felonies.

  1. An offense is a felony if the offense is designated a felony by:
    1. The Arkansas Criminal Code; or
    2. A statute not a part of the Arkansas Criminal Code.
  2. A felony is classified as follows:
    1. Class Y felony;
    2. Class A felony;
    3. Class B felony;
    4. Class C felony; or
    5. Class D felony.
    1. Any felony defined by a statute not a part of the Arkansas Criminal Code that does not specify the class of the felony or prescribe a limitation on a sentence to imprisonment upon conviction of the felony is a Class D felony.
    2. Any felony defined by a statute not a part of the Arkansas Criminal Code that does prescribe a limitation on a sentence to imprisonment upon conviction of the felony is an unclassified felony.

History. Acts 1975, No. 280, § 112; 1981, No. 620, § 2; A.S.A. 1947, § 41-112.

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Case Notes

Sentence.

If the maximum sentence for an offense was death or confinement in the penitentiary then, even though a lesser sentence was imposed, the offense was deemed a felony. Merritt v. Jones, 259 Ark. 380, 533 S.W.2d 497 (1976) (decision under prior law).

Cited: Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985).

5-1-107. Misdemeanors.

  1. An offense is a misdemeanor if the offense is:
    1. Designated a misdemeanor by the Arkansas Criminal Code;
    2. Designated a misdemeanor by a statute not a part of the Arkansas Criminal Code, except as provided in § 5-1-108; or
    3. Not designated a felony and a sentence to imprisonment is authorized upon conviction.
  2. A misdemeanor is classified as follows:
    1. Class A misdemeanor;
    2. Class B misdemeanor; or
    3. Class C misdemeanor.
    1. Any misdemeanor defined by a statute not a part of the Arkansas Criminal Code that does not specify the class of the misdemeanor or prescribe a limitation on a sentence to imprisonment upon conviction of the misdemeanor is a Class A misdemeanor.
    2. Any misdemeanor defined by a statute not a part of the Arkansas Criminal Code that does prescribe a limitation on a sentence to imprisonment upon conviction of the misdemeanor is an unclassified misdemeanor.

History. Acts 1975, No. 280, § 113; A.S.A. 1947, § 41-113.

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Cross References. Ordinances punishing act made misdemeanor by state law, penalties, §§ 14-55-501, 14-55-502.

Case Notes

Jurisdiction.

According to the plain language of subsection (a) of this section, because a violation of any Arkansas Game and Fish Commission (AGFC) regulation carried a penalty that could include imprisonment but was not designated a felony, the act of violating an AGFC regulation was a misdemeanor; therefore, while the Bickerstaff case set forth a holding that the only penalty for violating the AGFC regulation was a fine, that was an incorrect statement of the law. State v. Herndon, 365 Ark. 185, 226 S.W.3d 771 (2006).

Cited: Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985); Duhon v. State, 299 Ark. 503, 774 S.W.2d 830 (1989).

5-1-108. Violations.

  1. An offense is a violation if the offense is designated a violation by:
    1. The Arkansas Criminal Code; or
    2. A statute not a part of the Arkansas Criminal Code.
  2. Regardless of any designation appearing in the statute defining an offense, an offense is a violation for purposes of the Arkansas Criminal Code if the statute defining the offense provides that no sentence other than a fine, fine or forfeiture, or civil penalty is authorized upon conviction.

History. Acts 1975, No. 280, § 114; A.S.A. 1947, § 41-114.

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Research References

Ark. L. Notes.

Bryan Foster, The Purpose of Criminal Evictions: Applying the Theories of Punishment to Arkansas’ Criminal Eviction Statute, 2018 Ark. L. Notes 1993.

Ark. L. Rev.

Case Note, Harbison v. State: Just Say No to a Usable Amount, 45 Ark. L. Rev. 425.

Case Notes

Cited: Duhon v. State, 299 Ark. 503, 774 S.W.2d 830 (1989); McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992); Vachon v. City of Fort Smith, 308 Ark. 636, 826 S.W.2d 277 (1992); State v. Bickerstaff, 320 Ark. 641, 899 S.W.2d 68 (1995); State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995); State v. Herndon, 365 Ark. 185, 226 S.W.3d 771 (2006); Williams v. State, 2009 Ark. App. 554 (2009).

5-1-109. Statute of limitations.

    1. A prosecution for the following offenses may be commenced at any time:
      1. Capital murder, § 5-10-101;
      2. Murder in the first degree, § 5-10-102;
      3. Murder in the second degree, § 5-10-103;
      4. Rape, § 5-14-103, if the victim was a minor at the time of the offense;
      5. Sexual indecency with a child, § 5-14-110;
      6. Sexual assault in the first degree, § 5-14-124;
      7. Sexual assault in the second degree, § 5-14-125, if the victim was a minor at the time of the offense;
      8. Incest, § 5-26-202, if the victim was a minor at the time of the offense;
      9. Engaging children in sexually explicit conduct for use in visual or print medium, § 5-27-303;
      10. Transportation of minors for prohibited sexual conduct, § 5-27-305;
      11. Employing or consenting to the use of a child in a sexual performance, § 5-27-402;
      12. Producing, directing, or promoting a sexual performance by a child, § 5-27-403; and
      13. Computer exploitation of a child in the first degree, § 5-27-605.
    2. A prosecution may be commenced for a violation of the following offenses, if, when the alleged violation occurred, the offense was committed against a minor, the violation has not been previously reported to a law enforcement agency or prosecuting attorney, and the victim has not reached the age of twenty-eight (28) years of age:
      1. Sexual assault in the third degree, § 5-14-126;
      2. Sexual assault in the fourth degree, § 5-14-127;
      3. Endangering the welfare of a minor in the first degree, § 5-27-205;
      4. Permitting abuse of a minor, § 5-27-221; and
      5. Computer child pornography, § 5-27-603.
    3. A prosecution for arson, § 5-38-301(a)(1)(G), may be commenced within ten (10) years after the offense was committed.
  1. Except as otherwise provided in this section, a prosecution for another offense shall be commenced within the following periods of limitation after the offense's commission:
      1. Class Y felony or Class A felony, six (6) years.
      2. However, for rape, § 5-14-103, the period of limitation is eliminated if biological evidence of the alleged perpetrator is identified that is capable of producing a deoxyribonucleic acid (DNA) profile;
      1. Except as provided in subdivision (b)(2)(B)(i) of this section, Class B felony, Class C felony, Class D felony, or an unclassified felony, three (3) years.
        1. A prosecution may be commenced for a violation of § 23-66-502 as follows:
          1. Within three (3) years of completion of the last act taken to perpetrate alleged fraud; or
          2. Within five (5) years of any alleged violation of § 23-66-502 involving a motor vehicle purposely used to cause a motor vehicle accident for the purpose of filing an insurance claim.
        2. If a prosecution could not be commenced within the time period prescribed by subdivision (b)(2)(B)(i) of this section because it was not reasonably possible to discover the alleged fraud at the time of the violation, the time period prescribed shall be extended for a period of three (3) years.
        3. The period of limitation under this subdivision (b)(2)(B) may not extend more than ten (10) years after the date of the violation of § 23-66-502;
      1. Misdemeanor or violation, one (1) year.
      2. However:
        1. For failure to notify by a mandated reporter in the first degree, § 12-18-201, and failure to notify by a mandated reporter in the second degree, § 12-18-202, the period of limitation is ten (10) years after the child victim reaches eighteen (18) years of age if the child in question was subject to child maltreatment; and
        2. For a nine-point or greater violation of an Arkansas State Game and Fish Commission regulation or rule, the period of limitation is three (3) years; and
    1. Municipal ordinance violation, one (1) year unless a different period of time not to exceed three (3) years is set by ordinance of the municipal government.
  2. If the period prescribed in subsection (b) of this section has expired, a prosecution may nevertheless be commenced for:
    1. Any offense involving either fraud or breach of a fiduciary obligation, within one (1) year after the offense is discovered or should reasonably have been discovered by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself or herself not a party to the offense; and
      1. Any offense that is concealed involving felonious conduct in office by a public servant at any time within five (5) years after he or she leaves public office or employment or within five (5) years after the offense is discovered or should reasonably have been discovered, whichever is sooner.
      2. However, in no event does this subdivision (c)(2) extend the period of limitation by more than ten (10) years after the commission of the offense.
  3. A defendant may be convicted of any offense included in the offense charged, notwithstanding that the period of limitation has expired for the included offense, if as to the offense charged the period of limitation has not expired or there is no period of limitation, and there is sufficient evidence to sustain a conviction for the offense charged.
    1. For the purposes of this section, an offense is committed either when:
      1. Every element occurs; or
      2. If a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time the course of conduct or the defendant's complicity in the course of conduct is terminated.
    2. Time starts to run on the day after the offense is committed.
  4. A prosecution is commenced when an arrest warrant or other process is issued based on an indictment, information, or other charging instrument if the arrest warrant or other process is sought to be executed without unreasonable delay.
  5. The period of limitation does not run:
      1. During any time when the accused is continually absent from the state or has no reasonably ascertainable place of abode or work within the state.
      2. However, in no event does this subdivision (g)(1) extend the period of limitation otherwise applicable by more than three (3) years; or
    1. During any period when a prosecution against the accused for the same conduct is pending in this state.
  6. If the period prescribed in subsection (b) of this section has expired, a prosecution may nevertheless be commenced for a violation of the following offenses if, when the alleged violation occurred, the offense was committed against a minor, the violation has not previously been reported to a law enforcement agency or prosecuting attorney, and the period prescribed in subsection (b) of this section has not expired since the victim has reached eighteen (18) years of age:
    1. Battery in the first degree, § 5-13-201;
    2. Battery in the second degree, § 5-13-202;
    3. Aggravated assault, § 5-13-204;
    4. Terroristic threatening in the first degree, § 5-13-301;
    5. Kidnapping, § 5-11-102;
    6. False imprisonment in the first degree, § 5-11-103;
    7. Permanent detention or restraint, § 5-11-106; and
    8. Criminal attempt, criminal solicitation, or criminal conspiracy to commit any offense listed in this subsection, §§ 5-3-201, 5-3-202, 5-3-301, and 5-3-401.
  7. If there is biological evidence connecting a person with the commission of an offense and that person's identity is unknown, the prosecution is commenced if an indictment or information is filed against the unknown person and the indictment contains the genetic information of the unknown person and the genetic information is accepted to be likely to be applicable only to the unknown person.
  8. When deoxyribonucleic acid (DNA) testing implicates a person previously identified through a search of the State DNA Data Base or National DNA Index System, a statute of limitation shall not preclude prosecution of the offense.

History. Acts 1975, No. 280, § 104; 1981, No. 620, § 1; A.S.A. 1947, § 41-104; Acts 1987, No. 484, § 1; 1987, No. 586, § 1; 2001, No. 920, § 1; 2001, No. 1780, § 2; 2003, No. 1087, § 8; 2003, No. 1390, § 1; 2005, No. 2250, § 1; 2009, No. 1444, § 1; 2011, No. 698, § 1; 2011, No. 1127, §§ 1, 2; 2013, No. 144, § 1; 2013, No. 1086, § 1; 2015, No. 1009, § 1; 2017, No. 630, § 1; 2017, No. 695, § 1; 2019, No. 315, § 148.

A.C.R.C. Notes. Acts 2001, No. 1780, § 1, provided: “The General Assembly finds that the mission of the criminal justice system is to punish the guilty and to exonerate the innocent. The General Assembly further finds that Arkansas laws and procedures should be changed in order to accommodate the advent of new technologies enhancing the ability to analyze scientific evidence.”

Publisher's Notes. This section may have impliedly repealed Rev. Stat., ch. 45, §§ 250-254, or portions of Rev. Stat., ch. 45, §§ 250-254.

Rev. Stat., ch. 45, § 250, provided that any person could be prosecuted, tried, and punished for any offense punishable with death at any time after the offense was committed. Rev. Stat., ch. 45, § 251, further provided that no person was to be prosecuted, tried, and punished for non-capital felonies, other than certain cases of embezzlement, unless an indictment was found within three years after the commission of the offense. Rev. Stat., ch. 45, § 252, provided that no person was to be tried, prosecuted, and punished for any offense less than felony, or any fine or forfeiture, unless the indictment was found or the prosecution instituted within one year after the commission of the offense or incurring of the fine or forfeiture. Rev. Stat., ch. 45, § 253, added that, in all cases, time in which the defendant was a nonresident was not to constitute part of the limitation of §§ 250-252, and §§ 251 and 252 were not to avail any person who should flee from justice. Finally, Rev. Stat., ch. 45, § 254, provided that when any indictment or prosecution should be quashed, set aside, or reversed, the time during which the indictment or prosecution was pending was not to be computed as part of the time of the limitation prescribed for the offense.

However, in Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979), the Arkansas Supreme Court held that there is no irreconcilable conflict between this section and Rev. Stat., ch. 45, § 251, when the latter is applied only to offenses committed prior to January 1, 1976, the effective date of the Arkansas Criminal Code.

Amendments. The 2009 amendment rewrote (b)(1)(B); substituted “§ 5-27-221” for “§ 5-27-221(a)(1) and (3)” in (h)(15); and rewrote (j).

The 2011 amendment by No. 698 inserted present (b)(4).

The 2011 amendment by No. 1127 added (a)(2); and deleted former (h)(8) through (h)(21) and redesignated the remaining subdivisions accordingly.

The 2013 amendment by No. 144 rewrote (a)(1); deleted former (a)(2)(A), (a)(2)(B), (a)(2)(C), (a)(2)(F), (a)(2)(I) and (a)(2)(N) and redesignated the remaining subsections accordingly.

The 2015 amendment redesignated language in (b)(3)(B) as (b)(3)(B)(i); and added (b)(3)(B)(ii).

The 2017 amendment by No. 630 added (a)(3).

The 2017 amendment by No. 695 redesignated former (b)(2) as (b)(2)(A); added “Except as provided in subdivision (b)(2)(B)(i) of this section” in (b)(2)(A); and added (b)(2)(B).

The 2019 amendment inserted “or rule” in (b)(3)(B)(ii).

Cross References. Physical evidence in sex offense prosecutions — Retention and disposition, § 12-12-104.

Research References

ALR.

Validity, Construction, and Application of State Statutes Eliminating, Extending, or Tolling Statute of Limitations for Sexual Offense When DNA Can Provide Identity of Alleged Perpetrator. 16 A.L.R.7th 7 (2015).

U. Ark. Little Rock L.J.

Davis, Survey of Arkansas Law: Criminal Law, 2 U. Ark. Little Rock L.J. 193.

DeSimone, Survey of Criminal Law, 3 U. Ark. Little Rock L.J. 191.

Survey — Criminal Law, 10 U. Ark. Little Rock L.J. 559.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Survey of Legislation, 2003 Arkansas General Assembly, Criminal Law, Computer Crimes, 26 U. Ark. Little Rock L. Rev. 361.

Case Notes

Applicability.

Where defendant was charged with willfully attempting to evade or defeat the payment of tax, in violation of § 26-18-201(a), and was convicted of failure to pay tax, in violation of § 26-18-202, the six-year statute of limitations under § 26-18-306(j) was applicable rather than the more general three-year limitations period under subdivision (b)(2) of this section; section 26-18-306(j) specifically provides a six-year limitations period for prosecutions for any of the various criminal offenses arising under the provisions of any state tax law, and it is a well-settled principle of law that a general statute does not apply when a specific one governs the subject matter. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003).

Where defendant was convicted for failing to pay child support for six years, subdivision (b)(2) of this section did not limit the restitution order to three years because the statute limited prosecutions, not restitution. Hampton v. State, 357 Ark. 473, 183 S.W.3d 148 (2004).

Aggrieved Party.

The “aggrieved party” in a criminal context is the victim of the crime. State v. Switzer, 305 Ark. 158, 806 S.W.2d 368 (1991).

The state or public is the “aggrieved party” with respect to offenses of public servant bribery and hindering apprehension or prosecution. State v. Switzer, 305 Ark. 158, 806 S.W.2d 368 (1991).

Arrest Warrant, Other Process, Etc.

A traffic citation is embraced within the statutory term “other charging instrument” that is required in initiating a prosecution; where citation is delivered immediately following arrest, the one-year limitation on misdemeanor charges is not applicable. Thompson v. City of Little Rock, 264 Ark. 213, 570 S.W.2d 262 (1978).

Arrest warrant held invalid as being both defective and “stale.” Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980).

Authority of Court.

The one year allowed for prosecution of misdemeanors is more than an ordinary statute of limitations as it goes to the court's power to try the case. McIlwain v. State, 226 Ark. 818, 294 S.W.2d 350 (1956) (decision under prior law).

Where the offense did not fall within any of the exceptions provided in the former provision, similar to subsection (c), the peace court was without jurisdiction to try defendant for the offense where a warrant was not issued within the statutory period after the alleged commission of the offense. Savage v. Hawkins, 239 Ark. 658, 391 S.W.2d 18 (1965) (decision under prior law).

Inmate's appeal from the denial of his petition for a writ of habeas corpus was dismissed as the inmate could not state grounds on which to maintain his petition; appellate court rejected inmate's claim that the trial court did not have jurisdiction to charge him for the underlying conviction of rape of a person less than fourteen years old because inmate was charged within five years of the victim's 18th birthday and, therefore, was within the statute of limitations set forth in subdivisions (b)(1) and (h) of this section. Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006).

Burden of Proof.

State must prove that the offense was committed within the statutory period or else that the running of the statute has been suspended. James v. State, 110 Ark. 170, 160 S.W. 1090 (1913) (decision under prior law).

Commencement of Prosecution.

Defendant's prosecution for murder held not invalidated by delay between the commission of the offense and his arrest. Beckwith v. State, 238 Ark. 196, 379 S.W.2d 19 (1964) (decision under prior law).

No harm came to the defendant's defense as a result of the delay between the date the offense occurred and the date charges were filed since the charges were filed well within the statute of limitations. Alexander v. State, 257 Ark. 343, 516 S.W.2d 368 (1974) (decision under prior law).

Where, although the statute of limitations had not run, there was a delay in filing the charge or initiating prosecution and there was consequent prejudice to the defense, the charge would be dismissed unless the state could demonstrate a satisfactory reason for the delay. Scott v. State, 263 Ark. 669, 566 S.W.2d 737 (1978).

Where, although the action was commenced within the statutory time limit, there was a delay in filing charges or initiating prosecution and there was no indication that the prosecution delayed in order to gain a tactical advantage, the state did not create prejudicial error in failing to bring charges against the defendants at an earlier date. Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984).

Circuit court did not err in dismissing the charge of theft of property by deception under § 5-36-103(a)(2) as barred by the statute of limitations because, contrary to the State's contention, the offense did not constitute a continuing offense. Defendant knowingly obtained the victim's property by deception, with the purpose of depriving the victim of the property, when the victim made wire transfers into an account controlled by defendant. Therefore, the statute of limitations began to run with the transfers and the limitations period expired before the prosecution commenced. State v. Gray, 2016 Ark. 411, 505 S.W.3d 160 (2016).

Trial court erred in its interpretation of this section and its conclusion that the prosecution of the misdemeanor negligent-homicide case had not commenced within the applicable limitations period; although the charging documents were filed after the limitations period, the arrest warrant was issued within the limitations period. State v. Ledwell, 2017 Ark. 252, 526 S.W.3d 1 (2017).

The one-year statute of limitation applicable to misdemeanor charges did not bar conviction where the prosecution was commenced when the arrest warrant was issued, based upon the information filed that same date, and because this occurred well within the period of one year from the date the offense was committed. Deweese v. State, 26 Ark. App. 126, 761 S.W.2d 945 (1988).

The offense of theft of public benefits is a continuing offense and, therefore, the statute of limitations had not expired when the prosecution of the defendant was commenced, even though the defendant completed two of her applications for public benefits more than three years before the prosecution commenced and even though the record did not establish exactly when she received the first illegal benefits, as the prosecution was commenced within three years of her last application. Scott v. State, 69 Ark. App. 121, 10 S.W.3d 476 (2000).

A prosecution was properly commenced on January 23, 1997, where an information was filed and a summons issued on that date, notwithstanding that the defendant did not make her first appearance until November 10, 1997, as the delays in executing the summons were reasonable. Scott v. State, 69 Ark. App. 121, 10 S.W.3d 476 (2000).

Under subsection (h) of this section, the statute of limitations was extended for felonies such as rape up to six years beyond the eighteenth birthday of the victim and, for felonies such as first-degree sexual abuse, up to three years beyond the eighteenth birthday of the victim, regardless of the victim's age at the time of the offense. Gardner v. State, 76 Ark. App. 258, 64 S.W.3d 761 (2001).

The passage of subsection (h) of this section extended the statute of limitations for offenses involving minors and applied retroactively to allow prosecution of certain offenses involving child victims. Dye v. State, 82 Ark. App. 189, 119 S.W.3d 513 (2003).

Trial court did not err in denying defendant's motion dismiss or motion for a directed verdict as felony nonsupport was a continuing offense and defendant was charged within three years of committing the offense. Morris v. State, 88 Ark. App. 251, 197 S.W.3d 41 (2004).

Subdivision (c)(1) of this section permitted prosecution of defendant for thefts of property that occurred outside the three-year statute of limitations because defendant committed fraud by using her position handling the payroll for her employer to steal tens of thousands of dollars and the fraud was discovered less than one year before the criminal proceedings were initiated. Leek v. State, 2012 Ark. App. 699 (2012).

Because the State did not file charges for sexual abuse in the fourth degree against defendant within three years of the alleged victim's eighteenth birthday pursuant to a former version of this section, reversal of the judgment as to those charges and dismissal of defendant's convictions was mandated. Bynum v. State, 2017 Ark. App. 41, 511 S.W.3d 860 (2017).

Continuing Crime.

Where defendant was convicted for failing to pay child support for six years, subdivision (b)(2) of this section did not bar the prosecution for the failure to pay support more than three years before defendant was charged because nonsupport was a continuing crime. Hampton v. State, 357 Ark. 473, 183 S.W.3d 148 (2004).

Trial court did not err in denying defendant's motion to dismiss two charges for theft of property in excess of $2,500 on the ground that the charges were barred by the three-year statute of limitations in subdivision (b)(2) of this section because the amended information was filed within three years of the earliest unauthorized withdrawal from a client's account that was made by defendant, an attorney. Cameron v. State, 94 Ark. App. 58, 224 S.W.3d 559 (2006), appeal dismissed, — Ark. —, — S.W.3d —, 2007 Ark. LEXIS 496 (Sept. 27, 2007).

Trial court erred in denying a father's motion to dismiss a charge of failure to pay child support, a continuing offense, on the ground that the statute of limitations had expired because the date of the crime of nonsupport had to be determined based upon subdivision (b)(3) of this section, prior to its amendment in 1997; the one-year statute of limitations expired several weeks prior to the effective date of the amended version of the statute. Reeves v. State, 374 Ark. 415, 288 S.W.3d 577 (2008).

Prosecution for abuse of a corpse under § 5-60-101(a) was barred by the three-year statute of limitations under subdivision (b)(2) of this section because it was not a continuing-course-of-conduct crime; once defendant disposed of the body parts in a pond, she was no longer physically mistreating the corpse. McClanahan v. State, 2010 Ark. 39, 358 S.W.3d 900 (2010).

Theft by deception under § 5-36-103(a)(2) is generally not a continuing offense. State v. Gray, 2016 Ark. 411, 505 S.W.3d 160 (2016).

Defendant was charged with one crime, theft by receiving under § 5-36-106, which is a continuing offense, and it was not erroneous to aggregate the amount stolen from her employer over a period of time under § 5-36-102(d)(2) and classify the crime as a Class B felony, even though each individual act of acquiring possession did not add up to over $25,000. The last time defendant stole money from her employer was in February 2014, which was well within the time limit for statute of limitations calculations for a Class B felony under this section. Clements v. State, 2020 Ark. App. 175, 594 S.W.3d 922 (2020).

Evidence.

Evidence held sufficient to find that an offense was committed within the statute of limitations. Fain v. State, 189 Ark. 474, 74 S.W.2d 248 (1934); Guise v. State, 198 Ark. 767, 131 S.W.2d 631 (1939) (preceding decisions under prior law).

There was sufficient evidence that the sexual assault against one victim occurred in 2002 and, therefore, was within the three-year statute of limitations of subdivision (b)(2) of this section where the victim testified that defendant, a minister, assaulted her while she was working for the church during the summer of 2002. Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006).

Trial court did not err in denying defendant's motion to dismiss a rape charge based on failure to comply with the statute of limitations. Defendant's argument that the 2001 amendment to subdivision (b)(1)(B) of this section did not apply because there was no showing of an advancement in DNA testing failed. Walker v. State, 2010 Ark. App. 688 (2010).

Homicide.

Since a defendant does not commit the offense of manslaughter until the victim dies, the statute of limitations does not begin to run until that date. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

No Expiration.

Three-year statute of limitations had not run on the failure-to-appear charge. Hall v. State, 2020 Ark. App. 135, 594 S.W.3d 175 (2020).

Public Officer.

The five-year statute of limitations applied where the offense that was concealed involved felonious conduct in office by a public servant. Clark v. State, 308 Ark. 84, 308 Ark. 453, 824 S.W.2d 345 (1992).

Sentences.

No mention is made in this section of a limitation on when a warrant or summons can be issued to show cause why the defendant should not be jailed for failure to pay a fine imposed as a sentence after a conviction for an offense. Basura v. City of Springdale, 47 Ark. App. 66, 884 S.W.2d 629 (1994).

Tolling the Statute.

Where under former similar section, resident referred to a person who was physically present in the state and, where petitioner had not been a resident of the state for part of the time between the commission of an offense and his conviction, the statute of limitations had not run. Grayer v. State, 234 Ark. 548, 353 S.W.2d 148 (1962) (decision under prior law).

The misdemeanor prosecution of defendant was not tolled under subdivision (g)(2) of this section as the state failed to file an information relating to the defendant's felony arrest warrant and, therefore, no felony prosecution was ever commenced. McGrew v. State, 338 Ark. 30, 991 S.W.2d 588 (1999).

Because appellant's forgery offense involved fraud as, for the entire time appellant worked for the employer, she misrepresented her identity as that of another woman, under subdivision (c)(1) of this section, her fraud suspended the statute of limitations until the offense was discovered and the police began their investigation. Barron-Gonzalez v. State, 2013 Ark. App. 120, 426 S.W.3d 508 (2013).

Both the felony negligent-homicide charge and the manslaughter charge arose out of a single action, defendant striking the victim with her car, and thus the filing of the felony negligent-homicide charge tolled the statute of limitations. Blackwell v. State, 2015 Ark. App. 96, 455 S.W.3d 848 (2015).

Waiver.

The limitation provided by former similar section was not waived by failure to plead. Savage v. Hawkins, 239 Ark. 658, 391 S.W.2d 18 (1965) (decision under prior law).

Cited: State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1978); Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979); Iberg v. Langston, 286 Ark. 390, 691 S.W.2d 870 (1985); Mullenax v. Langston, 286 Ark. 470, 692 S.W.2d 755 (1985); Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985); Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988); State v. Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993); Westark Christian Action Council v. Stodola, 312 Ark. 249, 848 S.W.2d 935 (1993); Richmond v. State, 326 Ark. 728, 934 S.W.2d 214 (1996); Clark v. State, 2012 Ark. App. 496, 423 S.W.3d 122 (2012).

5-1-110. Conduct constituting more than one offense — Prosecution.

  1. When the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense. However, the defendant may not be convicted of more than one (1) offense if:
    1. One (1) offense is included in the other offense, as defined in subsection (b) of this section;
    2. One (1) offense consists only of a conspiracy, solicitation, or attempt to commit the other offense;
    3. Inconsistent findings of fact are required to establish the commission of the offenses;
    4. The offenses differ only in that one (1) offense is defined to prohibit a designated kind of conduct generally and the other offense to prohibit a specific instance of that conduct; or
    5. The conduct constitutes an offense defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that a specific period of the course of conduct constitutes a separate offense.
  2. A defendant may be convicted of one (1) offense included in another offense with which he or she is charged. An offense is included in an offense charged if the offense:
    1. Is established by proof of the same or less than all of the elements required to establish the commission of the offense charged;
    2. Consists of an attempt to commit the offense charged or to commit an offense otherwise included within the offense charged; or
    3. Differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish the offense's commission.
  3. The court is not obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him or her of the included offense.
    1. Notwithstanding any provision of law to the contrary, a separate conviction and sentence are authorized for:
      1. Capital murder, § 5-10-101, and any felony utilized as an underlying felony for the capital murder;
      2. Criminal attempt to commit capital murder, §§ 5-3-201 and 5-10-101, and any felony utilized as an underlying felony for the attempted capital murder;
      3. Murder in the first degree, § 5-10-102, and any felony utilized as an underlying felony for the murder in the first degree;
      4. Criminal attempt to commit murder in the first degree, §§ 5-3-201 and 5-10-102, and any felony utilized as an underlying felony for the attempted murder in the first degree; and
      5. Continuing criminal enterprise, § 5-64-405, and any predicate felony utilized to prove the continuing criminal enterprise.
    2. Pursuant to § 5-4-403, with respect to any offense mentioned in subdivision (d)(1) of this section, the trial judge may order that the multiple terms of imprisonment run concurrently or consecutively.

History. Acts 1975, No. 280, § 105; A.S.A. 1947, § 41-105; Acts 1995, No. 657, § 2; 2007, No. 670, § 1; 2009, No. 748, § 1.

A.C.R.C. Notes. Acts 1995, No. 657, § 1, provided:

“It is the intent of the legislature, pursuant to Missouri v. Hunter, 459 U. S. 359 (1983), to explicitly authorize separate convictions, sentences, and cumulative punishments for the offenses specified in Section 2 of this act. Cases such as McClendon v. State, 295 Ark. 303, 748 S. W. 2d 641 (1988), which prohibit separate convictions, sentences, and cumulative punishments for such offenses are hereby overruled.”

Publisher's Notes. Catt v. State, 285 Ark. 691, 691 S.W.2d 120 (1985), which discussed this section in part, was a fictional case written in honor of April Fool's Day and ought not to be relied upon as an official opinion of the Arkansas Supreme Court.

Amendments. The 2009 amendment deleted “and former § 5-64-414” following “§ 5-64-405” in (d)(1)(E).

Research References

ALR.

Propriety of lesser included offense charge in state prosecution of narcotics defendant — Marijuana cases. 1 A.L.R.6th 549.

Propriety of lesser included offense charge in state prosecution of narcotics defendant-Cocaine cases. 2 A.L.R.6th 551.

Ark. L. Rev.

Note, Missouri v. Hunter and the Legislature: Double Punishment Without Double Jeopardy, 37 Ark. L. Rev. 1000.

Note, United States v. Dixon: What Does “Same Offense” Really Mean?, 48 Ark. L. Rev. 709.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

Recent Development: Arkansas Criminal Law — Felony Manslaughter as a Lesser-Included Offense, 60 Ark. L. Rev. 1017.

U. Ark. Little Rock L.J.

Davis, Survey of Arkansas Law: Criminal Law, 2 U. Ark. Little Rock L.J. 193.

Survey — Criminal Law, 10 U. Ark. Little Rock L.J. 137.

Survey — Criminal Law, 12 U. Ark. Little Rock L.J. 183.

Note, Constitutional Law — Goodbye Grady! Blockburger Wins the Double Jeopardy Rematch: United States v. Dixon, 113 S. Ct. 2849, 509 U.S. 688, 125 L. Ed. 2d 556 (1993), 17 U. Ark. Little Rock L.J. 369.

Case Notes

Purpose.

The purpose of this section is to allow a conviction of a lesser included offense when the accused is not convicted of the greater offense. Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983); Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993).

The purpose of this section is to allow a conviction of a lesser included offense when the accused is not convicted of the greater offense and to prohibit an accused from being convicted of more than one offense when the proof required to establish the offense necessarily includes proof of every element of another. Handy v. State, 24 Ark. App. 122, 749 S.W.2d 683 (1988).

Applicability.

Unless an offense is defined as a “continuing course of conduct crime,” this section does not apply. Hagen v. State, 318 Ark. 139, 883 S.W.2d 832 (1994).

A defendant cannot object to a double jeopardy violation until he has actually been convicted of the multiple offenses because it is not a violation of double jeopardy under subsection (a)(1) of this section for the state to charge and prosecute on multiple and overlapping charges; it is only after the jury returns guilty verdicts on both offenses that the trial court is required to determine whether convictions could be entered as to both based on the same conduct. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001).

Trial court did not err in denying defendant's post-conviction motion to dismiss his first-degree battery conviction based on double jeopardy because separate convictions and sentences for criminal attempt to commit murder in the first degree were statutorily authorized, each gunshot wound that defendant inflicted on the victim constituted a separate battery, battery was not a continuing course of conduct, and multiple crimes committed on a single episode could be separately punished. Copeland v. State, 2013 Ark. App. 747 (2013).

Continuing Criminal Enterprise.

Simultaneous convictions and sentences for continuing criminal enterprise and its predicate felony offenses do not violate the protection against multiple punishments for the same offense afforded by the federal and Arkansas constitutional double jeopardy clauses, U.S. Const. Amend. 5 and Ark. Const., Art. 2, § 8. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995).

Based on examination of § 5-64-414 and this section, as amended by Acts 1995, No. 595, the General Assembly intended to authorize separate punishments for violations of § 5-64-414 and the underlying substantive predicate offenses. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995).

Continuing Offenses.

A continuing offense must be a continuous act or series of acts set on foot by a single impulse and operated by an intermittent force. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied, Rowe v. Arkansas, 450 U.S. 1043, 101 S. Ct. 1764 (1981); Watson v. State, 295 Ark. 616, 752 S.W.2d 240 (1988).

Subdivision (a)(5) of this section did not change the common law rule that when the impulse is single only one charge lies, no matter how long the action may continue, however, if successive impulses are separately given, even though all unite in swelling a common stream of action, separate charges lie; the test is whether the individual acts are prohibited or the course of action they constitute is prohibited, if the former, each act is punished separately, if the latter, there can be but one penalty. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied, Rowe v. Arkansas, 450 U.S. 1043, 101 S. Ct. 1764 (1981).

Certain offenses held not to be defined as constituting a course of conduct. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied, Rowe v. Arkansas, 450 U.S. 1043, 101 S. Ct. 1764 (1981).

Acts held not to be one continuous offense so as to prohibit defendant from being convicted of several offenses. Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984).

Rape is not defined as a continuing offense; it is a single crime that may be committed in either of two ways, by engaging in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986).

Where the defendant committed three acts of aggravated robbery separated in point of time and place, there was not a single continuing offense and the trial court did not err in convicting and sentencing him for three offenses. Madewell v. State, 290 Ark. 580, 720 S.W.2d 913 (1986).

Subdivision (a)(5) of this section is not applicable where defendant is charged with two separate offenses and for different conduct for each offense; thus, defendant cannot be charged with several counts for the same continuous crime. Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987).

Aggravated robbery is not a continuing offense. Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987).

Aggravated robbery and aggravated assault, arising from the same incident, overlap. Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988), overruled in part, Matthews v. State, 2009 Ark. 321, 319 S.W.3d 266 (2009).

For subdivision (a)(5) of this section to be applicable, the conduct must be defined as a continuing course of conduct crime. Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987); Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988).

Neither terroristic threatening nor false imprisonment is defined as a continuing offense and, because neither offense is defined as a continuing course of conduct, subdivision (a)(5) of this section has no application. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988).

Neither manslaughter nor second degree battery is specifically defined as a continuing course of conduct. Lawrence v. State, 39 Ark. App. 39, 839 S.W.2d 10 (1992).

The crime of committing a terroristic act is not a continuous course of conduct crime and, therefore, the defendant was properly convicted of three separate terroristic acts where he fired three quick, successive shots into his girlfriend's apartment. McLennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999).

Instructions.

Court held to have acted properly in not giving instruction on lesser included offense. Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976); Walker v. State, 262 Ark. 331, 556 S.W.2d 655 (1977); Hair v. State, 266 Ark. 583, 587 S.W.2d 34 (1979); Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981); Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982); Wood v. State, 287 Ark. 203, 697 S.W.2d 884 (1985).

The trial court is not obligated to charge the jury with respect to an included offense unless there is a rational basis for a possible verdict acquitting the defendant of the offense charged and for convicting of defendant the included offense. Crenshaw v. State, 271 Ark. 484, 609 S.W.2d 120 (Ct. App. 1980); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981); Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983); Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984); Wood v. State, 287 Ark. 203, 697 S.W.2d 884 (1985).

It is not error to refuse to instruct the jury on a lesser included offense where the evidence clearly shows that the defendant is either guilty of the greater offense or innocent. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

Refusal to give correct instruction on a lesser included offense and its punishment when there is testimony furnishing a reasonable basis on which the accused may be found guilty of the lesser offense or where there is the slightest evidence tending to disprove one of the elements of the larger offense is error. Bongfeldt v. State, 6 Ark. App. 102, 639 S.W.2d 70 (1982).

Where there is no evidence tending to disprove one of the elements of the larger offense the court is not required to instruct on the lesser one because, absent such evidence, there is no reasonable basis for finding an accused guilty of the lesser offense. Bongfeldt v. State, 6 Ark. App. 102, 639 S.W.2d 70 (1982).

Trial court erred in failing to give instruction on lesser included offense. Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983); O'Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989).

When the jury convicts a defendant of a serious offense rather than a less serious included offense about which the jury was also instructed, the court's refusal to submit a third offense that is included but is even less serious than the other two cannot be prejudicial. McKinnon v. State, 287 Ark. 1, 695 S.W.2d 826 (1985).

In a prosecution for forgery, the trial court did not err by refusing to instruct the jury on the lesser included offense of criminal attempt to commit forgery; the crime of forgery was complete upon the defendant's being in possession of the forged instrument, upon his attempt to pass the check, or upon his passing of the check, and the defendant was either guilty of forgery or nothing. McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986).

Where the defendant was charged with homicide in the course of a burglary, the failure to instruct on first degree murder was not reversible error because the objection of counsel was that the court should have given the instruction because of evidence, which counsel could not recite, that the defendant entered the victim's residence for a purpose other than to commit a burglary. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986).

A lesser included offense instruction need not be given unless there is a rational basis. Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986); Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992), superseded by statute as stated in, State v. Galyean, 315 Ark. 699, 870 S.W.2d 706 (1994).

In prosecution for rape of his daughter, where defendant's defense was one of complete innocence and that nothing improper occurred between him and his daughter, he was not entitled to jury instructions on the lesser included offenses of carnal abuse in the third degree and sexual misconduct. Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986).

The trial court is not obligated to charge the jury with respect to a lesser included offense when there is no rational basis for the jury to find appellant guilty of a lesser included offense. Tarkington v. State, 313 Ark. 399, 855 S.W.2d 306 (1993).

Subsection (c) of this section does not delegate the decision regarding the propriety of a lesser included offense instruction to the defendant but, rather, requires the trial court to determine whether the proffered instruction concerns a lesser included offense and, if so, whether a rational basis exists for a verdict acquitting the defendant of the greater offense and convicting him of the lesser. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995).

Although there was no evidence to support the lesser-included-offense instruction at the time the instructions were discussed, the court had been alerted by defense counsel that such evidence was forthcoming and should have withheld ruling on the instructions pending presentation of the defense case. Allen v. State, 53 Ark. App. 225, 920 S.W.2d 860 (1996), rev'd, 326 Ark. 541, 932 S.W.2d 764 (Ark. 1996).

In a first-degree battery case, a trial court did not err by refusing to give an instruction on second-degree battery because it was not a lesser included offense; both alternatives given in the proffered instruction required an additional element, serious physical injury, that was not required in the first-degree battery instruction that was given, which only required physical injury when the injury was caused by a firearm. Further, the proffered instruction was not a lesser-included offense because the offense was not an attempt offense, and the proffered instruction did not differ from the offense charged only in the respect that a less serious injury to the same person sufficed to establish the offense's commission. Spight v. State, 101 Ark. App. 400, 278 S.W.3d 599 (2008).

Circuit court did not abuse its discretion in denying defendant's second-degree battery instruction because the offense charged was first-degree battery pursuant to § 5-13-201(a)(3), and the jury was not required to find that defendant employed a firearm in order to convict him of that offense, nor was the jury required to apply the firearm enhancement if it convicted defendant of first-degree battery; the firearm enhancement was not an element of the first-degree-battery offense but was an additional sentence authorized by statute if defendant was convicted of first-degree battery, and the jury determined that defendant employed a firearm during commission of that offense. Reed v. State, 2011 Ark. App. 352, 383 S.W.3d 881 (2011).

Where a defendant appealed his conviction for first-degree battery, a trial court abused its discretion in failing to instruct the jury on third-degree battery since there was some evidence to support such an instruction. The defendant testified that he did not mean to drop the infant on her head and that it was an accident, and an expert offered his opinion that a baby's skull could be fractured by a fall such as the one described by the defendant. Washington v. State, 2014 Ark. App. 122 (2014).

Lesser-Included Offenses.

Where the offense of which defendant was found guilty is a lesser included offense of that offense with which he was charged, he is in no position to complain of being convicted of the lesser crime. France v. State, 262 Ark. 193, 555 S.W.2d 225 (1977).

Offenses held not to be lesser included offenses. McDonald v. State, 266 Ark. 56, 582 S.W.2d 272 (1979); Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984); Collins v. Lockhart, 771 F.2d 1580 (8th Cir. 1985).

Where, in proving a specified offense, there must be proof of the same or less than all the elements required to establish the commission of a greater offense, the specified offense is thus an included offense which falls within the double conviction prohibition of this section, and the double jeopardy prohibition of the Fifth Amendment of the United States Constitution. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981).

Court could include offense as a lesser included offense pursuant to subsection (b). Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981).

Conviction held to be proper under subdivision (b)(3) as a lesser included offense. Slavens v. State, 1 Ark. App. 245, 614 S.W.2d 529 (1981).

Offense held to be a lesser included offense of another offense. Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982); Robinson v. State, 279 Ark. 61, 648 S.W.2d 446 (1983); James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983).

Where an offense requires proof of a fact which is not an element in the proof of another greater offense, the lesser offense is not included in the greater offense. Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983), cert. denied, 472 U.S. 1019, 105 S. Ct. 3482, 87 L. Ed. 2d 617 (1985).

An offense is not a lesser included offense solely because a greater offense includes all of the elements of an underlying offense; the lesser included offense doctrine additionally requires that the two crimes be of the same generic class and that the differences between the offenses be based upon the degree of risk or risk of injury to person or property or else upon grades of intent or degrees of culpability. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

Offenses held to be of a different nature and not of the same generic class and, consequently, one offense was not a lesser offense included within the other. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

Offense held not to be a lesser included offense of another because the two offenses each contain an element that the other does not; therefore, the two crimes do not meet the statutory definition of an included offense since one offense is not established by proof “of the same or less” than the elements required to prove the other greater offense. Henderson v. State, 286 Ark. 4, 688 S.W.2d 734 (1985), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), but see McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), restating the test for determining when an offense is included in another offense Hall v. State, 15 Ark. App. 309, 692 S.W.2d 769 (1985).

When the commission of a criminal offense by definition cannot be established without the commission of any underlying criminal offense, convictions for both offenses are barred by this section. Ward v. State, 20 Ark. App. 172, 726 S.W.2d 289 (1987); Ballew v. State, 298 Ark. 175, 766 S.W.2d 14 (1989).

Since rape and attempted rape are lesser included offenses of capital murder, it was error for the defendant to be convicted and sentenced for attempted rape. Carmichael v. State, 296 Ark. 479, 757 S.W.2d 944 (1988).

Arson is neither a lesser offense included within conspiracy to commit theft by deception nor an “element included offense” of conspiracy to commit theft by deception. Shamlin v. State, 23 Ark. App. 39, 743 S.W.2d 1 (1988), rehearing denied, 23 Ark. App. 39, 744 S.W.2d 405 (1988), cert. denied, Shamlin v. Arkansas, 488 U.S. 863, 109 S. Ct. 163 (1988).

Trial court did not err in refusing to reduce charge to second-degree murder on double jeopardy grounds. Lamb v. State, 23 Ark. App. 115, 743 S.W.2d 399 (1988).

Neither rape nor kidnapping is a lesser included offense of the other, as each involves separate elements, and it is not necessary to prove one offense in order to prove the other. Handy v. State, 24 Ark. App. 122, 749 S.W.2d 683 (1988).

A kidnapping which qualifies as a Class B felony is not a lesser included offense of a kidnapping which constitutes a Class Y felony. Rather, the offense is still kidnapping, even when there is a voluntary, safe release of the victim. Woods v. State, 302 Ark. 512, 790 S.W.2d 892 (1990).

An offense is not a lesser included offense solely because a greater offense includes all the elements of the lesser offense; the lesser included offense doctrine additionally requires that the two offenses be of the same generic class and that the difference between the offenses be based upon the degree of risk or risk of injury to person or property or else upon grades of intent or degrees of culpability. Ritchie v. State, 31 Ark. App. 177, 790 S.W.2d 919 (1990).

Aggravated robbery is not a “lesser included offense” of capital felony murder because robbery and murder are not in the same generic class; however, aggravated robbery is an “element included offense” of capital felony murder because, by statutory definition, capital murder could not be committed without committing aggravated robbery in a case where aggravated robbery is the underlying felony supporting the capital murder charge. Mullins v. State, 303 Ark. 695, 799 S.W.2d 550 (1990).

Rape and first degree battery are separate and distinct crimes with different elements of proof; and neither is a crime which can be subsumed under the other. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991).

Where defendant was convicted of both attempted capital murder, ostensibly the more serious crime, which was a Class A felony, and aggravated robbery, a Class Y felony, the trial court properly set aside the attempted capital murder conviction based on the classification of the crime, rather than whether it was a lesser included offense. Beard v. State, 306 Ark. 546, 816 S.W.2d 860 (1991).

Aggravated and first degree assault are not lesser included offenses of resisting arrest. Enoch v. State, 37 Ark. App. 103, 826 S.W.2d 291 (1992).

Violation of the implied consent law is not a lesser included offense of driving while intoxicated, and the offense of driving while intoxicated is not a lesser included offense of violation of the implied consent law. Frana v. State, 323 Ark. 1, 912 S.W.2d 930 (1996).

In a prosecution for kidnapping, aggravated robbery, and theft of property, the defendant was not entitled to have the jury instructed with regard to false imprisonment as a lesser included offense since his defense was based on a denial of all charges and, thus, his instruction request was inconsistent with his own proof. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000).

There was no double jeopardy violation where a defendant was convicted of both possession with intent to deliver a controlled substance and simultaneous possession of drugs and firearms, notwithstanding that possession of a controlled substance with intent to sell is an included offense within simultaneous possession of a controlled substance and a firearm, since the General Assembly made it clear that it wished to assess an additional penalty for simultaneously possessing controlled substances and a firearm. Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000).

Driving while intoxicated is a lesser included offense of negligent homicide; therefore, the trial court erred in sentencing the defendant separately on that count. Montague v. State, 68 Ark. App. 145, 5 S.W.3d 101 (1999), aff'd, 341 Ark. 144, 14 S.W.3d 867 (2000).

Felony manslaughter is not a lesser included offense of capital felony murder or first-degree felony murder. Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), but see McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), restating the test for determining when an offense is included in another offense.

There was no violation of this section where the defendant was convicted of both manufacturing methamphetamine and possession of methamphetamine with intent to distribute, since the latter crime is not a lesser included offense of the former crime. Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001).

Trial court was not obligated under subsection (c) to instruct the jury on second degree murder as a lesser included offense where there sufficient corroborated testimony and medical evidence supporting a verdict of first degree murder. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002).

Sections 5-27-303(b) and 5-27-403(a) constituted two separate offenses in that the actor and prohibited conduct in § 5-27-303(b) was different from the actor and prohibited conduct in § 5-27-403(a); as a guardian to the child, defendant husband's conduct was prohibited under § 5-27-303(b), and under § 5-27-403(a), defendant was a person who produced, directed, or promoted a website which included photographs depicting the lewd exhibition of the breasts of a female and the genitals or pubic area of the child, who was younger than 17. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003).

Operation of a vehicle without a valid license plate in violation of § 27-14-304 is not a lesser included offense of willfully attempting to evade or defeat the payment of tax, in violation of § 26-18-201(a), and failure to pay tax, in violation of § 26-18-202; it is possible to commit the greater offenses without committing the offense of operating a vehicle without a license plate, and the lesser charge requires proof of an additional element not required under the greater offenses. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003).

Defendant's conviction for first-degree murder was improper where the evidence warranted a manslaughter instruction that should have been presented to the jury; because there was evidence that warranted an instruction on a lesser-included offense, including the fact that the victim shot at defendant first until his gun jammed, it was in error to refuse to give the manslaughter instruction. Whittier v. State, 84 Ark. App. 362, 141 S.W.3d 924 (2004).

Court did not err in refusing to instruct the jury on sexual indecency with a child where it was not a lesser included offense of rape because committing the crime of sexual indecency with a child was not an attempt to commit rape, and the injury or risk of injury was the same for both offenses; specifically, subjecting the victim to deviate sexual activity was the injury or risk of injury for both offenses. Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004).

Because sexual misconduct was not a lesser-included offense of rape, the trial court did not abuse its discretion in denying defendant's proffered lesser-included instructions. McDuffy v. State, 359 Ark. 180, 196 S.W.3d 12 (2004).

Trial court erred in finding defendant guilty of second-degree forgery as it was not a lesser-included offense of first-degree forgery, set forth in the charging instrument and under which the trial proceeded; as provided in § 5-37-201(b) and (c), second-degree forgery requires proof of documents different from those for first-degree forgery and does not meet the requirements of the tests set out in subsection (b) of this section for a lesser-included offense, therefore, they are two separate crimes. Eagle v. State, 92 Ark. App. 328, 213 S.W.3d 661 (2005).

Court did not err in denying an instruction on the lesser-included offense of second-degree murder where defendant was unable to point to any evidence in the record that supported a knowing mental state rather than a purposeful mental state because he proclaimed his innocence throughout the trial and even took the stand in his own defense, denying any involvement in the murder; moreover, the jury was instructed on both capital murder and first-degree murder, but convicted defendant of the greater offense of capital murder. Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005).

Second-degree false imprisonment is not a lesser included offense of kidnapping; thus, instruction on second-degree or first-degree false imprisonment was not required in a kidnapping case. Davis v. State, 365 Ark. 634, 232 S.W.3d 476 (2006).

Circuit court erred in instructing the jury on felony manslaughter as a lesser included offense of capital felony murder, because the “extreme indifference” element was not a culpable mental state relating to a specific homicide victim but merely described the dangerous circumstances generally set in motion by defendant, and since the “extreme indifference” standard was not a mens rea related to a specific victim, it could not support a lesser included offense based on a less culpable mental state; the sole mens rea element in capital felony murder and first degree felony murder related to the underlying felony and not to the homicide itself. Perry v. State, 371 Ark. 170, 264 S.W.3d 498 (2007).

First-degree battery is not a lesser included offense of aggravated robbery as it is not established by proof of the same or less than all of the elements required to prove aggravated robbery. First-degree battery requires proof of the use of a firearm, whereas aggravated robbery does not; aggravated robbery requires proof of a robbery, whereas first-degree battery does not. Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008).

Prohibition against double jeopardy was not violated when defendant was convicted of first-degree battery and aggravated robbery because the elements of the offenses were not the same, and first-degree battery was not a lesser included offense of aggravated robbery. Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008).

Neither § 5-64-401(c)(1) nor § 5-64-403(c)(1)(A)(i) are lesser included offenses of the other pursuant to the terms of subsection (b) of this section because the plain language shows that possession of a controlled substance does not require the simultaneous possession of paraphernalia, and possession of paraphernalia does not require the simultaneous possession of a controlled substance; the elements of the two offenses can be completely exclusive of each other. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008).

Trial court did not err during defendant's trial in refusing to instruct a jury on the lesser offense of sexual assault in the second degree, in violation of § 5-14-125(a)(3)(A)-(B), on one count of rape, in violation of § 5-14-103(a)(3)(A), because sexual assault was not established by proof of the same or less than all of the elements required to establish rape, as required by subsection (b) of this section to be a lesser-included offense. Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54, cert. denied, 558 U.S. 1047, 130 S. Ct. 736, 175 L. Ed. 2d 514 (2009).

Trial court did not err in refusing to instruct the jury on aggravated assault during defendant's trial for aggravated robbery because aggravated assault, in violation of § 5-13-204(a)(1) and (2), was not a lesser-included offense of aggravated robbery pursuant to subdivision (b)(1) of this section as the two offenses required different elements of proof; aggravated assault required proof of circumstances manifesting extreme indifference to the value of human life, whereas aggravated robbery did not require such proof. Matthews v. State, 2009 Ark. 321, 319 S.W.3d 266 (2009).

In a case in which defendant was convicted of simultaneous possession of drugs and firearms and possession of a controlled substance with the intent to deliver and he argued that the latter conviction was a lesser-included offense of the simultaneous-possession charge and that his double-jeopardy rights had been violated because he had been convicted twice of the same crime, the latter conviction did not violate subdivision (a)(1) of this section. Under the Rowbottom decision, convictions for simultaneous possession of drugs and firearms and for possession with the intent to deliver did not violate double-jeopardy rules. Lee v. State, 2010 Ark. App. 224 (2010).

Although there was not substantial evidence to support defendant's convictions for aggravated assault pursuant to § 5-13-204(a) with respect to defendant sideswiping a victim's vehicle on an interstate, under subsection (b) of this section, the evidence would clearly sustain convictions for the lesser-included offense of first degree assault under § 5-13-205(a); the testimony established defendant acted recklessly when he approached the victim's vehicle from the rear, going very fast, and in passing the victim's vehicle on the left, defendant sideswiped the vehicle. Mance v. State, 2010 Ark. App. 472 (2010).

Sexual indecency with a child was not a lesser included offense of sexual assault in the first degree, as sexual indecency with a child required solicitation, which was not required for sexual assault in the first degree, and sexual assault in the first degree required that the sexual conduct occur but not that the defendant solicit the conduct. Sexual indecency with a child requires proof that the victim was less than fifteen years old, whereas sexual assault in the first degree only requires that the victim was less than eighteen years old. Halliday v. State, 2011 Ark. App. 544, 386 S.W.3d 51 (2011).

In a case in which a jury convicted defendant of capital murder in the shooting death of his ex-wife, the trial court properly refused to instruct the jury on reckless manslaughter and negligent homicide. Defendant, who fired once into a residence, mortally striking his ex-wife in the back, offered no rational basis to support giving either instruction on the basis that his actions were reckless or negligent. Jones v. State, 2012 Ark. 38, 388 S.W.3d 411 (2012).

In a criminal trial, the circuit court did not abuse its discretion in denying defendant's request to instruct the jury that second-degree sexual assault under § 5-14-125(a)(3) was a lesser offense included in rape of a person less than fourteen years of age, as defined in § 5-14-103(a)(3)(A), because the offense contained two elements not included in rape: defendant's age and marital status. Therefore, second-degree sexual assault was not a lesser offense included in rape under the tests set forth in subsection (b) of this section. Webb v. State, 2012 Ark. 64 (2012).

Defense counsel was not ineffective for not objecting that defendants' convictions violated double jeopardy under subsection (b) of this section because possession of drug paraphernalia with intent to manufacture methamphetamine was not a lesser-included offense of manufacturing methamphetamine, in violation of § 5-64-101(m). Myers v. State, 2012 Ark. 143, 400 S.W.3d 231 (2012).

Appellant sentenced to 540 months' incarceration for manufacturing a controlled substance, two counts of possession of drug paraphernalia with the intent to manufacture methamphetamine, and failure to appear was not entitled to proceed with an appeal of the decision denying his petition for writ of habeas corpus. The trial court was not without jurisdiction to accept appellant's guilty plea for the charges of possession of drug paraphernalia with intent to manufacture methamphetamine, as it was not a lesser-included offense of manufacturing methamphetamine for purposes of subsection (b) of this section because the offenses do not share the same elements; a conviction for manufacturing methamphetamine requires the State to prove that a defendant is engaged in the production, preparation, propagation, compounding, conversion, or processing of methamphetamine, whereas possession of drug paraphernalia with intent to manufacture methamphetamine requires no such proof. McHaney v. Hobbs, 2012 Ark. 361 (2012).

Jury instruction on the lesser-included offense of attempted aggravated robbery was not warranted because there was no evidence of the offense of attempt under § 5-3-201(a)(2); when appellant stormed out of a retail store's stockroom brandishing a gun and pointing it employees, he actually completed the offense of aggravated robbery. Thomas v. State, 2012 Ark. App. 466, 422 S.W.3d 217 (2012).

In a theft trial, it was not necessary to instruct the jury on the lesser-included offense of attempted theft because defendant clearly exercised unauthorized control over a store's property when he threw it over a fence into an area off the store's parking lot; it was not necessary that defendant also “take” the property to complete the crime. Cole v. State, 2013 Ark. App. 492 (2013).

Circuit court did not abuse its discretion when it declined defendant's request to include a lesser-included-offense jury instruction for second-degree sexual assault; second-degree sexual assault is not a lesser-included offense of rape because it requires proof of two elements that rape does not: defendant's age (18 or over) and defendant's marital status (not married to the victim). Hartman v. State, 2015 Ark. 30, 454 S.W.3d 721 (2015).

Circuit court's decision to revoke defendant's probation based on his committing the crime of manufacturing methamphetamine was not in error; although the evidence was insufficient to show that defendant committed that offense, it was sufficient to support the offense of attempting to manufacture methamphetamine. Atteberry v. State, 2016 Ark. App. 331 (2016).

In a robbery case in which several witnesses testified that defendant shoved a store employee out of the way and swung at another store employee while trying to flee with a money bag, the trial court did not err in denying defendant's request that the jury be instructed on theft as a lesser-included offense of robbery. Cartwright v. State, 2016 Ark. App. 425, 501 S.W.3d 849 (2016).

Theft is not a lesser-included offense of robbery pursuant to subsection (b) of this section. The wrongful appropriation of the victim's property is an essential element of theft, while robbery can be committed without actually taking the property of another, since robbery is defined as employing or threatening to employ physical force upon another with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter. Cartwright v. State, 2016 Ark. App. 425, 501 S.W.3d 849 (2016).

Defendants' argument that the firearm-enhancement statute was a lesser-included offense of any crime for which use of a firearm was an element, thereby making their sentences for the underlying felonies and the firearm enhancements illegal, was unpreserved for review because it was not properly framed as a challenge to an illegal sentence; the argument was a double-jeopardy challenge, and it had already been directly addressed and rejected. Anderson v. State, 2017 Ark. App. 300 (2017).

While the juvenile was charged with second-degree terroristic threatening and the circuit court in effect sua sponte amended the charge when it found the juvenile guilty of second-degree assault, and second-degree assault is not a lesser-included offense of second-degree terroristic threatening, the juvenile failed to raise the due process issue at the circuit court level and therefore failed to preserve the issue for appellate review. I.K. v. State, 2018 Ark. App. 584, 564 S.W.3d 579 (2018).

Revocation of defendant's suspended sentence was appropriate; even though the evidence did not establish any physical injury to the victim to support the allegation of second-degree battery on a law enforcement officer under § 5-13-202, the Court of Appeals without invitation held that the evidence was sufficient to support the lesser-included offense of second-degree assault under § 5-13-206. Caldwell v. State, 2018 Ark. App. 588, 565 S.W.3d 539 (2018).

Trial court did not err in failing to instruct the jury on negligent homicide because it was not a lesser-included offense of unlawful discharge of a firearm from a vehicle, and defendant's proffered instruction did not meet any of the three alternative tests set out in this section where the culpable mental state for negligent homicide was directed at the act of causing the death of another person and the culpable mental state for first-degree unlawful discharge of a firearm from a vehicle was directed at the act of discharging the firearm. Webb v. State, 2019 Ark. App. 436, 587 S.W.3d 252 (2019).

Multiple Charges.

Subsection (a) means that a defendant may be prosecuted for more than one offense, but, under specified circumstances, a judgment of conviction may only be entered for one of the offenses. Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993).

By allowing prosecution for both conspiracy and the underlying offense, this section does not merge the inchoate offense into the ultimate offense. Williams v. State, 54 Ark. App. 271, 927 S.W.2d 812 (1996), superseded, 328 Ark. 487, 944 S.W.2d 822 (1997).

Multiple Convictions.

Where offenses are separate, a defendant who had been convicted of the several offenses was not twice placed in jeopardy by being convicted of both offenses. King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977), overruled in part, State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).

Where separate offenses were committed, each commencing at a distinct point in time as the result of a separate impulse, and defendant could be convicted and sentenced for both offenses. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied, Rowe v. Arkansas, 450 U.S. 1043, 101 S. Ct. 1764 (1981).

There was error in entering a judgment of conviction on more than one offense where one of the offenses was established by proof of less than all of the elements required to establish the commission of another offense. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

There was no statutory or constitutional prohibition against convictions on separate counts, since, although the crimes were committed in the same escapade, they were not of the same conduct because they were committed against different persons, thus they were added elements of proof as to different victims. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981).

Where a defendant was sentenced for several offenses, the conviction for the greater offense was affirmed, but the conviction for the lesser included offense was set aside, since subdivisions (a)(1) and (b)(1) prohibit the entry of a judgment of conviction on the greater offense and on the underlying lesser included offense. Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981), cert. denied, Singleton v. Arkansas, 456 U.S. 938, 102 S. Ct. 1996, 72 L. Ed. 2d 458 (1982), cert. denied, Singleton v. Arkansas, 459 U.S. 882, 103 S. Ct. 184 (1982).

Subdivision (a)(1) only prohibits two convictions where one offense is included in another; accordingly, a defendant can be convicted of one offense and acquitted of another where the offenses arise out of the same conduct, since one offense is one of the elements of proof necessary to find a defendant guilty of the second so that acquittal of the second charge is not dispositive of the first charge. Johnson v. State, 274 Ark. 293, 623 S.W.2d 831 (1981).

It was not improper under subdivision (a)(1) to convict defendant of a lesser offense but acquit him of the greater offense since the greater offense required proof that the defendant committed the lesser offense and another fact. Johnson v. State, 274 Ark. 293, 623 S.W.2d 831 (1981).

Convictions on more than one count did not violate the prohibition against double jeopardy. Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982).

Where the prosecution of defendant for two offenses arose from the same incident, his convictions for both offenses violated the prohibition against double jeopardy since one offense was a lesser included offense of the other; therefore, his conviction and sentence for the lesser included offense would be set aside. Brewer v. State, 277 Ark. 40, 639 S.W.2d 54 (1982).

When there has been more than one finding of guilt resulting from the same conduct, the lesser penalty should be set aside. Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983).

When a criminal offense by definition includes a lesser offense, a conviction cannot be had for both offenses under this section. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

Where it was necessary to prove the elements of one or more offenses to prove the elements of another offense, the conviction and sentence imposed for the lesser included offenses were set aside, and the conviction and sentence for the greater offense were not disturbed. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

Where one offense was a lesser included offense of another, and the defendant had been convicted and sentenced for both offenses, the conviction and sentence for the lesser included offense would be set aside. Robinson v. State, 279 Ark. 61, 648 S.W.2d 446 (1983).

Where the defendant's convictions for two offenses grew out of a single act, and the proof required to prove the greater of the offenses necessarily included proof of the lesser offense, the defendant's conviction and sentence for the lesser offense had to be set aside. Sanders v. State, 279 Ark. 32, 648 S.W.2d 451 (1983).

This section prohibited a court from convicting and sentencing a defendant for several offenses involving the same victim where both charges arose from the same occurrence. Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983).

Where the same proof was required for each of two counts of an offense involving the same victim, the entry of conviction on both counts was prohibited by subdivisions (a)(1) and (b)(1). Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983).

Where none of the crimes was necessarily a lesser included offense of the other, since all involve separate elements, and it is not necessary to prove one offense in order to prove another, this section did not preclude defendant's conviction for all crimes charged. Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984).

Where offense was not a lesser included offense of another offense, the defendant could be sentenced for both of these offenses without violating this section or the double jeopardy clause of the Fifth Amendment to the U.S. Constitution. Collins v. Lockhart, 771 F.2d 1580 (8th Cir. 1985).

Where the charges were based upon the same elements, the two felonies were merged into one, and under subdivision (b)(1) defendant could only be convicted of one offense; thus, defendant's conviction for the greater of the two offenses was affirmed and his conviction for the lesser of the two offenses was reversed and dismissed. Blair v. State, 16 Ark. App. 1, 696 S.W.2d 755 (1985).

Where the defendant raped the victim with his finger, and then, after leaving the bedroom and returning, got an erection and penetrated her, the two acts of rape were of a different nature and were separated in point of time, and the defendant was properly convicted of two counts of rape. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986).

The double jeopardy clause and subsection (a) and subdivision (b)(1) of this section did not preclude the defendant's convictions of both attempted first degree murder and aggravated robbery, where the defendant held the first victim at gunpoint and examined her jewelry with the purpose of committing a theft, and then he shot the second victim. Kinsey v. State, 290 Ark. 4, 716 S.W.2d 188 (1986).

Battery in the first degree is distinguishable from aggravated robbery in that (1) the battery offense requires serious physical injury to another, while aggravated robbery does not, and (2) aggravated robbery requires the purpose of committing robbery while being armed with a deadly weapon, or the representation that one is so armed, while first-degree battery, by statutory definition, requires neither of these two elements. Consequently, defendant can be prosecuted for both offenses. Robinson v. Lockhart, 823 F.2d 210 (8th Cir. 1987).

Where the restraint exceeds that which necessarily accompanies the crime of aggravated robbery, the robber is also subject to prosecution for kidnapping. Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987).

The criminal code does not excuse a defendant for multiple crimes committed during one escapade, and so convictions for burglary and breaking or entering are proper. Ward v. State, 20 Ark. App. 172, 726 S.W.2d 289 (1987).

Where evidence was sufficient to show successive and separate impulses as to theft of two persons' property, convictions on separate counts of theft were proper. Perkins v. State, 298 Ark. 322, 767 S.W.2d 514 (1989).

This section does not prohibit conviction for both conspiracy and the underlying substantive offense of delivery of a controlled substance where the conspiracy contemplated the commission of a series of criminal acts, not merely a single transaction. Lee v. State, 27 Ark. App. 198, 770 S.W.2d 148 (1989), cert. denied, Lee v. Arkansas, 493 U.S. 847, 110 S. Ct. 142 (1989).

A jury may convict on some counts but not on others, and may convict in different degrees on some counts, because of compassion or compromise and not solely because there was insufficient evidence of guilt. Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996).

Defendant, charged with two counts of capital murder, was properly found guilty of second-degree murder and attempted first-degree murder. Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996).

This section does not prohibit convictions for both delivery of a controlled substance and conspiracy to deliver. Williams v. State, 54 Ark. App. 271, 927 S.W.2d 812 (1996), superseded, 328 Ark. 487, 944 S.W.2d 822 (1997).

Merger of two capital murders was not required under § 5-1-110(d)(1), and where defendant waived a sentencing hearing, thereby giving the trial court sole sentencing authority under § 5-4-103(b)(4), the trial court had the authority to order defendant's sentences to run consecutively under § 5-4-403(a). Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003).

Multiple convictions were not allowed where a defendant was charged with attempted capital murder and two underlying felonies, kidnapping and aggravated robbery; thus, the kidnapping charge was selected in defendant's case to merge into the attempted capital murder conviction as the General Assembly did not clearly express an intent in this section to allow for multiple convictions for each of those crimes. Flowers v. Norris, 347 Ark. 760, 68 S.W.3d 289 (2002).

Pursuant to subdivision (d)(1), defendant's convictions for both first-degree murder and the underlying felony of aggravated robbery was authorized by the legislature and his convictions did not violate the federal or state Double Jeopardy Clauses. Hudson v. State, 85 Ark. App. 85, 146 S.W.3d 380 (2004).

Trial court did not err in sentencing defendant, who was convicted of two counts of committing a terroristic act, to 30 years' imprisonment pursuant to the “three strikes” provision of § 5-4-501 (d)(1) based on the fact that he had been convicted the previous month of three counts of aggravated robbery in an unrelated case. Benson v. State, 86 Ark. App. 154, 164 S.W.3d 495 (2004).

Defendant was properly convicted of capital murder and arson after he told a neighbor that his trailer home exploded while his girlfriend was inside; the constitutional prohibition against double jeopardy was not violated because subdivision (d)(1)(A) of this section permitted a sentence for both crimes. Meadows v. State, 358 Ark. 396, 191 S.W.3d 527 (2004).

Trial court did not err in determining that consecutive sentencing for aggravated robbery, § 5-12-103(a)(1), first-degree terroristic threatening, § 5-13-301(a)(1)(A), and second-degree battery, § 5-13-202(a)(2), did not violate the prohibition against double jeopardy in Ark. Const. Art. 2, § 8 and the Fifth Amendment because neither first-degree terroristic threatening nor second-degree battery was a lesser-included offense of aggravated robbery since both crimes required proof of additional facts not required by aggravated robbery; the offense of first-degree terroristic threatening requires the elements of threatening to cause the death of the victim and the purpose of terrorizing the victim, and a conviction for second-degree battery requires proof of purposely causing physical injury to the victim. Walker v. State, 2012 Ark. App. 61, 389 S.W.3d 10 (2012).

Since the underlying felony for the first-degree murder charge was robbery, it was proper for defendant to be sentenced on the first-degree murder conviction and its underlying felony of robbery and the trial court erred in imposing a sentence for aggravated robbery. Thompson v. State, 2015 Ark. 271 (2015).

Circuit court properly denied defendant's petition for writ of habeas corpus because a conviction under § 5-27-602(a)(1) for each photograph sent by defendant did not violate double jeopardy, even though he sent only one email with one attachment. The number of charges brought against defendant was authorized by the legislature, defendant did not dispute that the email he sent contained 30 separate photographs depicting children engaging in sexually explicit conduct, and, although “computer file” is included in the list of media in § 5-27-602(a)(1), the fact that the 30 photographs were attached to the email in a single file was not relevant where it is the number of photographs distributed, not the manner of distribution, that gives rise to the number of permissible charges. Pelletier v. Kelley, 2018 Ark. 347, 561 S.W.3d 730 (2018).

Multiple Impulses.

Where the evidence displayed defendant's impulse to kidnap the victim and additional impulses to batter and threaten to kill her when she resisted the kidnapping, convictions for the separate offenses of first degree terroristic threatening (§ 5-13-301), second degree battery (§ 5-13-202), and attempted kidnapping (§ 5-3-201) were upheld because defendant's criminal acts were not all part of the attempted kidnapping and were not a continuing course of conduct. Hagen v. State, 318 Ark. 139, 883 S.W.2d 832 (1994).

Defendant was properly charged with multiple counts of rape rather than one count where there were separate penetrations occurring as a result of separate impulses, notwithstanding that the acts were not separated in time. Ricks v. State, 327 Ark. 513, 940 S.W.2d 422 (1997).

Parole.

Denial of parole is not a new punishment for purposes of double jeopardy. Clawitter v. Lockhart, 286 Ark. 131, 689 S.W.2d 558 (1985).

Review.

Appeal which raised an issue of the application of subsection (c), rather than its interpretation, did not involve the correct and uniform administration of the criminal law and was not addressed by the Supreme Court. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995).

A defendant is required to address the lesser included offenses in his motion for a directed verdict to preserve on appeal a challenge to the sufficiency of the evidence necessary to support a conviction for a lesser included offense; failure to question the sufficiency of the evidence for lesser included offenses, either by name or by apprising the trial court of the elements of the lesser included offenses, at the close of the state's case constituted a waiver of the argument. Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996).

Defendant failed to preserve his double-jeopardy argument for appellate review because he failed to raise the argument after the jury had returned its guilty verdicts. Sheppard v. State, 2014 Ark. App. 206 (2014).

Court of Appeals lacked jurisdiction to consider defendant's interlocutory appeal because his notice of appeal was untimely; the circuit court's denial of defendant's motion to dismiss was necessarily a denial of his res judicata arguments, and thus, the dismissal order was the one from which defendant should have filed his notice of appeal. Shaver v. State, 2018 Ark. App. 242, 548 S.W.3d 222 (2018).

Separate Acts.

Prosecutor explained there were three aggravated assaults, plus the prosecutor identified the injuries the victim suffered from defendant's actions, and these were separate acts resulting from separate impulses, even though they happened during the same criminal episode, and they constituted distinct acts, such that the trial court did not err in denying the motion to dismiss. Rodriguez v. State, 2014 Ark. App. 660, 449 S.W.3d 306 (2014).

Trial court did not abuse its discretion in denying postconviction relief because trial counsel was not ineffective for failing to move for dismissal of the charge of second-degree sexual assault on double jeopardy grounds, as the State presented evidence of separate impulses comprising separate acts conforming with the definitions of rape and second-degree sexual assault. Sorum v. State, 2019 Ark. App. 354, 582 S.W.3d 18 (2019).

Writ of Error Coram Nobis.

Double-jeopardy claims do not fall within any of the four categories of recognized claims for a writ of error coram nobis. Pelletier v. State, 2015 Ark. 432, 474 S.W.3d 500 (2015).

Cited: Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977); Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978); Sbabo v. State, 264 Ark. 497, 572 S.W.2d 585 (1978); Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978); Utley v. State, 266 Ark. 794, 586 S.W.2d 242 (Ct. App. 1979); Lewis v. State, 267 Ark. 933, 591 S.W.2d 687 (Ct. App. 1979); Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981); Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1982); Robinson v. State, 278 Ark. 516, 648 S.W.2d 444 (1983); Moore v. State, 280 Ark. 222, 656 S.W.2d 698 (1983); Thomas v. State, 280 Ark. 593, 660 S.W.2d 169 (1983); Rowe v. Lockhart, 736 F.2d 457 (8th Cir. 1984); Shrader v. State, 13 Ark. App. 17, 678 S.W.2d 777 (1984); Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985); Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985); Speer v. State, 18 Ark. App. 1, 708 S.W.2d 94 (1986); Holloway v. State, 18 Ark. App. 136, 711 S.W.2d 484 (1986); Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986); Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988); Rolark v. State, 299 Ark. 299, 772 S.W.2d 588 (1989); Yates v. State, 301 Ark. 424, 785 S.W.2d 199 (1990); Jeffers v. State, 301 Ark. 590, 786 S.W.2d 114 (1990); Harrison v. State, 303 Ark. 247, 796 S.W.2d 329 (1990); Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991); Frazier v. State, 309 Ark. 228, 828 Ark. 838, 828 S.W.2d 838 (1992); Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992); Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993); Lindsey v. State, 54 Ark. App. 266, 925 S.W.2d 441 (1996); Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996); Brown v. State, 74 Ark. App. 281, 47 S.W.3d 314 (2001); Wyatt v. State, 75 Ark. App. 1, 54 S.W.3d 549 (2001); Hardman v. State, 356 Ark. 7, 144 S.W.3d 744 (2004); Porter v. State, 358 Ark. 403, 191 S.W.3d 531 (2004); Harper v. State, 359 Ark. 142, 194 S.W.3d 730 (2004); Coombs v. Hot Springs Village Prop. Owners Ass'n, 98 Ark. App. 226, 254 S.W.3d 5 (2007); Rea v. State, 2015 Ark. 431, 474 S.W.3d 493 (2015).

5-1-111. Burden of proof — Defenses and affirmative defenses — Presumption.

  1. Except as provided in subsections (b), (c), and (d) of this section, no person may be convicted of an offense unless the following are proved beyond a reasonable doubt:
    1. Each element of the offense;
    2. Jurisdiction;
    3. Venue; and
    4. The commission of the offense within the time period specified in § 5-1-109.
  2. The state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.
    1. The issue of the existence of a defense does not need to be submitted to the jury unless evidence is admitted supporting the defense.
    2. If the issue of the existence of a defense is submitted to the jury, the court shall charge that any reasonable doubt on the issue requires that the defendant be acquitted.
    3. A “defense” is any matter:
      1. Designated a defense by a section of the Arkansas Criminal Code;
      2. Designated a defense by a statute not a part of the Arkansas Criminal Code; or
      3. Involving an excuse or justification peculiarly within the knowledge of the defendant on which he or she can fairly be required to introduce supporting evidence.
    1. The defendant shall prove an affirmative defense by a preponderance of the evidence.
    2. An “affirmative defense” is any matter designated an affirmative defense by a:
      1. Section of the Arkansas Criminal Code; or
      2. Statute not a part of the Arkansas Criminal Code.
  3. When the Arkansas Criminal Code or a statute not a part of the Arkansas Criminal Code provides that proof of a particular fact gives rise to a presumption as to the existence of a fact that is an element of the offense, the provision has the following consequences:
    1. If there is evidence of the fact giving rise to the presumption, the issue as to the existence of the presumed fact shall be submitted to the jury unless the court determines that the evidence as a whole precludes a finding beyond a reasonable doubt of the presumed fact; and
      1. If the issue as to the existence of the presumed fact is submitted to the jury, the court shall charge that evidence of the fact giving rise to the presumption is for the jury's consideration under all the circumstances of the case and to be weighed in determining the issue.
      2. However, the evidence of the fact giving rise to the presumption alone does not impose a duty of finding the presumed fact, even if the evidence is unrebutted.

History. Acts 1975, No. 280, § 110; A.S.A. 1947, § 41-110.

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Research References

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

Case Notes

Constitutionality.

Requiring a criminal defendant to prove his affirmative defense by a preponderance of the evidence does not violate the due process clause of the United States Constitution.Hobgood v. State, 262 Ark. 725, 562 S.W.2d 41, cert. denied, 439 U.S. 963, 99 S. Ct. 449, 58 L. Ed. 2d 421 (1978).

Construction.

The application of § 5-1-103(d) is governed by subsection (c) of this section. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).

The requirement of proof of jurisdiction under subsection (a) is tempered by subsection (b). Dewitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991).

In defendant's insurance fraud case, the state's appeal of the trial court's instruction on entrapment by estoppel was dismissed where the state was not asking for an interpretation of the law, but rather a ruling on the application of the law to the facts of the particular case; because the state's argument merely raised the issue of application and not the interpretation of a statutory provision, the appeal did not involve the correct and uniform administration of the criminal law. State v. Hagan-Sherwin, 356 Ark. 597, 158 S.W.3d 156 (2004).

Burden of Proof.

To prevail on an insanity defense, a defendant has to prove, by a preponderance of the evidence, that at the time of the events in question, “as a result of mental disease or defect,” he lacked the capacity to “conform his conduct to the requirements of law or to appreciate the criminality of his conduct” under § 5-2-312(a) -- (see now § 5-2-301) and subsection (d) of this section. Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994), rehearing denied, — F.3d —, 1994 U.S. App. LEXIS 22021 (8th Cir. Aug. 16, 1994), cert. denied, Norris v. Hill, 513 U.S. 1102, 115 S. Ct. 778 (1995).

Capital Cases.

The burden of proof is not higher in death cases than the standard of beyond a reasonable doubt. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied, Nooner v. Arkansas, 517 U.S. 1143, 116 S. Ct. 1436, 134 L. Ed. 2d 558 (1996).

Defenses.

Defendant had burden to prove circumstances which would excuse or justify the killing. Deatherage v. State, 194 Ark. 513, 108 S.W.2d 904 (1937); Burgy v. State, 256 Ark. 677, 509 S.W.2d 820 (1974) (preceding decisions under prior law).

It was error for the court to instruct the jury that to justify the killing the burden was on defendant to prove self-defense or any element of self-defense by a preponderance of the evidence. Mode v. State, 231 Ark. 477, 330 S.W.2d 88 (1959), cert. denied, Mode v. Arkansas, 370 U.S. 909, 82 S. Ct. 1255 (1962) (decision under prior law).

Evidence sufficient to warrant instructing the jury on the burden of proving circumstances of mitigation. Bosnick v. State, 248 Ark. 1289, 455 S.W.2d 688 (1970) (decision under prior law).

Entrapment must be proved by the defendant by a preponderance of the evidence. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Rhoades v. State, 270 Ark. 962, 607 S.W.2d 76 (1980), cert. denied, Rhoades v. Arkansas, 452 U.S. 915, 101 S. Ct. 3048 (1981); Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983); Hill v. State, 13 Ark. App. 307, 683 S.W.2d 628 (1985); Webber v. State, 15 Ark. App. 261, 692 S.W.2d 255 (1985).

Where the evidence was in conflict on the question of an affirmative defense, it presented a question of fact for the trial court as to whether defendant had carried his burden of proof, and since the defense had not been established as a matter of law, deferment must be given to the trial court. Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978).

The question of preponderance is primarily one for the jury, and a judge may direct a verdict only when no fact issue exists. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).

Defense of mental disease or defect is an affirmative defense which defendant must prove by a preponderance of the evidence. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852, 101 S. Ct. 144, 66 L. Ed. 2d 64 (1980); Gruzen v. Arkansas, 459 U.S. 1020, 103 S. Ct. 386, 74 L. Ed. 2d 517 (1982).

The disposition of one found mentally unfit to proceed with a trial because of mental disease or defect cannot possibly be considered a defense under the Code. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).

Justification is not an affirmative defense; it becomes a defense when any evidence is offered tending to support its existence and such evidence may be introduced by either side. Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979).

Subsection (c)(3) does not require the trial court, sua sponte, to give an instruction on an ordinary defense. Schwindling v. State, 269 Ark. 388, 602 S.W.2d 639 (1980).

The burden on the defendant to prove an affirmative defense by preponderance of the evidence does not arise until after the state has proved every element of the offense beyond a reasonable doubt. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, Fairchild v. Arkansas, 471 U.S. 1111, 105 S. Ct. 2346 (1985).

Entrapment is not required to be found as a matter of law when the testimony of the accused, showing entrapment, is not rebutted by evidence presented by the state. McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989).

Neither subsection (d) of this section nor § 5-2-607(a) defines justification or self defense as an affirmative defense. Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991).

There is no requirement in the criminal law requiring the pleading of affirmative defenses. Sumner v. State, 35 Ark. App. 203, 816 S.W.2d 623 (1991).

The trial court was incorrect in ruling that the defense should not refer to the word entrapment during the trial because entrapment had not been pled, in light of the fact that the state acknowledged it had been put on notice that the defense would be raised. Sumner v. State, 35 Ark. App. 203, 816 S.W.2d 623 (1991).

Because defendant presented evidence arguably supporting self defense or a justification defense to a charge of aggravated assault under Arkansas law, the government had to negate that defense by a preponderance of the evidence for an enhancement for using the firearm in connection with another felony offense under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) [now (b)(6)] (2005), to apply because whether circumstances negated defendant's excuse or justification was an element of the offense under § 5-1-102(5)(C), which had to be proved by the state under subdivision (a)(1) of this section, and the definition of aggravated assault expressly excluded any person acting in self-defense or the defense of a third party under § 5-13-204(c)(2). United States v. Raglin, 500 F.3d 675 (8th Cir. 2007).

Circuit court did not abuse its discretion in denying defendant's motion for acquittal based on lack of capacity because the circuit court was confronted with conflicting forensic evaluations, and the existence of conflicting proof and the consequent questions of fact that arose from the conflicts supported the circuit court's discretionary decision to deny defendant's motion for acquittal. Russell v. State, 2013 Ark. 369 (2013).

Substantial evidence existed to support a second-degree murder conviction because defendant's justification defense could have been reasonably rejected; the jury could have credited testimony indicating that defendant walked towards the victim holding a gun after being told that the girls present did not want to fight. Moody v. State, 2014 Ark. App. 538, 444 S.W.3d 389 (2014).

Evidence.

Circumstantial evidence can constitute substantial evidence. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993).

There was sufficient evidence that the sexual assault against one victim occurred in 2002 and, therefore, was within the three-year statute of limitations of § 5-1-109(b)(2) where the victim testified that defendant, a minister, assaulted her while she was working for the church during the summer of 2002. Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006).

Instructions.

Instruction in language of former similar provision that the burden of the whole case is on the state and that when evidence is introduced either on the part of the state or the defendant which tends to justify or excuse the act of the defendant and which, in connection with the other evidence in the case, raises in the minds of the jury a reasonable doubt as to the guilt of the defendant the jury must acquit was proper. Thomas v. State, 85 Ark. 357, 108 S.W. 224 (1908) (decision under prior law).

While it was error where there was a conflict as to who committed the offense, to instruct in the language of this section, the error was not prejudicial as assuming that the offense was committed by the accused if no such construction was placed upon it by the court or counsel and the question as to who committed the offense was otherwise submitted to the jury. Easter v. State, 96 Ark. 629, 132 S.W. 924 (1910) (decision under prior law).

Instruction that burden of proving justification or excuse devolved upon the defendant unless the state's evidence showed that an offense of a lesser degree involving excuse was committed or that the accused was justified or excused in committing the offense, held proper. Turner v. State, 128 Ark. 565, 195 S.W. 5 (1917); Crews v. State, 179 Ark. 94, 14 S.W.2d 261 (1929); Hogue v. State, 194 Ark. 1089, 110 S.W.2d 11 (1937); Covey v. State, 232 Ark. 79, 334 S.W.2d 648 (1960) (preceding decisions under prior law).

Instruction in the language of former similar section, while abstract, held not prejudicial. Wilson v. State, 126 Ark. 354, 190 S.W. 441 (1916) (decision under prior law).

The giving of former section concerning burden of proving mitigation as an instruction was proper against contentions that instruction assumed the offense to have been proved and that there was no issue of justification or excuse. Trammell v. State, 193 Ark. 21, 97 S.W.2d 902 (1936) (decision under prior law).

Where there was evidence introduced by the state, which would support a conviction, it was not error for the court to instruct the jury, that the offense being proved, the burden was upon the defendant to prove mitigating circumstances to justify or excuse the homicide. Newboles v. State, 214 Ark. 240, 215 S.W.2d 285 (1948) (decision under prior law).

In a criminal case an instruction on burden of proof given in the words of former statute concerning burden of proving mitigation was sufficient. McGarrah v. State, 217 Ark. 186, 229 S.W.2d 665 (1950) (decision under prior law).

Instruction of court in conformity with the language of former section concerning circumstance of proving mitigation and as to presumption of defendant's innocence was proper. Hardin v. State, 225 Ark. 602, 284 S.W.2d 111 (1955) (decision under prior law).

It was not error for the court in a criminal case to instruct the jury in the language of former section concerning burden of proving mitigation, where the jury was also instructed to the effect that defendant was presumed innocent until found beyond a reasonable doubt to be guilty. Brown v. State, 231 Ark. 363, 329 S.W.2d 521 (1959) (decision under prior law).

Instruction in the language of former section concerning burden of proving circumstances of mitigation held not justified. Bosnick v. State, 248 Ark. 1289, 455 S.W.2d 688 (1970) (decision under prior law).

Instruction that, if the jury had a reasonable doubt as to the degree of the offense, it must give the benefit of that doubt to the defendant, and it should convict the defendant of a lesser degree of the offense, did not mislead the jury as to the burden of proof. Leonard v. State, 251 Ark. 1090, 476 S.W.2d 807 (1972) (decision under prior law).

Regardless of the trial court's mistake in describing justification or self defense as an affirmative defense, there was no reversible error because no objection was made to the instruction. Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991).

Jurisdiction.

Before the state is called upon to offer any evidence on the question of jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, Gardner v. Arkansas, 440 U.S. 911, 99 S. Ct. 1224, 59 L. Ed. 2d 460 (1979); Richards v. State, 279 Ark. 219, 650 S.W.2d 566 (1983); Graham v. State, 34 Ark. App. 126, 806 S.W.2d 32 (1991); Nicholson v. State, 319 Ark. 566, 892 S.W.2d 507 (1995).

While jurisdiction must be proven beyond a reasonable doubt at the trial level, on appeal the test is only whether there is substantial evidence to support a jury verdict. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, Gardner v. Arkansas, 440 U.S. 911, 99 S. Ct. 1224, 59 L. Ed. 2d 460 (1979).

It is not essential to a prosecution in this state that all the elements of the crime charged take place in Arkansas; rather if the requisite elements of the crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, Gardner v. Arkansas, 440 U.S. 911, 99 S. Ct. 1224, 59 L. Ed. 2d 460 (1979); Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985), rehearing denied, 286 Ark. 329, 695 S.W.2d 121 (1985).

Evidence held sufficient to support the jury's finding that the offense had occurred in Arkansas. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, Gardner v. Arkansas, 440 U.S. 911, 99 S. Ct. 1224, 59 L. Ed. 2d 460 (1979).

The state is presumed to have jurisdiction. Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985), rehearing denied, 286 Ark. 329, 695 S.W.2d 121 (1985).

Where there was evidence before the trial court that the offense took place at least in part in Arkansas, even if there had been an affirmative showing by the defendant of lack of jurisdiction, the state's proof was sufficient to overcome it. Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985), rehearing denied, 286 Ark. 329, 695 S.W.2d 121 (1985).

Although the murder instrument was found in a county other than where the crime was prosecuted and a police chief who investigated the crime testified it was his opinion that the victim had been killed in that other county, but he did not state his basis for that opinion, there was no positive evidence from which a juror could say where the crime occurred; therefore, the state did not have the burden to prove that the crime occurred in the county where it was prosecuted. Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986).

If the requisite elements of a crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction. Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991).

It is not essential to a prosecution in Arkansas that all elements of the crime charged take place in Arkansas; jurisdiction can lie in this state if at least one element of the charged offense occurred in Arkansas. Graham v. State, 34 Ark. App. 126, 806 S.W.2d 32 (1991).

There was no reasonable basis to question the trial court's exercise of jurisdiction in defendant's trial for murder, where eyewitness testimony affirmatively proved where the murder occurred. Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).

Defendant's territorial jurisdictional claim was dismissed where he presented no positive evidence that the offense occurred anywhere other than in the county of the circuit court in which it was filed. Cates v. State, 329 Ark. 585, 952 S.W.2d 135 (1997).

Where the state presented substantial evidence that one or more elements of appellant's felony murder offense—murder while kidnapping or attempting to kidnap his victim—occurred in Miller County, territorial jurisdiction was proper there pursuant to subsection (b) of this section. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005).

Jurisdiction in Arkansas was proper for defendant's theft trial because sufficient circumstantial evidence existed to show that defendant took unauthorized control of a vehicle in West Memphis. King v. State, 361 Ark. 402, 206 S.W.3d 883 (2005), appeal dismissed, — Ark. —, — S.W.3d —, 2006 Ark. LEXIS 368 (June 15, 2006).

Defendant's contention that the evidence was insufficient to prove that the murder took place in Arkansas was rejected as, although evidence showed that the victim's body was found in Oklahoma, and there was no positive evidence presented that the crime actually occurred outside of Arkansas; the record provided ample substantial evidence that, at the very least, the premeditation and deliberation element of capital murder and kidnapping by deception occurred in Arkansas. Smith v. State, 367 Ark. 274, 239 S.W.3d 494 (2006).

Fact that a victim was unable to provide details regarding the timing and location of the rape and the evidence that contradicted her testimony as to the location of the rapes was not positive evidence that the rape occurred outside the trial court's jurisdiction under this section; the victim's testimony that the rape occurred in Siloam Springs, Arkansas was substantial evidence that the trial court had jurisdiction. Strickland v. State, 2010 Ark. App. 599, 378 S.W.3d 157 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 744 (Ark. Ct. App. Oct. 27, 2010).

In a case where defendant was convicted of second-degree sexual assault, a lesser-included offense of rape, the circuit court did not err in finding that it had jurisdiction because the victim and her brother identified photographs of the trailer and the bed in the back room as the place where the sexual acts took place; there was simply no evidence that the rape occurred in Garland County, where the children were interviewed, or in any location other than the trailer where they lived with their father; and a presumption was created in favor of jurisdiction in Saline County where the charge was filed by the State as there was no positive evidence that the act occurred outside of Saline County. Lewis v. State, 2016 Ark. App. 257, 492 S.W.3d 538 (2016).

State was not required to prove jurisdiction when defendant was accused of two counts of sexual assault; there was no positive evidence that the crime occurred outside the jurisdiction of the trial court. While separate and distinct criminal conduct may have occurred in Hot Springs and Tulsa, that did not mean that affirmative proof was established that the trial court lacked jurisdiction over defendant's convictions for sexual assaults that occurred in his home. Bynum v. State, 2017 Ark. App. 41, 511 S.W.3d 860 (2017).

Defendant's lack of jurisdiction argument failed where he never presented the trial court with any affirmative evidence that the crime took place outside of the county. Bates v. State, 2017 Ark. App. 123, 516 S.W.3d 275 (2017).

Presumption.

The unexplained possession or control by a person of recently stolen property, or the acquisition by a person of property for a consideration known to be far below its reasonable value, gives rise to a presumption that he or she knows or believes that the property was stolen. Jones v. State, 20 Ark. App. 1, 722 S.W.2d 871 (1987).

Reasonable Doubt.

The burden of the case as a whole was on the state. Cogburn v. State, 76 Ark. 110, 88 S.W. 822 (1905); Tignor v. State, 76 Ark. 489, 89 S.W. 96 (1905); Petty v. State, 76 Ark. 515, 89 S.W. 465 (1905) (preceding decisions under prior law).

It was not necessary that each link in the chain of evidence be established beyond doubt; it was sufficient if all together satisfy the jury beyond a reasonable doubt of defendant's guilt. Carr v. State, 81 Ark. 589, 99 S.W. 831 (1907) (decision under prior law).

One was entitled to the benefit of a reasonable doubt not only as to his guilt, but as to the degree of the offense. Childs v. State, 98 Ark. 430, 136 S.W. 285 (1911); Walker v. State, 100 Ark. 180, 139 S.W. 1139 (1911); Scoggin v. State, 109 Ark. 510, 159 S.W. 211 (1913); Carlton v. State, 109 Ark. 516, 161 S.W. 145 (1913); Edwards v. State, 110 Ark. 590, 163 S.W. 155 (1914); Deatherage v. State, 194 Ark. 513, 108 S.W.2d 904 (1937) (preceding decisions under prior law).

Notwithstanding former section concerning burden of proving mitigation, the burden was still on the state to prove the accused's guilt of any degree of crime included in the indictment. Reynolds v. State, 186 Ark. 223, 53 S.W.2d 224 (1932) (decision under prior law).

Statute of Limitations.

Charges against defendant, including rape, were not time-barred, even under a three-year statute of limitations, because the amended information on its face alleged that the offenses occurred within the applicable time period; moreover, a victim testified that defendant touched her inappropriately in April 2011. Dowdy v. State, 2015 Ark. 35 (2015).

Venue.

Defendant's contention that the state failed to establish venue held to be without merit. Dodson v. State, 4 Ark. App. 1, 626 S.W.2d 624 (1982), cert. denied, Dodson v. Arkansas, 457 U.S. 1136, 102 S. Ct. 2966 (1982).

State was not required to put on proof that the offense charged was committed in the county and venue was presumed proper unless there was affirmative evidence to the contrary. Baggett v. State, 15 Ark. App. 113, 690 S.W.2d 362 (1985).

The state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue unless the defendant produces evidence to dispute the propriety of the venue of the trial. Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994).

Cited: Long v. State, 260 Ark. 417, 542 S.W.2d 742 (1976); Langley v. State, 261 Ark. 539, 549 S.W.2d 799 (1977); Akins v. State, 264 Ark. 376, 572 S.W.2d 140 (1978); Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979); Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979); Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979); Hobgood v. Housewright, 698 F.2d 962 (8th Cir. 1983); Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983); Holt v. State, 281 Ark. 210, 662 S.W.2d 822 (1984); Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984); Coleman v. State, 12 Ark. App. 214, 671 S.W.2d 221 (1984); Johnson v. State, 298 Ark. 617, 770 S.W.2d 128 (1989); Lee v. State, 27 Ark. App. 198, 770 S.W.2d 148 (1989); Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993); Lindsey v. State, 54 Ark. App. 266, 925 S.W.2d 441 (1996); Renfro v. State, 331 Ark. 253, 962 S.W.2d 745 (1998); Donovan v. State, 71 Ark. App. 226, 32 S.W.3d 1 (2000); Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001); Peoples v. State, 2019 Ark. App. 559, 590 S.W.3d 783 (2019); Clements v. State, 2020 Ark. App. 175, 594 S.W.3d 922 (2020).

5-1-112. Affirmative defense — Former prosecution for same offense.

A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:

    1. The former prosecution resulted in an acquittal.
      1. There is an acquittal if the former prosecution resulted in a determination of not guilty.
      2. A determination of guilt of a lesser included offense is an acquittal of the greater inclusive offense although the conviction is subsequently set aside;
    1. The former prosecution resulted in a conviction.
    2. There is a conviction if the former prosecution resulted in a:
      1. Judgment of conviction that has not been reversed or vacated;
      2. Verdict of guilty that has not been set aside and that is capable of supporting a judgment; or
      3. Plea of guilty or nolo contendere accepted by the court; or
  1. The former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn or, if trial was before the court, after the first witness was sworn, unless the termination was justified by overruling necessity.

History. Acts 1975, No. 280, § 106; A.S.A. 1947, § 41-106.

Cross References. Double jeopardy prohibition, Ark. Const., Art. 2, § 8.

Due process of law and just compensation clauses, U.S. Const., Amend. 5.

Research References

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

U. Ark. Little Rock L.J.

Derden, Survey of Arkansas Law: Criminal Procedure, 2 U. Ark. Little Rock L.J. 203.

Case Notes

Acquittal.

A trial ending in a hung jury is not the equivalent of acquittal for purposes of establishing a former jeopardy or collateral estoppel to bar retrial. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991).

While a directed verdict dismissing a charge alleged against defendant in an information acquitted him of that charge, the prosecutor was allowed to amend the information to charge a lesser-included offense, and defendant's prosecution for and conviction of that offense, in the same proceeding in which the greater charge had been alleged, did not offend double jeopardy or subsection (1) of this section. Hughes v. State, 347 Ark. 696, 66 S.W.3d 645 (2002).

Fifth Amendment and Ark. Const. Art. 2, § 8’s double jeopardy clauses did not bar defendant's retrial on capital-murder and first-degree murder charges because, although the jury forewoman announced in open court that the jury had found defendant not guilty on those charges, the jury had deadlocked on a manslaughter charge, a mistrial was declared, and there were no “findings” or “verdicts”; a trial court's declaration of a mistrial because of a hung jury was not an event that terminated the original jeopardy to which defendant was subjected, and the mere reading of the jury's verdict in open court did not constitute an acquittal. The statutory provision for what constitutes an acquittal in no way forecloses the requirement that for an acquittal to be final it must be entered of record. Blueford v. State, 2011 Ark. 8, 370 S.W.3d 496 (2011), aff'd, 566 U.S. 599, 132 S. Ct. 2044, 182 L. Ed. 2d 937 (2012).

Appeals.

If the district court finds a defendant has failed to make a colorable showing of previous jeopardy and the threat of repeated jeopardy, the filing of a notice of appeal from the denial of the double jeopardy motion does not divest the district court of jurisdiction. United States v. Brown, 926 F.2d 779 (8th Cir. 1991).

Attachment of Jeopardy.

Since a jury was never sworn to hear defendant's case, double jeopardy did not attach and the trial court did not err in denying the motion to dismiss the charge on such grounds. Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992).

In both bench and jury trials, jeopardy attaches when the trial judge or jury hears the first witness and not until then. Tipton v. State, 331 Ark. 28, 959 S.W.2d 39 (1998).

At the beginning of defendant's rape trial, voir dire was conducted by both parties and a jury was selected but not sworn; due to a four-month delay in trial while the parties awaited the results from the crime lab, the circuit court ordered a mistrial. Because the jury had not been sworn under oath, double jeopardy did not attach under this section. Williams v. State, 371 Ark. 550, 268 S.W.3d 868 (2007).

Burden of Proof.

Since a plea of former acquittal or conviction is an affirmative defense, the burden is on the accused to sustain the plea. The accused must prove not only the former jeopardy conviction, or acquittal, but also the identity of the offenses and the jurisdiction of the court in the former trial. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991).

The burden is on the state to demonstrate that the state will not rely on conduct for which the defendant has already been convicted in proving the pending charge. State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991).

Common-Law Defenses.

The law-of-the-case defense is an affirmative defense like estoppel or res judicata. State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997).

Consent of Defendant to Termination.

A defendant's consent to the termination of a trial can be either express or implied; if the defendant's consent is evident, demonstration of an overruling necessity is not required in order to avoid the affirmative defense of double jeopardy. Phillips v. State, 338 Ark. 209, 992 S.W.2d 86 (1999).

In a case where defendant and his son were tried together, because defendant expressly requested the trial court to grant a mistrial, that request obviated the need to demonstrate an overruling necessity in order to avoid a claim of double jeopardy, and the state constitutional double jeopardy provision did not impose an affirmative duty on the trial court to determine if the jury was divided on defendant's guilt or innocence. Turner v. State, 2013 Ark. App. 754 (2013).

Defendant requested a continuance, which was granted, then the trial court sua sponte declared a mistrial, and defense counsel acquiesced; thus, defendant expressly consented to the mistrial and the trial court correctly found that double jeopardy had not attached. Hoey v. State, 2017 Ark. App. 253, 519 S.W.3d 745 (2017).

Construction with Other Law.

Entry of the judgment and commitment order is what determines the effectiveness of a guilty plea; thus, to the extent subdivision (2) of this section conflicts with Ark. Sup. Ct. Admin. Order No. 2, it is superseded by that order and Arkansas caselaw. Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003).

Continuance.

A continuance is not a termination, and this section would not be applicable where the proceedings were merely continued and then resumed, not terminated and then begun anew. Daniels v. State, 12 Ark. App. 251, 674 S.W.2d 949 (1984).

Where a continuance was requested for the benefit of the defense and was granted without objection, the necessary consent to termination of the prosecution under subdivision (3) will be implied. Woods v. State, 287 Ark. 212, 697 S.W.2d 890 (1985).

Conviction.

Prosecution in circuit court, of defendant convicted by a municipal court jury of misdemeanor and felony drug offenses, barred by double jeopardy. Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993).

Guilty Pleas.

Defendant's accepted guilty plea, along with the resulting sentence, was never memorialized as a judgment and commitment order and, thus, was never an effective judgment of conviction. Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003).

Mistrial.

Where defendant had ample opportunity to apprise judge that defendant was not seeking or agreeing to a mistrial, no violation of subdivision (3) of this section occurred. Rowlins v. State, 319 Ark. 323, 891 S.W.2d 56 (1995).

Where the defendant successfully moved to reconvene his trial after the court excused a juror who was related to a witness, he could not later complain that the subsequent trial was barred by double jeopardy. Schalk v. State, 63 Ark. App. 251, 977 S.W.2d 495 (1998).

Trial court did not err by not allowing defendant to present evidence at his second trial concerning his affirmative defense of double jeopardy under this section, pursuant to which he would have presented evidence of the circumstances that resulted in the mistrial at his first trial, because doing so would allow a jury to usurp an appellate court's function of reviewing the mistrial by deciding whether there was an abuse of discretion as a question of fact, rather than requiring the issue to be reviewed on appeal as a matter of law. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008).

Mistrial was not justified when defense counsel's opening statement purportedly changed the theory of defense in a murder trial from self defense to accident; because the court could have taken corrective measures and proceeded with trial, the mistrial was unjustified, and any subsequent prosecution was prohibited. Shelton v. State, 2009 Ark. 388, 326 S.W.3d 429 (2009).

Denial of defendant's motions to bar his retrial on the charge of first-degree murder were proper because his trial ended in a mistrial without a final verdict entered in the record, and there was no actual verdict of acquittal under subdivision (1)(B)(i) of this section. Neither the transitional jury instruction nor the jury's written status report of the vote on the lesser-included charge negated the requirements for a formal verdict and there was no merit to defendant's arguments that the jury's note reflecting its vote on the lesser-included offense of second-degree murder constituted an implicit acquittal on the charge of first-degree murder, and that entry of the jury's note into the record rendered it controlling for the purpose of jeopardy on first degree. Basham v. State, 2011 Ark. App. 384 (2011), cert. denied, 566 U.S. 1034, 132 S. Ct. 2710, 183 L. Ed. 2d 67 (2012).

Prior to retrial, a court did not err in denying defendant's motion to dismiss rape and robbery charges on double jeopardy grounds because there was ample support for the trial court's conclusion that the jury was unable to reach a verdict in the first trial; the foreperson stated on the record that the jury was deadlocked and the individual jurors all agreed. Gold v. State, 2013 Ark. 220 (2013).

Overruling Necessity.

Either a deadlocked jury or the illness of a juror is a circumstance which qualifies as “overruling necessity.” Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991).

Where the prosecutor had become ill and could not continue with the prosecution of defendant's trial and the trial court proceeded by accepting a deputy prosecutor, but subsequently, a conflict with one of the jurors was revealed, it was manifestly necessary for the court to order a mistrial, a second trial was not barred by double jeopardy. Green v. State, 52 Ark. App. 244, 917 S.W.2d 171 (1996).

State did not prove an overriding necessity to end a prior trial under subdivision (3) of this section to prevent a dismissal on double jeopardy grounds as a witness exceeded the trial judge's order not to tell the jury what conclusion to reach in the prior trial, but the testimony did not tell the jury what conclusion to reach; the judge's admonition cured any error or prejudice. Everetts v. State, 2011 Ark. App. 629 (2011).

Defendant's retrial did not violate double jeopardy because the circuit court did not abuse its discretion in sua sponte declaring a mistrial due to an overruling necessity, based on (1) a number of circumstances outside the control of the court and the State, including the unexpected unavailability of an interpreter for a second day of trial and a full docket the rest of the week, and (2) the court's efforts to try to complete the trial in one day. Vasquez-Ramirez v. State, 2019 Ark. App. 599, 591 S.W.3d 379 (2019).

Remand.

Where the error in prematurely dismissing the charge occurred before jeopardy attached, as there never was a determination that the state failed to prove the elements of the crime, the case was remanded rather than dismissed. State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991).

Separate Offenses.

Defendant's convictions for incest in one county did not prevent his prosecution for incest in another county where the second prosecution was not for the same offense committed in the first county and where the offenses in the second county were not based on the same conduct for which he was convicted in the first county. Fletcher v. State, 53 Ark. App. 135, 920 S.W.2d 42 (1996).

Cited: Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980); Willis v. State, 299 Ark. 356, 772 S.W.2d 584 (1989); Leach v. State, 313 Ark. 80, 852 S.W.2d 116 (1993); Basura v. City of Springdale, 47 Ark. App. 66, 884 S.W.2d 629 (1994); Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996); Cohns v. State, 2017 Ark. App. 177, 516 S.W.3d 789 (2017).

5-1-113. Affirmative defense — Former prosecution for different offense.

A former prosecution is an affirmative defense to a subsequent prosecution for a different offense under the following circumstances:

  1. The former prosecution resulted in an acquittal or in a conviction as set out in § 5-1-112, and the subsequent prosecution is for:
    1. Any offense of which the defendant could have been convicted in the first prosecution; or
    2. An offense based on the same conduct, unless:
      1. The offense of which the defendant was formerly convicted or acquitted and the offense for which he or she is subsequently prosecuted each requires proof of a fact not required by the other offense and the law defining each offense is intended to prevent a substantially different harm or evil; or
      2. The second offense was not consummated when the former trial began;
  2. The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated and that necessarily required a determination inconsistent with a fact that must be established for conviction of the second offense; or
  3. The former prosecution was terminated under the circumstances described in § 5-1-112 and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been terminated.

History. Acts 1975, No. 280, § 107; A.S.A. 1947, § 41-107.

Research References

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

U. Ark. Little Rock L.J.

Survey — Criminal Procedure, 11 U. Ark. Little Rock L.J. 187.

U. Ark. Little Rock. L. Rev.

Annual Survey of Case Law, Criminal Law, 28 U. Ark. Little Rock L. Rev. 690.

Case Notes

Conspiracy.

While in a sense both the offenses of possession of methamphetamine with intent to deliver and conspiracy to distribute methamphetamine may be based on the same conduct, the offense of possession with intent to deliver and the offense of conspiracy to distribute each requires proof of a fact not required by the other; therefore, the affirmative defense of this section does not apply. Williams v. State, 54 Ark. App. 271, 927 S.W.2d 812 (1996), superseded, 328 Ark. 487, 944 S.W.2d 822 (1997).

Conviction.

Double jeopardy does not attach where there is no possibility of conviction; therefore, a defendant was not entitled to have the charges dismissed on double jeopardy grounds merely because the victim had testified against the same defendant in a separate prosecution involving a different victim. Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982).

Different Degrees.

State was not prevented by collateral estoppel from subsequently retrying defendant for a lesser degree of the original offense charged where the first trial did not result in an acquittal and, although the charge at the first trial included a charge on the offense charged in the second trial, there was not a necessary determination of the defendant's guilt of the second offense in the finding of his guilt of the original charge. Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980).

Issue Preclusion.

As a consequence of defendant's acquittal of the possession of a firearm charge in the first case, the issue preclusion facet of res judicata and subdivision (2) of this section precluded the state from presenting evidence that defendant possessed a firearm during the battery crimes at the second trial. Mason v. State, 361 Ark. 357, 206 S.W.3d 869 (2005).

Court of Appeals lacked jurisdiction to consider defendant's interlocutory appeal because his notice of appeal was untimely; the circuit court's denial of defendant's motion to dismiss was necessarily a denial of his res judicata arguments, and thus, the dismissal order was the one from which defendant should have filed his notice of appeal. Shaver v. State, 2018 Ark. App. 242, 548 S.W.3d 222 (2018).

Offense Not Yet Consummated.

Where one victim was not dead at the time of the manslaughter conviction stemming from the death of another victim in the same incident, the subsequent prosecution was not barred; this “not yet consummated” exception to a defendant's right not to be tried twice for the same offense does not violate the principle of former jeopardy. Tackett v. State, 294 Ark. 609, 745 S.W.2d 625 (1988).

Separate Offenses.

Where offenses are separate, a defendant who had been convicted of one offense was not twice placed in jeopardy by being convicted of another offense. King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977), overruled in part, State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).

Defendant's convictions for incest in one county did not prevent his prosecution for incest in another county where the second prosecution was not for the same offense committed in first county and where the offenses in the second county were not based on the same conduct for which he was convicted in the first county. Fletcher v. State, 53 Ark. App. 135, 920 S.W.2d 42 (1996).

Where charges against defendant for alleging defrauding insurers were dismissed, this did not mandate a later dismissal of subsequently filed charges alleging Medicaid fraud under res judicata, issue preclusion, or § 5-1-113 because the crimes were not the same. Dilday v. State, 369 Ark. 1, 250 S.W.3d 217 (2007).

Cited: Basura v. City of Springdale, 47 Ark. App. 66, 884 S.W.2d 629 (1994); Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996).

5-1-114. Affirmative defense — Former prosecution in another jurisdiction.

When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state or territory of the United States, a prosecution in any such other jurisdiction is an affirmative defense to a subsequent prosecution in this state under the following circumstances:

  1. The first prosecution resulted in an acquittal or in a conviction as set out in § 5-1-112, and the subsequent prosecution is based on the same conduct unless:
    1. The offense of which the defendant was formerly convicted or acquitted and the offense for which he or she is subsequently prosecuted each requires proof of a fact not required by the other offense and the law defining each offense is intended to prevent a substantially different harm or evil; or
    2. The second offense was not consummated when the former trial began; or
  2. The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated and that required a determination inconsistent with a fact that must be established for the conviction of the offense for which the defendant is subsequently prosecuted.

History. Acts 1975, No. 280, § 108; A.S.A. 1947, § 41-108.

Research References

ALR.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts — Modern view. 97 A.L.R.5th 201.

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

U. Ark. Little Rock L. Rev.

Annual Survey of Case Law: Criminal Law, 29 U. Ark. Little Rock L. Rev. 849.

Case Notes

Applicability.

Where underlying conduct upon which the federal conviction and the Arkansas charge were based was not the same, the former jeopardy protection provided in this section did not apply. State v. McMullen, 302 Ark. 252, 789 S.W.2d 715 (1990).

Inconsistent Determinations.

Where state charge requires proof of an element not required for conviction under the federal charge, and not inconsistent with the elements required to be proved to convict on the federal charge, the defendant did not establish a double jeopardy claim under subdivision (2). Journey v. State, 261 Ark. 259, 547 S.W.2d 433 (1977).

Prosecution for Same Conduct.

Where a defendant was acquitted on a federal charge and then charged under state law, and where he had failed to establish a double jeopardy claim under § 16-85-712(b), such claim would also fail under subdivision (1) of this section. Journey v. State, 261 Ark. 259, 547 S.W.2d 433 (1977).

When the same conduct constitutes an offense within concurrent federal and state jurisdictions, a federal conviction or acquittal is an affirmative defense to a state prosecution. Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979).

Identical offenses under state and federal law would not be different merely because the punishments were different. Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979).

Defendant's acquittal of charges under 18 U.S.C.S. § 2423(a) in federal court did not operate as a bar to his statutory rape prosecution in state court as the underlying conduct upon which the federal conviction and Arkansas charge were based was not the same; a state jury's verdict that an act of statutory rape occurred in Arkansas would not necessarily be consistent with a federal jury's finding that, at the point in time when defendant transported the minor across state lines, he did not intend for the minor to engage in sexual activity. Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006).

Cited: Thompson v. State, 27 Ark. App. 164, 768 S.W.2d 39 (1989); State v. Johnson, 330 Ark. 636, 956 S.W.2d 181 (1997).

5-1-115. Former prosecutions that are not affirmative defenses.

A former prosecution is not an affirmative defense within the meaning of §§ 5-1-1125-1-114 under any of the following circumstances:

  1. The former prosecution was before a court that lacked jurisdiction over the defendant or the offense;
  2. The former prosecution was procured by the defendant without the knowledge of the appropriate prosecuting official or aggrieved party and with the purpose of avoiding the sentence that might otherwise be imposed; or
  3. The former prosecution resulted in a judgment of conviction that was held invalid in a subsequent proceeding on a writ of habeas corpus, coram nobis, or similar process.

History. Acts 1975, No. 280, § 109; A.S.A. 1947, § 41-109.

Research References

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

Case Notes

Common-Law Defenses.

The law-of-the-case defense is an affirmative defense like estoppel or res judicata. State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997).

Municipal Court Conviction.

Prosecution in circuit court of defendant convicted by a municipal court jury of misdemeanor and felony drug offenses barred by double jeopardy. Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993).

Cited: Muhammad v. State, 67 Ark. App. 262, 998 S.W.2d 763 (1999).

5-1-116. [Repealed.]

Publisher's Notes. This section, concerning the trial of minors, was repealed by Acts 1989, No. 273, § 47. The section was derived from Acts 1975, No. 280, § 617; 1979, No. 815, § 11; 1981, No. 793, § 1; 1983, No. 904, § 1; A.S.A. 1947, § 41-617.

5-1-117 — 5-1-124. [Reserved.]

Publisher's Notes. This section, concerning a right of action not being merged in a felony, was repealed by Acts 2005, No. 1994, § 535. The section was derived from Rev. Stat., ch. 45, § 264; C. & M. Dig., § 1086; Pope's Dig., §§ 1294, 1297; A.S.A. 1947, § 41-151.

5-1-125. [Repealed.]

Chapter 2 Principles of Criminal Liability

Research References

ALR.

Automatism or unconsciousness as defense to criminal charge. 27 A.L.R.4th 1067.

Subchapter 1 — General Provisions

[Reserved]

Subchapter 2 — Culpability

Effective Dates. Acts 1977, No. 101, § 3: Feb. 4, 1977. Emergency clause provided: “It is hereby found and determined by the General Assembly that the defense of voluntary intoxication is detrimental to the welfare and safety of the citizens of this State in that criminals are at times excused from the consequences of their criminal acts merely because of their voluntary intoxication and that this Act is necessary to eliminate the defense of self-induced or voluntary intoxication. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in effect from the date of its passage and approval.”

Acts 2015 (1st Ex. Sess.), No. 6, § 7: May 29, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Supreme Court of Arkansas held in Leeka v. State, 2015 Ark. 183 (2015), that in order to sustain a conviction for driving while intoxicated, the state must prove that the defendant had a reckless mental state despite the statute not expressly requiring that the defendant's mental state be proven; that the General Assembly intended and still intends to keep driving while intoxicated a strict liability offense requiring no culpable mental state; that the General Assembly passed and the Governor signed Act No. 299 during the 2015 Regular Session which amended § 5-65-103 by combining the offenses of driving while intoxicated and boating while intoxicated; that Act 299 also amended § 5-65-303 by combining the offenses of underage driving under the influence and underage boating under the influence; that Act No. 299 does not become effective until July 22, 2015; that the new offenses of driving and boating while intoxicated and driving or boating under the influence while underage are strict liability offenses requiring no culpable mental state; that Sections 2, 3, and 5 of this act are necessary because the offenses of driving while intoxicated and underage driving under the influence should not have an applicable culpable mental state as they are strict liability offenses; and that Sections 4 and 6 of this act are necessary because the offenses of driving or boating while intoxicated and underage driving or boating under the influence should not have an applicable culpable mental state as they are strict liability offenses. Therefore, an emergency is declared to exist, and:

“(1) Sections 2, 3, and 5 of this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on:

“(A) The date of its approval by the Governor;

“(B) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or

“(C) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto; and

“(2) Sections 4 and 6 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 22, 2015.”

Publisher's Notes. For Comments regarding the Criminal Code, see Commentaries Volume B.

Research References

ALR.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime. 1 A.L.R.4th 481.

Availability in state court of defense of entrapment where accused denies committing acts which constitute offense charged. 5 A.L.R.4th 1128.

Test of criminal responsibility: state cases. 9 A.L.R.4th 526.

Defense in sex offense prosecutions, generally. 12 A.L.R.4th 413.

Entrapment to commit traffic offense. 34 A.L.R.4th 1167.

Am. Jur. 21 Am. Jur. 2d, Crim. L., § 126 et seq.

Ark. L. Rev.

1976 Criminal Code — General Principles, 30 Ark. L. Rev. 111.

C.J.S. 22 C.J.S. Crim. L., § 31 et seq.

5-2-201. Definitions generally.

As used in the Arkansas Criminal Code:

  1. “Act” means a bodily movement and includes speech and the conscious possession or control of property;
  2. “Act” as a verb means either to perform an act or to omit to perform an act;
  3. “Conduct” means an act or omission and its accompanying mental state; and
  4. “Omission” means a failure to perform an act and the performance of the act is required by law.

History. Acts 1975, No. 280, § 201; A.S.A. 1947, § 41-201.

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law: Criminal Law, 4 U. Ark. Little Rock L.J. 189.

Case Notes

Cited: Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977); Robinson v. State, 318 Ark. 33, 883 S.W.2d 469 (1994).

5-2-202. Culpable mental states — Definitions.

As used in the Arkansas Criminal Code, there are four (4) kinds of culpable mental states that are defined as follows:

  1. “Purposely.” A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person's conscious object to engage in conduct of that nature or to cause the result;
  2. “Knowingly.” A person acts knowingly with respect to:
    1. The person's conduct or the attendant circumstances when he or she is aware that his or her conduct is of that nature or that the attendant circumstances exist; or
    2. A result of the person's conduct when he or she is aware that it is practically certain that his or her conduct will cause the result;
  3. “Recklessly.”
    1. A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.
    2. The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor's situation; and
  4. “Negligently.”
    1. A person acts negligently with respect to attendant circumstances or a result of his or her conduct when the person should be aware of a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.
    2. The risk must be of such a nature and degree that the actor's failure to perceive the risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation considering the nature and purpose of the actor's conduct and the circumstances known to the actor.

History. Acts 1975, No. 280, § 203; A.S.A. 1947, § 41-203.

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Research References

Ark. L. Notes.

Liebman, Voluntary Intoxication as a Defense to Crime, 1983 Ark. L. Notes 29.

Ark. L. Rev.

Case Note, Harbison v. State: Just Say No to a Usable Amount, 45 Ark. L. Rev. 425.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Criminal Law, 5 U. Ark. Little Rock L.J. 115.

Notes, Criminal Law — Child Abuse Resulting in Death — Arkansas Amends its First Degree Murder Statute, 10 U. Ark. Little Rock L.J. 785.

Case Notes

Purpose.

Evidence was sufficient to sustain defendant's first degree murder conviction because defendant had a key to the victim's apartment, he admitted that he was at the apartment on the evening of the murder, defendant purchased drugs that night and told the seller that he had “busted a some-bitch's head,” and defendant lied to the police during the investigation. Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007).

Defendant's conviction for first-degree terroristic threatening, pursuant to § 5-13-301(a)(1)(A), could not stand because there was no evidence, either direct or circumstantial, that it was defendant's conscious object—in keeping with subdivision (1) of this section—that his threatening statements, made to his girlfriend, be communicated to the victim, his former wife. Turner v. State, 2010 Ark. App. 214 (2010).

Sufficient evidence established defendant had the necessary purposeful intent, as defined in subdivision (1) of this section, to commit aggravated assault in violation of § 5-13-204(a) with respect to a vehicular incident on a local road because the victim testified defendant stopped his car, put it in reverse, and rammed into the victim's vehicle enough times and with enough force to cause her vehicle to spin; the victim's testimony constituted substantial evidence that it was defendant's conscious object to engage in conduct that created a substantial danger of death or serious physical injury to the victim and her infant son, who was also in the car. Mance v. State, 2010 Ark. App. 472 (2010).

Evidence.

Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993).

Intent is seldom capable of proof by direct evidence. Akbar v. State, 315 Ark. 627, 869 S.W.2d 706 (1994).

Where there was a plan between defendant and the accomplice to kill a drug dealer during the drug transaction, defendant admitted to driving the truck to a remote location, there was also some evidence that defendant was in a scheme to murder the victim for a fee, defendant lied about the victim's whereabouts, and defendant fled from the scene, there was ample evidence to rationally support the giving of an instruction on the lesser-included offense of first-degree murder. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003).

In a murder trial, where defendant asserted that the victim was killed as they struggled over a rifle, the jury could have considered the fact that defendant burned not only the victim's body, but all of her personal belongings, in an attempt to cover up his involvement in the crime; such proof was further evidence of a purposeful state of mind. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003).

Defendant's convictions were supported by substantial evidence where it was shown that (1) shortly after the incident, defendant had a blood-alcohol level of .23 percent, (2) defendant was driving the car that hit two women and narrowly missed a third, (3) just before the impact, defendant was witnessed to speed up and actually swerve the vehicle toward the women's path, and (4) defendant drove away after the impact. Estacuy v. State, 94 Ark. App. 183, 228 S.W.3d 567 (2006).

Evidence was sufficient to sustain defendant's kidnapping conviction as the 13 year old victim's mother relied upon the representation that defendant was taking the victim to the movies with his daughter when she gave permission for the victim to leave her home with defendant; the victim's mother did not consent to defendant escorting her daughter to a motel room under the guise of meeting someone briefly before meeting her daughter at the movies.Mitchem v. State, 96 Ark. App. 78, 238 S.W.3d 623 (2006).

Evidence was sufficient to sustain defendant's convictions for manslaughter because two people in a motor home were killed when defendant drove a fully loaded commercial vehicle weighing over 82,000 pounds, while under the influence of methamphetamine, into the oncoming-traffic lane, striking the motor home, and ultimately driving through it. Defendant never attempted to brake prior to the accident or to return to the proper lane of traffic. Hoyle v. State, 371 Ark. 495, 268 S.W.3d 313 (2007), rehearing denied, — Ark. —, — S.W.3d —, 2008 Ark. LEXIS 12 (Jan. 10, 2008).

Where defendant picked his ex-wife up from work, took her cell phone, started a verbal altercation, drove her to a bridge, stabbed her, threw her to the ground, and pushed her into the water, the evidence was sufficient to prove that defendant possessed the requisite state of mind under subdivision (1) of this section to support his conviction for attempted first-degree murder of his ex-wife. Jones v. State, 2009 Ark. App. 135 (2009).

Sufficient evidence supported the conclusion that a defendant intended to kill a victim: a witness testified that the witness gave defendant a gun, other witnesses testified that defendant shot the victim with that gun, defendant's girlfriend testified that while waiting for defendant in a car, the girlfriend heard two or three shots, and then defendant ran to the car, and inconsistent witness statements regarding whether the shooting occurred inside or outside the victim's apartment were not relevant to the conviction; therefore, defendant's motion for a directed verdict was properly denied. Hawkins v. State, 2009 Ark. App. 675 (2009).

Evidence supporting defendant's convictions for three counts of delivering a controlled substance in violation of § 5-64-401 was substantial because the jury had substantial, if not overwhelming, evidence from which to infer with reasonable certainty from the circumstances that defendant formed the necessary criminal intent to sell a confidential informant crack cocaine; a captain of the police department testified that his office received multiple calls indicating that defendant was engaged in selling controlled substances, and evidence was presented that on three occasions the confidential informant assisted the police in making controlled buys of crack cocaine from defendant and that the substances the confidential informant purchased from defendant tested positive for crack cocaine. Edwards v. State, 2010 Ark. App. 59, 377 S.W.3d 271 (2010).

Trial court did not err by denying defendant's motions for a directed verdict because substantial evidence supported his conviction, as there was evidence that: (1) defendant had prior knowledge of his wife's affair with the victim and investigated the victim's background; (2) defendant waited in his truck after arriving at the store until the victim and his wife were standing by their vehicles; and (3) defendant fired multiple shots, chased the victim, and stood over him to deliver a final shot to the head. James v. State, 2010 Ark. 486, 372 S.W.3d 800 (2010), overruled in part, Kou Her v. State, 2015 Ark. 91, 457 S.W.3d 659 (2015).

Evidence was sufficient to support defendant's conviction of promoting prostitution in the first degree, § 5-70-104, where the State presented substantial evidence of circumstances through the testimony of the four witnesses from which the circuit court could infer that defendant knowingly advanced or profited from the prostitution of a person less than 18 years of age. Tatum v. State, 2014 Ark. App. 68 (2014).

Instructions.

In a case in which a jury convicted defendant of capital murder in the shooting death of his ex-wife, the trial court properly refused to instruct the jury on reckless manslaughter and negligent homicide. Defendant, who fired once into a residence, mortally striking his ex-wife in the back, offered no rational basis to support giving either instruction on the basis that his actions were reckless or negligent. Jones v. State, 2012 Ark. 38, 388 S.W.3d 411 (2012).

Intent.

There was substantial evidence from which the jury could have inferred that it was defendant's conscious object to cause the victim's death, because defendant placed the gun less than one inch away from her head and pulled the trigger, killing her. Williamson v. State, 2013 Ark. 347, 429 S.W.3d 250 (2013).

Knowingly.

Evidence was sufficient to support a verdict that defendant acted “knowingly.” Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978); Smith v. State, 30 Ark. App. 111, 783 S.W.2d 72 (1990).

There was ample circumstantial evidence for the jury to find that defendant knowingly caused the death of the infant. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000).

The court looked at the totality of the circumstances surrounding the interrogation and determined that the state proved that the defendant had the requisite level of comprehension to knowingly waive his rights. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000).

Sufficient evidence existed for the jury to find that defendant, the victim's caretaker, knowingly committed second-degree murder when she used enough force inserting a rectal thermometer that she punctured the child's rectum, causing peritonitis, and then failed to immediately seek medical attention. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002).

Defendant's conviction for battery in the second degree was appropriate under §§ 5-13-202(a)(4)(C) and 5-2-202(2) because the evidence was clear that defendant intended to restrain the victim. The victim, defendant's mother-in-law, testified that defendant grabbed her, threw her into a chair, and pushed her down anytime the victim had tried to stand up. LaFort v. State, 98 Ark. App. 202, 254 S.W.3d 27 (2007).

Where defendant took a loaded gun from his vehicle after seeing the victim's group outside a department store and deliberately shot the victim three times at close range, the jury could infer that he knowingly caused the victim's death for purposes of subdivision (2)(A) and (B) of this section; the trial court did not abuse its discretion by admitting defendant's statement that he shot the victim, because he wanted to give him an early Christmas present. The statement was probative of defendant's state of mind as well as his lack of remorse; because the evidence was sufficient to support defendant's conviction for second degree murder in violation of § 5-10-103(a)(1), the trial court did not err by denying his motion for a directed verdict. Vorachith v. State, 2009 Ark. App. 656 (2009).

Appellants' convictions for theft of property were affirmed because substantial evidence supported the convictions where (1) while appellants maintained they were simply running a business and made some poor business decisions, the testimony of the victims established a pattern of taking and exercising unauthorized control over the victims' money with the purpose of depriving the victims of their money; (2) the pattern demonstrated that appellants sold items to the victims, accepted the victims' money, purposefully and knowingly delayed delivery of the merchandise, and offered multiple and most often untrue excuses for why the orders did not arrive; and (3) the evidence showed that appellants would tell customers that an item was in shipping, was shipped in the wrong color, back ordered, or damaged in shipping. Williams v. State, 2009 Ark. App. 848 (2009).

Defendant's conviction for murder in the second degree, with a firearm enhancement, was proper because defendant acted knowingly to cause the victim's death under circumstances manifesting extreme indifference to the value of human life, as described in subdivision (2) of this section. The issues involved credibility and it was presumed that a person intended the natural and probable consequences of his or her acts; defendant shot her husband in the wrist with a handgun, he bled to death as a result of the wound, and additional evidence indicated that the fatal wound was defensive in nature. Johnson v. State, 2010 Ark. App. 153, 375 S.W.3d 12 (2010).

Appellant's conviction for second-degree murder was affirmed because the pattern of the gunshots, which were aimed at the victim's chest and upper-arm area, as well as the trajectory of the bullets showed that appellant acted deliberately in a manner that would naturally and probably culminate in the victim's death. Phillips v. State, 2011 Ark. App. 575, 386 S.W.3d 99 (2011).

Defendant's conviction for second-degree battery, in violation of § 5-13-202(a)(4)(C), was supported by the evidence because the number of bruises on his girlfriend's 23-month-old son and the unusual force necessary to cause them, as testified to by an emergency room pediatrician, provided proof that he knowingly caused physical injury under subdivision (2)(B) of this section. Hahn v. State, 2012 Ark. App. 297 (2012).

In his directed verdict motion, appellant did not argue that the State did not prove that he knew of the card's existence in the wallet when he stole it, and that he purposely deprived the owner of the card, and thus this argument was barred from appellate review; even if the court reached the argument, it lacked merit, because (1) the statute only required that one knowingly take unauthorized control over property, and it did not require that one know the value or character of the property that was taken, (2) appellant did not dispute that he knowingly took the owner's wallet with the intent of depriving him of it, (3) his knowledge of the contents of the wallet was not necessary for his conviction, and (4) his unauthorized taking of the wallet that had the debit card was one act and he was liable for all property taken, such that the evidence was sufficient to support his theft conviction. Blakely v. State, 2013 Ark. App. 37 (2013).

Defendant's motion for a directed verdict was properly denied because it was apparent that the jury believed that he knowingly, as defined in subdivision (2) of this section, caused his two-month-old daughter's injuries Hoodenpyle v. State, 2013 Ark. App. 375, 428 S.W.3d 547 (2013).

Evidence was sufficient to support a conviction for theft by deception because defendant entered into a scheme to defraud by inflating a tax refund amount and then diverting the difference to an account she owned; there was substantial evidence that defendant knowingly obtained the property of another by deception. The taxpayer did not agree to have any of her refund deposited into any other account, and defendant was not forthcoming with information about the separate account, despite the taxpayer's multiple inquiries. McClellan v. State, 2014 Ark. App. 725, 452 S.W.3d 116 (2014).

In a first-degree murder case, the trial court did not abuse its discretion in instructing the jury on the lesser-included offense of second-degree murder because the evidence provided a rational basis for an acquittal on the first-degree-murder charge and a conviction on the second-degree-murder charge as defendant did not shoot and kill the victim, but handed his gun to codefendant; defendant could not have known with absolute certainty what codefendant would do; and the jury could have concluded that defendant knowingly caused the death of another person under circumstances manifesting extreme indifference to the value of human life in that he was practically certain that his conduct would cause the death of the victim. Northern v. State, 2015 Ark. App. 426, 467 S.W.3d 755 (2015).

Evidence supported defendant's convictions of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child under § 5-27-602; there was substantial evidence that defendant exercised dominion and control over the computers that were seized from his residence, and there was no claim that anyone else lived with defendant or had access to the computer, and there was substantial evidence that defendant knowingly possessed the images and videos of child pornography saved on his computer. Bishop v. State, 2015 Ark. App. 436, 467 S.W.3d 763 (2015).

In a second-degree murder case, defendant's motion for a directed verdict was properly denied as a jury could find that the defense of justification was without merit because defendant's conduct of intentionally firing eight warning shots at the victim established extreme indifference to human life; the simple act of pointing a loaded gun at the victim was enough to satisfy the intent standard of second-degree murder; and defendant was not justified in using deadly force against the victim as he initiated the situation that brought about his use of deadly force, evidence at the crime scene did not support defendant's assertion that he was backing up when firing shots, and an eyewitness testified that the victim never charged at defendant. Sullivan v. State, 2015 Ark. App. 514, 470 S.W.3d 312 (2015).

Evidence was sufficient to sustain the jury's finding that defendant acted knowingly and with extreme indifference to the value of human life where defendant was alone with the baby for approximately two hours, the baby developed a deformed head by the time the mother arrived home, defendant packed a bag and insisted on driving his own vehicle to the hospital, and defendant initially claimed that nothing had happened and then offered two improbable explanations for how the baby's skull had been fractured. Suchey v. State, 2016 Ark. App. 225, 490 S.W.3d 320 (2016).

Evidence was sufficient to support defendant's conviction of murder in the first degree under § 5-10-102(a)(3) where the victim was the youngest of defendant's children, a forensic examiner and experts testified that he had died of starvation, evidence showed that defendant had withheld formula from him, and defendant had previously cared for the victim's five other premature siblings, all of whom survived infancy; there was substantial evidence presented to support a conclusion that defendant, who had an IQ of 75, was aware of the risk caused by the infant's obvious malnourishment and that she was aware that it was practically certain her conduct would cause the infant's death. Bowman v. State, 2019 Ark. App. 469, 588 S.W.3d 129 (2019).

Negligently.

In order to be held to have acted negligently under this section, it is not necessary that the actor be fully aware of a perceived risk and recklessly disregard it, rather, it requires only a finding that, under the circumstances, he should have been aware of it and his failure to perceive it was a “gross deviation” from the care a reasonably prudent person would exercise under those circumstances; the section itself declares that the degree of negligence sufficient to establish civil liability will not suffice for the purpose of this section. Phillips v. State, 6 Ark. App. 380, 644 S.W.2d 288 (1982).

There was substantial evidence from which to find that the defendant acted negligently. Phillips v. State, 6 Ark. App. 380, 644 S.W.2d 288 (1982).

Negligent conduct is distinguished from reckless conduct primarily in that it does not involve the conscious disregard of a perceived risk; in order to be held to have acted negligently, it is not necessary that the actor be fully aware of a perceived risk and recklessly disregard it, rather, it requires only a finding that under the circumstances he should have been aware of the risk and his failure to perceive it was a gross deviation from the care a reasonable, prudent person would exercise under those circumstances. Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000).

In defendant's trial for criminally negligent homicide, the trial court erred in failing to grant defendant's motion for directed verdict where the state's evidence that defendant's truck merely crossed the center line of a road was insufficient to support a finding of criminal negligence; this was a different standard from the evidence needed to support a finding of civil negligence. Utley v. State, 93 Ark. App. 381, 219 S.W.3d 709 (2005), rev'd, 366 Ark. 514, 237 S.W.3d 27 (2006).

Evidence was sufficient to support defendant's conviction of negligent homicide where the jury could conclude that defendant's failure to perceive the risk under the facts constituted a gross deviation from the standard of care that a reasonable person would observe in defendant's position. Utley v. State, 366 Ark. 514, 237 S.W.3d 27 (2006).

Appellants' convictions for negligent homicide in the death of their daughter were affirmed; given the record—which included appellants allowing three hours to pass without checking on or knowing the whereabouts of their twenty-two-month-old child—the instant court could not say that the verdicts were not supported by substantial evidence. Marin v. State, 2009 Ark. App. 802 (2009).

Because there was no negligent behavior on the part of defendant pursuant to subsection (4) of this section, his action were purposeful, and a firearm and toolmark examiner for the Arkansas State Crime Lab testified that for the gun to be fired, the trigger had to be pulled, which usually required five to five and a half pounds of pressure, the trial court did not err in refusing to give the jury an instruction on negligent homicide under § 5-10-105(b)(1). Ratterree v. State, 2012 Ark. App. 701 (2012).

Negligent homicide instruction was not warranted because there was no rational basis to conclude that defendant's actions were merely negligent where defendant reached under his car seat, chambered a round, and intentionally fired the weapon directly at the victim's chest. Bennett v. State, 2014 Ark. App. 624, 447 S.W.3d 602 (2014).

Circuit court erred in denying defendant's motion to dismiss a negligent homicide charge under § 5-10-105(b)(1); although there was no question that defendant's failure to see the decedent's vehicle resulted in the fatal accident, there was no evidence that defendant was speeding, driving erratically, under the influence of alcohol, using a phone, or engaged in some similar conduct, and thus, the evidence fell short of establishing criminal negligence. Gill v. State, 2015 Ark. 421, 474 S.W.3d 77 (2015).

Substantial evidence supported defendant's conviction of misdemeanor negligent homicide; the weather conditions were clear on the night in question, defendant was observed crossing five lanes of traffic at high speed and rolling his vehicle, the vehicle's black box indicated that the brakes were never engaged, plus three cans of air duster had been purchased minutes before the accident and a blood sample had detected the presence of difluoroethane, a gas found in air-duster canisters, in defendant's blood. Sizemore v. State, 2015 Ark. App. 728, 478 S.W.3d 281 (2015).

It was not clear that the administrative law judge (ALJ) incorrectly relied on the criminal-negligence standard; however, the father could not show prejudice because applying the criminal-negligence standard only heightened the standard by which the ALJ could find neglect by inadequate supervision under the Child Maltreatment Act, § 12-18-103. W.N. v. Ark. Dep't of Human Servs., 2018 Ark. App. 346, 552 S.W.3d 483 (2018).

Purposely.

The kind of evidence and quantum of proof required to show a “conscious object” so as to make an action purposeful under subdivision (1) of this section is the same as that which was formerly required to show “specific intent,” and may be inferred from the facts and circumstances shown in evidence. Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979).

Where offense requires a purposeful mental state, the defense of voluntary intoxication is available to a defendant charged with such crime. Davis v. State, 12 Ark. App. 79, 670 S.W.2d 472 (1984).

Evidence was sufficient to support a finding that defendant acted purposely. Black v. State, 306 Ark. 394, 814 S.W.2d 905 (1991); Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996); Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997).

The jury could reasonably have inferred that defendant purposely killed his victim, based on the type of weapon used, the manner of its use, and the location of the wounds. Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991).

Purposeful intent of the defendant can be inferred from the manner of the victim's death and the location of the victim's wound. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993).

Premeditation, deliberation, and purposeful intent can be formed on the spur of the moment. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993).

There was substantial evidence that defendant acted with the purpose to cause serious physical injury to the victim under circumstances manifesting extreme indifference to the value of human life where he kicked the victim in the head repeatedly after the victim was down. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000).

Where the evidence presented showed that defendant had a stormy relationship with the victim, that they argued the night before a fatal shooting, that defendant had pointed a gun at the victim in the past, that defendant had retrieved a gun on the morning of the shooting, and that defendant admitting to shooting the victim, there was sufficient evidence to sustain a conviction for first-degree murder; the evidence was sufficient to show defendant acted purposely, rather than accidentally. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003).

Based on the testimony of several eyewitnesses that defendant had shot a victim near a vehicle after an argument, there was sufficient evidence presented to infer that defendant acted with a conscious desire to kill the victim. Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003).

A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003).

Appellate court found no merit in defendant's argument that he was merely rhetorically questioning a 14-year-old girl about sex, rather than soliciting her, and that he had no intent to make such a statement where there was testimony that he offered to pay money in exchange for sex, that he offered her more money after she refused him, and that he kissed her on the neck after encouraging the young boys in her charge to kiss her. Heape v. State, 87 Ark. App. 370, 192 S.W.3d 281 (2004).

Evidence was sufficient for a conviction of first-degree murder where the victim was last seen in the company of defendant, defendant made statements to his fellow inmates that he killed the victim with his hands in a fight after an argument, defendant told his brother that he would like to kill the victim, the victim's body was placed on wood burning stove, defendant kicked the pipe off of the stove, and the victim's body was found charred. Johnson v. State, 358 Ark. 460, 193 S.W.3d 260 (2004).

Evidence was sufficient to sustain defendant's forgery and theft convictions where she did not offer a reasonable explanation of how she acquired the forged check; therefore, an inference that she committed the forgery or was an accessory to its commission was warranted and the court did not err in inferring defendant's intent. DeShazer v. State, 94 Ark. App. 363, 230 S.W.3d 285 (2006).

There was sufficient evidence for the jury to determine that defendant had the requisite mens rea for first-degree murder at the time he shot and killed his wife as an expert for the state testified that defendant did not have a mental disease or defect at the time of the shooting; the jury was entitled to believe the state's expert over defendant's expert. Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007).

Circuit court did not err by admitting into evidence photographs of the murder victim because her wounds were relevant to show defendant's intent to kill her; they also assisted the jury in understanding the crime-scene investigator's description of the scene, and the circuit court performed a proper evaluation of the photographs before allowing them to be presented to the jury. Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007).

Evidence was sufficient to sustain a first degree murder conviction because defendant admitted to hitting, kicking, and stabbing the victim, a knife blade was found at the crime scene, and a matching handle was later found at defendant's house, and defendant's statement to the investigating officer indicated that his conscious object was to cause the death of the victim. Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007).

Evidence was sufficient to show that defendant acted “under circumstances manifesting extreme indifference to the value of human life” and to sustain his conviction for first degree battery because defendant admittedly placed a child in a tub of water so hot that it severed the skin from his feet, and defendant's own statements, although inconsistent, supported the conclusion that he knew that it was his responsibility to properly supervise the child during a bath and to ensure a safe water temperature and that he consciously disregarded the risks involved. Bell v. State, 99 Ark. App. 300, 259 S.W.3d 472 (2007).

Evidence was sufficient to support a conviction for first-degree battery under § 5-13-201(a)(8) where defendant purposely fired three times at an occupied truck on a highway; a passenger was struck and seriously injured. There was a presumption that defendant intended the natural and probable consequences of his actions. Spight v. State, 101 Ark. App. 400, 278 S.W.3d 599 (2008).

Defendant's conviction for theft of property lost, mislaid, or mistakenly delivered was supported by the evidence because defendant failed to take reasonable measures to return a double payment made to defendant's business on behalf of a customer, and acted with purposeful intent under subdivision (1) of this section of depriving the victims. Cora v. State, 2009 Ark. App. 431, 319 S.W.3d 281 (2009).

Evidence was sufficient to support defendant's conviction of first-degree murder for the killing of a romantic rival and to establish the requisite intent of purposefulness because it showed that defendant, while possessing a knife, drove to the victim's residence, confronted her, and stabbed her with the knife in the ensuing altercation. Mooney v. State, 2009 Ark. App. 622, 331 S.W.3d 588 (2009), review denied, — Ark. —, — S.W.3d —, 2009 Ark. LEXIS 820 (Dec. 10, 2009).

Trial court did not err in refusing to direct the verdicts where defendant took actions to conceal the harm to the child, and failed to take action to secure appropriate care for the child; the jury could conclude that defendant rubbing a substance known to cause skin irritation on the face of a toddler where Superglue had already adhered would cause, at the very least, the impairment of physical condition or a visible mark associated with the physical trauma. Price v. State, 2009 Ark. App. 664, 344 S.W.3d 678 (2009).

Defendant's conviction for first-degree criminal mischief under § 5-38-203(a)(1) was supported by substantial evidence as: (1) it was fair to presume that defendant purposely for purposes of subdivision (1) of this section broke a former supervisor's car windows when defendant repeatedly swung a long, heavy metal object at them; (2) defendant's statement to the supervisor immediately prior to smashing the supervisor's windows that defendant should “kick (the supervisor's) ass” demonstrated defendant's anger and indicated a desire to express that anger with violence; and (3) defendant failed to support a claim that defendant's actions were justified. Warren v. State, 2011 Ark. App. 102 (2011).

Defendant's conviction for domestic battering under § 5-26-304(a)(2) was supported by sufficient evidence because the state showed that, with the purpose of causing physical injury, defendant caused injury to the victim, his brother, by means of a deadly weapon. While defendant contended that he was acting in self-defense when he struck the victim with a sickle, the testimony of the victim and the victim's brother established that the victim did not have the gun that he had when police arrived until after defendant had battered both the victim and the victim's brother. Brown v. State, 2011 Ark. App. 150, 381 S.W.3d 175 (2011).

State failed to show that a juvenile engaged in disorderly conduct in a reckless or purposeful manner as those terms were defined by this section, as the juvenile's behavior in unexpectedly coming upon a scene in which the juvenile's mother was being arrested was not a gross deviation from a reasonable standard of care. M.J. v. State, 2011 Ark. App. 171, 381 S.W.3d 880 (2011), rehearing denied, — Ark. App. —, — S.W.3d —, 2011 Ark. App. LEXIS 300 (Apr. 13, 2011).

During a trial for breaking or entering, the jury was not required to believe defendant's claim that defendant did not enter a vehicle with the intent to steal anything under subdivision (1) of this section, but instead to have a place to sleep; defendant's argument overlooked the fact that an officer found a car-stereo faceplate in defendant's pocket. Pruitt v. State, 2011 Ark. App. 754 (2011).

Substantial evidence supported a finding that defendant acted purposely, within the meaning of subdivision (1) of this section, when he discharged a gun in the direction of a step that was three steps down from where the assault victim was standing. Defendant's explanation of the gun accidentally firing did not match the physical evidence of bullet fragments found near a pock mark on the first step to the front porch and both the victim and defendant being wounded. Montalvo v. State, 2012 Ark. App. 119 (2012).

Evidence was sufficient to convict defendant of first-degree murder under § 5-10-102(a)(2) because the three gunshot wounds to the victim alone, at least two of which were fired 35-40 seconds apart, ran counter to defendant's accidental shooting theory; and the evidence supported an inference of purposeful intent under subdivision (1) of this section. Smith v. State, 2012 Ark. App. 359 (2012), dismissed, Smith v. Kelley, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 119827 (E.D. Ark. Sept. 9, 2015).

Evidence was sufficient to sustain defendant's attempted first-degree murder conviction because defendant knocked on a door and fired a gun at the victim when he opened the door. The jury could reasonably have inferred that defendant purposely engaged in conduct that constituted a substantial step in a course of conduct known to cause death to another person, regardless of that person's identity. Wells v. State, 2012 Ark. App. 596, 424 S.W.3d 378 (2012).

During an inmate's trial for murder in the first degree, in violation of § 5-10-102(a)(2), the court did not err in denying his motion for a directed verdict because there was ample evidence to support the conclusion that he purposely caused the victim's death under subdivision (1) of this section; he admitted to the crime and that it was his intent to kill the victim and that he had to think about how to do it. Kaufman v. State, 2013 Ark. 126 (2013).

Denial of postconviction relief was proper, because the petitioner failed to show the second-degree-murder instruction added an extra element not present in the greater offense of first-degree murder and that counsel should have objected; Second-degree murder was a lesser-included offense of first-degree murder, as it differed from the greater offense only to the extent that it required a lesser kind of culpable mental state. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462 (2013).

Record contained substantial evidence that defendant had the intent to commit the crime of terroristic threatening, as he made statements that he would destroy anyone who got in his way, and he tried to call his father to talk him out of “it,” and this particular statement was made after defendant loaded or cocked a rifle while pacing; taken in context, the statements were not innocuous, but given the parties' volatile relationship, gave rise to the level sufficient to support a conviction of terroristic threatening. Cauffiel v. State, 2013 Ark. App. 642 (2013).

Circuit court did not err in denying defendant's motion for directed verdict on a first-degree murder charge where defendant lied about seeing the victim, had buried her body, and had disposed of a necktie and bag, and thus, the jury could have concluded from the testimony and circumstantial evidence that he had placed a bag over the victim's head with the purpose of causing her death. Williams v. State, 2015 Ark. 316, 468 S.W.3d 776 (2015).

While there was evidence of the defendant's history of mental difficulties, there was sufficient evidence that she was not acting with such difficulties at the time of the murder; in addition to defendant's deliberate acts after the murder to conceal evidence, law enforcement officers testified that they had clear conversations with the 17-year-old defendant the day of the murder and her mother testified that she was calm immediately before the murder. While the State did not offer a motive for the murder, the jury could reasonably infer from this evidence that defendant purposely killed the victim. Fink v. State, 2015 Ark. 331, 469 S.W.3d 785 (2015).

Defendant was properly found guilty of first-degree murder because she purposely caused the 80-year-old victim's death by stabbing him approximately 36 times, deliberately sought to conceal evidence, and the jury was entitled to believe the testimony of one expert over the other and to find that defendant had not proved the defense of mental disease or defect by a preponderance of the evidence. Fink v. State, 2015 Ark. 331, 469 S.W.3d 785 (2015).

Evidence presented was substantial enough that the jury did not have to resort to conjecture to convict defendant of first-degree murder, given in part that witnesses testified that defendant and the victim had been fighting, and although defendant claimed self-defense, the victim was shot in the head, which supported the idea that the victim was shot intentionally, not during a struggle for defendant's life. Toombs v. State, 2015 Ark. App. 71, appeal dismissed, 2015 Ark. 471 (2015).

Defendant acted with the purpose to cause the victim's death in that defendant, instead of leaving when defendant's paramour became angry and intoxicated, retrieved a handgun, hid it under a sofa cushion beside defendant, and shot defendant's paramour, after the paramour threw a cup of wine at defendant, when the paramour was in a vulnerable position reclined in the paramour's chair. Scott-Paxson v. State, 2015 Ark. App. 149, 457 S.W.3d 311 (2015).

Substantial evidence supported defendant's conviction for residential burglary because the circumstances were plainly sufficient to allow the trial court to reasonably infer, without resort to speculation or conjecture, that he entered the victim's home with the purpose of assaulting her; defendant violently broke into the victim's home, chased her, tried to prevent her from being able to call for help, verbally threatened her safety, and immediately thereafter physically beat her. Davis v. State, 2015 Ark. App. 234, 459 S.W.3d 821 (2015).

It was defendant's brother who fired the shot that killed the victim, and although defendant claimed the State failed to prove it was his conscious object to assist his brother, the law in Arkansas made no distinction between the criminal liability of a principal and an accomplice; defendant drove around with the stated purpose to assist in hunting down and killing the victim, and thus the evidence supported his convictions of first-degree murder and committing a terroristic act, and the circuit court properly denied his motions for directed verdict. Starling v. State, 2015 Ark. App. 429, 468 S.W.3d 294 (2015).

State produced sufficient evidence that defendant purposely killed the victim; it was defendant's conscious object to end the victim's life, given that even after defendant had beaten the victim with a bat for several minutes, and the victim begged her to stop, she did not stop, she made efforts to conceal the crime, including burying the victim's body, and she fled when investigators found the body. Rollf v. State, 2015 Ark. App. 520, 472 S.W.3d 490 (2015).

Trial court did not err in denying appellant's motion for a directed verdict on an aggravated assault charge where, after realizing that he would be unable to escape from two police officers pursuing him, he turned towards one officer and held a knife in a threatening manner, the officer was able to strike appellant with his baton and take away the knife, and thus, appellant was close enough to the officer to cause serious physical injury. Freeman v. State, 2016 Ark. App. 36, 480 S.W.3d 886 (2016).

Evidence was sufficient to convict defendant of first-degree murder because, after stabbing the victim, defendant immediately started trying to cover up evidence when she hid the knife and returned asking another individual what happened; defendant lied to the police during her first interview about her involvement; lying about a crime could indicate a consciousness of guilt, and a jury could properly consider an attempt to cover up one's connection to a crime as proof of a purposeful mental state; and, contrary to defendant's statement to police that she barely swung the knife, the medical examiner testified that the blade had gone halfway through the victim's body. Stearns v. State, 2017 Ark. App. 472, 529 S.W.3d 654 (2017).

In defendant’s trial for first-degree terroristic threatening arising from a workplace incident, it was reasonable for the jury to conclude that defendant threatened the victim in order to terrorize him, in violation of § 5-13-301(a)(1)(A), where multiple witnesses testified that defendant had pointed a pistol at the victim, the victim testified that as defendant aimed, he told him that he was “fixing to shoot”, and the jurors were entitled to rely on their common knowledge and life experiences to infer that, given the circumstances, defendant acted with the conscious objective to cause the victim terror. Hughes v. State, 2020 Ark. App. 114 (2020).

Recklessly.

The definition of “recklessly” is of such common understanding and practice that its meaning in certain statutes as an element of an offense is not unconstitutionally vague. Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976).

The word recklessly is not an obscure, vague or technical word outside the scope of the common understanding of the ordinary individual or juror; therefore, even though there is a statutory definition, such definition is not essential for the jury's understanding of a charge involving reckless conduct. Viar v. State, 269 Ark. 772, 601 S.W.2d 579 (Ct. App. 1980).

Failure to instruct on the meaning of the word “recklessly” was held proper. Viar v. State, 269 Ark. 772, 601 S.W.2d 579 (Ct. App. 1980).

It was error for the trial court to refuse defendant's requested instruction on offense involving negligence since the jury would have determined under this section whether the defendant should have been aware of the risk involved in her actions. Worring v. State, 2 Ark. App. 27, 616 S.W.2d 23 (1981).

There was substantial evidence to support conclusion that defendant acted recklessly. Slavens v. State, 1 Ark. App. 245, 614 S.W.2d 529 (1981); Smith v. State, 3 Ark. App. 224, 623 S.W.2d 862 (1981).

Defendant recklessly caused the death of her baby by consciously disregarding a substantial and unjustifiable risk that death might occur if she did not feed the baby more often. Miles v. State, 59 Ark. App. 97, 954 S.W.2d 286 (1997).

There was sufficient evidence of reckless conduct to support the conviction for second-degree assault where defendant pushed victim from behind as she went through a door; defendant's actions created a substantial risk that the victim would be physically injured by falling on a concrete sidewalk, and it was of no consequence that victim was able to regain her balance before falling. Walker v. State, 330 Ark. 652, 955 S.W.2d 905 (1997).

Evidence that defendant had been stared at by the victim did not provide a rational basis for giving a reckless manslaughter jury instruction. Ellis v. State, 345 Ark. 415, 47 S.W.3d 259 (2001).

Second-degree murder conviction was affirmed because defendant was not entitled to an instruction on the lesser-included offense of involuntary manslaughter under § 5-10-104(a)(3); defendant's act of shooting into an ex-spouse's occupied vehicle did not constitute recklessness. Bankston v. State, 361 Ark. 123, 205 S.W.3d 138 (2005).

Evidence was sufficient to show that defendant acted recklessly as to her son's abuse where she was confronted by her sister-in-law regarding concerns that defendant's son was being abused and defendant did nothing to prevent future abuse. Graham v. State, 365 Ark. 274, 229 S.W.3d 30 (2006).

Defendant's convictions for manslaughter, in violation of § 5-10-104(a)(3), were modified to the lesser-included offense of negligent homicide under § 5-10-105(b)(1) because defendant's acts of crossing the center line, tailgating, and averting defendant's eyes from the road constituted negligence, not recklessness under subdivision (3) of this section. Rollins v. State, 2009 Ark. App. 110, 302 S.W.3d 617 (2009), rev'd, 2009 Ark. 484, 347 S.W.3d 20 (2009).

State produced evidence in the form of a witness that defendant pushed the victim from a moving vehicle and that he struck her afterwards as she lay on the ground; by pushing the victim from a moving vehicle and then kicking her, defendant consciously disregarded the risk that his actions would cause injury to the victim, and there was substantial evidence to support a finding that defendant recklessly caused physical injury to the victim. Lasker v. State, 2009 Ark. App. 591 (2009).

Evidence supported the inference that defendant juvenile intended to engage in the conduct of hitting a nurse and threatening her and a doctor's lives to create public inconvenience, annoyance, or alarm in violation of § 5-71-207 because the nurse testified that defendant attacked her on several different occasions, and defendant did not argue that he was in any way incapable of controlling his actions at the time he threatened to kill either the nurse or the doctor and struck the nurse; at the very least, defendant consciously disregarded the effects of his actions. M.T. v. State, 2009 Ark. App. 761, 350 S.W.3d 792 (2009).

State failed to show that a juvenile engaged in disorderly conduct in a reckless or purposeful manner as those terms were defined by this section, as the juvenile's behavior in unexpectedly coming upon a scene in which the juvenile's mother was being arrested was not a gross deviation from a reasonable standard of care. M.J. v. State, 2011 Ark. App. 171, 381 S.W.3d 880 (2011), rehearing denied, — Ark. App. —, — S.W.3d —, 2011 Ark. App. LEXIS 300 (Apr. 13, 2011).

During defendant's trial for permitting the abuse of her minor child, the court did not err in allowing defendant's mother to testify regarding her reaction to the child's injuries; the testimony was relevant as to whether defendant recklessly failed to take action to prevent the abuse under subdivision (3) of this section. Sullivan v. State, 2012 Ark. 74, 386 S.W.3d 507 (2012).

During parents' trial for first-degree battery against their infant, the court did not err in refusing to instruct the jury on the lesser-included offense of third-degree battery because regardless of whether there was some reckless conduct under subdivision (3) of this section, the physical injury the infant sustained could only be described as serious; the infant was severely malnourished to the point of starvation and death would have occurred within days without medical attention. Bruner v. State, 2013 Ark. 68, 426 S.W.3d 386 (2013).

Because the attorney committed the drug and drug paraphernalia possession crimes with only a reckless mental state under subdivision (3) of this section and § 5-2-203(b), had been rehabilitated, had successfully completed his suspended sentence, and had successfully established his present mental and emotional stability and good moral character, the attorney was not prevented from being readmitted to the Arkanses Bar under Ark. Sup. Ct. P. Reg. Prof'l Conduct § 24(B)(2), and his request for readmission to the Arkansas Bar pursuant to Ark. R. Admis. Bar XIII(G) was granted. In re Haynes, 2013 Ark. 102, 426 S.W.3d 411 (2013).

Substantial evidence supported defendant's manslaughter convictions under § 5-10-104(a)(3) and subdivision (3) of this section given defendant's ingestion of 11 controlled substances prior to driving her SUV across the center line, running two vehicles off the road before striking the victims' car, which had pulled onto the shoulder. Dail v. State, 2013 Ark. App. 184 (2013).

Suspension of an earlier sentence was properly revoked because defendant committed domestic battery in the third degree where an infant child suffered an arm fracture in defendant's care, and a medical examination revealed healing fractures other places; moreover, there was evidence that other injury incidents had occurred while the child was in defendant's care, and there was testimony that defendant was too rough with the child. The standard for reckless was what a reasonable person in the circumstances would have observed. Singletary v. State, 2013 Ark. App. 699 (2013).

Trial court did not err by failing to instruct on attempted reckless manslaughter as a lesser-included offense of attempted second-degree murder because the crime of attempted reckless manslaughter is inherently contradictory. The attempted offense involved an intentional act, and it would have been illogical to ask the jury to find that defendant intended to act recklessly or that he purposely engaged in conduct that was a substantial step in a course of conduct intended to culminate in acting recklessly. Even if the instruction was based on sound law, there was no rational basis for giving it in this case where defendant's actions in running over people were intentional, regardless of whether he intended to bring about the particular result of death. Allen v. State, 2015 Ark. App. 360, 465 S.W.3d 9 (2015).

Circuit court, which instructed the jury on first-degree murder and the lesser-included offense of second-degree murder, did not err in refusing to instruct the jury on reckless manslaughter because the jury was presented with evidence that defendant chased the victim, blocked the victim's vehicle with defendant's vehicle, and ran up to the victim's car, shooting once into the hood of the car and a second time through the windshield of the car, killing the victim. Starling v. State, 2016 Ark. 20, 480 S.W.3d 158 (2016).

Trial court did not err in instructing the jury because, even assuming endangering the welfare of a minor in the third degree was a lesser-included offense of endangering the welfare of a minor in the first degree, there was not a rational basis for giving the instruction. By defendant's own testimony, defendant's actions were not reckless; they were actions that defendant purposely undertook after defendant became upset and frustrated when an infant child would not stop crying, which resulted in serious injury to the child. Myers v. State, 2016 Ark. App. 501, 505 S.W.3d 694 (2016).

Although the circuit court in a bench trial incorrectly held that the applicable culpable mental state was strict liability in a DWI case under § 5-65-103 that did not involve alcohol, defendant's conviction was affirmed where the circuit court made an alternative finding under the correct standard that the State had submitted proof sufficient to satisfy reckless conduct under § 5-2-203 and this section; the testimony of the officer, the pharmacist expert, and the defendant provided sufficient evidence to support a finding that defendant acted recklessly in taking prescribed barbiturates (for her migraine) and then operating a motor vehicle. Cordero v. State, 2019 Ark. App. 484, 588 S.W.3d 369 (2019).

Recklessly and Negligently Distinguished.

Reckless and negligent conduct, as defined in this section, are distinguished in that reckless conduct involves a conscious disregard of a perceived risk; a person charged with negligent homicide is assumed to have been unaware of the existence of the risk. Smith v. State, 3 Ark. App. 224, 623 S.W.2d 862 (1981).

Cited: Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977); Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977); Rust v. State, 263 Ark. 350, 565 S.W.2d 19 (1978); Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978); Sbabo v. State, 264 Ark. 497, 572 S.W.2d 585 (1978); State v. Brown, 265 Ark. 41, 577 S.W.2d 581 (1979); Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979); Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (Ct. App. 1979); Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980); Darville v. State, 271 Ark. 580, 609 S.W.2d 50 (1980); Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980); Nolen v. State, 278 Ark. 17, 643 S.W.2d 257 (1982); Ethridge v. State, 9 Ark. App. 111, 654 S.W.2d 595 (1983); Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983); Garner v. White, 726 F.2d 1274 (8th Cir. 1984); Coleman v. State, 12 Ark. App. 214, 671 S.W.2d 221 (1984); Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985); Neely v. State, 18 Ark. App. 122, 711 S.W.2d 482 (1986); Jackson v. State, 290 Ark. 160, 717 S.W.2d 801 (1986); Fladung v. State, 292 Ark. 510, 730 S.W.2d 901 (1987); Booth v. State, 26 Ark. App. 115, 761 S.W.2d 607 (1988); Johnson v. State, 28 Ark. App. 256, 773 S.W.2d 450 (1989); Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990); Norton v. State, 307 Ark. 336, 820 S.W.2d 272 (1991); Cole v. State, 33 Ark. App. 98, 802 S.W.2d 472 (1991); Cotnam v. State, 36 Ark. App. 109, 819 S.W.2d 291 (1991); Enoch v. State, 37 Ark. App. 103, 826 S.W.2d 291 (1992); Edwards v. State, 40 Ark. App. 114, 842 S.W.2d 459 (1992); Anderson v. State, 312 Ark. 606, 852 S.W.2d 309 (1993); Paige v. State, 45 Ark. App. 13, 870 S.W.2d 771 (1994); Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702; Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Webb v. State, 328 Ark. 12, 941 S.W.2d 417 (1997); Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997); Cox-Hilstrom v. State, 58 Ark. App. 109, 948 S.W.2d 409 (1997); McGill v. State, 60 Ark. App. 246, 962 S.W.2d 382 (1998); Anderson v. State, 62 Ark. App. 1, 967 S.W.2d 569 (1998); Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); Terrell v. State, 342 Ark. 208, 27 S.W.3d 423 (2000); Kelley v. State, 75 Ark. App. 144, 55 S.W.3d 309 (2001); McEntire v. State, 363 Ark. 473, 215 S.W.3d 658 (2005); Henson v. State, 94 Ark. App. 163, 227 S.W.3d 450 (2006); MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006); Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007); Law v. State, 375 Ark. 505, 292 S.W.3d 277 (2009); Jackson v. State, 2009 Ark. 336, 321 S.W.3d 260 (2009); Moseby v. State, 2010 Ark. App. 5 (2010); Lee v. State, 2010 Ark. App. 15 (2010); Freeman v. State, 2010 Ark. App. 90 (2010); Banks v. State, 2011 Ark. App. 249 (2011); Stevenson v. State, 2013 Ark. 100, 426 S.W.3d 416 (2013); Adams v. State, 2014 Ark. App. 308, 435 S.W.3d 520 (2014); Edwards v. State, 2015 Ark. 377, 472 S.W.3d 479 (2015); Fowler v. State, 2015 Ark. App. 579, 474 S.W.3d 120 (2015); Ta v. State, 2015 Ark. App. 220, 459 S.W.3d 325 (2015); Edwards v. State, 2017 Ark. 207 (2017); Campbell v. State, 2017 Ark. App. 340, 525 S.W.3d 465 (2017); Turner v. State, 2018 Ark. App. 5, 538 S.W.3d 227 (2018).

5-2-203. Culpable mental states — Interpretation of statutes.

  1. If a statute defining an offense prescribes a culpable mental state and does not clearly indicate that the culpable mental state applies to less than all of the elements of the offense, the prescribed culpable mental state applies to each element of the offense.
  2. Except as provided in §§ 5-2-204(b) and (c), if the statute defining an offense does not prescribe a culpable mental state, a culpable mental state is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly.
    1. When a statute defining an offense provides that acting negligently suffices to establish an element of that offense, the element also is established if a person acts purposely, knowingly, or recklessly.
    2. When acting recklessly suffices to establish an element, the element also is established if a person acts purposely or knowingly.
    3. When acting knowingly suffices to establish an element, the element also is established if a person acts purposely.
  3. Knowledge that conduct constitutes an offense or knowledge of the existence, meaning, or application of the statute defining an offense is not an element of an offense unless the statute clearly so provides.

History. Acts 1975, No. 280, § 204; A.S.A. 1947, § 41-204.

Research References

Ark. L. Rev.

Case Note, Harbison v. State: Just Say No to a Usable Amount, 45 Ark. L. Rev. 425.

The Culpability, or Mens Rea, “Defense” in Arkansas, 53 Ark. L. Rev. 805 (2000).

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

Recent Developments: Felony Conviction for Recklessly Violating the State's Drug-and-Paraphernalia-Possession Laws Does Not Prevent Readmission to the Arkansas Bar, 66 Ark. L. Rev. 601 (2013).

U. Ark. Little Rock L.J.

Notes, Criminal Law — Controlled Substances — Arkansas Adopts the Useable Amount Standard. Harbison v. State, 302 Ark. 315, 790 S.W.2d 146, 4 A.L.R.5th 1025 (1990), 13 U. Ark. Little Rock L.J. 583.

Case Notes

Establishment.

Criminal purpose or intent is a state of mind that is not ordinarily susceptible to proof by direct evidence; it may be inferred from facts and circumstances shown to have existed at the time. Chadwell v. State, 37 Ark. App. 9, 822 S.W.2d 402 (1992).

Appellate court found no merit in defendant's argument that he was merely rhetorically questioning a 14-year-old girl about sex, rather than soliciting her, and that he had no intent to make such a statement where there was testimony that he offered to pay money in exchange for sex, that he offered her more money after she refused him, and that he kissed her on the neck after encouraging the young boys in her charge to kiss her. Heape v. State, 87 Ark. App. 370, 192 S.W.3d 281 (2004).

Legislative Intent.

In a first-degree felony murder case, the Supreme Court rejected defendant's contention that it erred in deciding Perry v. State and Hill v. State by failing to apply subsection (b) of this section. Contrary to defendant's suggestion that its decisions ignored the legislature's mandate stated in subsection (b), the Supreme Court's felony-murder jurisprudence was in concert with the legislature's intent. Holian v. State, 2013 Ark. 7 (2013).

Possession of Weapons.

Where a deputy found that defendant had an improvised weapon hidden in his sock while incarcerated at the county jail and defendant said he possessed the weapon because he was “tired of the brutality and he had to do what he had to do”, there was substantial evidence from which the jury could have found that defendant knowingly possessed the weapon for the infliction of serious physical injury or death, in violation of § 5-73-131. Owens v. State, 92 Ark. App. 480, 215 S.W.3d 681 (2005).

Purposely.

Defendant was properly convicted of second-degree assault against a family member because there was substantial evidence that he entered the victim's home with the purpose of assaulting her. Davis v. State, 2015 Ark. App. 234, 459 S.W.3d 821 (2015).

Recklessly.

Because the attorney committed the drug and drug paraphernalia possession crimes with only a reckless mental state under § 5-2-202(3) and subsection (b) of this section, had been rehabilitated, had successfully completed his suspended sentence, and had successfully established his present mental and emotional stability and good moral character, the attorney was not prevented from being readmitted to the Arkanses Bar under Ark. Sup. Ct. P. Reg. Prof'l Conduct § 24(B)(2), and his request for readmission to the Arkansas Bar pursuant to Ark. R. Admis. Bar XIII(G) was granted. In re Haynes, 2013 Ark. 102, 426 S.W.3d 411 (2013).

Although the circuit court in a bench trial incorrectly held that the applicable culpable mental state was strict liability in a DWI case under § 5-65-103 that did not involve alcohol, defendant's conviction was affirmed where the circuit court made an alternative finding under the correct standard that the State had submitted proof sufficient to satisfy reckless conduct under subsection (b) of this section and § 5-2-202; the testimony of the officer, the pharmacist expert, and the defendant provided sufficient evidence to support a finding that defendant acted recklessly in taking prescribed barbiturates (for her migraine) and then operating a motor vehicle. Cordero v. State, 2019 Ark. App. 484, 588 S.W.3d 369 (2019).

Requirement and Establishment.

Where a statute does not contain or specify the culpable mental state required for its violation, pursuant to subsection (b) of this section, the Criminal Code recognizes three distinct culpable mental states under the section to sustain a conviction. Coleman v. State, 12 Ark. App. 214, 671 S.W.2d 221 (1984).

The Omnibus Driving While Intoxicated Act of 1983 is valid even though it does not require a culpable mental state pursuant to subsection (b) of this section. Price v. State, 285 Ark. 148, 685 S.W.2d 506 (1985).

The “Use of Prohibited Weapons” statute, § 5-73-104, does not create a strict liability offense; it requires proof of a culpable mental state. State v. Setzer, 302 Ark. 593, 791 S.W.2d 365 (1990).

Where mandatory language contained within § 27-53-101 did not explicitly enunciate any particular mental state, but instead stated that a driver of a vehicle involved in an accident resulting in death or injury to any person shall immediately stop the vehicle at the scene of the accident, this mandatory language was a clear indication that the accident-causing driver's mental state was irrelevant. Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003).

Circuit court erred in ruling that the Omnibus DWI Act of 1983 is a strict liability statute that does not require proof of a culpable mens rea. As the DWI statute, codified at § 5-65-103, does not prescribe a culpable mental state, a culpable mental state has to be imputed to the offense through the plain language of this section; and the offense is not subject to the statutory exception in § 5-2-204(c)(2) because the offense is included in the Criminal Code. Leeka v. State, 2015 Ark. 183, 461 S.W.3d 331 (2015) (decision under prior law).

Circuit court erred in concluding that § 5-64-411 does not require a culpable mental state. Section 5-64-411 adds an enhanced sentence for a person found guilty of certain offenses, including that for which appellant was convicted, only if an additional requirement is met, i.e., the location where the act was committed; thus, § 5-64-411 defines an offense. Small v. State, 2018 Ark. App. 80, 543 S.W.3d 516 (2018).

Because a circuit court erred in ruling that a sentencing-enhancement offense under § 5-64-411, for delivery of hydrocodone within 1,000 feet of a church, did not require a culpable mental state and improperly instructed the jury, reversal and remand were required; a culpable mental state is imputed under this section when the statute defining an offense does not prescribe a culpable mental state. Silmon v. State, 2018 Ark. App. 388, 557 S.W.3d 266 (2018).

Reversal of defendant's DWI conviction and remand for the circuit court to consider the evidence under the correct standard was appropriate because the circuit court incorrectly held that the applicable culpable mental state for non-alcohol-related offenses was strict liability and the court also did not make an alternative finding under the correct standard. Therefore, the appellate court could not conclude that the circuit court would have concluded that defendant acted at least recklessly under the evidence. Rowton v. State, 2020 Ark. App. 174, 598 S.W.3d 522 (2020).

Use of Weapons.

Section 5-73-104, prohibiting use of certain weapons, does not create a strict liability offense; under subsection (b) of this section, if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996).

Cited: Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977); Menard v. State, 16 Ark. App. 219, 699 S.W.2d 412 (1985); Fisher v. State, 290 Ark. 490, 720 S.W.2d 900 (1986); Bargery v. State, 37 Ark. App. 118, 825 S.W.2d 831 (1992); McDougal v. State, 324 Ark. 354, 922 S.W.2d 323 (1996); Avery v. State, 93 Ark. App. 112, 217 S.W.3d 162 (2005); Edwards v. State, 2010 Ark. App. 59, 377 S.W.3d 271 (2010); French v. State, 2018 Ark. App. 502, 563 S.W.3d 582 (2018).

5-2-204. Elements of culpability — Exceptions to culpable mental state requirement.

  1. A person does not commit an offense unless his or her liability is based on conduct that includes a voluntary act or the omission to perform an act that he or she is physically capable of performing.
  2. A person does not commit an offense unless he or she acts with a culpable mental state with respect to each element of the offense that requires a culpable mental state.
  3. However, a culpable mental state is not required if:
    1. The offense is a violation unless a culpable mental state is expressly included in the definition of the offense;
    2. An offense defined by a statute not a part of the Arkansas Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any element of the offense; or
    3. The offense is defined as a strict liability offense.

History. Acts 1975, No. 280, § 202; A.S.A. 1947, § 41-202; Acts 2015 (1st Ex. Sess.), No. 6, § 2.

A.C.R.C. Notes.

Acts 2015 (1st Ex. Sess.), No. 6, § 1, provided: “Legislative intent.

“(a) It is the intent of the General Assembly with this act to address the Supreme Court's holding in Leeka v. State, 2015 Ark. 183 (2015), that the state must prove a culpable mental state in a prosecution for driving while intoxicated.

“(b) The General Assembly intends for this act to establish that the current offenses of driving while intoxicated and underage driving under the influence, as well as the offenses of driving or boating while intoxicated and driving or boating under the influence while underage that were created by Acts 2015, No. 299, § 6, be strict liability offenses, which are offenses that require no culpable mental state be proven.”

Amendments. The 2015 (1st Ex. Sess.) amendment added (c)(3).

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Research References

Ark. L. Rev.

Case Note, Harbison v. State: Just Say No to a Usable Amount, 45 Ark. L. Rev. 425.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

U. Ark. Little Rock L.J.

Notes, Criminal Law — Controlled Substances — Arkansas Adopts the Useable Amount Standard. Harbison v. State, 302 Ark. 315, 790 S.W.2d 146, 4 A.L.R.5th 1025 (1990), 13 U. Ark. Little Rock L.J. 583.

Case Notes

Child Maltreatment Act.

Neglect by inadequate supervision does not require a culpable mental state because it is defined in the Child Maltreatment Act, § 12-18-103, outside of the Arkansas Criminal Code. W.N. v. Ark. Dep't of Human Servs., 2018 Ark. App. 346, 552 S.W.3d 483 (2018).

In a Child Maltreatment Act case involving the death of a child who was left in a car seat on a hot day, it was not clear that the administrative law judge (ALJ) incorrectly relied on the criminal-negligence standard; however, the father could not show prejudice because applying the criminal-negligence standard only heightened the standard by which the ALJ could find neglect by inadequate supervision under the Child Maltreatment Act. W.N. v. Ark. Dep't of Human Servs., 2018 Ark. App. 346, 552 S.W.3d 483 (2018).

Exceptions to Culpable Mental State Requirement.

Circuit court erred in ruling that the Omnibus DWI Act of 1983 is a strict liability statute that does not require proof of a culpable mens rea. As the DWI statute, codified at § 5-65-103, does not prescribe a culpable mental state, a culpable mental state has to be imputed to the DWI offense through the plain language of § 5-2-203; and the offense is not subject to the statutory exception in subdivision (c)(2) of this section because the offense is included in the Criminal Code. Leeka v. State, 2015 Ark. 183, 461 S.W.3d 331 (2015) (decision under prior law).

Intent.

Being aware of one's actions does not encompass the mental state required for a crime of specific intent as one may be cognizant of the circumstances and one's actions yet not intend the result of them. Bowen v. State, 268 Ark. 1088, 598 S.W.2d 447 (Ct. App. 1980).

Because of the difficulty in ascertaining a person's intent, a presumption exists that a person intends the natural and probable consequences of his acts. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990); Furr v. State, 308 Ark. 41, 822 S.W.2d 380 (1992), appeal dismissed, — Ark. —, — S.W.3d —, 2003 Ark. LEXIS 666 (Dec. 11, 2003).

Mental State.

Candidate for circuit court judge was not disqualified from running due to his conviction for a violation of § 27-14-306, the fictitious motor vehicle tags statute, as misdemeanor “infamous crimes” under Ark. Const. Art. 5, § 9 and § 7-1-101 are misdemeanor offenses in which “the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement”, and the appellate court could not say that a violation of § 27-14-306 required a finding or admission of deceit, fraud, or false statement. Weeks v. Thurston, 2020 Ark. 64, 594 S.W.3d 23 (2020).

While deceit, fraud, or a false statement certainly can be present in a violation of § 27-14-306, a finder of fact is not required under the statute to find deceit, fraud, or a false statement. Furthermore, only one of the three ways a person can violate § 27-14-306 requires a culpable mental state—knowingly permitting; under this section, a culpable mental state is not required if the offense is a violation and a culpable mental state is not expressly included in the definition of the offense. Weeks v. Thurston, 2020 Ark. 64, 594 S.W.3d 23 (2020).

Mental State Irrelevent.

Where mandatory language contained within § 27-53-101 did not explicitly enunciate any particular mental state, but instead stated that a driver of a vehicle involved in an accident resulting in death or injury to any person shall immediately stop the vehicle at the scene of the accident, this mandatory language was a clear indication that the accident-causing driver's mental state was irrelevant. Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003).

Because the failure to register as a sex offender was a strict liability offense under § 12-12-901 et seq. and the state proved that defendant was required to register but failed to do so, the trial court did not err by denying defendant's motion for a directed verdict. Adkins v. State, 371 Ark. 159, 264 S.W.3d 523 (2007).

Cited: Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980); Henson v. State, 94 Ark. App. 163, 227 S.W.3d 450 (2006).

5-2-205. Causation.

Causation may be found when the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause unless:

  1. The concurrent cause was clearly sufficient to produce the result; and
  2. The conduct of the defendant was clearly insufficient to produce the result.

History. Acts 1975, No. 280, § 205; A.S.A. 1947, § 41-205.

Case Notes

Death.

Where conduct hastens or contributes to a person's death, it is a cause of the death. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002); Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992).

Causation may be found notwithstanding that death occurred several years after the conduct in question took place. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

Defendant's conviction for capital murder under subdivision (a)(4) of this section was proper because the circuit court did not err in denying his motion for a directed verdict. Defendant's stabbing of the victim brought about the officers' use of deadly force that killed the victim; had defendant not been stabbing her, the officers would not have attempted to end defendant's attack on her by using deadly force. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214 (2011).

State produced sufficient evidence that defendant caused the victim's death; although the expert testimony left open possible concurrent causes for the victim's death, the skull injury clearly contributed to his death, defendant was the only person to hit the victim with the aluminum bat, and the victim's blood was found on the bat. Rollf v. State, 2015 Ark. App. 520, 472 S.W.3d 490 (2015).

Sufficient evidence supported defendant's conviction for second-degree murder; while the concurrent causes—the surgical complications, ensuing epidural hematoma, and pneumonia—might have contributed to the victim's death, defendant's conduct in beating and kicking the victim in the head, thereby causing the initial subdural hematoma, was the cause of his death. Claggett v. State, 2019 Ark. App. 208, 575 S.W.3d 169 (2019).

Evidence.

There was substantial evidence that the defendants caused the death of their victim where the medical examiner's testimony, coupled with that of the eyewitnesses, was sufficient to prove that the victim died as a result of internal bleeding from the shots fired by the defendants. Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991).

Trial court did not err by denying defendant's motion for a directed verdict on the capital murder charge because: (1) but for defendant's aggravated robbery, speeding, and fleeing from the police, the trooper would not have been in the roadway attempting to retrieve stop sticks and would not have been struck by another trooper's vehicle; (2) the state presented sufficient evidence that defendant acted under circumstances manifesting an extreme indifference to the value of human life, as it showed that defendant robbed the victim with a gun, fled with his accomplice and the loot in a stolen car on a busy interstate, and initiated a high-speed chase while being pursued by several law enforcement officers with their lights and sirens blaring, thereby engaging in life-threatening activity; and (3) the phrase “under circumstances manifesting extreme indifference to the value of human life” was not void for vagueness, as the cases interpreting the phrase provided fair warning that it involved a life-threatening activity. Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008).

Cited: Anderson v. State, 312 Ark. 606, 852 S.W.2d 309 (1993); Jenkins v. State, 60 Ark. App. 122, 959 S.W.2d 427 (1998).

5-2-206. Ignorance or mistake.

  1. It is a defense to a prosecution that the actor engaged in the conduct charged to constitute the offense under a mistaken belief of fact if:
    1. The statute defining the offense or a statute relating to the offense expressly provides that a mistaken belief of fact constitutes a defense; or
    2. Mistaken belief of fact establishes a defense of justification provided by § 5-2-601 et seq.
  2. Except as provided by subsection (c) of this section, a person is not relieved of criminal liability for conduct because he or she engages in that conduct believing that the conduct does not as a matter of law constitute an offense.
  3. It is an affirmative defense to a prosecution that the actor engaged in the conduct charged to constitute the offense believing that the conduct did not as a matter of law constitute an offense, if the actor acted in reasonable reliance upon an official statement of the law contained in:
    1. A statute or other enactment afterward determined to be invalid or erroneous;
    2. The latest judicial decision of the highest state or federal court that has decided the matter; or
    3. An official interpretation of a public servant or agency charged by law with responsibility for the interpretation or administration of the law defining the offense.
    1. Although ignorance or mistake of fact would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he or she supposed.
    2. However, in a case described by subdivision (d)(1) of this section, the ignorance or mistake of fact of the defendant reduces the class or degree of the offense of which he or she may be convicted to that of the offense of which the defendant would be guilty had the situation been as he or she supposed.
  4. A mistake of law other than as to the existence or meaning of the statute under which the defendant is prosecuted is relevant to disprove the specific culpable mental state required by the statute under which the defendant is prosecuted.

History. Acts 1975, No. 280, § 206; A.S.A. 1947, § 41-206.

Research References

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

Case Notes

Jury Instructions.

In a trial in which defendant was convicted of failure to pay a motor vehicle use tax in violation of § 26-18-202, the trial court did not err in giving an instruction that ignorance of the law is not a defense to a crime in the State of Arkansas; it is not inconsistent to instruct the jurors that ignorance will not acquit a defendant outright, while also instructing them of the state's burden to prove the culpable mental state required to commit the offense. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003).

Mistake of Law.

A prior Arkansas Supreme Court ruling on a completely different statute did not justify defendant's reliance on alleged “mistake of law.” Finley v. State, 282 Ark. 146, 666 S.W.2d 701 (1984).

Where the defendant neither relied on an invalid statute nor plead it as an affirmative defense, he was not entitled to rely on that statute. Fowler v. State, 283 Ark. 325, 676 S.W.2d 725 (1984).

Where defendant was charged with possession of gambling devices and a jury found him not guilty by mistake of law due to his reliance upon inapplicable law in operating his arcade business, defendant's assertion of the defense was an admission that he had engaged in illegal conduct and, because the jury found defendant's machines were illegal, the trial court did not err in ordering the machines forfeited and destroyed. Mullins v. State, 359 Ark. 414, 198 S.W.3d 504 (2004).

Official Interpretation.

The parole officer's silence on the question of whether the defendant could lawfully possess a firearm after the completion of his parole was not an “official statement of the law” under subdivision (c)(3) of this section. Fisher v. State, 290 Ark. 490, 720 S.W.2d 900 (1986).

Cited: Wicker v. Goodwin, 813 F. Supp. 676 (E.D. Ark. 1992); Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006).

5-2-207. Intoxication.

  1. Intoxication that is not self-induced intoxication is an affirmative defense to a prosecution if at the time a person engages in the conduct charged to constitute the offense the person lacks capacity to:
    1. Conform his or her conduct to the requirements of the law; or
    2. Appreciate the criminality of his or her conduct.
  2. As used in this section:
    1. “Intoxication” means a disturbance of a mental or physical capacity resulting from the introduction of alcohol, a drug, or another substance into the body; and
    2. “Self-induced intoxication” means intoxication caused by a substance that the actor knowingly introduces into his or her body and the actor knows or ought to know the tendency of the substance to cause intoxication.

History. Acts 1975, No. 280, § 207; 1977, No. 101, § 1; A.S.A. 1947, § 41-207.

Research References

Ark. L. Notes.

Liebman, Voluntary Intoxication as a Defense to Crime, 1983 Ark. L. Notes 29.

Malone and Hurst, Update: Voluntary Intoxication as a Defense to Crime, etc., 1987 Ark. L. Notes 91.

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Criminal Law, 1 U. Ark. Little Rock L.J. 153.

DeSimone, Survey of Criminal Law, 3 U. Ark. Little Rock L.J. 191.

Note, Defense of Involuntary Intoxication No Longer Available to Disprove Intent, etc., 9 U. Ark. Little Rock L.J. 657.

Survey—Criminal Law, 10 U. Ark. Little Rock L.J. 137.

Survey — Criminal Law, 12 U. Ark. Little Rock L.J. 183.

Case Notes

Constitutionality.

This section is constitutionally sound. Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992).

Burden of Proof.

This section does not eliminate the state's burden to prove purposeful intent. Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995), cert. denied, Caldwell v. Arkansas, 517 U.S. 1124, 116 S. Ct. 1361, 134 L. Ed. 2d 528 (1996).

Evidence.

Expert testimony as to the physiological effects of defendant's alcohol consumption to show that he lacked the requisite mental state to commit offense was properly excluded since voluntary intoxication is no longer available as a defense or admissible for the purpose of negating specific intent. Pharo v. State, 30 Ark. App. 94, 783 S.W.2d 64 (1990).

Testimony by medical doctor about blackout alcoholism in murder trial was simply another means of using voluntary intoxication as a defense, thus, the witness' testimony was properly excluded since voluntary intoxication was no longer a defense to criminal prosecutions. Spohn v. State, 310 Ark. 500, 837 S.W.2d 873 (1992).

Evidence was sufficient to support a finding of purposeful intent. Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995), cert. denied, Caldwell v. Arkansas, 517 U.S. 1124, 116 S. Ct. 1361, 134 L. Ed. 2d 528 (1996).

Instructions.

Defendant's proffered instruction which merely emphasized his theory of the case that his intoxication should be considered as diminishing his capacity to form the requisite intent to commit capital murder was properly refused. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 334 (1996).

Self-Induced Intoxication.

Except in cases involving specific intent crimes, voluntary intoxication is not a defense, even though it may produce a form of “temporary insanity” or render the person charged unconscious of what he is doing. Gonce v. State, 11 Ark. App. 278, 669 S.W.2d 490 (1984).

Voluntary intoxication is no longer available as a defense to criminal prosecutions. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Spohn v. State, 310 Ark. 500, 837 S.W.2d 873 (1992).

Drinking to the point of intoxication by an alcoholic is self-induced intoxication and therefore not covered by the involuntary intoxication defense. To hold otherwise would serve only to immunize a certain category of people from prosecution for their criminal conduct because of their addiction to alcohol. See v. State, 296 Ark. 498, 757 S.W.2d 947 (1988).

Specific Intent.

Where the crimes in this case were committed when Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978), was still the law, substantive law recognized the common law defense of voluntary intoxication to specific intent crimes, and the trial court erred in applying State v. White, 290 Ark. 130, 717 S.W.2d 784 (1986), retroactively eliminating a defense available at the time of the offense. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).

Voluntary intoxication is not a defense to the charge of murder in the first degree or to the charge of battery in the second degree; voluntary intoxication is not available as a defense for purposes of negating specific intent. Gilkey v. State, 41 Ark. App. 100, 848 S.W.2d 439 (1993).

Sufficient evidence supported the prosecutor's decision to charge appellant with capital murder; although defendant had no recollection of the events leading to his girlfriend's death, intent could be inferred from the nature and extent of the injuries that caused her death. True v. State, 2017 Ark. 323, 532 S.W.3d 70 (2017).

Cited: Bailey v. State, 263 Ark. 470, 565 S.W.2d 603 (1978); Hobgood v. Housewright, 698 F.2d 962 (8th Cir. 1983); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992).

5-2-208. Duress.

  1. It is an affirmative defense to a prosecution that the actor engaged in the conduct charged to constitute an offense because the actor reasonably believed he or she was compelled to engage in the conduct by the threat or use of unlawful force against the actor's person or the person of another that a person of ordinary firmness in the actor's situation would not have resisted.
  2. The affirmative defense provided by this section is unavailable if the actor recklessly placed himself or herself in a situation in which it was reasonably foreseeable that the actor would be subjected to the force or threatened force described in subsection (a) of this section.

History. Acts 1975, No. 280, § 208; A.S.A. 1947, § 41-208.

Research References

Ark. L. Rev.

The Impact of the 1976 Criminal Code on the Law of Accessorial Liability in Arkansas, 31 Ark. L. Rev. 100.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

Case Notes

In General.

The defense of duress requires that at the time of the conduct constituting the offense the actor suffers an impairment of his ability to control his conduct such that he cannot properly be held accountable for it. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987).

Where a psychologist testified that he did not believe defendant was any more susceptible to reacting to his co-defendant differently than anyone else, defendant could not demonstrate how he was prejudiced by the exclusion of the psychologist's complete testimony regarding the co-defendant's borderline personality disorder. Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002).

Defendant's claim that she was acting in a state of extreme emotional disturbance as a result of fear of her husband, i.e. that she was acting out of duress, was an attempt to mitigate the crime of intentional killing her mother to voluntary manslaughter; as the affirmative defense of duress was available to defendant as a complete defense, this argument was not available to mitigate the charge of murder to manslaughter. MacKool v. State, 363 Ark. 295, 213 S.W.3d 618 (2005).

Accomplices.

The trial court did not err by refusing to declare witness an accomplice as a matter of law; the evidence was such that it was appropriate for the jury to decide whether his participation was under duress under this section and thus that it was not his purpose to aid in the commission of the crime. Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996).

Evidence.

Evidence insufficient to find that the defendant acted under duress. Johnson v. State, 266 Ark. 514, 587 S.W.2d 3 (1979); Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981).

The court in a murder prosecution did not err in refusing to instruct the jury with regard to duress where (1) the defendant did not testify and presented no witnesses, and (2) the only evidence of the defendant's defense was presented through his tape-recorded statement, which, at best, amounted to a claim of self-defense, as opposed to duress. Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998).

Standard of Proof.

The coercion of the defendant had to appear from all the facts and circumstances, and could not be presumed merely from his presence. Edwards v. State, 27 Ark. 493 (1872) (decision under prior law).

The standard used to measure a person of ordinary firmness takes into account the actor's “situation.” Factors to be considered in determining that situation are those that differentiate the actor from another, such as size, strength, age or health; matters of temperament are not considered. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987).

5-2-209. Entrapment.

  1. It is an affirmative defense that the defendant was entrapped into committing an offense.
    1. Entrapment occurs when a law enforcement officer or any person acting in cooperation with a law enforcement officer induces the commission of an offense by using persuasion or other means likely to cause a normally law-abiding person to commit the offense.
    2. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

History. Acts 1975, No. 280, § 209; A.S.A. 1947, § 41-209.

Research References

ALR.

Entrapment to Commit Federal Crimes of Terrorism. 89 A.L.R. Fed. 2d 215 (2014).

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

United States v. Jacobson: A Call for Reasonable Suspicion of Criminal Activity as a Threshold Limitation on Governmental Sting Operations, 44 Ark. L. Rev. 493.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

U. Ark. Little Rock L.J.

Davis, Survey of Arkansas Law: Criminal Law, 2 U. Ark. Little Rock L.J. 193.

Case Notes

In General.

This section focuses the inquiry so as to attribute more importance to the conduct of the law enforcement officers than to any predisposition of the defendant, and the question is directed to the effect of that conduct on “normally law-abiding persons.” Webber v. State, 15 Ark. App. 261, 692 S.W.2d 255 (1985).

Entrapment is not a collateral issue. Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).

Purpose.

The purpose of this section is to discourage government conduct that might induce innocent persons to engage in criminal conduct. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Riddling v. State, 19 Ark. App. 231, 719 S.W.2d 1 (1986).

Admission of Crime.

In order to raise the defense of entrapment, a defendant must admit the crime. Gipson v. Lockhart, 692 F.2d 66 (8th Cir. 1982); Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989).

When the entrapment defense is invoked it is necessarily assumed that the act charged was committed, and where a defendant insists that he did not commit the acts he is charged with, one of the bases of the entrapment defense is absent and he is not entitled to that defense. Smith v. State, 34 Ark. App. 72, 805 S.W.2d 663 (1991); Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).

Where defendant denied having committed the act charged, he was not entitled to proceed with evidence of the defense of entrapment, and exclusion of testimony relating to officer's conduct was not error. Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).

Trial court did not err in evoking defendant's suspended sentence on the ground that he committed the offense of possession of drug paraphernalia with the intent to manufacture methamphetamine in violation of § 5-64-403(c)(5) because the evidence showed that a reliable source had tipped off the police to the fact that defendant, contrary to the terms and conditions of his release, was continuing to manufacture methamphetamine, and defendant directed the purchases and provided an explanation for each component of the methamphetamine recipe; it was shown that defendant conceived and proposed the methamphetamine cook, buy, and sell arrangement for the manufacture and distribution of the illegal substance, and simply by asserting the defense of entrapment under this section, defendant necessarily admitted committing the offense. Lowe v. State, 2010 Ark. App. 284 (2010).

Defendant, who was convicted for internet stalking, should have been permitted to plead entrapment under this section as an affirmative defense while at the same time denying one or two elements of the crime, and therefore defendant's conviction was reversed, because the doctrine requiring a defendant to admit to all the elements of a crime in order to plead entrapment could result in punishment upon a defendant who was merely entrapped; the doctrine could possibly punish a defendant for a serious crime for merely seeking to require the state to prove its case aside from offering an affirmative defense. Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257 (2011), rehearing denied, — Ark. —, — S.W.3d —, 2012 Ark. LEXIS 26 (Ark. Jan. 19, 2012).

Burden of Proof.

Entrapment must be proved by the defendant by a preponderance of the evidence. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Rhoades v. State, 270 Ark. 962, 607 S.W.2d 76 (1980), cert. denied, Rhoades v. Arkansas, 452 U.S. 915, 101 S. Ct. 3048 (1981); Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982); Walls v. State, 8 Ark. App. 315, 652 S.W.2d 37 (1983), aff'd, 280 Ark. 291, 658 S.W.2d 362 (1983); Jackson v. State, 12 Ark. App. 378, 677 S.W.2d 866 (1984); Webber v. State, 15 Ark. App. 261, 692 S.W.2d 255 (1985); Wedgeworth v. State, 301 Ark. 91, 782 S.W.2d 357 (1990); Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992); Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992).

The defendant has the burden of proving he was entrapped. White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989).

Conduct of Law Officer.

In determining the existence of entrapment, primary importance is accorded to the conduct of a law enforcement officer, or the person acting in cooperation with him. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Mullins v. State, 265 Ark. 811, 580 S.W.2d 941 (1979); Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).

Conduct of a law enforcement officer or informant merely affording the accused the opportunity to do that which he is otherwise ready, willing and able to do is not entrapment. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Webber v. State, 15 Ark. App. 261, 692 S.W.2d 255 (1985); Guinn v. State, 27 Ark. App. 260, 771 S.W.2d 290 (1989).

This section places emphasis on the conduct of the law enforcement officer or persons cooperating with him in determining whether the officer has induced the commission of the offense by persuasion or has merely afforded a person who is ready, willing and able to commit the offense the opportunity of doing so. Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982); Walls v. State, 8 Ark. App. 315, 652 S.W.2d 37 (1983), aff'd, 280 Ark. 291, 658 S.W.2d 362 (1983).

This section attributes more importance to the conduct of the law enforcement officer than to any predisposition of the defendant. Riddling v. State, 19 Ark. App. 231, 719 S.W.2d 1 (1986).

Defendant's Conduct and Predisposition.

Defendant's conduct and predisposition, both prior to and concurrent with, the transactions forming the basis of the charges are still material and relevant, on the question whether the government agents only afforded the opportunity to commit the offenses with which he is charged. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989).

The defendant's conduct and predisposition both prior to and concurrent with the transaction are material and relevant on the question of whether the accused was only afforded the opportunity to commit the offenses. Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982).

Entrapment does not occur when government agents merely afford one the opportunity to do that which he already has a predisposition to do. Jackson v. State, 12 Ark. App. 378, 677 S.W.2d 866 (1984); White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989).

Entrapment instruction not given in a drug possession case where package delivery service and police officers provided defendant the opportunity to commit the crime, but did not induce or persuade him to commit the crime. Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996).

Elements of Defense.

“Unconscious commission” of an unlawful act is not an element in the defense of entrapment. French v. State, 260 Ark. 473, 541 S.W.2d 680 (1976).

Circuit court did not err in rejecting criminal defendant's proffered instruction on the defense of entrapment where co-defendant waived the defense prior to trial. Montgomery v. State, 367 Ark. 485, 241 S.W.3d 753 (2006).

Evidence.

Exclusion of evidence of law officer's conduct held to be error. French v. State, 260 Ark. 473, 541 S.W.2d 680 (1976); Brascomb v. State, 261 Ark. 614, 550 S.W.2d 450 (1977).

The accused should be allowed a reasonable latitude in presenting whatever facts and circumstances he claims constitute an entrapment subject to ordinary rules of admissibility. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).

Any evidence having any tendency to make the existence of entrapment more probable is admissible. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).

Any statement made by informant, or in the presence of defendant, indicative of the fact that informant was using persuasion or other means to induce a normally law-abiding person to commit an offense was admissible, not to show the truth of informant's statements, but to show that they were made. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978).

Testimony was relevant and not inadmissible as hearsay since it showed the informant's intent, plan, motive or design. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978).

Evidence insufficient to establish entrapment. Rhoades v. State, 270 Ark. 962, 607 S.W.2d 76 (1980), cert. denied, Rhoades v. Arkansas, 452 U.S. 915, 101 S. Ct. 3048 (1981); Womack v. State, 301 Ark. 193, 783 S.W.2d 33 (1990).

Evidence of other acts or crimes is usually admissible in rebuttal to the defense of entrapment. Jackson v. State, 12 Ark. App. 378, 677 S.W.2d 866 (1984).

The trial court erred in excluding evidence of events that occurred after the transaction when the defendant sold the cocaine to the undercover agent where this evidence would help establish his defense of entrapment by showing that the law enforcement officers desired to have him help them catch “bigger fish,” and when he refused to help them in this regard, he was prosecuted for the transaction. Riddling v. State, 19 Ark. App. 231, 719 S.W.2d 1 (1986).

Where there was evidence of entrapment in the state's evidence-in-chief, a video tape of a meeting between a police informant and the defendant was inadmissible in the state's case-in-chief to show the defendant's predisposition to sell a controlled substance. Riddling v. State, 19 Ark. App. 231, 719 S.W.2d 1 (1986).

The trial court was incorrect in ruling that the defense should not refer to the word entrapment during the trial because entrapment had not been pled, in light of the fact the state acknowledged that it had been put on notice that the defense would be raised. Sumner v. State, 35 Ark. App. 203, 816 S.W.2d 623 (1991).

Court's ruling that defense could not present evidence on entrapment because it had not been pled was harmless error since defendant was permitted to put on his evidence relating to his theory of entrapment and because the trial court was correct in declining to instruct the jury on the defense because there was no evidence to support it. Sumner v. State, 35 Ark. App. 203, 816 S.W.2d 623 (1991).

Where there was evidence that informant was paid for his efforts, but there was no additional evidence tending to show that informant induced defendant into committing the offense, the trial court properly refused to instruct the jury on entrapment. Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992).

Where defendant, having the burden of proof, failed to present any evidence to indicate that he was induced by governmental conduct of a character likely to cause a normally law-abiding person to commit the offense, of which he had been convicted, it was not error for the trial court to refuse to give defendant's proposed instruction on entrapment. Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992).

Denial of appellant's, an inmate's, petition for writ of certiorari was improper because the evidence at issue presented a jury question concerning whether the informant had induced the commission of the offense, and the jury was given an instruction on the affirmative defense of entrapment. Thus, the inmate failed to prove that he received the ineffective assistance of counsel. Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 (2012).

Defendant could not demonstrate any prejudice from the trial court's order granting the State's motion to prohibit him from attacking the credibility of a criminal informant because the jury heard, through the informant's own testimony, that the informant had an extensive criminal history; although it could make a would-be criminal more likely to trust an informant who had a reputation, that was not the same thing as inducing one to act through persuasion. Owens v. State, 2017 Ark. App. 109, 515 S.W.3d 625 (2017).

Failure to Raise.

Trial court did not err in denying postconviction relief where appellant contended that trial counsel was ineffective for failing to raise a defense of entrapment and for not having the jury instructed on that defense; counsel explained her reasons for not pursuing an inconsistent defense to what she believed was a relatively strong innocence defense, and even if appellant was entitled to an instruction on entrapment, counsel was not ineffective simply for failing to request it. Flemons v. State, 2016 Ark. 460, 505 S.W.3d 196 (2016).

Question of Law or Fact.

Where the evidence was in conflict on the question of entrapment, it presented a question of fact for the trial court as to whether defendant had carried his burden of proof. Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978).

Ordinarily, entrapment is a fact question which is properly submitted to the jury, and entrapment as a matter of law is only established if there is no factual issue to be resolved. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983); White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989); Wedgeworth v. State, 301 Ark. 91, 782 S.W.2d 357 (1990).

Entrapment is ordinarily a fact question. Riddling v. State, 19 Ark. App. 231, 719 S.W.2d 1 (1986).

Entrapment is not required to be found as a matter of law when the testimony of the accused, showing entrapment, is not rebutted by evidence presented by the state. McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989).

There was no basis for finding entrapment as a matter of law because factual issues clearly had to be resolved in deciding the issue where informant testified that he never threatened defendant by saying he would notify the press of defendant's drug abuse and defendant testified that informant did make such a threat. Elders v. State, 321 Ark. 60, 900 S.W.2d 170 (1995).

Trial court did not err in denying defendant's motions for a directed verdict on the ground of entrapment where there were factual issues to be decided by the jury as to whether the conduct of law enforcement would have caused a law-abiding citizen to commit internet stalking of a child. Squyres v. State, 2015 Ark. App. 665, 476 S.W.3d 839 (2015).

Cited: Hill v. State, 33 Ark. App. 135, 803 S.W.2d 935 (1991).

Subchapter 3 — Mental Disease or Defect

A.C.R.C. Notes. This subchapter and § 16-86-101 et seq., which concerns the “insanity defense” and the alleged mental disease or defect of the defendant, may have conflicting provisions.

Publisher's Notes. For Comments regarding the Criminal Code, see Commentaries Volume B.

Cross References. Mental retardation, § 5-4-618.

Procedure when insanity an issue, § 16-86-101 et seq.

Effective Dates. Acts 1979, No. 886, §§ 2, 4: July 1, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that this Act is necessary to insure continued examination of those defendants committed to the State Hospital by the courts. Therefore, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after July 1, 1979.”

Acts 1989, Nos. 645 and 911, § 9: June 1, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present procedures for the commitment and discharge of insanity acquittees at the State Hospital are inadequate to protect the public and it is necessary to preserve the public peace, health and safety. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after June 1, 1989.”

Acts 1989, No. 898, § 4: Mar. 22, 1989. Emergency clause provided: “The Mental Health Staff of the Department of Correction is dedicated to treatment of those under the care and custody of the Department once commitment occurs, after determination of sanity. Determination of sanity is an area of expertise provided by other areas of the community, including but not limited to the State Hospital. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1995, No. 767, § [8]: Mar. 24, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that recent serious random acts of violence committed by insanity acquittees have heightened the awareness of the General Assembly to provide a mechanism whereby those persons can be tracked and nearby residence can be warned of their whereabouts so precautions may be taken to protect lives and property. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2007, No. 463, § 6: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that federal law prohibits the sale of firearms to persons who have been committed to a mental institution; that it is the intent of this act to require the submission of information to create a confidential database that may only be used for firearm sales or transactions; and that this act is necessary because possession of a firearm by a person that is suicidal, homicidal, or gravely disabled poses an critical threat of harm to the citizens of this state. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2007.”

Acts 2007, No. 623, § 2: Mar. 28, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the present procedure for revocation of conditional release orders is inadequate to protect the public; that this act is necessary to clarify and refute the Original Commentary regarding § 5-2-316(b); and that this act is necessary to assure continued treatment for those persons who cannot or will not maintain appropriate treatment and who have previously shown the capacity to commit felonies. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Bifurcated criminal trial on issue of insanity defense. 1 A.L.R.4th 884.

Adequacy of defense counsel's representation of criminal client regarding incompetency, insanity, and related issues. 2 A.L.R.4th 27, 17 A.L.R.4th 575.

Test of criminal responsibility: state cases. 9 A.L.R.4th 526.

Competency to stand trial of criminal defendant diagnosed as “mentally retarded”. 23 A.L.R.4th 493.

Competency to stand trial of criminal defendant diagnosed as “schizophrenic.” 33 A.L.R.4th 1062.

Admissibility of results of computer analysis of defendant's mental state. 37 A.L.R.4th 510.

Am. Jur. 21 Am. Jur. 2d, Crim. L., § 37 et seq.

Ark. L. Rev.

1976 Criminal Code — General Principles, 30 Ark. L. Rev. 111.

Sullivan, Psychiatric Defenses in Arkansas Criminal Trials, 48 Ark. L. Rev. 439.

C.J.S. 22 C.J.S., Crim. L., § 55 et seq.

Case Notes

Constitutionality.

Sections of the Arkansas Criminal Code providing procedures for commitment and release of persons charged with a crime are not facially or inherently unconstitutional. Coley v. Clinton, 479 F. Supp. 1036 (E.D. Ark. 1979).

Power of the Court.

The intent behind Ark. Const., Art. 7, § 34, cannot be construed to alter the inherent power of the law courts to deal with the defense of insanity since there is no conceivable way that circuit courts can be deprived altogether of jurisdiction to deal with insanity matters where they are incidental to criminal charges. Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981).

Cited: Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).

5-2-301. Definitions.

As used in this subchapter:

  1. “Appropriate facility” means any facility within or without this state to which a defendant is eligible for admission and treatment for mental disease or defect;
  2. “Compliance monitor” means either a social service representative or licensed social worker, or both, employed by the Department of Human Services for the purpose of, including, but not limited to:
    1. Verifying that a person conditionally released pursuant to a provision of this subchapter is in compliance with the conditions for release;
    2. Providing social service assistance to a person conditionally released pursuant to a provision of this subchapter; and
    3. Reporting compliance with the conditions for release or lack of compliance with the conditions for release to the appropriate circuit court;
  3. “Designated receiving facility or program” means an inpatient or outpatient treatment facility or program that is designated within each geographic area of the state by the Director of the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services to accept the responsibility for the care, custody, and treatment of a person involuntarily admitted to the state mental health system;
  4. “Expert” means a qualified psychiatrist or a qualified psychologist;
  5. “Frivolous” means clearly lacking any basis in fact or law;
  6. “Lack of criminal responsibility” means that due to a mental disease or defect a defendant lacked the capacity at the time of the alleged offense to either:
    1. Appreciate the criminality of his or her conduct; or
    2. Conform his or her conduct to the requirements of the law;
    1. “Mental disease or defect” means a:
      1. Substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life;
      2. State of significantly subaverage general intellectual functioning existing concurrently with a defect of adaptive behavior that developed during the developmental period; or
      3. Significant impairment in cognitive functioning acquired as a direct consequence of a brain injury or resulting from a progressively deteriorating neurological condition.
    2. As used in the Arkansas Criminal Code, “mental disease or defect” does not include an abnormality manifested only by:
      1. Repeated criminal or otherwise antisocial conduct;
      2. Continuous or noncontinuous periods of intoxication, as defined in § 5-2-207(b)(1), caused by a substance such as alcohol or a drug; or
      3. Dependence upon or addiction to any substance such as alcohol or a drug;
  7. “Prescribed regimen of medical, psychiatric, or psychological care or treatment” means care or treatment for a mental illness, as defined in § 20-47-202;
  8. “Qualified psychiatrist” means a licensed psychiatrist who has successfully completed or is currently participating in a post-residency fellowship in forensic psychiatry accredited by the American Board of Psychiatry and Neurology, Inc., or has successfully completed a forensic certification course approved by the department, and who is currently approved by the department to administer a forensic examination as defined in this subchapter;
  9. “Qualified psychologist” means a licensed psychologist who has successfully completed or is currently participating in a formal postdoctoral fellowship training program in forensic psychology or has successfully completed a forensic certification course approved by the department, and who is currently approved by the department to administer a forensic examination as defined in this subchapter;
  10. “Repetitive” means filed within six (6) months of an application under § 5-2-316 that has been previously denied and that fails to demonstrate a material change in circumstances;
    1. “Restraint” means any manual method, physical or mechanical device, material, or equipment that immobilizes a person or reduces the ability of a person to move his or her arms, legs, body, or head freely.
    2. “Restraint” does not include devices such as orthopedically prescribed devices, surgical dressings or bandages, protective helmets, or other methods that involve the physical holding of a person for the purpose of protecting the person from falling or to permit the person to participate in activities without the risk of physical harm to himself or herself; and
  11. “State mental health system” means the Arkansas State Hospital and any other facility or program certified by the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services.

History. Acts 1975, No. 280, § 616; A.S.A. 1947, § 41-616; Acts 1995, No. 767, § 1; 1997, No. 922, § 1; 2001, No. 1554, § 1; 2007, No. 636, § 1; 2013, No. 981, §§ 1, 2; 2017, No. 472, §§ 1-3; 2017, No. 913, §§ 11, 12.

Amendments. The 2013 amendment redesignated former (7) and (8) as present (8) and (9); in present (8), substituted “either” for “or is currently participating in” and inserted “has successfully completed”; substituted “received a post doctoral ... Psychology or” for “successfully completed or is ... psychology or has” in present (9); and inserted present (5) and (10) and redesignated the remaining subdivisions accordingly.

The 2017 amendment by No. 472 deleted the definition for “Capacity of the defendant to have the culpable mental state”; added the definitions for “Expert” and “Lack of criminal responsibility”; and added “or resulting from a progressively deteriorating neurological condition” in (7)(A)(iii).

The 2017 amendment by No. 913 substituted “Division of Aging, Adult, and Behavioral Health Services” for “Division of Behavioral Health Services” in (3) and (13).

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Research References

Ark. L. Rev.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Case Notes

Capacity to Form Specific Intent.

Where defendant was found guilty of first-degree murder and attempted first-degree murder, the trial court did not abuse its discretion in excluding certain expert testimony regarding defendant's capacity to form intent. The expert's report did not state that defendant lacked the capacity to form intent, only that it was impacted or impaired, and the expert also opined that defendant's psychotic disorder did not render him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Furthermore, there was ample evidence of purposeful conduct where defendant left a bar and returned with a shotgun that he used against the victims. Edwards v. State, 2015 Ark. 377, 472 S.W.3d 479 (2015).

5-2-302. Lack of fitness to proceed generally.

  1. No person who lacks the capacity to understand a proceeding against him or her or to assist effectively in his or her own defense as a result of mental disease or defect shall be tried, convicted, or sentenced for the commission of an offense so long as the incapacity endures.
  2. A court shall not enter a judgment of acquittal on the ground of mental disease or defect against a defendant who lacks the capacity to understand a proceeding against him or her or to assist effectively in his or her own defense as a result of mental disease or defect.

History. Acts 1975, No. 280, § 603; A.S.A. 1947, § 41-603; Acts 2001, No. 1554, § 2.

Cross References. Allegation of insanity of convicted defendant, § 16-86-111.

Research References

ALR.

Amnesia as Affecting Defendant's Competency to Stand Trial. 100 A.L.R.6th 535 (2014).

Posttraumatic Stress Disorder (PTSD) as Defense to Murder, Assault, or other Violent Crime. 4 A.L.R.7th Art. 5 (2015).

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Case Notes

Construction.

This section, which precludes trial, conviction, or sentencing of a person who lacks capacity to understand the proceedings or assist in his defense, does not conflict with § 5-2-313 which specifically provides for a judgment of acquittal of such person. Stover v. Hamilton, 270 Ark. 310, 604 S.W.2d 934 (1980).

Amnesia.

Amnesia or lack of memory is not an adequate ground for holding a defendant incompetent to stand trial. Lawrence v. State, 39 Ark. App. 39, 839 S.W.2d 10 (1992).

Burden of Proof.

A defendant in a criminal case is ordinarily presumed to be mentally competent to stand trial, and the burden of proving incompetence is upon the defendant. Mask v. State, 314 Ark. 25, 869 S.W.2d 1 (1993).

Competency.

In order to be competent to stand trial, a defendant must have the capacity to understand the nature and object of the proceedings brought against him, to consult with counsel, and to assist in the preparation of his defense. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989), overruled, State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997).

For a finding of fitness to stand trial, this section does not require that the accused be able to identify with specificity the charges filed against him or her, as in the distinction between first degree murder and capital murder, instead it requires only that the accused understand the proceedings. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996).

A criminal defendant is presumed to be competent, and the burden of proving incompetence is on the accused; the test of competency to stand trial is whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational, as well as factual, understanding of the proceedings against him. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).

Where physician testified the only disorder defendant suffered from was antisocial personality disorder and that defendant understood the charges against him, as well as the role of the trial judge, prosecutor, and defense counsel, and where the record revealed that defendant stated in open court that he had instructed his attorneys to file a motion to dismiss and in another instance wrote a letter to the trial judge seeking new counsel and discussing the nature of judicial proceedings, the trial court did not err in finding defendant competent to stand trial. Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002).

Where doctor determined that defendant demonstrated a fully-developed, persecutory-type delusion, the court suspended defendant's trial for attempting to commit capital murder and did not proceed until his fitness was restored; at that time, two doctors testified that defendant did not lack the capacity to understand the proceedings against him and to assist effectively in his own defense. Steward v. State, 95 Ark. App. 6, 233 S.W.3d 180 (2006).

Determination of defendant's capacity was supported by credible testimony of a qualified medical expert that defendant, despite some mental illness, understood the proceedings sufficiently to assist counsel in defendant's defense. Bayless v. State, 2010 Ark. App. 456 (2010).

Trial court erred under subsection (a) of this section in denying defendant's petition for writ of error coram nobis because the record overwhelmingly illustrated that his cognitive deficits and mental illnesses interfered with his ability to effectively and rationally assist counsel during his murder trial. Newman v. State, 2014 Ark. 7 (2014), appeal dismissed, 2017 Ark. 257, 525 S.W.3d 457 (2017).

There was no evidence to suggest incompetency other than the fact that defendant rambled, had an unusual speech pattern, and testified to irrelevant matters, which was insufficient to require the trial court to sua sponte halt the proceedings and order a competency evaluation. Thus, defendant could not avail himself of the exception to the rule that a court would not address arguments raised for the first time on appeal, and as he failed to raise the issue below, and the trial court was not obligated to raise it sua sponte, the revocation of probation was affirmed. Lewis v. State, 2016 Ark. App. 503, 505 S.W.3d 725 (2016).

There was no abuse of discretion in the trial court's denial of defendant's request for a second mental evaluation; in the first evaluation conducted by a doctor at the state hospital, defendant was found to be competent to stand trial, and the doctor testified at trial that after talking with defendant that day his opinion had not changed. Hamilton v. State, 2017 Ark. App. 447, 526 S.W.3d 859 (2017) (decision under prior law).

Due Process.

The conviction of an accused while he is legally incompetent to stand trial violates due process. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989), overruled, State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997).

Where evidence showed that defendant was delusional while on trial, the trial judge should have halted the trial and made a new determination of competency; while the failure to hold a further competency hearing violated due process, the proper remedy was not to grant the writ of habeas corpus, but to conduct a post-conviction competency hearing. Reynolds v. Norris, 86 F.3d 796 (8th Cir. 1996).

Evidence.

Trial court did not err by finding defendant competent to stand trial where an uncontradicted report stated defendant was able to understand the proceedings against him and assist in his own defense. Mask v. State, 314 Ark. 25, 869 S.W.2d 1 (1993).

Despite conflicting expert testimony, trial court's determination of defendant's competency stands if there is substantial evidence to support the court's finding. Mauppin v. State, 314 Ark. 566, 865 S.W.2d 270 (1993).

Evidence supported the court's ruling of competency. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

Intoxication.

A person who is so intoxicated as to be unable to understand the proceedings or effectively participate in his defense ought not to be tried until that incapacity has been removed. Meekins v. State, 34 Ark. App. 67, 806 S.W.2d 9 (1991).

Although defendant's blood alcohol level registered at a level higher than that required to presume intoxication when tested before entering the court room for trial, neither a continuance nor mistrial were required where defendant appeared to be coherent and able to assist counsel, and where defense counsel failed to renew motion for a continuance at any time during the trial after having full opportunity to observe and confer with his client. Meekins v. State, 34 Ark. App. 67, 806 S.W.2d 9 (1991).

Jurisdiction.

Where the accused was never acquitted by the circuit court, but was found to be unable to cooperate effectively with his attorney in the preparation of his defense and the proceedings against him were suspended, the circuit court never lost jurisdiction to the probate court. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).

Circuit court did not have jurisdiction to reconsider its decision dismissing the charges against defendant and to set the case for a status hearing on defendant's fitness for trial where the State filed neither a motion nor an appeal within 30 days of entry of the order of dismissal. Rosales-Almenar v. State, 2017 Ark. App. 678 (2017).

Review.

On review of a finding of fitness to stand trial, the appellate court will affirm if there is substantial evidence to support the trial court's finding. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996).

Trial court did not err by failing to sua sponte order a competency hearing because both the State’s expert and defendant’s expert agreed prior to trial that defendant had no mental defect and was fit to stand trial, the defense never requested that defendant be reevaluated, the trial court was not unreasonable in believing that defendant had the capacity to understand the nature and object of the proceedings despite exhibiting some bizarre behavior, and there was not evidence that defendant was unable to consult with counsel. Britton v. State, 2014 Ark. 192, 433 S.W.3d 856 (2014).

Circuit court order denying appellant's motion for mental evaluation was reversed where the original record contained only the circuit court's orders that did not include any findings, the recollections of what had taken place were not definitive, and a filed, written order was not provided; thus, there was nothing in the record or supplemented record to determine on what basis the circuit court had made its decision to deny the mental evaluation and find appellant competent to proceed. Watson v. State, 2018 Ark. App. 169, 547 S.W.3d 89 (2018).

Cited: Branham v. State, 274 Ark. 109, 623 S.W.2d 1 (1981); Jacobs v. State, 294 Ark. 551, 744 S.W.2d 728 (1988); Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Smith v. State, 2011 Ark. App. 104, 380 S.W.3d 524 (2011).

5-2-303. Admissibility of evidence to show mental state.

Evidence that the defendant suffered from a mental disease or defect is admissible to prove whether the defendant had the kind of culpable mental state required for commission of the offense charged.

History. Acts 1975, No. 280, § 602; A.S.A. 1947, § 41-602.

Case Notes

Instructions.

A defendant was not entitled to a specific instruction informing the jury that he had placed in issue his mental capacity to form the kind of mental state necessary to establish the commission of the alleged offense. Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980).

A trial judge need not give an instruction with regard to the defendant's possession of the kind of culpable mental state required for the commission of the offense charged in addition to giving an instruction on the issue of mental disease or defect. Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981).

Trial court properly refused to instruct the jury on defendant's mental state because the requested instruction was a modified version of the model instructions and the jury had been instructed regarding the state's burden of proof and the elements of first-degree murder and lesser offenses so that the instruction was effectively given. Ross v. State, 96 Ark. App. 385, 242 S.W.3d 298 (2006).

Purposely.

Where defendant was found guilty of first-degree murder and attempted first-degree murder, the trial court did not abuse its discretion in excluding certain expert testimony regarding defendant's capacity to form intent. The expert's report did not state that defendant lacked the capacity to form intent, only that it was impacted or impaired, and the expert also opined that defendant's psychotic disorder did not render him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Furthermore, there was ample evidence of purposeful conduct where defendant left a bar and returned with a shotgun that he used against the victims. Edwards v. State, 2015 Ark. 377, 472 S.W.3d 479 (2015).

Relevancy.

The nature, extent and location of wounds were relevant and material on the questions of intent and state of mind and, even if the mental disease or defect did not constitute a defense, evidence of it was relevant on the question of his culpable mental state and especially on the element of premeditation. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).

Trial court abused its discretion in excluding the proffered testimony of defendant, defendant's mother, and his friend about his mental disease, because it was directly relevant to the requirement that the State prove, beyond a reasonable doubt, that defendant purposely kidnapped and battered his victims, and thus admissible under this section. Brown v. State, 2016 Ark. App. 616, 509 S.W.3d 671 (2016).

Cited: Catlett v. State, 321 Ark. 1, 900 S.W.2d 523 (1995); Westbrook v. Norris, 923 F. Supp. 1129 (E.D. Ark. 1996).

5-2-304. Notice requirement.

  1. When a defendant intends to raise lack of criminal responsibility as a defense in a prosecution or put in issue his or her fitness to proceed, the defendant shall notify the prosecutor and the court at the earliest practicable time.
    1. Failure to notify the prosecutor within a reasonable time before the trial date entitles the prosecutor to a continuance that for limitation purposes is deemed an excluded period granted on application of the defendant.
    2. Alternatively, in lieu of suspending any further proceedings under § 5-2-328, the court may order the immediate examination of the defendant at a designated receiving facility or program by an expert.

History. Acts 1975, No. 280, § 604; 1977, No. 360, § 1; A.S.A. 1947, § 41-604; Acts 1995, No. 767, § 2; 2017, No. 472, § 4.

Amendments. The 2017 amendment substituted “lack of criminal responsibility” for “mental disease or defect” in (a); and, in (b)(2), substituted “§ 5-2-328” for “§ 5-2-305” and “an expert” for “a qualified psychiatrist or a qualified psychologist”.

Cross References. Plea of insanity when period before trial short or insanity alleged after charge, § 16-86-108.

Case Notes

Failure to Give Timely Notice.

The defendant was not improperly denied his right to present a defense of mental disease or defect or alternatively to put on psychiatric testimony to negate the element of intent where (1) he had not formally raised the defense as late as one day before trial, but instead stated that he reserved the right to raise the insanity defense until he could cross-examine a physician who had indicated that the defendant might show signs of mental illness, and (2) the trial judge had directed the defendant to give notice of such affirmative defense 10 days before trial, but he chose not to do so, and only did so midway into the state's case. Copeland v. State, 343 Ark. 327, 37 S.W.3d 567 (2001).

Notice.

Circuit court acted without jurisdiction in ordering defendant to submit to a criminal responsibility examination because defendant had not filed a notice of intent to raise the defense of not guilty for reason of mental disease or defect. Friar v. Erwin, 2014 Ark. 487, 450 S.W.3d 666 (2014).

Cited: Clark v. State, 260 Ark. 479, 541 S.W.2d 683 (1976); Thorne v. State, 269 Ark. 556, 601 S.W.2d 886 (1980); Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983); Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989); Walker v. State, 303 Ark. 401, 797 S.W.2d 447 (1990); Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994); Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996); King v. State, 2014 Ark. App. 81, 432 S.W.3d 127 (2014).

5-2-305. [Repealed.]

A.C.R.C. Notes. This section was amended by Acts 2017, No. 913, §§ 13 and 14 to change the name of the Division of Behavioral Health Services to the Division of Aging, Adult, and Behavioral Health Services in subdivisions (a)(3)(B), (b)(1)(C), (b)(2), and (b)(3). However, this section was specifically repealed by Acts 2017, No. 472, § 5.

Publisher's Notes. This section, concerning mental health examination of defendant, was repealed by Acts 2017, No. 472, § 5. The section was derived from Acts 1975, No. 280, § 605; 1977, No. 360, § 2; 1979, No. 886, § 1; 1983, No. 191, § 3; A.S.A. 1947, § 41-605; Acts 1989, No. 645, §§ 5, 6; 1989, No. 898, § 1; 1989, No. 911, §§ 5, 6; 1995, No. 767, § 3; 2001, No. 1554, § 3; 2011, No. 991, §§ 1-3; 2013, No. 506, § 1; 2015, No. 1155, §§ 1, 2. For current law, see §§ 5-2-3275-2-530.

Research References

ALR.

Adequacy, Under Strickland Standard, of Defense Counsel’s Representation of Client in Sentencing Phase of State Court Death Penalty Case — Counsel’s Purported Complete Failure to Investigate Client’s Mental Illness or Dysfunction. 6 A.L.R.7th Art. 3 (2015).

Ark. L. Rev.

Recent Developments: Criminal Law: Placing Burden of Proof on Defendant to Show Issue of Insanity Found Constitutional, 33 Ark. L. Rev. 433.

U. Ark. Little Rock L.J.

Note, Constitutional Law — Indigent Defense — Arkansas Statutory Fee and Expense Limitations Unconstitutional.Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), 14 U. Ark. Little Rock L.J. 595.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

5-2-306. Access to defendant by examiners of his or her choice.

When a defendant desires to be examined by one (1) or more qualified physicians or other experts of his or her own choice, that qualified physician or other expert is permitted to have reasonable access to the defendant for the purpose of examination.

History. Acts 1975, No. 280, § 610; A.S.A. 1947, § 41-610.

Case Notes

In General.

Court did not err in denying a motion for an independent mental evaluation or for failing to hold a mental competency hearing where a mental evaluation had been performed on defendant at his request, a hearing to determine fitness to proceed was also held, and defendant presented no evidence to cast doubt on his fitness to proceed. Avery v. State, 93 Ark. App. 112, 217 S.W.3d 162 (2005).

Timely Request.

Defendant's motion for continuance filed the day before trial to obtain an independent examination to support an affirmative defense of lack of criminal responsibility was properly denied as he had ample time to pursue an independent evaluation before trial, but instead planned to wait and see what the state hospital's report would conclude before seeking to obtain his own experts for an evaluation; although the state hospital's report was not provided until shortly before trial, a defendant who employs such a “wait and see” strategy is not acting diligently in attempting to secure the necessary information on which to build a defense of mental disease or defect. In addition, defendant failed to show any prejudice from the denial of the continuance. Hendrix v. State, 2019 Ark. 351, 588 S.W.3d 17 (2019).

5-2-307. Admissibility of statements made during examination or treatment.

A statement made by a person during an examination or treatment is admissible as evidence only:

  1. To the extent permitted by the Arkansas Rules of Evidence; and
  2. If the statement is constitutionally admissible.

History. Acts 1975, No. 280, § 615; 1977, No. 360, § 3; A.S.A. 1947, § 41-615; Acts 2017, No. 472, § 6.

A.C.R.C. Notes. The Uniform Rules of Evidence, § 16-41-101, were repealed by Acts 2013, No. 1148, § 2[7]. For present law, see the Arkansas Rules of Evidence promulgated by the Supreme Court.

Amendments. The 2017 amendment substituted “A” for “Any” in the introductory language; and substituted “Arkansas Rules of Evidence” for “Uniform Rules of Evidence, § 16-41-101 [repealed]” in (1).

Case Notes

Cited: Randleman v. State, 310 Ark. 411, 837 S.W.2d 449 (1992).

5-2-308. Expert witnesses — Mental health examiner.

    1. At a hearing concerning a defendant's lack of criminal responsibility or fitness to proceed, or upon trial, an examiner who conducted an examination under § 5-2-327 or § 5-2-328 may be called as a witness by the prosecution, the defendant, or the court.
    2. If the examiner is called by the court, he or she is subject to cross-examination by the prosecution and by the defendant.
  1. Both the prosecution and the defendant may summon any other qualified physician or other expert to testify.

History. Acts 1975, No. 280, § 611; A.S.A. 1947, § 41-611; Acts 2017, No. 472, § 7.

Amendments. The 2017 amendment added “Mental health examiner” in the section heading; redesignated former (a) as (a)(1); in (a)(1), inserted “lack of criminal” and substituted “conducted an examination under § 5-2-327 or § 5-2-328” for “reported pursuant to § 5-2-305”; redesignated former (b) as (a)(2); in (a)(2), substituted “If the examiner is called” for “If called” and “he or she” for “the examiner called as a witness”; redesignated former (c) as present (b); and made a stylistic change.

Cross References. Testimony of mental health examiners, § 16-86-106.

5-2-309. Determination of fitness to proceed.

  1. If the defendant's fitness to proceed becomes an issue at any stage of the case, the issue of the defendant's fitness to proceed shall be determined by the court.
  2. If neither party contests the finding of the report filed pursuant to § 5-2-327, the court may make the determination under subsection (a) of this section on the basis of the report.
  3. If the finding of the report is contested, the court shall hold a hearing on the issue of the defendant's fitness to proceed.

History. Acts 1975, No. 280, § 606; A.S.A. 1947, § 41-606; Acts 2017, No. 472, § 8.

Amendments. The 2017 amendment inserted “at any stage of the case” in (a); and substituted “§ 5-2-327” for “§ 5-2-305” in (b).

Research References

ALR.

Amnesia as Affecting Defendant's Competency to Stand Trial. 100 A.L.R.6th 535 (2014).

Case Notes

Constitutionality.

The action of the trial court in resolving the question as to defendant's fitness to stand trial was proper and this section in making the issue a question of law does not in any way violate Ark. Const., Art. 7, § 23 which requires issues of law to be determined by the court and matters of fact to be resolved by the jury. Rogers v. State, 264 Ark. 258, 570 S.W.2d 268 (1978).

Appeal.

On appeal, the court will affirm where there is substantial evidence to support the trial court's findings concerning a defendant's fitness to proceed. Substantial evidence is evidence of sufficient force and character to compel a conclusion of reasonable and material certainty. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989), overruled, State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997).

Duty to Decide Fitness.

Where, testimony of experts differed as to the defendant's capability of assisting in his defense and understanding the nature and extent of his actions, the trial court should have made a determination of defendant's mental condition and whether or not he was competent to proceed to trial. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

It was the duty of the court to make a determination of the issue of the defendant's fitness to proceed with the trial, either on the report of the Arkansas State Hospital or after a hearing on that issue; and it was reversible error for the trial judge to leave the matter to the jury to decide. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852, 101 S. Ct. 144, 66 L. Ed. 2d 64 (1980); Gruzen v. Arkansas, 459 U.S. 1020, 103 S. Ct. 386, 74 L. Ed. 2d 517 (1982).

It is the duty of the trial court to make a determination of a defendant's fitness to proceed to trial when it becomes an issue, and it is reversible error to leave the matter for the jury's determination. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980); Robertson v. State, 298 Ark. 131, 765 S.W.2d 936 (1989).

Where psychiatrist's report raises a reasonable doubt about defendant's competency to stand trial, the trial court should order a full examination and report pursuant to § 5-2-305(c) and, if warranted by the report, should conduct a determination of fitness to proceed pursuant to this section. Jacobs v. State, 294 Ark. 551, 744 S.W.2d 728 (1988).

Where the trial court's inquiry into the defendant's competency consisted of: no witnesses; the only medical report was a one paragraph letter from the mental health center; and the trial court's questioning was very limited, the hearing did not comply with due process. Griffin v. Lockhart, 935 F.2d 926 (8th Cir. 1991).

Where three doctors, in a collective opinion, were unable to arrive at a consensus on whether the defendant was competent, and, therefore, recommended further evaluation, there was a sufficient doubt raised about defendant's competency for trial. Griffin v. Lockhart, 935 F.2d 926 (8th Cir. 1991).

Trial court committed reversible error by failing to immediately suspend the proceedings in defendant's trial for first degree murder and order a psychiatric evaluation upon defendant's motion requesting that an evaluation be done. Kelly v. State, 80 Ark. App. 126, 91 S.W.3d 526 (2002).

Although defendant raised the issue of his lack of capacity at the time of the alleged offenses due to mental disease or defect, as well as the issue of his mental retardation for purposes of applying the death penalty, these were two issues separate and distinct from the issue of capacity to stand trial. Because defendant's competency to stand trial was never in dispute, and because defendant acknowledged his competency at trial, the trial court did not err in failing to rule on defendant's competency. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264 (2010), rehearing denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 95 (Feb. 12, 2010).

Hearing.

Evidence sufficient to find that there was no prejudicial error in the conduct of the competency hearing. Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980).

Where there was no indication in the record that the defendant contested the competency finding, the trial court was not required to hold a hearing on the issue. Mask v. State, 314 Ark. 25, 869 S.W.2d 1 (1993).

A court must hold a hearing on fitness if the report filed under this section is contested. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998).

Trial court was not obligated to hold a hearing on the issue of competency to stand trial where two mental evaluations concluded that defendant was fit to stand trial and was not impaired by mental defect, and the findings were not contested by either party. Weston v. State, 366 Ark. 265, 234 S.W.3d 848 (2006).

In a probation revocation case, a trial court did not err by failing to hold a hearing on defendant's competency or suspend the proceedings and order a mental evaluation because a doctor's findings were not challenged. Even if counsel's statements to the trial court were viewed as a motion for a second evaluation, there was no ruling from the trial court on this issue, which precluded appellate review. Singleton v. State, 2014 Ark. App. 165 (2014).

Trial court erred in denying defendant's request for a competency hearing because a hearing was mandatory where defendant plainly took issue with a psychologist's finding that he was competent and requested a hearing. Simpson v. State, 2015 Ark. App. 103, 455 S.W.3d 856 (2015).

Motions.

Where defense counsel requested a psychiatric examination of the defendant, and the psychiatrist's report stated defendant was fit to stand trial, the court was not required to make further findings in the absence of a defense motion and if the defense's original request was intended as such a motion as well, it was obligated to obtain a ruling on the motion. McClellan v. State, 264 Ark. 223, 570 S.W.2d 278 (1978).

A pretrial motion for a psychiatric examination for a criminal defendant was not sufficient to raise the requisite reasonable or bona fide doubt necessary for the trial judge to make a finding of the defendant's incompetency to stand trial. Collins v. Housewright, 664 F.2d 181 (8th Cir. 1981), cert. denied, 455 U.S. 1004, 102 S. Ct. 1639, 71 L. Ed. 2d 872 (1982).

Court did not err in denying a motion for an independent mental evaluation or for failing to hold a mental competency hearing where a mental evaluation had been performed on defendant at his request, a hearing to determine fitness to proceed was also held, and defendant presented no evidence to cast doubt on his fitness to proceed. Avery v. State, 93 Ark. App. 112, 217 S.W.3d 162 (2005).

Post-Conviction Hearing.

The trial court arguably should have ordered a competency hearing, irrespective of the psychiatrist's report finding the defendant competent, where there was evidence which may have cast doubt on the defendant's competency to stand trial; however, any error was rectified when the trial court held the post-conviction proceeding under ARCrP 37.1, at which time the defendant received a full and fair hearing on the issue of his competency. Campbell v. Lockhart, 789 F.2d 644 (8th Cir. 1986).

Although trial counsel's failure to request a competency hearing where there was a substantial doubt about the petitioner's competency may have constituted ineffective assistance of counsel, the failure of the defendant's trial counsel to pursue the issue of his competency did not violate his right to effective assistance of counsel where the defendant did receive a subsequent post-conviction hearing. Campbell v. Lockhart, 789 F.2d 644 (8th Cir. 1986).

Rebuttable Presumption.

There is a presumption of competence to stand trial, and the burden of proof of incompetence is on the defendant. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980).

Test of Competence.

The test of competence to stand trial is whether an accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980); Lawrence v. State, 39 Ark. App. 39, 839 S.W.2d 10 (1992).

Amnesia or lack of memory is not an adequate ground for holding a defendant incompetent to stand trial. Lawrence v. State, 39 Ark. App. 39, 839 S.W.2d 10 (1992).

5-2-310. Lack of fitness to proceed — Procedures subsequent to finding.

      1. If the court determines that a defendant lacks fitness to proceed, the proceeding against him or her shall be suspended and the court may commit the defendant to the custody of the Department of Human Services for detention, care, and treatment until restoration of fitness to proceed.
      2. However, if the court is satisfied that the defendant may be released without danger to himself or herself or to the person or property of another, the court may order the defendant's release and the release shall continue at the discretion of the court on conditions the court determines necessary.
    1. A copy of the report filed under § 5-2-327 shall be attached to the order of commitment or order of conditional release.
    1. Within a reasonable period of time, but in any case within ten (10) months of a commitment pursuant to subsection (a) of this section, the department shall file with the committing court a written report indicating whether the defendant is fit to proceed, or if not, whether:
      1. The defendant's mental disease or defect is of a nature precluding restoration of fitness to proceed; and
      2. The defendant presents a danger to himself or herself or to the person or property of another.
      1. The court shall make a determination within one (1) year of a commitment pursuant to subsection (a) of this section.
      2. Pursuant to the report of the department or as a result of a hearing on the report, if the court determines that the defendant is fit to proceed, prosecution in ordinary course may commence.
      3. If the defendant lacks fitness to proceed but does not present a danger to himself or herself or to the person or property of another, the court may release the defendant on conditions the court determines to be proper.
      4. If the defendant lacks fitness to proceed and presents a danger to himself or herself or the person or property of another, the court shall order the department to petition for an involuntary admission.
      5. Upon filing of an order finding that the defendant lacks fitness to proceed issued under subdivision (b)(2)(A) of this section with a circuit clerk or a probate clerk, the circuit clerk or the probate clerk shall submit a copy of the order to the Arkansas Crime Information Center.
    1. On the court's own motion or upon application of the department, the prosecuting attorney, or the defendant, and after a hearing if a hearing is requested, if the court determines that the defendant has regained fitness to proceed, the criminal proceeding shall be resumed.
    2. However, if the court is of the view that so much time has elapsed since the alleged commission of the offense in question that it would be unjust to resume the criminal proceeding, the court may dismiss the charge.

History. Acts 1975, No. 280, § 607; A.S.A. 1947, § 41-607; Acts 1989, No. 645, § 1; 1989, No. 911, § 1; 2007, No. 463, § 1; 2007, No. 568, § 1; 2017, No. 472, § 9.

Publisher's Notes. Acts 1989, No. 645, § 8, provided:

“It is the express intent of this act to adopt the standards for committing insanity acquittees and the automatic commitment procedures as authorized by Jones v. United States, 463 U. S. 354, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1903) and United States v. Wallace, 845 F.2d 1471 (8th Cir. 1988).”

Amendments. The 2017 amendment substituted “under § 5-2-327” for “pursuant to § 5-2-305” in (a)(2).

Case Notes

Applicability.

There is nothing in this section, or §§ 5-2-3015-2-309 or 5-2-3115-2-316 to indicate that it should have any retroactive or retrospective effect; therefore, Subsection (b) has no application to defendant, who was committed to the state hospital until restored to reason more than three years before this section went into effect. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).

This section concerns an accused who is being held on a pending charge but is “unfit to proceed,” and where defendant had been acquitted of murder charge on grounds of mental disease so that there were no criminal charges pending against the defendant nor could there ever be any criminal charges brought against him for that particular offense, the section would be inapplicable; and confinement should have been ordered pursuant to the statute governing civil commitment. Stover v. Hamilton, 270 Ark. 310, 604 S.W.2d 934 (1980).

Annual Report.

The director of the Arkansas State Hospital has a duty under the statute to file the annual report for an accused who was committed after being found incompetent to stand trial. Coley v. Clinton, 479 F. Supp. 1036 (E.D. Ark. 1979).

Application for Release.

Patients of the Arkansas State Hospital who were committed for a sufficient length of time under procedures for commitment of persons charged with crime clearly had a right, under the Code, to present an application for release to the committing trial court, or to contest a report by the director of the State Hospital which stated that the patient should remain hospitalized. Coley v. Clinton, 479 F. Supp. 1036 (E.D. Ark. 1979).

Dismissal of Charges.

Where the report of a staff psychologist at a state hospital where the defendant was committed did not address the issue of defendant's fitness to proceed, or whether the defendant was dangerous to himself or the person or property of others, the trial court was correct in denying defendant's petition asking that the charges against him be dismissed because he would never be competent to stand trial. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).

Circuit court does not have the authority under this section to dismiss charges against an unfit defendant; the plain language of this section involves only the situation in which a criminal defendant has regained his or her fitness to stand trial. Therefore, the dismissal of second-degree battery and second-degree assault charges was improper since there was no evidence that defendant had become competent to stand trial. State v. Thomas, 2014 Ark. 362, 439 S.W.3d 690 (2014).

Parties agreed that the circuit court's dismissal of the case under this section was error but the circuit court did not have jurisdiction to reconsider its dismissal, reinstate the case, and set a status hearing as the State did not file an appeal, a motion for a new trial, or any other written motion to reconsider within 30 days of entry of the order. Schepp v. State, 2017 Ark. App. 677, 536 S.W.3d 663 (2017).

Circuit court did not have jurisdiction to reconsider its decision dismissing the charges against defendant and to set the case for a status hearing on defendant's fitness for trial where the State filed neither a motion nor an appeal within 30 days of entry of the order of dismissal. Rosales-Almenar v. State, 2017 Ark. App. 678 (2017).

Jurisdiction.

Where the accused was never acquitted by the circuit court, but was found to be unable to cooperate effectively with his attorney in the preparation of his defense and proceedings against him were suspended, the circuit court never lost jurisdiction to the probate court. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).

Length of Detention.

Although the defendant was in the state hospital for a period longer than the one-year period that a circuit court can commit a person who lacks fitness to proceed, commitment had a dual purpose, mental evaluation and medical recuperation, and even if the commitment violated this section, an illegal detention will not void a subsequent conviction. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).

Where a pretrial detainee who suffered from acute psychosis died after he was returned to jail because there was no available hospital bed, his right to be free from deliberate indifference on the part of the county sheriffs was not violated as the detention at issue was less than five days. Winters v. Ark. Dept' of Health & Human Servs., 437 F. Supp. 2d 851 (E.D. Ark. 2006), aff'd, 491 F.3d 933 (8th Cir. 2007).

Speedy Trial.

Exclusion from the 12-month speedy-trial period of the time period between when defendant was committed for restoration until he was determined to be competent was appropriate; the circuit court was unable to determine that defendant was fit to proceed during that time primarily because defendant refused to submit to an evaluation. Newman v. Cottrell, 2016 Ark. 413, 503 S.W.3d 74 (2016).

Suspension of Proceedings.

Where doctor determined that defendant demonstrated a fully-developed, persecutory-type delusion, the court suspended defendant's trial for attempting to commit capital murder, however, the proceedings commenced when two doctors testified that defendant did not lack the capacity to understand the proceedings against him and to assist effectively in his own defense; further, an additional mental-health evaluation was not warranted when defendant later claimed he was hearing voices. Steward v. State, 95 Ark. App. 6, 233 S.W.3d 180 (2006).

5-2-311. Lack of fitness to proceed — Motions without defendant's personal participation.

The fact that the defendant lacks fitness to proceed does not preclude through counsel and without the personal participation of the defendant any motion upon:

  1. A ground that the:
    1. Indictment is insufficient;
    2. Statute of limitations has run; or
    3. Prosecution is barred by a former prosecution; or
  2. Any other ground that the court deems susceptible of fair determination prior to trial.

History. Acts 1975, No. 280, § 608; A.S.A. 1947, § 41-608.

Case Notes

Cited: Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989).

5-2-312. Lack of criminal responsibility — Affirmative defense.

    1. It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged he or she lacked criminal responsibility.
    2. When the affirmative defense of lack of criminal responsibility is presented to a jury, prior to deliberations the jury shall be instructed regarding the disposition of a defendant acquitted due to the defendant's lack of criminal responsibility as described under § 5-2-314.
  1. When a defendant is acquitted on a ground of lack of criminal responsibility, the verdict and judgment shall state that the defendant was acquitted on a ground of lack of criminal responsibility.

History. Acts 1975, No. 280, § 601; A.S.A. 1947, § 41-601; Acts 2001, No. 248, § 1; 2017, No. 472, § 10.

A.C.R.C. Notes. Acts 2001, No. 248, § 2, provided:

“Intent.

(a)(1) It is the intent of the General Assembly that Arkansas join the majority of jurisdictions to have considered the question that juries be fully informed and understand that evidence admitted on the question of mental disease or defect may be considered by them on the question of the mental state of the accused to commit the offense charged or a lesser included offense.

“(2) It is the intent of the General Assembly to specifically abrogate Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980); Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981); and Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999).

“(b) It is further the intent of the General Assembly that juries in Arkansas be fully informed and understand that a defendant acquitted by reason of his mental disease or defect will not automatically be released and whether he will ever be released depends upon what is found by the Arkansas State Hospital and the courts.

“(c)(1) The General Assembly considers that most states require juries, in cases asserting the defense of mental disease or defect, to be informed of the disposition of the defendant, so that the juries will not erroneously believe that the defendant would immediately be released from custody should they find the defendant not guilty by reason of mental disease or defect, because it can divert juries from fairly determining that question.

“(2) Arkansas previously expressed the judicial rationale, in cases in which the defendant asserts the defense of mental disease or defect, that informing juries on matters of the disposition of offenders would divert juries from their duty to decide the facts. See, e.g., Madison v. State, 287 Ark. 179, 697 S.W.2d 106 (1985). This rationale for denying such a jury instruction was abrogated in 1993 by the General Assembly by the adoption of bifurcated sentencing in Arkansas Code 16-97-103(1) which requires that juries be instructed as to ‘the law applicable to parole, meritorious good time, or transfer’ in determining a sentence. Therefore, the rationale for not so instructing the jury having been changed by the General Assembly, juries should now be informed of the effect of their verdict in cases where this affirmative defense is raised.”

Amendments. The 2017 amendment substituted “criminal responsibility” for “capacity” in the section heading; substituted “criminal responsibility” for “capacity as a result of mental disease or defect to” in (a)(1); deleted (a)(1)(A) and (a)(1)(B); in (a)(2), substituted “lack of criminal responsibility” for “mental disease or defect” and substituted “due to the defendant's lack of criminal responsibility as described under” for “on a ground of mental disease or defect pursuant to”; deleted former (b); redesignated former (c) as present (b); and twice substituted “lack of criminal responsibility” for “mental disease or defect” in (b).

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Cross References. Instruction to jury when insanity a defense, § 16-89-125.

Research References

ALR.

Posttraumatic Stress Disorder (PTSD) as Defense to Murder, Assault, or other Violent Crime. 4 A.L.R.7th Art. 5 (2015).

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

Recent Developments: Criminal Law: Placing Burden of Proof on Defendant to Show Issue of Insanity Found Constitutional, 33 Ark. L. Rev. 433.

Sullivan, Psychiatric Defenses in Arkansas Criminal Trials, 48 Ark. L. Rev. 439.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

U. Ark. Little Rock L.J.

DeSimone, Survey of Criminal Law, 3 U. Ark. Little Rock L.J. 191.

Survey of Arkansas Law: Criminal Law, 4 U. Ark. Little Rock L.J. 189.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Case Notes

In General.

This section, drawn from the Model Penal Code, replaces the former test of insanity in Arkansas, which was essentially the M'Naghten test. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980).

Applicability.

This section does not apply to juveniles during the adjudication phase of a delinquency proceeding in juvenile court. K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998).

Although defendant raised the issue of his lack of capacity at the time of the alleged offenses due to mental disease or defect, as well as the issue of his mental retardation for purposes of applying the death penalty, these were two issues separate and distinct from the issue of capacity to stand trial. Because defendant's competency to stand trial was never in dispute, and because defendant acknowledged his competency at trial, the trial court did not err in failing to rule on defendant's competency. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264 (2010), rehearing denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 95 (Feb. 12, 2010).

Burden of Proof.

The burden was upon the defendant to prove insanity by a preponderance of the evidence. Casat v. State, 40 Ark. 511 (1883), superseded by statute as stated in, Coleman v. State, 12 Ark. App. 214, 671 S.W.2d 221 (1984); Cavaness v. State, 43 Ark. 331 (1884); Coates v. State, 50 Ark. 330, 7 S.W. 304 (1888); Williams v. State, 50 Ark. 511, 9 S.W. 5 (1888); Bolling v. State, 54 Ark. 588, 16 S.W. 658 (1891) (decisions under prior law).

The law presumes that every man is sane and that he intends the natural consequences of his acts; and where one was charged with murder in the first degree and it was admitted that if sane he was guilty as charged and the plea of insanity was interposed in his defense, the burden was on the accused to establish his insanity by a preponderance of the evidence. Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915) (decision under prior law).

The defense of mental disease or defect is an affirmative defense which defendant must prove by a preponderance of the evidence. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852, 101 S. Ct. 144, 66 L. Ed. 2d 64 (1980); Gruzen v. Arkansas, 459 U.S. 1020, 103 S. Ct. 386, 74 L. Ed. 2d 517 (1982); Mask v. State, 314 Ark. 25, 869 S.W.2d 1 (1993).

Instruction as to burden of proof by state and defendant held proper. Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979).

The burden is upon the accused to establish that he was suffering from a mental disease or defect to the degree which would require him to be acquitted. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

It is true that the defense of not guilty by reason of insanity placed the burden of proof of such defense upon the defendant, but because the defendant is required to affirmatively prove certain defenses, it does not follow that the state is relieved of the overall burden of proving the guilt of the accused beyond a reasonable doubt. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

The burden of proof of the affirmative defense or defect is by a preponderance of the evidence, which is much less than the burden required of the state in the overall case which is that of proof beyond a reasonable doubt. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

The insane delusion instruction is not in conformity with the present law, and giving it constituted reversible error. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980).

The state is not relieved of the burden of proving beyond a reasonable doubt each element of the offense charged merely because a defendant has raised the affirmative defense of mental disease or defect under subsection (a), to this extent this section does not presuppose an admission of the act in question, and thus a defendant's privilege against self-incrimination is not violated. Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982), cert. denied, Gruzen v. Arkansas, 459 U.S. 1020, 103 S. Ct. 386, 74 L. Ed. 2d 517 (1982).

To prevail on an insanity defense, a defendant has to prove, by a preponderance of the evidence, that at the time of the events in question, “as a result of mental disease or defect,” he lacked the capacity to “conform his conduct to the requirements of law or to appreciate the criminality of his conduct” under this section and § 5-1-111(d). Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994), rehearing denied, — F.3d —, 1994 U.S. App. LEXIS 22021 (8th Cir. Aug. 16, 1994), cert. denied, Norris v. Hill, 513 U.S. 1102, 115 S. Ct. 778 (1995).

In a prosecution for capital felony murder, evidence the defendant was receiving Social Security checks for a mental disability was inadmissible to show lack of mental capacity, absent a showing that the standard for determining entitlement to such aid was the same as the statutory description of lack of capacity to engage in criminal misconduct. Bowden v. State, 328 Ark. 15, 940 S.W.2d 494 (1997).

A determination that an individual presents a clear and present danger to himself or others, as is required for civil commitment under § 20-47-207, is not necessarily the same as a determination that an individual lacks the capacity to form culpable intent, as is required to acquit an individual under this section. Edwards v. State, 328 Ark. 394, 943 S.W.2d 600, cert. denied, 522 U.S. 950, 118 S. Ct. 370, 139 L. Ed. 2d 288 (1997).

In a murder case, defendant failed to prove his defense of mental disease or defect because the state's expert testified that defendant showed no signs of significant cognitive impairment or active psychiatric disease. She diagnosed defendant with alcohol dependence and marijuana dependence, neither of which constituted a mental disease. Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007).

During an inmate's trial for murder, the jury was entitled to believe the testimony of the State's expert over the inmate's experts and to decide that the inmate had not proved the defense of mental disease or defect by a preponderance of the evidence. Kaufman v. State, 2013 Ark. 126 (2013).

Duty of Court.

Where testimony of experts differed as to the defendant's capability of assisting in his defense and understanding the nature and extent of his actions, the trial court should have made a determination of defendant's mental condition and whether or not he was competent to proceed to trial. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

The decision of whether to direct a verdict of acquittal is discretionary with the trial court under § 5-2-313; a directed verdict of acquittal is properly denied where there are questions of fact remaining concerning the defendant's affirmative defense of insanity under this section. Phillips v. State, 314 Ark. 531, 863 S.W.2d 309 (1993).

Evidence.

For cases discussing the opinion testimony of nonexperts, see Shaeffer v. State, 61 Ark. 241, 32 S.W. 679 (1895); Dewein v. State, 120 Ark. 302, 179 S.W. 346 (1915); Hankins v. State, 133 Ark. 38, 201 S.W. 832 (1917) (preceding decisions under prior law); Phillips v. State, 266 Ark. 883, 587 S.W.2d 83 (Ct. App. 1979).

After the evidence was all in, an expert could be asked his opinion as to the defendant's mental condition at the time of the criminal act, assuming the existence of facts which the evidence tended to prove; however, in the exercise of its discretion, the trial court could refuse to permit a medical witness to testify where the witness stated that he had practiced medicine only a short time, had never treated a mental disease, and had only studied them as far as ordinary cases were concerned. Green v. State, 64 Ark. 523, 43 S.W. 973 (1898) (decision under prior law).

Confession of accused held admissible, though he pleaded insanity, for the purpose of enabling the jury to determine his mental capacity. Ince v. State, 77 Ark. 418, 88 S.W. 818 (1905) (decision under prior law).

Where testimony of psychiatrists for state and defense differed in their conclusions on whether the defendant's capacity, the evidence was sufficient to sustain the jury's verdict of guilty. Stanley v. State, 248 Ark. 787, 454 S.W.2d 72 (1970) (decision under prior law).

There was substantial evidence to support a finding by the jury that defendant was legally responsible for her acts. Curry v. State, 272 Ark. 291, 613 S.W.2d 829 (1981); Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991).

Upon the evidence presented, defendant failed to prove by a preponderance of the evidence that at the time of the offenses, he was suffering from a mental disease or defect to the extent that he lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981).

Although, in a prosecution for delivery of a controlled substance, a therapist confirmed that the defendant had been diagnosed as having posttraumatic stress syndrome and that she was treating him for this condition, the defendant failed to produce evidence to justify his proffered jury instruction on mental disease or defect. Briggs v. State, 18 Ark. App. 292, 715 S.W.2d 223 (1986).

Evidence of moodiness, irritability, and nervousness does not go to the substance of an instruction based on subsection (a). There must be some indication from the evidence that the defendant lacks the appreciation that sane men have of what it is they are doing and of its legal and moral consequences. Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987).

Medical evidence on the issue of insanity is highly persuasive; however, a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses. Even when several competent experts concur in their opinions, and no opposing expert evidence is offered, the jury is bound to decide the issue upon its own judgment. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992), cert. denied, Davasher v. Arkansas, 504 U.S. 976, 112 S. Ct. 2948 (1992).

Evidence sufficient to support finding that defendant was sane and had the mental capacity necessary to perform the crime. Mask v. State, 314 Ark. 25, 869 S.W.2d 1 (1993).

While medical evidence on the issue of insanity is highly persuasive, a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses; it is for the jury to decide whether a defendant has sustained the burden of proving insanity by a preponderance of the evidence. Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).

Sufficient evidence existed for the jury to find that defendant was sane and legally responsible when he committed the crimes. Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).

Defendant's motion for an order of acquittal, on the basis of expert testimony that he lacked the capacity to have the culpable mental state to commit the offense charged, was denied where the State's evidence raised questions of fact regarding the defendant's defense of insanity. Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998).

Defendant was properly found guilty of first-degree murder because she purposely caused the 80-year-old victim's death by stabbing him approximately 36 times, deliberately sought to conceal evidence, and the jury was entitled to believe the testimony of one expert over the other and to find that defendant had not proved the defense of mental disease or defect by a preponderance of the evidence. Fink v. State, 2015 Ark. 331, 469 S.W.3d 785 (2015).

Expert Testimony.

Where defendant was found guilty of first-degree murder and attempted first-degree murder, the trial court did not abuse its discretion in excluding certain expert testimony regarding defendant's capacity to form intent. The expert's report did not state that defendant lacked the capacity to form intent, only that it was impacted or impaired, and the expert also opined that defendant's psychotic disorder did not render him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Furthermore, there was ample evidence of purposeful conduct where defendant left a bar and returned with a shotgun that he used against the victims. Edwards v. State, 2015 Ark. 377, 472 S.W.3d 479 (2015).

Where the trial court excluded expert testimony in a first-degree murder trial regarding defendant's capacity to form intent, defendant's assertion that he was denied due process by the deprivation of his only defense was not preserved for appellate review because defendant did not raise the argument to the circuit court. Edwards v. State, 2015 Ark. 377, 472 S.W.3d 479 (2015).

Ineffective Assistance of Counsel.

Trial court did not clearly err when it found that trial counsel was not ineffective for failing to request a mental evaluation before advising appellant to plead guilty; the conclusions presented in the postconviction mental evaluation established that it was unlikely that a more thorough investigation of appellant's mental-health history would have produced sufficient evidence supporting an affirmative defense or would have eliminated appellant's exposure to a possible death sentence. True v. State, 2017 Ark. 323, 532 S.W.3d 70 (2017).

Instructions.

The jury is not to be told the options available to the trial court when a defendant is found not guilty by mental defect or disease. Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991); Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).

Circuit court did not abuse its discretion in refusing to instruct the jury on defendant's mental state at the time of the offense because defendant presented no supporting evidence for the instructions; the defense's own witness opined that at the time of the crime defendant did not have a severe mental disease or defect. Cage v. State, 2017 Ark. 277, 528 S.W.3d 825 (2017).

Judicial Review.

Supreme Court, upon reviewing the evidence as to a defense of insanity, will not attempt to determine where the preponderance of the evidence lies, but will affirm the judgment if there is substantial evidence to support the verdict. Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980).

Circuit court did not abuse its discretion in denying defendant's motion for acquittal based on lack of capacity because the circuit court was confronted with conflicting forensic evaluations, and the existence of conflicting proof and the consequent questions of fact that arose from the conflicts supported the circuit court's discretionary decision to deny defendant's motion for acquittal. Russell v. State, 2013 Ark. 369 (2013).

Mental Disease or Defect.

It was no defense to a crime committed by a sane person that it was done under the influence of an irresistible impulse, or by overmastering anger, or revenge, or passion. Casat v. State, 40 Ark. 511 (1883), superseded by statute as stated in, Coleman v. State, 12 Ark. App. 214, 671 S.W.2d 221 (1984); Williams v. State, 50 Ark. 511, 9 S.W. 5 (1888); Bolling v. State, 54 Ark. 588, 16 S.W. 658 (1891); Smith v. State, 55 Ark. 259, 18 S.W. 237 (1891) (preceding decisions under prior law).

A person who knew right from wrong could be so afflicted that he lost the power to choose and could not function as a free agent under some particular situation; and, if a person was incapable, because of idiocy or lunacy, of distinguishing between right and wrong, as to the particular act, at the time he committed it, he was not criminally responsible for the act. Green v. State, 64 Ark. 523, 43 S.W. 973 (1898) (decision under prior law).

Testimony showing that defendant was angered or excited when he fired the shot was not sufficient to justify the jury in finding that he was insane. Hulsey v. State, 111 Ark. 510, 164 S.W. 273 (1914) (decision under prior law).

Defendant's statement that “it's going to be all right … I'm going to plead temporary insanity … I'll get off” was evidence of calculation and even premeditation on the part of defendant and exhibited an awareness of the legal and moral consequences of his actions. Phillips v. State, 314 Ark. 531, 863 S.W.2d 309 (1993).

The performance of defendant's lawyers at the guilt phase of his state court murder trial was deficient on account of their failure to present evidence of his history on anti-psychotic drugs and the likelihood that he had stopped taking them sometime within three to seven weeks before commission of the offense. Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994), rehearing denied, — F.3d —, 1994 U.S. App. LEXIS 22021 (8th Cir. Aug. 16, 1994), cert. denied, Norris v. Hill, 513 U.S. 1102, 115 S. Ct. 778 (1995).

In a prosecution for capital murder, as defendant failed to move for a directed verdict on the basis of the affirmative defense of mental disease or defect, that issue was not preserved for review. Marcyniuk v. State, 2010 Ark. 257, 373 S.W.3d 243 (2010).

Appellant's convictions for second-degree murder and first-degree battery were affirmed because the jury was free to give credit to the forensic psychologist's testimony that appellant had no mental illness, or that he was able in any event to appreciate the criminality of his conduct and to conform his conduct in accordance with the law. Lands v. State, 2012 Ark. App. 616, 424 S.W.3d 390 (2012).

In a second-degree murder case, a trial court did not abuse its discretion by allowing testimony from a second doctor that personality disorders were not mental diseases in the context of this statute because testimony about what constituted a mental disease had previously been accepted; the challenged testimony simply embraced the issue of mental disease from a medical point of view, and it did not mandate a legal conclusion. Moreover, because a first doctor opined that a personality disorder was a mental disease in her report, and the report was entered into evidence, her opinion, despite being written and not oral, was evidence properly subject to rebuttal. Hajek-McClure v. State, 2014 Ark. App. 690, 450 S.W.3d 259 (2014).

Trial court, acting as the factfinder, chose to credit the testimony of a sheriff's deputy that defendant was high on methamphetamine at the time of a crime over the opinion of a doctor, who performed psychological evaluations of defendant, that defendant was suffering from a mental disease, schizoaffective disorder. The court was entitled to believe the deputy's testimony over the doctor's testimony and to decide that defendant did not prove the defense of mental disease by a preponderance of the evidence. Sharp v. State, 2019 Ark. App. 506, 588 S.W.3d 770 (2019).

Statements by Prosecutor.

Statement taken in full context with other statements, which meant that, even though the jurors might find the state proved beyond a reasonable doubt that defendant had the requisite mental culpability to commit a crime, they were then to determine whether he could conform his conduct to the requirements of the law, did not prejudice defendant. Catlett v. State, 321 Ark. 1, 900 S.W.2d 523 (1995).

Tests of Capacity.

The insanity that excused crime must have been such as to render the defendant incapable of distinguishing right from wrong, in respect to the crime committed; or, if he was conscious of the act that he was committing, and knew its consequences, that by reason of his insanity he was wrought up to a frenzy which rendered him incapable of controlling his actions. Williams v. State, 50 Ark. 511, 9 S.W. 5 (1888); Scruggs v. State, 131 Ark. 320, 198 S.W. 694 (1917) (decisions under prior law).

Whether the accused was capable of distinguishing right from wrong in the general affairs of life was not a test of his sanity. Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915) (decision under prior law).

Mental capacity to know that one's acts were in violation of the law was not one of the tests of insanity. Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915) (decision under prior law).

Where insanity was interposed as a defense, such defense could not avail unless it appeared from a preponderance of the evidence, first that at the time of the crime, the defendant was under such a defect of reason from disease of mind as not to know the nature and quality of the act he was doing, or, second, if he did not know it, that he did not know that he was doing what was wrong, or third, if he knew the nature and quality of the act and knew that it was wrong, that he was under such duress of mental disease as to be incapable of choosing between right and wrong as to the act done and unable, because of the disease, to resist the doing of the wrong act which act was the result solely of his mental disease. Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915) (decision under prior law).

This section is complete in setting out the tests to be applied in determining if a defendant is not guilty by reason of insanity which is whether or not the defendant could (1) conform his conduct to the law or (2) appreciate the criminality of his conduct. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980).

Withdrawal of Incompetency Defense.

Affirmative defenses can be withdrawn; however, the inherent nature of the mental defect defense, once asserted, requires the court to examine closely a defendant's ability to take his competency out of issue. Griffin v. State, 25 Ark. App. 186, 755 S.W.2d 574 (1988).

Cited: Coley v. Clinton, 635 F.2d 1364 (8th Cir. 1980); Branham v. State, 274 Ark. 109, 623 S.W.2d 1 (1981); Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984); Davies v. State, 286 Ark. 9, 688 S.W.2d 738 (1985); Wall v. State, 289 Ark. 570, 715 S.W.2d 208 (1986); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998); Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001); Adams v. State, 2013 Ark. 174, 427 S.W.3d 63 (2013); Edwards v. State, 2017 Ark. 207 (2017).

5-2-313. Acquittal based on lack of criminal responsibility report.

  1. On the basis of the report filed under § 5-2-328 and after a hearing, if a hearing is requested, the court may enter judgment of acquittal on the ground of lack of criminal responsibility if the court is satisfied that the following criteria are met:
    1. The defendant currently has the capacity to understand the proceedings against him or her and to assist effectively in his or her own defense; and
    2. At the time of the conduct charged, the defendant lacked criminal responsibility.
  2. If the defendant did not raise the issue of lack of criminal responsibility as an affirmative defense under § 5-2-328, then the court is required to make a factual determination that the defendant committed the offense and that he or she lacked criminal responsibility at the time of the commission of the offense.

History. Acts 1975, No. 280, § 609; A.S.A. 1947, § 41-609; Acts 1989, No. 645, § 2; 1989, No. 911, § 2; 2001, No. 1554, § 4; 2017, No. 472, § 11.

Publisher's Notes. Acts 1989, No. 645, § 8, provided:

“It is the express intent of this act to adopt the standards for committing insanity acquittees and the automatic commitment procedures as authorized by Jones v. United States, 463 U. S. 354, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1903) and United States v. Wallace, 845 F.2d 1471 (8th Cir. 1988).”

Amendments. The 2017 amendment substituted “lack of criminal responsibility” for “mental health” in the section heading; substituted “lack of criminal responsibility” for “mental disease or defect” and similar language throughout the section; substituted “§ 5-2-328” for “5-2-305” in (a) and (b); rewrote (a)(2); and made stylistic changes.

Research References

Ark. L. Rev.

Sullivan, Psychiatric Defenses in Arkansas Criminal Trials, 48 Ark. L. Rev. 439.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Case Notes

Acquittal Denied.

Where testimony was in decided conflict with respect to the defendant's mental capacity, the trial judge properly refused to take the issue from the jury and acquit the defendant on the ground of mental disease or defect pursuant to this section, since the section is intended to permit acquittal only in cases of extreme mental disease or defect where the lack of responsibility on the part of the defendant is clear. Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981); Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).

Denial of motion for acquittal due to mental incapacity was appropriate where evidence showed the defendant took fairly elaborate steps to hide the crime, pleaded the fifth and requested a lawyer. Franks v. State, 306 Ark. 75, 811 S.W.2d 301 (1991).

Where psychiatric report stated that some of defendant's multiple personalities appeared to understand the wrongfulness of the alleged behavior and thus sought to avoid apprehension, but other alter egos had no memory of the events, it did not present a “clear” determination of lack of mental capacity, and there was no error in failure to acquit. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, Bowen v. Arkansas, 517 U.S. 1226, 116 S. Ct. 1861, 134 L. Ed. 2d 960 (1996).

Circuit court did not abuse its discretion in denying defendant's motion for acquittal based on lack of capacity because the circuit court was confronted with conflicting forensic evaluations, and the existence of conflicting proof and the consequent questions of fact that arose from the conflicts supported the circuit court's discretionary decision to deny defendant's motion for acquittal. Russell v. State, 2013 Ark. 369 (2013).

Civil Commitment.

When the court terminated all proceedings against a defendant on grounds of mental disease, his status was as if he had never been charged with the crime upon which those proceedings were instituted; therefore, confinement, after acquittal, should have been ordered pursuant to the statute governing civil commitment. Stover v. Hamilton, 270 Ark. 310, 604 S.W.2d 934 (1980).

By entering a plea of not guilty by reason of mental disease or defect, defendant conceded that he engaged in the conduct charged; because he availed himself of the procedure afforded under § 5-2-313, defendant's due-process rights were not violated. Ark. Dep't of Corr. v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007).

Effect of Other Law.

Section 5-2-302 does not conflict with this section. Stover v. Hamilton, 270 Ark. 310, 604 S.W.2d 934 (1980).

Evidence.

Medical evidence that a defendant lacks the capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law does not obligate a judge to acquit under this section if there is substantial evidence presented that would support the judge's finding that the affirmative defense of mental defect was not proved by a preponderance of the evidence. Fields v. State, 36 Ark. App. 179, 820 S.W.2d 467 (1991).

Where the state hospital's expert witnesses offered opinions concerning defendant's mental status that were far from being clear, and where the state offered other evidence showing defendant did not exhibit any conduct which indicated to his co-workers that he was not able to control his behavior on the day of the shootings, court did not err in refusing to grant his motion for judgment of acquittal. Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).

Factual Determination.

It is only when the defendant does not raise the issue of mental defect that the court is required to make a factual determination that the defendant committed the offense and that he was suffering from a mental disease or defect at the time the offense was committed. Cleveland v. Frazier, 338 Ark. 581, 999 S.W.2d 188 (1999), cert. denied, 528 U.S. 1173, 120 S. Ct. 1201 (2000).

Scope of Discretion.

The decision of whether to direct a verdict of acquittal is discretionary with the trial court under this section; a directed verdict of acquittal is properly denied where there are questions of fact remaining concerning the defendant's affirmative defense of insanity under § 5-2-312. Phillips v. State, 314 Ark. 531, 863 S.W.2d 309 (1993).

Cited: Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981); Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).

5-2-314. Acquittal — Examination of defendant — Hearing.

  1. When a defendant is acquitted due to the defendant's lack of criminal responsibility, a circuit court is required to determine, and to include the determination in the order of acquittal, one (1) of the following:
    1. The offense involved bodily injury to another person or serious damage to the property of another person or involved a substantial risk of bodily injury to another person or serious damage to the property of another person, and that the defendant remains affected by mental disease or defect;
    2. The offense involved bodily injury to another person or serious damage to the property of another person or involved a substantial risk of bodily injury to another person or serious damage to the property of another person, and that the defendant is no longer affected by mental disease or defect;
    3. The offense did not involve bodily injury to another person or serious damage to the property of another person nor did it involve substantial risk of bodily injury to another person or serious damage to the property of another person, and that the defendant remains affected by mental disease or defect; or
    4. The offense did not involve bodily injury to another person or serious damage to the property of another person nor did it involve a substantial risk of bodily injury to another person or serious damage to the property of another person, and that the defendant is no longer affected by mental disease or defect.
    1. If the circuit court enters a determination based on subdivision (a)(1) or subdivision (a)(3) of this section, the circuit court shall order the defendant committed to the custody of the Department of Human Services for an examination by a psychiatrist or a licensed psychologist.
    2. Upon filing of an order of commitment under subdivision (b)(1) of this section with a circuit clerk, the circuit clerk shall submit a copy of the order to the Arkansas Crime Information Center.
  2. If the circuit court enters a determination based on subdivision (a)(2) or subdivision (a)(4) of this section, the circuit court shall immediately discharge the defendant.
      1. The department shall file the psychiatric or psychological report with the probate clerk of the circuit court having venue within thirty (30) days following receipt of an order of acquittal.
      2. If before thirty (30) days the department makes application to the circuit court for an extension of time to file the psychiatric or psychological report and the circuit court finds there is good cause for the delay, the circuit court may order that additional time be allowed for the department to file the psychiatric or psychological report.
      3. A hearing shall be conducted by the circuit court and shall take place not later than ten (10) days following the filing of the psychiatric or psychological report with the circuit court.
    1. If the psychiatric or psychological report is not filed within thirty (30) days following the department's receipt of an order of acquittal or within such additional time as authorized by the circuit court, the circuit court may grant a petition for a writ of habeas corpus ordering the release of the defendant under terms and conditions that are reasonable and just for the defendant and societal concerns about the safety of persons and property of others.
    1. A person found not guilty of an offense involving bodily injury to another person or serious damage to the property of another person or involving a substantial risk of bodily injury to another person or serious damage to the property of another person due to the person's lack of criminal responsibility has the burden of proving by clear and convincing evidence that his or her release would not create a substantial risk of bodily injury to another person or serious damage to property of another person due to a present mental disease or defect.
    2. With respect to any other offense, the person has the burden of proof by a preponderance of the evidence.
    1. A person acquitted whose mental condition is the subject of a hearing has a right to counsel.
      1. If it appears to the circuit court that the person acquitted is in need of counsel, an attorney shall be appointed immediately upon filing of the original petition.
        1. When an attorney is appointed by the circuit court, the circuit court shall determine the amount of the fee to be paid the attorney appointed by the circuit court and issue an order of payment.
        2. The amount of the fee allowed shall be based upon the time and effort of the attorney in the investigation, preparation, and representation of the client at the court hearings.
    1. The quorum court of each county shall appropriate funds for the purpose of payment of the attorney's fees provided for by subsection (f) of this section.
    2. Upon presentment of a claim accompanied by an order of the circuit court fixing the fee, the claim shall be approved by the county court and paid in the same manner as other claims against the county are paid.
  3. A hearing conducted pursuant to subsection (d) of this section may be held at the Arkansas State Hospital or a designated receiving facility or program where the person acquitted is detained.
  4. When conducting any hearing set out in this section, the circuit judge may conduct the hearing within any county of his or her judicial district.
      1. It is the duty of the prosecuting attorney's office in the county where the petition is filed to represent the State of Arkansas at any hearing held pursuant to this section except a hearing pending at the Arkansas State Hospital in Pulaski County.
      2. A prosecuting attorney may contract with another attorney to provide services under subdivision (j)(1)(A) of this section.
    1. The office of the Prosecutor Coordinator shall appear for and on behalf of the State of Arkansas at the Arkansas State Hospital in Little Rock.
    2. Representation under this subsection is a part of the official duties of a prosecuting attorney or the office of the Prosecutor Coordinator and the prosecuting attorney or the office of the Prosecutor Coordinator is immune from civil liability in the performance of this official duty.

History. Acts 1989, No. 645, § 3; 1989, No. 821, § 1; 1989, No. 911, § 3; 1995, No. 609, § 1; 2003, No. 1185, § 3; 2005, No. 1446, § 1; 2007, No. 463, § 2; 2007, No. 568, § 3; 2017, No. 472, §§ 12, 13.

A.C.R.C. Notes. Identical Acts 1989, Nos. 645 and 911, § 3, provided, in part, that “the provisions of this section shall be in lieu of Arkansas Code § 5-2-314 and shall apply to persons who are acquitted by reason of mental disease or defect after the effective date of this act.” Former § 5-2-314 derived from the following sources: Acts 1975, No. 280, § 612; 1983, No. 917, §§ 1, 3; A.S.A. 1947, §§ 41-612, 41-612.2. It was also amended by Acts 1989, No. 821, § 1; however, the enactment by identical Act Nos. 645 and 911 is deemed to be controlling.

Amendments. The 2017 amendment substituted “due to the defendant's lack of criminal responsibility” for “on the ground of mental disease or defect” in the introductory language of (a); and, in (e)(1), substituted “A person found not guilty” for “A person found not guilty on the ground of mental disease or defect” and inserted “due to the person's lack of criminal responsibility”.

Cross References. Jurisdiction of circuit courts over involuntary commitments, § 20-47-205.

Research References

ALR.

Extended Commitment of One Committed to Institution as Consequence of Acquittal of Crime on Ground of Insanity. 52 A.L.R.6th 567.

U. Ark. Little Rock L.J.

Legislation of the 1983 General Assembly, Criminal Law, 6 U. Ark. Little Rock L.J. 613.

Case Notes

Applicability.

The court correctly proceeded under this section and § 5-2-315 instead of under the civil commitment statutes where defendant was suffering from borderline intellectual functioning. Barnett v. State, 328 Ark. 246, 942 S.W.2d 860 (1997).

Application for Release.

Patients of the Arkansas State Hospital who were committed for a sufficient length of time under procedures for commitment of persons charged with crime clearly had a right, under the Code, to present an application for release to the committing trial court, or to contest a report by the director of the State Hospital which stated that the patient should remain hospitalized. Coley v. Clinton, 479 F. Supp. 1036 (E.D. Ark. 1979) (decision under prior law).

Commitment Constitutional.

Confinement based on a criminal commitment pursuant to this section and § 5-2-315 does not violate Ark. Const., Art. 2, § 8 or the Fourteenth Amendment to the United States Constitution since the commitment must be based on a finding that the defendant is a danger to himself and other persons or property and is not based solely on his incompetency to stand trial. Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981) (decision under prior law).

When an accused is sufficiently linked with conduct which sustains a finding of dangerousness, his commitment by a circuit court in connection with criminal charges is based on a rational distinction from the commitment procedures followed in civil cases; accordingly, the fact that a criminal defendant committed under this section is subjected to a more lenient commitment standard, is subject to disparity in custodial care and is held to a more stringent release standard than that applied to patients committed under the civil commitment statutes, does not deny him equal protection under the Fourteenth Amendment to the United States Constitution. Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981) (decision under prior law).

Denial of Release.

Appellant did not meet his burden under subdivision (e)(1) of this section. Although appellant had not been physically aggressive while at the hospital, he had verbally threatened others and the doctor opined that appellant continued to be a high risk of danger to himself and others; thus, the circuit court did not clearly err by refusing to release appellant from the custody of the Department of Human Services. Beare v. Ark. Dep't of Human Servs. (In re Beare), 2018 Ark. App. 598 (2018).

Instructions.

A trial court is not required to give a requested instruction to the jury which is taken from the language of this section and explains to the jury that even after a verdict of not guilty by reason of insanity the court would still have alternative dispositions of the defendant. Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981); Dean v. State, 272 Ark. 448, 615 S.W.2d 354 (1981); Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981) (preceding decisions under prior law).

The jury is not to be told the options available to the court when a defendant is found not guilty by reason of mental disease or defect and it is equally impermissible to comment on one of the alternatives, as it would be to comment on all of them. Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984); Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981) (decision under prior law); Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991).

Trial judge was correct in refusing proffered jury instruction concerning the consequences which result when a defendant is acquitted on the grounds of mental disease or defect. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991).

Jurisdiction.

The circuit court has jurisdiction at the initial stage to make a valid commitment to the state hospital of persons found not guilty by reason of insanity or found to be incapable of assisting in their defense, but subsequent proceedings must be under the jurisdiction of probate courts. Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981) (decision under prior law).

Where it had been more than two years since the trial court dismissed the murder charge against the petitioner because of her mental disease and committed her to the State Hospital pursuant to this section, the petition was entitled to a termination of her criminal commitment, with any continued commitment to be by way of civil commitment. Mannix v. State, 273 Ark. 492, 621 S.W.2d 222 (1981) (decision under prior law).

Jurisdiction of the probate court in hearings where petitioner has the burden of proving that his release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect, was established by the automatic order of commitment entered by the circuit court. Hattison v. State, 324 Ark. 317, 920 S.W.2d 849 (1996).

While a commitment cannot be indefinite, there is no reason to deprive the probate court of jurisdiction due to a late psychiatric report. Hattison v. State, 324 Ark. 317, 920 S.W.2d 849 (1996).

A 6-month delay in the filing of an Act 911 (Acts 1989, No. 991) report did not cause the probate court to lose jurisdiction. Daniels v. State, 333 Ark. 620, 970 S.W.2d 278 (1998).

Although acquitee asserted that, because the judgment of acquittal was entered July 1, 2003, and the DHS director's report was not filed until October 2, 2003, there was no compliance with the requirement that a report had to be filed within 30 days of acquittal, the appellate court held that, despite the untimeliness of the DHS report, it did not compromise the trial court's authority to impose continued DHS commitment. Gibson v. State, 89 Ark. App. 184, 201 S.W.3d 422 (2005).

Where the judgment of acquittal was entered July 1, 2003, and the DHS Director's report was not filed until October 2, 2003, there was no compliance with the requirement that a report be filed within thirty days of acquittal; however, despite the untimeliness of the DHS report, it did not compromise the trial court's authority to impose continued DHS commitment. Gibson v. State, 89 Ark. App. 184, 201 S.W.3d 422 (2005).

Cited: Drone v. State, 303 Ark. 607, 798 S.W.2d 434 (1990); Sanders v. State, 304 Ark. 109, 798 S.W.2d 926 (1990); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).

5-2-315. Discharge or conditional release.

      1. When the Secretary of the Department of Human Services or his or her designee determines that a person acquitted has recovered from his or her mental disease or defect to such an extent that his or her release or his or her conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would no longer create a substantial risk of bodily injury to another person or serious damage to the property of another person, the secretary shall promptly file an application for discharge or conditional release of the person acquitted with the circuit court that ordered the commitment.
      2. In addition, if the person acquitted has an impairment due to alcohol or substance abuse, the secretary may petition the circuit court for involuntary commitment under § 20-64-815.
    1. The secretary shall send a copy of the application to the counsel for the person acquitted and to the attorney for the state.
    1. Within twenty (20) days after receiving the application for discharge or conditional release of the person acquitted, the attorney for the state may petition the circuit court for a hearing to determine whether the person acquitted should be released.
    2. If the attorney for the state does not request a hearing, the circuit court may conduct a hearing on its own motion or discharge the person acquitted.
  1. If the circuit court finds after a hearing under subsection (b) of this section by the standard specified in § 5-2-314(e) that the person acquitted has recovered from his or her mental disease or defect to such an extent that:
    1. The discharge of the person acquitted would no longer create a substantial risk of bodily injury to another person or serious damage to property of another person, then the circuit court shall order that the person acquitted be immediately discharged; or
    2. The conditional release of the person acquitted under a prescribed regimen of medical, psychiatric, or psychological care or treatment would no longer create a substantial risk of bodily injury to another person or serious damage to property of another person, then the circuit court shall order:
      1. That the person acquitted be conditionally released under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been:
        1. Prepared for the person acquitted;
        2. Certified to the circuit court as appropriate by the director of the facility in which the person acquitted is committed; and
        3. Found by the circuit court to be appropriate; and
      2. Explicit conditions of release, including without limitation requirements that:
        1. The person acquitted comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment;
        2. The person acquitted be subject to regularly scheduled personal contact with a compliance monitor for the purpose of verifying compliance with the conditions of release;
        3. Compliance with the conditions of release be documented with the circuit court by the compliance monitor at ninety-day intervals or at such intervals as the circuit court may order; and
        4. Impose the conditions of release for a period of up to five (5) years.
  2. If the circuit court determines that the person acquitted has not met his or her burden of proof under subsection (c) of this section, the person acquitted shall continue to be committed to the custody of the Department of Human Services.
  3. A person ordered to be in charge of a prescribed regimen of medical, psychiatric, or psychological care or treatment of a person acquitted shall provide:
    1. The prescribed regimen of medical, psychiatric, or psychological care or treatment;
    2. Periodic written documentation to a compliance monitor of compliance with the conditions of release, including, but not limited to, documentation of compliance with the prescribed:
      1. Medication;
      2. Treatment and therapy;
      3. Substance abuse treatment; and
      4. Drug testing; and
      1. Written notice of any failure of the person acquitted to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment to the:
        1. Compliance monitor;
        2. Attorney for the person acquitted;
        3. Attorney for the state; and
        4. Circuit court having jurisdiction.
      2. The written notice under subdivision (e)(3)(A) of this section shall be provided immediately upon the failure of the person acquitted to comply with a condition of release.
        1. Upon the written notice under subdivision (e)(3)(A) of this section or upon other probable cause to believe that the person acquitted has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person acquitted may be detained and shall be taken without unnecessary delay before the circuit court having jurisdiction over him or her.
        2. After a hearing, the circuit court shall determine whether the person acquitted should be remanded to an appropriate facility on the ground that, in light of his or her failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, his or her continued release would create a substantial risk of bodily injury to another person or serious damage to property of another person.
      3. At any time after a hearing employing the same criteria, the circuit court may modify or eliminate the prescribed regimen of medical, psychiatric, or psychological care or treatment.
    1. Regardless of whether the secretary or his or her designee has filed an application pursuant to a provision of subsection (a) of this section, and at any time during the commitment of the person acquitted, a person acquitted, his or her counsel, or his or her legal guardian may file with the circuit court that ordered the commitment a motion for a hearing to determine whether the person acquitted should be discharged from the facility in which the person acquitted is committed.
    2. However, no motion under subdivision (f)(1) of this section may be filed more than one (1) time every one hundred eighty (180) days.
    3. A copy of the motion under subdivision (f)(1) of this section shall be sent to the:
      1. Director of the facility in which the person acquitted is committed; and
      2. Attorney for the state.

History. Acts 1989, No. 645, § 4; 1989, No. 911, § 4; 1995, No. 609, § 2; 1995, No. 767, § 4; 1997, No. 922, § 2; 2011, No. 990, § 1; 2019, No. 910, §§ 5122, 5123.

A.C.R.C. Notes. Acts 1989, No. 645, § 4, and No. 911, § 4, provided, in part, that the “provisions of this section shall be in lieu of Arkansas Code § 5-2-315 and shall apply to persons who are acquitted by reason of mental disease or defect after the effective date of this act.” Former § 5-2-315 derived from Acts 1975, No. 280, § 613; A.S.A. 1947, § 41-613.

Amendments. The 2011 amendment inserted “including without limitation requirements” in (c)(2)(B); and added (c)(2)(B)(iv).

The 2019 amendment substituted “Secretary of the Department of Human Services” for “Director of the Department of Human Services” in (a)(1)(A); and substituted “secretary” for “director” throughout (a) and in (f)(1).

Case Notes

Applicability.

The court correctly proceeded under this section and § 5-2-314, instead of under the civil commitment statutes where defendant was suffering from borderline intellectual functioning. Barnett v. State, 328 Ark. 246, 942 S.W.2d 860 (1997).

Defendant did not prove by clear and convincing evidence that he should have been released outright instead of receiving a conditional release; defendant suffered from bipolar disorder for which he had to take medicine to control, and there was evidence that defendant would stop taking his medication and again return to a natural remedy. Bailey v. State, 80 Ark. App. 193, 95 S.W.3d 811 (2002).

Acquitee's confinement was not solely dependent on a department of human services (DHS) determination that he was fit for release; while it was true that an acquittee could be released upon recommendation of the DHS, the acquittee himself could apply for a release pursuant to subdivision (f)(1) of this section, and that remedy was available to the acquitee notwithstanding the fact that it was not referenced in the final disposition order. Gibson v. State, 89 Ark. App. 184, 201 S.W.3d 422 (2005).

Commitment Constitutional.

Confinement based on a criminal commitment pursuant to § 5-2-314 and a former version of this section did not violate Ark. Const., Art. 2, § 8 or U.S. Const. Amend. 14, since the commitment had to be based on a finding that the defendant was a danger to himself and other persons or property and was not based solely on his incompetency to stand trial. Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981) (decision under prior law).

Quasi-Judicial Immunity.

Because a lawsuit sought to hold a psychiatrist liable for the psychiatrist's performance of functions integral to the judicial process in providing psychiatric treatment to a conditional releasee as mandated by the conditional release order, the psychiatrist was entitled to quasi-judicial immunity when the releasee murdered the decedent; although the psychiatrist was not specifically identified in the conditional release order, the psychiatrist's treatment of the releasee expressly arose from the conditional release order and was within the scope of that order. Martin v. Smith, 2019 Ark. 232, 576 S.W.3d 32 (2019).

Cited: Owens v. Taylor, 299 Ark. 373, 772 S.W.2d 596 (1989).

5-2-316. Conditional release — Subsequent discharge, modification, or revocation.

    1. The Secretary of the Department of Human Services or his or her designee or a person conditionally released under § 5-2-315, or both, may apply to the court ordering the conditional release for discharge from or modification of the order granting conditional release on the ground that the person conditionally released under § 5-2-315 may be discharged or the order modified without danger to the person conditionally released under § 5-2-315 or to the person or property of another person.
    2. The application shall be accompanied by a supporting affidavit of a qualified physician.
    3. A copy of the application and affidavit shall be transmitted to the prosecuting attorney of the judicial circuit from which the person was conditionally released and to any person supervising his or her release, and the hearing on the application shall be held following notice to the prosecuting attorney and the person supervising his or her release.
    4. On its own motion or on the motion of a party, a court shall dismiss an application made under this section if the court determines that the application is frivolous or repetitive.
    1. After notice to the conditionally released person and a hearing, the court may determine that the conditionally released person has violated a condition of release or that for the safety of the conditionally released person or for the safety of the person or property of another person the conditional release should be modified, extended for a period specified by the court not to exceed five (5) years, or revoked.
      1. If an order is entered revoking the most recent order of conditional release under subdivision (b)(1) of this section, all conditions of the release shall be abated, and the person shall be ordered to be committed to the custody of the secretary or the secretary's designee.
      2. After the revocation described in subdivision (b)(2)(A) of this section, the person is subject to future discharge or conditional release only under the procedure prescribed in § 5-2-315.

History. Acts 1975, No. 280, § 614; A.S.A. 1947, § 41-614; Acts 1997, No. 922, § 3; 2007, No. 623, § 1; 2011, No. 990, § 2; 2013, No. 981, § 3; 2013, No. 1125, § 1; 2019, No. 910, §§ 5124, 5125.

Amendments. The 2011 amendment, in (a)(1), substituted “the director of the Department of Human Services or his or her designee, or a” for “any” and “under § 5-2-314, or both” for “pursuant to § 5-2-314 or § 5-2-315”; in (b)(1), deleted “within five (5) years after the most recent order of conditional release is issued pursuant to § 5-2-314 or § 5-2-315 and” preceding “after notice,” inserted “person” following “another,” and substituted “modified, extended for a period specified by the court not to exceed five (5) years, or revoked” for “modified or revoked”; in (b)(2)(A), deleted “including the five-year conditional release time frame in subdivision (b)(1) of this section” following “abated” and “of the Department of Human Services” following “director”; and inserted “conditional” in (b)(2)(B).

The 2013 amendment by No. 981 inserted (a)(4).

The 2013 amendment by No. 1125, in (a)(1), substituted “the person conditionally released under § 5-2-315” for “he or she” and for “himself or herself.”

The 2019 amendment substituted “Secretary of the Department of Human Services” for “Director of the Department of Human Services” in (a)(1); and substituted “secretary” for “director” and “secretary's” for “director's” in (b)(2)(A).

Case Notes

Jurisdiction.

Circuit court did not lack jurisdiction in 2006 to consider a petition for the conditional release of a state hospital patient who had been the subject of an initial conditional-release order in 1993 because this section, even prior to clarifying amendments made in 2007, could not properly be read as automatically depriving the court of jurisdiction 5 years after an initial order. State v. Owens, 370 Ark. 421, 260 S.W.3d 288 (2007).

Revocation Upheld.

Conditional release properly revoked where mentally ill appellant violated the terms of his conditional release from the state hospital by leaving the state; the trial judge was entitled to disbelieve his uncorroborated claim that he did so involuntarily due to inadequate medication. Manning v. State, 76 Ark. App. 91, 61 S.W.3d 910 (2001).

Circuit court did not err in revoking appellant's order of conditional release from the state mental hospital where her release was conditioned on treating her one-on-one nurse with dignity and respect and taking her medication, and the evidence showed that she was noncompliant with taking her medication, she was verbally hostile to multiple individuals assisting with her treatment, and she threatened to beat and kill her nurse. Allmon-Lipscomb v. Arkansas, 2017 Ark. App. 301 (2017).

Cited: Barnett v. State, 328 Ark. 246, 942 S.W.2d 860 (1997).

5-2-317. Jurisdiction and venue.

  1. A circuit court has exclusive jurisdiction over a person acquitted by reason of mental disease or defect and committed to the custody of the Secretary of the Department of Human Services pursuant to § 5-2-314(b).
  2. Venue is determined as follows:
    1. For a person committed to the custody of the Department of Human Services pursuant to § 5-2-314(b) and who has been committed to the Arkansas State Hospital for examination, then venue may be in Pulaski County for the initial hearing pursuant to § 5-2-314 and for a conditional release hearing pursuant to § 5-2-315; and
    2. For a person who has been conditionally released pursuant to § 5-2-315, then venue for any hearing seeking the modification, revocation, or dismissal of a conditional release order is in the county where the person currently resides.

History. Acts 1995, No. 609, § 3; 2003, No. 1185, § 4; 2005, No. 1845, § 1; 2019, No. 910, § 5126.

Amendments. The 2019 amendment substituted “Secretary of the Department of Human Services” for “Director of the Department of Human Services” in (a).

5-2-318 — 5-2-324. [Reserved.]

Publisher's Notes. This section, concerning the civil commitment at expiration of maximum term, was repealed by Acts 1989, No, 911, § 7. The section was derived from Acts 1983, No. 917, § 2; A.S.A. 1947, § 41-612.1.

5-2-326. Restraint of an Arkansas State Hospital patient.

  1. If necessary for security, an Arkansas State Hospital patient shall be physically restrained with a restraint while being transported to locations away from hospital grounds or to and from any court appearance.
  2. A patient shall not be physically restrained with a restraint if the restraint is medically contraindicated.
  3. The restraint shall be implemented in accordance with safe and appropriate restraint techniques as determined by hospital policy.
  4. The restraint used shall be the least restrictive type or technique necessary to effectively protect the patient, staff members, or others from harm.
  5. The restraint shall not be used as a means of coercion, discipline, convenience, or retaliation by staff.

History. Acts 2007, No. 636, § 2.

5-2-327. Examination of defendant — Fitness to proceed.

    1. Any party or the court may raise the issue of the defendant's fitness to proceed.
    2. The court shall order an examination under this section if it finds there is a reasonable suspicion that a defendant is not fit to proceed.
      1. Subject to §§ 5-2-304 and 5-2-311, the court shall immediately suspend further proceedings in a prosecution if it has ordered an examination under this section.
        1. If a jury has been impaneled and the court suspends proceedings under subdivision (a)(3)(A) of this section, the court may retain the jury or declare a mistrial and discharge the jury.
        2. A discharge of the jury is not a bar to further prosecution.
    3. If a court suspends further proceedings in the prosecution under subdivision (a)(3)(A) of this section, the court shall enter an order:
      1. Appointing one (1) or more experts who do not practice in the Arkansas State Hospital to examine the defendant and report on the defendant's mental condition; or
        1. Directing the Director of the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services to provide an expert who will examine and report upon the defendant's mental condition.
        2. The director or his or her designee shall determine the location of the examination required under subdivision (a)(4)(B)(i) of this section.
  1. An examination ordered under this section shall be for a period not exceeding sixty (60) days unless the director or his or her designee determines a longer period of examination is necessary for the purpose of the examination.
    1. A uniform order to be used by a court ordering an examination of a defendant's fitness to proceed under this section shall be developed by the Administrative Office of the Courts in conjunction with the following organizations:
      1. The Arkansas Prosecuting Attorneys Association;
      2. The Department of Human Services; and
      3. The Arkansas Public Defender Commission.
    2. The uniform order developed under this subsection shall contain the following information:
      1. The defendant's name, age, gender, and race;
      2. The criminal charges pending against the defendant;
      3. The defendant's attorney's name and address;
      4. The defendant's custody status;
      5. The case number for which the examination was ordered;
      6. A unique identifying number on the incident reporting form as required by the Arkansas Crime Information Center; and
      7. The name of the requesting attorney, if applicable.
    3. An examination under this section shall not be conducted without using the uniform order required under this subsection.
    4. The uniform order shall require the prosecuting attorney to provide to the examiner any information relevant to the examination, including without limitation:
      1. The name and address of any attorney involved in the matter; and
      2. Information about the alleged offense.
    5. The court may require the attorney for the defendant to provide any available information relevant to the examination, including without limitation:
      1. Psychiatric records;
      2. Medical records; or
      3. Records pertaining to treatment of the defendant for substance or alcohol abuse.
    1. An examination report ordered under this section shall be filed with the clerk of the court ordering the examination and is a public record.
    2. The court clerk shall provide copies of the examination report to the defendant's attorney and the prosecuting attorney.
    1. An examination report prepared by an examiner ordered under this section shall:
      1. Contain an opinion as to whether or not the defendant is fit to proceed and the basis for the opinion;
      2. Contain an opinion as to whether the defendant has a mental disease or defect;
      3. Contain a substantiated diagnosis in the terminology of the American Psychiatric Association's most current edition of the Diagnostic and Statistical Manual of Mental Disorders;
      4. Document that the examiner explained to the defendant:
        1. The purpose of the examination;
        2. The persons to whom the examination report is provided; and
        3. The limits on rules of confidentiality applying to the relationship between the examiner and the defendant; and
      5. Describe, in specific terms:
        1. The procedures, techniques, and tests used in the examination;
        2. The purpose of each procedure, technique, or test; and
        3. The conclusions reached.
    2. An examiner's opinion on the defendant's fitness to proceed or lack of fitness to proceed may not be based solely on the defendant's refusal to communicate during the examination.
      1. During an examination to determine a defendant's fitness to proceed and in any examination report based on that examination, an examiner shall consider:
        1. The capacity of the defendant during criminal proceedings to:
          1. Rationally understand the charges against him or her and the potential consequences of the pending criminal proceedings;
          2. Disclose to the defendant's attorney pertinent facts, events, and states of mind;
          3. Engage in a reasoned choice of legal strategies and options;
          4. Understand the adversarial nature of criminal proceedings;
          5. Exhibit appropriate courtroom behavior; and
          6. Testify;
        2. As supported by current indications and the defendant's personal history, whether the defendant is a person with:
          1. A mental disease or defect; or
          2. An intellectual disability; and
        3. The degree of impairment resulting from the mental disease or defect or intellectual disability, if existent, and the specific impact on the defendant's capacity to engage with the defendant's attorney in an effective manner.
      2. The information or lack of information contained in the examiner's report is not intended to limit the introduction of evidence regarding the defendant's fitness to proceed.
  2. This subchapter does not preclude the defendant from having an examination conducted by an expert of the defendant's own choosing to determine the defendant's fitness to proceed, and the court shall provide the defendant's expert with a reasonable opportunity to examine the defendant upon a timely request.
  3. When the defendant has previously been found fit to proceed, the court may order a second or subsequent examination to determine a defendant's fitness to proceed only if the court:
    1. Finds reasonable cause to believe that new or previously undiscovered evidence calls into question the factual, legal, or scientific basis of the opinion upon which the previous finding of fitness relied;
    2. Finds reasonable cause to believe that the defendant's mental condition has changed; or
    3. Sets forth in the order a factual or legal basis upon which to order another examination.
  4. Upon completion of examination under this section, the court may enter an order providing for further examination of the defendant and may order the defendant into the custody of the director for further examination and observation if the court determines that commitment and further examination are warranted.

History. Acts 2017, No. 472, § 14.

Case Notes

Applicability.

Former section was inapplicable to a sentence revocation hearing; thus, the decision whether to provide psychiatric assistance to one facing a revocation hearing, like the decision concerning entitlement to counsel, must be on a case by case basis, and while due process must be accorded the defendant, there is no entitlement to the full range of criminal trial safeguards because the court is not dealing with a person who had yet to be convicted of anything. Pyland v. State, 302 Ark. 444, 790 S.W.2d 178 (1990) (decision under prior law).

Compliance with Former Statute.

Where psychiatrist's report raises a reasonable doubt about defendant's competency to stand trial, the trial court should order a full examination and report and, if warranted by the report, should conduct a determination of fitness to proceed pursuant to § 5-2-309. Jacobs v. State, 294 Ark. 551, 744 S.W.2d 728 (1988) (decision under prior law).

The appointment of a psychiatrist was not required under former statute; substantial compliance with former statute through an evaluation by a psychologist was enough. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994) (decision under prior law).

Continuance denied even though psychiatric report had not been filed in strict compliance with former statute where defendant failed to show any prejudice. Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996) (decision under prior law).

Trial court committed reversible error by failing to immediately suspend the proceedings in defendant's trial for first-degree murder and order a psychiatric evaluation upon defendant's motion requesting that an evaluation be done. Kelly v. State, 80 Ark. App. 126, 91 S.W.3d 526 (2002) (decision under prior law).

Trial court erred in deeming defendant's federal mental evaluation sufficient to satisfy Arkansas' mandatory statutory scheme governing state mental evaluations; the trial judge's decision was a gross abuse of his discretion that warranted the granting of a writ of certiorari. Smith v. Fox, 358 Ark. 388, 193 S.W.3d 238 (2004) (decision under prior law).

Defendant's conviction for breaking or entering was proper because the trial court did not err in failing to suspend the proceedings sua sponte and order a second competency hearing based on his actions shortly before and during trial. In part, although defendant appeared to have required restraint at trial because he would stand at inappropriate times, and he asserted that he did not understand the proceedings, those behaviors were entirely consistent with those observed during the videotaped interview following his arrest, after which defendant underwent a psychological examination. Vilayvanh v. State, 2012 Ark. App. 561 (2012) (decision under prior law).

Circuit court did not err in ordering a fitness to proceed examination because the State and the circuit court both raised the issue of fitness to proceed, and the circuit court's order clearly stated that it found reasonable suspicion to believe that defendant was not fit to proceed; the statute authorizes the circuit court to raise the issue of a defendant's fitness to proceed and requires it to order the examination once a finding of reasonable suspicion has been made. Friar v. Erwin, 2014 Ark. 487, 450 S.W.3d 666 (2014) (decision under prior law).

Costs.

Due process of law does not require the state to furnish expenses for a defendant to shop from doctor to doctor until he finds one who considers him mentally incompetent. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085, 105 S. Ct. 1847, 85 L. Ed. 2d 145 (1985) (decision under prior law).

Examination Report.

Where the psychiatrist's report regarding the defendant's fitness to stand trial substantially complied with the requirements of former statute, the trial court did not err in requiring the defendant to proceed to trial, even though the report was not in the exact terms of former statute. Ball v. State, 278 Ark. 423, 646 S.W.2d 693 (1983) (decision under prior law).

Denial of the inmate's petition for postconviction relief under Ark. R. Crim. P. 37.1 was improper as to the competency issue because the supreme court was unable to determine whether there were any results of the mental evaluation of which the parties or the court might have been made aware, whether those results were contested, or whether there was any other resolution settling the issue of the inmate's competency to proceed and enter his plea. Sandoval-Vega v. State, 2011 Ark. 393, 384 S.W.3d 508 (2011) (decision under prior law).

Hearing.

Evidence sufficient to find that there was no prejudicial error in the conduct of the competency hearing. Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980) (decision under prior law).

A pre-trial hearing on the morning of trial, where the court considered the propriety of defendant's withdrawal of his incompetency defense before allowing the case to proceed, complied with procedural due process requirements. Griffin v. State, 25 Ark. App. 186, 755 S.W.2d 574 (1988) (decision under prior law).

Trial court erred in denying defendant's request for a competency hearing because a hearing was mandatory where defendant plainly took issue with a psychologist's finding that he was competent and requested a hearing. Simpson v. State, 2015 Ark. App. 103, 455 S.W.3d 856 (2015) (decision under prior law).

Fitness to Proceed.

Under the statute, the court may raise the incompetency defense on its own at any time it has “reason to doubt” a defendant's fitness to proceed. Griffin v. State, 25 Ark. App. 186, 755 S.W.2d 574 (1988) (decision under prior law).

Trial court's refusal to halt the proceedings and order a mental evaluation based on defendant's notice was proper where there was no specific assertion that appellant was suffering from a mental disease or defect which affected his competency to proceed, but rather that it was his lack of recollection of the incident that was affecting his capacity to proceed. Lawrence v. State, 39 Ark. App. 39, 839 S.W.2d 10 (1992) (decision under prior law).

Trial court did not err in denying defendant's request for a mental evaluation where there was no evidence to suggest that he lacked an appreciation for the seriousness of the charges against him or an ability to assist his attorney in his defense, and the trial court found him fit to proceed. Bryant v. State, 94 Ark. App. 387, 231 S.W.3d 91 (2006) (decision under prior law).

Pursuant to defense counsel's motion, the court suspended defendant's trial for a mental-health evaluation and a doctor determined that defendant demonstrated a fully-developed, persecutory-type delusion; however, once defendant's fitness was restored, his prosecution for attempting to commit capital murder could proceed and the court was not required to order a second evaluation when defendant later claimed he was hearing voices. Steward v. State, 95 Ark. App. 6, 233 S.W.3d 180 (2006) (decision under prior law).

Where defendant appealed his convictions for violating §§ 5-64-443(c) and 5-64-420(a)(2), the circuit court did not err by denying his motion for a psychological evaluation. Defendant's mere statement that he was depressed was not enough to give the circuit court reason to believe that mental disease or defect would be an issue or to give the circuit court reason to doubt his fitness to proceed. King v. State, 2014 Ark. App. 81, 432 S.W.3d 127 (2014) (decision under prior law).

In a probation revocation case, defendant waived an argument relating to whether the trial court should have halted proceedings and ordered an assessment because he never filed notice that he intended to rely on a defense of mental disease or defect or that he was putting into issue his fitness to proceed; moreover, defense counsel indicated that no issue existed. Even if the trial court had denied a mental evaluation, there was no reversible error in proceeding with the revocation hearing since this was not a criminal trial, and defendant had undergone two evaluations previously. Ring v. State, 2014 Ark. App. 169 (2014) (decision under prior law).

Request or Motion for Examination.

A pretrial motion for a psychiatric examination was not sufficient to raise the requisite reasonable or bona fide doubt necessary for the trial judge to make a finding of the defendant's incompetency to stand trial. Collins v. Housewright, 664 F.2d 181 (8th Cir. 1981), cert. denied, 455 U.S. 1004, 102 S. Ct. 1639, 71 L. Ed. 2d 872 (1982) (decision under prior law).

Supplementary Examination.

Where the psychiatrist's report told the court virtually nothing and was palpably in noncompliance with former statute and the defendant had a history of mental illness, further observation and examination should have been ordered and his conviction was reversed. Vance v. State, 288 Ark. 274, 704 S.W.2d 170 (1986) (decision under prior law).

5-2-328. Examination of defendant — Affirmative defense of lack of criminal responsibility.

    1. Subject to § 5-2-311, if and only if a defendant charged in circuit court files a notice of intent to raise the affirmative defense of lack of criminal responsibility under § 5-2-304, the circuit court shall immediately suspend any further proceedings.
    2. When the defendant files notice under subdivision (a)(1) of this section, then the circuit court may on its own motion or on the motion of the prosecuting attorney or the defense attorney enter an order appointing one (1) or more disinterested experts to examine the defendant with regard to the defense of lack of criminal responsibility.
      1. An examination under this section shall be for a period not exceeding sixty (60) days or a longer period as the Director of the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services or his or her designee determines to be necessary for the purpose of the examination.
        1. A person designated by the circuit court to perform an examination under this section shall file the examination report with the clerk of the circuit court ordering the examination.
        2. An examination report filed under this subdivision (a)(3)(B) is a public record.
        3. A copy of the examination report shall be provided by the clerk to the defendant's attorney and the prosecuting attorney.
    1. A uniform order to be used by a circuit court ordering an examination of a defendant's lack of criminal responsibility under this section shall be developed by the Administrative Office of the Courts in conjunction with the following organizations:
      1. The Arkansas Prosecuting Attorneys Association;
      2. The Department of Human Services; and
      3. The Arkansas Public Defender Commission.
    2. The uniform order developed under this subsection shall contain, without limitation, the following information:
      1. The defendant's name, age, gender, and race;
      2. The criminal charges pending against the defendant;
      3. The defendant's attorney's name and address;
      4. The defendant's custody status;
      5. The case number for which the examination was ordered;
      6. A unique identifying number on the incident reporting form as required by the Arkansas Crime Information Center; and
      7. The name of the requesting attorney, if applicable.
    3. The uniform order shall require the prosecuting attorney to provide to the examiner any information relevant to the examination, including without limitation:
      1. The name and address of any attorney involved in the matter;
      2. Information about the alleged offense; and
      3. Any information about the defendant's background that is determined to be relevant to the examination, including the criminal history of the defendant.
    4. The circuit court may require the attorney for the defendant to provide any available information relevant to the examination, including without limitation:
      1. Psychiatric records;
      2. Medical records; or
      3. Records pertaining to treatment of the defendant for substance or alcohol abuse.
    5. After it is developed, a copy of the uniform order under this subsection shall be forwarded to the director.
    6. An examination under this section shall not be conducted without using the uniform order required under this subsection.
  1. An examination report prepared by an examiner ordered under this section shall contain:
    1. A description of the nature of the examination;
    2. An opinion as to whether as the result of a mental disease or defect the defendant at the time of the alleged offense lacked the capacity to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of the law, an explanation of the examiner's opinion, and the basis of that opinion;
    3. When directed by the circuit court, an opinion as to whether at the time of the alleged offense the defendant lacked the capacity to form a culpable mental state that is required to establish an element of the alleged offense, an explanation of the examiner's opinion, and the basis of that opinion; and
    4. If an examination cannot be conducted because of the unwillingness of the defendant to participate in the examination, an opinion as to whether the unwillingness of the defendant is the result of mental disease or defect.
    1. An examiner appointed under this section to examine a defendant with regard to a defense of lack of criminal responsibility also may be appointed by the circuit court to examine the defendant with regard to the defendant's fitness to proceed under § 5-2-327.
    2. However, the examiner must file with the circuit court separate written reports concerning the defendant's fitness to proceed and lack of criminal responsibility.
  2. Unless otherwise required by this section, an examiner shall not render an opinion or issue a report on the defendant's lack of criminal responsibility if the examiner believes that the defendant is not fit to proceed until the circuit court issuing the order for an examination into the defendant's lack of criminal responsibility makes a determination as to the defendant's fitness to proceed.
  3. A circuit court shall not order the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services to conduct an examination of a defendant's lack of criminal responsibility if a previous examination into the defendant's fitness to proceed has already determined that the defendant does not have a mental disease or defect unless the requesting party can show reasonable cause to believe:
    1. There is evidence of a mental disease or defect that was not fully considered in the previous examination into the defendant's fitness to proceed; or
    2. That the previous opinion that the defendant does not have a mental disease or defect was based on information or facts later shown to be false or unreliable.
    1. This section does not prevent a defendant from having an examination into his or her lack of criminal responsibility conducted by his or her expert or from maintaining a defense of not guilty by reason of a lack of criminal responsibility using testimony from a defense expert or other evidence.
    2. If a defendant wishes to be examined by an expert of his or her own choosing, the circuit court shall provide the expert with reasonable opportunity to examine the defendant upon a timely request.

History. Acts 2017, No. 472, § 15.

Case Notes

Access to Records.

Defendant was denied crucial evidence to aid in his defense when he was not furnished the full records of the state hospital relating to two prior commitments to the state hospital. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979) (decision under prior law).

Where a court ordered the mental examination of a defendant, it was prejudicial error to deny him access to the reports and records of the state mental hospital and a regional mental health center regarding such examinations. Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981) (decision under prior law).

Compliance with Former Statute.

Evidence was sufficient to find that there was compliance with the statutory requirement as to a mental examination. Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980) (decision under prior law).

The examination, conducted during defendant's stay at the state hospital, by a doctor, who was admittedly a psychologist rather than a psychiatrist, substantially complied with former statute. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991) (decision under prior law).

Where a defendant is evaluated by the state hospital, such an evaluation complies with the examination requirements of Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). Beard v. State, 306 Ark. 546, 816 S.W.2d 860 (1991) (decision under prior law).

Where report explicitly referred to the defendant's history of substance abuse, incarceration for delinquency, and psychiatric problems, even though examiner may not have had before him the full medical, psychiatric, and delinquency records of the defendant, report substantially complied with the requirements of state law. Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992) (decision under prior law).

The trial court did not err in failing to order a psychiatric evaluation by the state hospital where the trial court correctly determined that the evaluation by a local, approved psychologist was a proper alternative and was in compliance with former statute. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995) (decision under prior law).

Continuance denied even though psychiatric report had not been filed in strict compliance with former statute where defendant failed to show any prejudice. Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996) (decision under prior law).

Trial court committed reversible error by failing to immediately suspend the proceedings in defendant's trial for first-degree murder and order a psychiatric evaluation upon defendant's motion requesting that an evaluation be done. Kelly v. State, 80 Ark. App. 126, 91 S.W.3d 526 (2002) (decision under prior law).

Trial court erred in deeming defendant's federal mental evaluation sufficient to satisfy Arkansas' mandatory statutory scheme governing state mental evaluations; the trial judge's decision was a gross abuse of his discretion that warranted the granting of a writ of certiorari. Smith v. Fox, 358 Ark. 388, 193 S.W.3d 238 (2004) (decision under prior law).

Continuance.

Defendant's motion for continuance filed the day before trial to obtain an independent examination to support an affirmative defense of lack of criminal responsibility was properly denied as he had ample time to pursue an independent evaluation before trial, but instead planned to wait and see what the state hospital's report would conclude before seeking to obtain his own experts for an evaluation; although the state hospital's report was not provided until shortly before trial, a defendant who employs such a “wait and see” strategy is not acting diligently in attempting to secure the necessary information on which to build a defense of mental disease or defect. In addition, defendant failed to show any prejudice from the denial of the continuance. Hendrix v. State, 2019 Ark. 351, 588 S.W.3d 17 (2019).

Costs.

Due process of law does not require the state to furnish expenses for a defendant to shop from doctor to doctor until he finds one who considers him mentally incompetent. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085, 105 S. Ct. 1847, 85 L. Ed. 2d 145 (1985) (decision under prior law).

Expert Opinion.

Where defendant was found guilty of first-degree murder and attempted first-degree murder, the trial court did not abuse its discretion in excluding certain expert testimony regarding defendant's capacity to form intent. The expert's report did not state that defendant lacked the capacity to form intent, only that it was impacted or impaired, and the expert also opined that defendant's psychotic disorder did not render him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Furthermore, there was ample evidence of purposeful conduct where defendant left a bar and returned with a shotgun that he used against the victims. Edwards v. State, 2015 Ark. 377, 472 S.W.3d 479 (2015) (decision under prior law).

Hearing.

A pre-trial hearing on the morning of trial, where the court considered the propriety of defendant's withdrawal of his incompetency defense before allowing the case to proceed, complied with procedural due process requirements. Griffin v. State, 25 Ark. App. 186, 755 S.W.2d 574 (1988) (decision under prior law).

Notice of Intent.

Circuit court acted without jurisdiction in ordering defendant to submit to a criminal responsibility examination because defendant had not filed a notice of intent to raise the defense of not guilty for reason of mental disease or defect. Friar v. Erwin, 2014 Ark. 487, 450 S.W.3d 666 (2014) (decision under prior law).

Psychiatrist's Opinion.

While psychiatrist's opinion was a conditional one, it was nonetheless an opinion as to defendant's “ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” at the time the offense was committed. Walker v. State, 303 Ark. 401, 797 S.W.2d 447 (1990) (decision under prior law).

Former statute required no unequivocal or conclusive opinion, but provided only that such reports contain some opinion as to the extent to which the defendant's mental capacity was impaired. Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995) (decision under prior law).

Request or Motion for Examination.

The time necessary to complete a mental examination requested by a defendant is excluded from the one-year period for speedy trial. Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004) (decision under prior law).

5-2-329. Data to be maintained by the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services.

    1. The Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services shall maintain a database of all examinations of defendants performed under this subchapter.
    2. The database shall be maintained in a manner that enables it to generate reports and compile data with or without personal identifying information.
    3. The database shall contain without limitation:
      1. The defendant's information on the uniform order required under § 5-2-327 or § 5-2-328;
      2. The name of the judge who ordered the examination, if known;
      3. The name of the attorney who requested the examination, if known;
      4. The name of the examiner who conducted the examination;
      5. The result of the examination;
      6. If the defendant was examined regarding his or her fitness to proceed, whether the defendant had his or her fitness to proceed restored; and
      7. If the defendant was found not guilty or acquitted because of the affirmative defense of lack of criminal responsibility, the defendant's progress through his or her commitment and conditional release.
  1. The database should be designed in a manner that allows reports to be generated for the General Assembly, researchers, and the public to track the efficiency and effectiveness of the examination process and the restoration and treatment programs of the division without invading the privacy of individual defendants and patients.

History. Acts 2017, No. 472, § 16.

5-2-330. Examination by Division of Correction prohibited.

A defendant committed to and under the supervision of the Division of Correction who is charged in circuit court shall not undergo an examination or observation conducted under this subchapter by a psychiatrist or other mental health employee of the division to determine the mental condition of the defendant.

History. Acts 2017, No. 472, § 17; 2019, No. 910, § 645.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in the section heading and the section.

5-2-331. Cost of mental health services, examination, and treatment of defendant.

  1. A person or entity that provides treatment or other mental health services under this subchapter may impose a charge for the cost of the treatment or other mental health services rendered.
  2. A charge for the cost of treatment or other mental health services under this section may not exceed the actual cost of the treatment or other mental health services provided.
    1. The Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services shall promulgate rules establishing reasonable charges for the cost of treatment or other mental health services under this section.
    2. Rules establishing reasonable charges for the cost of treatment or other mental health services under this section shall provide for waiving or postponing the collection of the charges based on:
      1. Clinical considerations;
      2. The defendant's inability to pay; or
      3. A court determination that the defendant is wholly or partly indigent and qualifies for the appointment of an attorney under § 16-87-213.

History. Acts 2019, No. 567, § 1.

Subchapter 4 — Parties to Offenses

Publisher's Notes. For Comments regarding the Criminal Code, see Commentaries Volume B.

Cross References. Conviction on testimony of accomplice, § 16-89-111.

Venue of prosecutions against accessories, § 16-88-114.

Research References

ALR.

Test of criminal responsibility: state cases. 9 A.L.R.4th 526.

Acquittal of principal or his conviction of lesser degree of offense as affecting prosecution of accessory and aider and abettor. 9 A.L.R.4th 972.

Am. Jur. 21 Am. Jur. 2d, Crim. L., § 204 et seq.

Ark. L. Rev.

The Impact of the 1976 Criminal Code on the Law of Accessorial Liability in Arkansas, 31 Ark. L. Rev. 100.

C.J.S. 22 C.J.S., Crim. L., § 79 et seq.

Case Notes

In General.

The law no longer distinguishes between an accessory and the principal. Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1980).

Accessories.

An accessory before the fact is now referred to as an accomplice, defined in § 5-2-403, and one who was formerly an accessory after the fact is now guilty of the separate crime of hindering apprehension and prosecution under § 5-54-105. Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993).

5-2-401. Criminal liability generally.

A person may commit an offense either by his or her own conduct or that of another person.

History. Acts 1975, No. 280, § 301; A.S.A. 1947, § 41-301.

Case Notes

Application.

Defendant's conviction for capital murder, in violation of § 5-10-101(a)(4), was proper because there was substantial evidence that defendant was guilty as an accomplice pursuant to this section and §§ 5-2-402(2) and 5-2-403(b)(1), (2), and his argument that there was insufficient evidence of his acting as an accomplice by encouraging, aiding, or assisting the killer in stabbing the victim, was not preserved for review. Lawshea v. State, 2009 Ark. 600, 357 S.W.3d 901 (2009).

Evidence.

Concerted action to commit an unlawful act may be shown by circumstantial evidence without direct proof of a conspiracy by prior agreement; hence, defendant could properly be found guilty of an offense not only by her own conduct but also by that of her accomplices. King v. State, 271 Ark. 417, 609 S.W.2d 32 (1980).

Defendant's conviction for capital murder was supported by substantial evidence where he served as an accomplice to the murder by directing his brother to “come on down” from the attic because the victim moved, suggesting that his brother needed to finish killing the victim, which he did while defendant watched. Wilson v. State, 365 Ark. 664, 232 S.W.3d 455 (2006).

Instructions.

Jury instruction taken almost verbatim from this section was correct despite mention of “accomplices” where both defendants were principals inasmuch as, when two or more persons assist one another in the commission of an offense, each is an accomplice and is criminally liable for the conduct of both. Andrews v. State, 262 Ark. 190, 555 S.W.2d 224 (1977).

Participation.

When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979).

Each participant in a crime is liable for his own conduct but cannot disclaim responsibility for all of the conduct in a particular episode because he did not personally take part in every act which it took to accomplish the crime. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979); Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979).

Under accomplice liability, a person may commit an offense by his own conduct or by that of another person. Wilson v. State, 365 Ark. 664, 232 S.W.3d 455 (2006).

Cited: Long v. State, 260 Ark. 417, 542 S.W.2d 742 (1976); Ward v. State, 6 Ark. App. 349, 642 S.W.2d 328 (1982); Fisher v. State, 7 Ark. App. 1, 643 S.W.2d 571 (1982).

5-2-402. Liability for conduct of another generally.

A person is criminally liable for the conduct of another person if:

  1. The person is made criminally liable for the conduct of another person by the statute defining the offense;
  2. The person is an accomplice of another person in the commission of an offense; or
  3. Acting with a culpable mental state sufficient for the commission of the offense, the person causes another person to engage in conduct that would constitute an offense but for a defense available to the other person.

History. Acts 1975, No. 280, § 302; A.S.A. 1947, § 41-302.

Case Notes

Accomplice/Principal Distinction.

It was defendant's brother who fired the shot that killed the victim, and although defendant claimed the State failed to prove it was his conscious object to assist his brother, the law in Arkansas made no distinction between the criminal liability of a principal and an accomplice; defendant drove around with the stated purpose to assist in hunting down and killing the victim, and thus the evidence supported his convictions of first-degree murder and committing a terroristic act, and the circuit court properly denied his motions for directed verdict. Starling v. State, 2015 Ark. App. 429, 468 S.W.3d 294 (2015).

Accomplices.

Accessory could be tried and punished as a principal. Fanning v. State, 199 Ark. 932, 136 S.W.2d 1040 (1940); Fleeman v. State, 204 Ark. 772, 165 S.W.2d 62 (1942); Warford v. State, 214 Ark. 423, 216 S.W.2d 781 (1949); Lauderdale v. State, 233 Ark. 96, 343 S.W.2d 422 (1961); Ballew v. State, 246 Ark. 1191, 441 S.W.2d 453 (1969); Murrah v. State, 253 Ark. 432, 486 S.W.2d 897 (1972), overruled in part, Waters v. State, 271 Ark. 33, 607 S.W.2d 336 (Ark. 1980) (preceding decisions under prior law).

One who stood by, aided and abetted, could be tried as a principal regardless of what happened in cases against his alleged accomplices. Rush v. State, 239 Ark. 878, 395 S.W.2d 3 (1965) (decision under prior law).

One need not actually take an active part in an offense to be convicted of that charge, and where the defendant accompanied those who actually committed the offense, supplied them with a means of committing the offense, and was aware of the likelihood of some harm occurring, she brought herself within the terms of this section and § 5-4-403, she was properly convicted. Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979).

There is no distinction between the criminal responsibility of an accomplice and the person who actually commits the offense. Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981).

One who aids or assists in the commission of a crime is as guilty as the actual perpetrator of the deed; the distinction between a principal and an accessory has been abolished. Smith v. State, 271 Ark. 671, 609 S.W.2d 922 (1981).

Defendant was an active participant in the transaction, and as an accomplice he was liable for the criminal conduct of the other participants; therefore, he was properly charged and convicted as a principal. Yent v. State, 9 Ark. App. 356, 660 S.W.2d 178 (1983).

A co-conspirator may also be an accomplice. Shrader v. State, 13 Ark. App. 17, 678 S.W.2d 777 (1984).

Evidence was sufficient to support a conviction for capital murder based on accomplice liability where it was shown that defendant was involved in the planning of the murder, that he helped the killer set up his alibi, and that he selected the grave site and helped dig the grave where the victim's body was to be buried. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002).

Defendant had the burden of proving that a witness was an accomplice whose testimony had to be corroborated, since mere presence at the crime scene or failure to inform law enforcement officers of a crime did not make the witness an accomplice as a matter of law. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002).

Person is criminally liable for the conduct of another person when he is the accomplice of another person in the commission of an offense. Wilson v. State, 365 Ark. 664, 232 S.W.3d 455 (2006).

Defendant's conviction for capital murder, in violation of § 5-10-101(a)(4), was proper because there was substantial evidence that defendant was guilty as an accomplice pursuant to §§ 5-2-401, 5-2-403(b)(1), (2), and subdivision (2) of this section, and his argument that there was insufficient evidence of his acting as an accomplice by encouraging, aiding, or assisting the killer in stabbing the victim, was not preserved for review. Lawshea v. State, 2009 Ark. 600, 357 S.W.3d 901 (2009).

Substantial evidence supported defendant's convictions for aggravated robbery, kidnapping, aggravated assault, theft of property, unlawful discharge of a firearm from a vehicle, and fleeing because while the state did not prove that defendant actually entered a bank, it did provide substantial evidence that he was the driver of the getaway car and thus was an accomplice of the two men who committed the aggravated robbery, kidnapping, and theft of property; while defendant did not personally shoot at an officer's vehicle, his conduct of driving the fleeing vehicle while another person in the car fired the shots sufficiently implicated him as an accomplice to unlawfully discharging a firearm from a vehicle. Barber v. State, 2010 Ark. App. 210, 374 S.W.3d 709 (2010).

Evidence was sufficient to convict defendant of theft as an accomplice because defendant asked the complainant to give the back-seat passenger a ride; the back-seat passenger took the complainant's wallet and the $3700 it contained while defendant struggled with the complainant to take her cell phone; it was up to the circuit court to decide whether defendant and the back-seat passenger acted in concert to divert the complainant's attention and steal her money; defendant's account of events differed so significantly from the testimony of other witnesses that the trial court, as the trier of fact, could readily discount her entire testimony; and her attempt to flee from the crime scene was relevant to the issue of guilt. Cosey v. State, 2014 Ark. App. 441, 439 S.W.3d 731 (2014).

While no witness directly identified defendant as being the actual robber, a person was criminally liable for the conduct of another when he was an accomplice; defendant's car was stopped driving away from a robbery, he had two passengers with him, inside the car was the same amount of money that had been stolen, and the clothing in the car matched the description of what the robber wore, and the jury was permitted to weigh the evidence in reaching its guilty verdict. Richardson v. State, 2014 Ark. App. 679, 449 S.W.3d 718 (2014).

In a case where defendant was convicted of two counts of aggravated robbery, there was sufficient evidence presented to corroborate the accomplice's testimony because defendant told a detective he was at the store on the date of the robbery; surveillance tapes showed defendant, co-defendant, and the accomplice in the store at the same time as the victim, leaving the store immediately after the victim, and leaving the parking lot right behind the victim; defendant's mother testified that the vehicle police were searching for in connection with the aggravated robberies belonged to defendant; and, at trial, the victim's sister identified defendant as the person who committed the aggravated robberies with co-defendant. Foster v. State, 2017 Ark. App. 63, 510 S.W.3d 782 (2017).

Enhancement of Punishment.

Enhancement of defendant's punishment on the basis of his companion's actions during the commission of an offense was proper, since under a former statute an accomplice was as guilty as his confederate and subject to the same punishment. Gammel v. State, 259 Ark. 96, 531 S.W.2d 474 (1976) (decision under prior law).

Employment Relationship.

Employer's civil liability upheld where an employee killed his employer's neighbor when the neighbor pointed a gun at the employer; the employer was an accomplice to that manslaughter. Costner v. Adams, 82 Ark. App. 148, 121 S.W.3d 164 (2003).

Evidence.

Concerted action to commit an unlawful act may be shown by circumstantial evidence, without direct proof of a conspiracy by prior agreement. King v. State, 271 Ark. 417, 609 S.W.2d 32 (1980).

Evidence sufficient to support defendant's conviction for crime performed by another. Smith v. State, 271 Ark. 671, 609 S.W.2d 922 (1981); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); Wallace v. Lockhart, 701 F.2d 719 (8th Cir. 1983), cert. denied, 464 U.S. 934, 104 S. Ct. 340, 78 L. Ed. 2d 308 (1983); Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987); Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).

Evidence in the form of testimony of a mother and her daughter and son, both of whom were under the age of 14, that defendant, who was husband and father to the victims, sexually assaulted the daughter by inserting his finger into the daughter's vagina and forcing the daughter to perform oral sex on defendant, forcing the son and daughter to have sexual intercourse, and forcing the son to have intercourse with the mother, along with medical evidence of injuries to the daughter consistent with sexual assault, supported defendant's conviction for rape and three counts of accomplice to rape under the law of parties. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002).

There was sufficient evidence to support a conviction for manufacturing methamphetamine based on accomplice liability where the evidence showed that drug manufacturing was taking place on defendant's property, defendant admitted knowledge of the operation, and a co-defendant also testified regarding defendant's knowledge of the operation. George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004).

Evidence was sufficient to sustain a conviction for attempted capital murder where there was substantial evidence that defendant was not merely engaged in the “act of driving”; the victim, a police officer, testified that the driver attempted to run him over, he observed a flash from the passenger side window, he realized that he had heard a gunshot, and an officer identified defendant as the driver of the vehicle. Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004).

Evidence was sufficient to sustain defendant's aggravated robbery conviction where defendant admitted to being in the vehicle when the crimes occurred, the evidence showed that he was the driver, defendant waited while an accomplice fired shots at the van's driver, and defendant retrieved the bank bag. Jefferson v. State, 359 Ark. 454, 198 S.W.3d 527 (2004).

Evidence was sufficient to convict defendant of first degree murder and theft where, in addition to the testimony of defendant's wife, who was an accomplice, defendant's own statements to the police, his conduct before and after the crime, and statements of the victim's friends regarding her fear of defendant tended to connect him to the crimes; further, although there was no evidence that defendant ever drove victim's Cadillac or had the vehicle in his possession, the jury might have determined that defendant facilitated the theft by leaving the accomplice without a vehicle at the victim's house, and there was evidence that the theft of the Cadillac was part of the plan to murder the victim. MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006).

Defendant's conviction for capital murder was supported by substantial evidence where he served as an accomplice to the murder by directing his brother to “come on down” from the attic because the victim moved, suggesting that his brother needed to finish killing the victim, which he did while defendant watched. Wilson v. State, 365 Ark. 664, 232 S.W.3d 455 (2006).

Defendant's convictions for two counts of aggravated robbery were proper because a neighbor verified that one of the intruders had a gun; the victim told officers that the intruders hid their guns in the closet, where two guns were found; and both intruders were charged in the same instrument, implicating accomplice liability, under subdivision (2) of this section. That provided substantial evidence to support the finding that the intruders at minimum represented by word or conduct that they were armed as a threat in order to commit the theft. Hinton v. State, 2010 Ark. App. 341 (2010).

Defendant's convictions for two counts of aggravated burglary were proper because defendant's argument that there was no direct proof on the record of defendant holding a gun was without merit since substantial circumstantial evidence supported a finding of guilt, either as a principal or an accomplice, as defined in subdivision (2) of this section. A neighbor verified that one of the intruders had a gun, the victim told the officers that the intruders hid their guns in the closet, where two guns were found, and both intruders were charged in the same instrument, implicating accomplice liability; that provided substantial evidence supporting the finding that the intruders at minimum represented by word or conduct that they were armed as a threat. Hinton v. State, 2010 Ark. App. 341 (2010).

Defendant's convictions for breaking or entering, in violation of § 5-39-202(1), and theft of property, in violation of § 5-36-103(a)(1), were supported by the evidence because defendant's unlawful presence near a storage shed, flight from the victim, and association with persons involved in the crimes suggested that defendant jointly participated in the crimes under subdivision (a)(2) of this section. Goforth v. State, 2010 Ark. App. 735 (2010).

Trial court did not err in denying defendant's motion for a directed verdict during a trial for first-degree murder as an accomplice, in violation of subsection (2) of this section, because a codefendant testified that defendant hired the codefendant to murder his wife; the state presented the testimony of five witnesses concerning the fear of defendant's wife that he would kill her. Camp v. State, 2011 Ark. 155, 381 S.W.3d 11 (2011).

Substantial evidence supported a juvenile's second-degree battery disposition based on accomplice liability under subsection (2) of this section because a codefendant testified that the juvenile solicited and encouraged the plan to beat her boyfriend, who she suspected of cheating; the juvenile could be found guilty of the conduct of her accomplices who threw the punches. L.C. v. State, 2012 Ark. App. 666, 424 S.W.3d 887 (2012).

There was substantial evidence to support convictions for two aggravated-robbery counts based on accomplice liability where defendant was in a car moving away from the robbery scene, he was found with roughly the same amount of money that was stolen in the robbery, and he used a false name. Moreover, one of the vehicle's passengers was wearing clothing that matched the description of the perpetrator. Davis v. State, 2013 Ark. App. 658, 430 S.W.3d 190 (2013).

Because there was evidence that defendant’s accomplice caused injury to the victim using a deadly weapon, and because the jury was instructed on accomplice liability, there was sufficient evidence presented to support defendant’s second-degree battery conviction as the baseball bat swung by the accomplice, while not specifically designed for the purpose of inflicting death or serious physical injury, could clearly be used in a manner capable of causing death or serious physical injury when it was swung at the victim with the intent to strike her, and did strike her and fracture her hand. Wimbley v. State, 2014 Ark. App. 405, 437 S.W.3d 132 (2014).

Trial court did not err in denying defendant's motions for a directed verdict based on the ground that there was insufficient evidence to corroborate an accomplice's testimony where defendant admitted that he had been in the car with the individuals who carried out the robberies, a video showed him on a shopping trip to buy hoodies one hour before the armed robberies, and the act of buying the hoodies was a substantial step toward commission of the crimes. Willis v. State, 2018 Ark. App. 199, 546 S.W.3d 550 (2018).

Substantial evidence supported defendant's convictions as an accomplice to first-degree murder and aggravated robbery as defendant was in the proximity of the crime, a video put defendant inside the victim's home shortly before the video tended to establish the victim had been killed, and he had the opportunity to aid in the commission of the crime. Jackson v. State, 2018 Ark. App. 330, 552 S.W.3d 55 (2018).

Innocent Agents.

One is no less guilty of the commission of a crime because he uses the overt conduct of an innocent agent. Parnell v. State, 323 Ark. 34, 912 S.W.2d 422 (1996).

Defendant properly held guilty of rape for forcing his adopted children to engage in sexual relations, even though the two children themselves were not guilty of that crime. Parnell v. State, 323 Ark. 34, 912 S.W.2d 422 (1996).

Instructions.

For cases discussing jury instructions concerning an accessory's liability, see Burnett v. State, 80 Ark. 225, 96 S.W. 1007 (1906); Witherspoon v. State, 179 Ark. 647, 17 S.W.2d 307 (1929); Simmons v. State, 184 Ark. 373, 42 S.W.2d 549 (1931); London v. State, 204 Ark. 767, 164 S.W.2d 988 (1942); Fleeman v. State, 204 Ark. 772, 165 S.W.2d 62 (1942); Fitzhugh v. State, 207 Ark. 117, 179 S.W.2d 173 (1944), superseded by statute as stated in, Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993); Roberts v. State, 254 Ark. 39, 491 S.W.2d 390 (1973); Parker v. State, 258 Ark. 880, 529 S.W.2d 860 (1975) (preceding decisions under prior law).

Because the status of the driver of the car and the juvenile who gave directions to the victim's house as accomplices was a mixed question of law and fact, the trial court properly did not instruct the jury that they were accomplices as a matter of law as agreeing to drive defendant and the accomplice to the victim's house with no questions asked did not conclusively show that the driver knew about or participated in the robbery or battery; it was the role of the jury to determine whether the juvenile had to have known that the robbery and battery were about to occur; and no testimony showed beyond dispute that either the driver or the juvenile knew of defendant's plan to rob the victim or that they encouraged him to shoot the victim. West v. State, 2017 Ark. App. 416, 530 S.W.3d 355 (2017).

Venue.

Action against accessory for acts in another county was properly brought in county where theft occurred as the acts of the accessory were the same as the principal. State v. Reeves, 246 Ark. 1187, 442 S.W.2d 229 (1969) (decision under prior law).

Cited: Estate of Sargent v. Benton State Bank, 279 Ark. 402, 652 S.W.2d 10 (1983); Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986); Heffernan v. Lockhart, 834 F.2d 1431 (8th Cir. 1987); Wilford v. State, 300 Ark. 185, 777 S.W.2d 855 (1989); Wilson v. State, 301 Ark. 342, 783 S.W.2d 852 (1990); Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990); Wofford v. State, 44 Ark. App. 94, 867 S.W.2d 181 (1993); Ramsey v. State, 2010 Ark. App. 836, 378 S.W.3d 797 (2010); Shelter Mut. Ins. Co. v. Lovelace, 2020 Ark. 93, 594 S.W.3d 84 (2020).

5-2-403. Accomplices.

  1. A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, the person:
    1. Solicits, advises, encourages, or coerces the other person to commit the offense;
    2. Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense; or
    3. Having a legal duty to prevent the commission of the offense, fails to make a proper effort to prevent the commission of the offense.
  2. When causing a particular result is an element of an offense, a person is an accomplice of another person in the commission of that offense if, acting with respect to that particular result with the kind of culpable mental state sufficient for the commission of the offense, the person:
    1. Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the particular result;
    2. Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the particular result; or
    3. Having a legal duty to prevent the conduct causing the particular result, fails to make a proper effort to prevent the conduct causing the particular result.

History. Acts 1975, No. 280, § 303; A.S.A. 1947, § 41-303.

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Criminal Law, 1 U. Ark. Little Rock L.J. 153.

Case Notes

In General.

There is no distinction between the criminal liability of an accomplice and the person who actually commits the offense. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994).

Subsection (a) applies in the felony-murder context when an accomplice has the purpose of promoting or facilitating the underlying felony that results in death, whereas subsection (b) applies when the issue is whether the accomplice intended the results of his actions with criminal culpability, that is, intended the death itself. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999), appeal dismissed, — Ark. —, — S.W.3d —, 2000 Ark. LEXIS 148 (Mar. 16, 2000).

Accessories.

The former distinction between principals and accessories was abolished. Fleeman v. State, 204 Ark. 772, 165 S.W.2d 62 (1942); McClure v. State, 214 Ark. 159, 215 S.W.2d 524 (1948); Trotter v. State, 237 Ark. 820, 377 S.W.2d 14 (1964), cert. denied, Trotter v. Arkansas, 379 U.S. 890, 85 S. Ct. 164 (1964); Ballew v. State, 246 Ark. 1191, 441 S.W.2d 453 (1969); Miller v. State, 253 Ark. 1060, 490 S.W.2d 445 (1973) (preceding decisions under prior law).

An accessory before the fact is an accomplice. Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979).

The present criminal code treats the concept of accessories differently from the common law and is consistent with the weight of authority. Under present law an accessory before the fact is an accomplice, and one who was formerly an accessory after the fact is now guilty of a separate crime, i.e., hindering apprehension and prosecution. Ritchie v. State, 31 Ark. App. 177, 790 S.W.2d 919 (1990).

An accessory before the fact is now referred to as an accomplice, and one who was formerly an accessory after the fact is now guilty of a separate crime under § 5-54-105 — hindering apprehension and prosecution. Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993).

Trial court properly terminated the parental rights of the mother and father under § 9-27-341 and found that each parent, either as the offender or as the accomplice, had committed a felony battery against a grandson of the mother because the mother's story that she was not involved was implausible considering the medical testimony; termination was in the child's best interests under § 9-27-341(b)(3)(A)(i) and (ii) given that the child was a dependent-neglected child under § 9-27-303(15)(A) and one purpose of § 9-27-302(2)(B) was to protect a juvenile's safety. Todd v. Ark. Dep't of Human Servs., 85 Ark. App. 174, 151 S.W.3d 315 (2004).

Accomplice Testimony.

Where defendant's friend testified that defendant tried to rob the victim in his truck and shot him when he resisted, defendant's fingerprints were found on the truck and the blood on the gun matched defendant's DNA. Even if the friend was deemed an accomplice for purposes of this section, the evidence was sufficient to connect defendant to the offense. Bush v. State, 374 Ark. 506, 288 S.W.3d 658 (2008).

Evidence to corroborate a witness's testimony was not required because defendant failed to demonstrate that the witness was an accomplice; first, the witness testified that he was merely present in the vehicle and this testimony was unrefuted, second, the circuit court did not find him to be an accomplice at law, and finally, the appellate court had no knowledge of whether the jury decided if the witness was an accomplice. Farmer v. State, 2019 Ark. App. 331 (2019).

Even assuming the witness was an accomplice, there was independent evidence tending to connect defendant with attempted capital murder, unlawful discharge of a firearm from a vehicle, and fleeing, as his letters and call to the witness were consistent with testimony that defendant was the shooter, and the jury could have found that defendant's alleged actions in firing the assault rifle at the officer and telling the driver to go aided and encouraged the driver in fleeing from the officer. Farmer v. State, 2019 Ark. App. 331 (2019).

Burden of Proof.

A person must first be found to be an accomplice under this section for the requirement of corroborative evidence to come into play under § 16-89-111(e)(1); it is the burden of the defendant to prove that a witness is an accomplice whose testimony must be corroborated. Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995).

Buyer of Illicit Drugs.

A buyer of illicit drugs is not an accomplice of the seller. Talley v. State, 312 Ark. 271, 849 S.W.2d 493 (1993).

Culpable Activities.

Where persons combined to do an unlawful thing, if the act of one proceeding according to the common plan terminated in a criminal result, even though not the particular result intended, all were liable. Carr v. State, 43 Ark. 99 (1884); Dorsey v. State, 219 Ark. 101, 240 S.W.2d 30 (1951), cert. denied, Dorsey v. Arkansas, 342 U.S. 851, 72 S. Ct. 80 (1951) (preceding decisions under prior law).

All who procured, participated in, or assented to the commission of a misdemeanor, were punishable as principals. Foster v. State, 45 Ark. 361 (1885); Fortenbury v. State, 47 Ark. 188, 1 S.W. 58 (1886); Crocker v. State, 49 Ark. 60, 4 S.W. 197 (1887). See also Miller v. State, 55 Ark. 188, 17 S.W. 719 (1891) (preceding decisions under prior law).

One who was present and aiding and abetting in the commission of a crime could be indicted for that crime, though he did not do the act necessary to commit the crime, nor attempt to do so. Hunter v. State, 104 Ark. 245, 149 S.W. 99 (1912) (decision under prior law).

One who counseled and procured the commission of an offense though absent at time act was committed, could be charged in the indictment with doing the act. McClure v. State, 214 Ark. 159, 215 S.W.2d 524 (1948) (decision under prior law).

A defendant could be convicted of being an accessory before the fact for involuntary manslaughter, if he sat in a car and allowed the driver to drive the car in a drunken and reckless manner, which resulted in death to another individual. Lewis v. State, 220 Ark. 914, 251 S.W.2d 490 (1952), superseded by statute as stated in, Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993) (decision under prior law).

All of the participants in a crime which resulted in a second crime were equally guilty of the second crime. Stewart v. State, 257 Ark. 753, 519 S.W.2d 733, cert. denied, 423 U.S. 859, 96 S. Ct. 113, 46 L. Ed. 2d 86 (1975) (decision under prior law).

Where there was substantial evidence to show that the defendant not only stood by, but aided, abetted and assisted in the commission of an offense, he could not defend on the ground that he was a mere bystander. Fant v. State, 258 Ark. 1015, 530 S.W.2d 364 (1975) (decision under prior law).

Where the defendant accompanied those who actually committed the offense, supplied them with an instrument used to commit the offense, and aware of the likelihood of the commission of a crime, she brought herself within the terms of § 5-2-402 and this section, she was properly convicted. Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979).

Defendant who helped others commit a crime was not an accomplice to crime where he had no knowledge that the activities constituted a crime. Martinez v. State, 269 Ark. 231, 601 S.W.2d 576 (1980).

Defendant's conduct in helping to plan crime and disposing of incriminating evidence made her an accomplice as a matter of law under this section. Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981).

This section does not contemplate that a person is an accomplice only if he is present at the scene of the crime; no such construction can be placed on the statute's plain language; therefore, a defendant is not precluded from being charged as an accomplice to crime merely because she was not present when the crime took place. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982).

Where the evidence at most indicated that the witness may have had reason to suspect that the defendants were up to no good, the evidence was not sufficient to establish that the witness should be held to be an accomplice, since suspicion alone is not enough to make a witness an accomplice as a matter of law. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

A person need not take an active part in an offense to be convicted of such if the person accompanied the person or persons who actually committed the offense and assisted in such commission. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, Henry v. Arkansas, 464 U.S. 835, 104 S. Ct. 121 (1983).

One who merely introduces a buyer to a seller cannot be convicted of delivery of the article to be sold, or of possession with intent to deliver; however, where the defendant was an active participant in the transaction, he was an accomplice and was liable for the criminal conduct of the other participants. Yent v. State, 9 Ark. App. 356, 660 S.W.2d 178 (1983).

The term “accomplice” does not embrace one who had guilty knowledge or who is morally delinquent; mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of some legal duty to act, concealment or knowledge or failure to inform officers of the law, is not sufficient to make an accomplice. Robinson v. State, 11 Ark. App. 18, 665 S.W.2d 890 (1984).

Presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant factors in determining the connection of an accomplice with the crime. Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987); Alford v. State, 33 Ark. App. 179, 804 S.W.2d 370 (1991).

Mere presence, acquiescence, silence, or knowledge that crime is being committed, in absence of legal duty to act, or failure to inform officers of law is not sufficient to make one an accomplice. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).

Mere presence at the scene of the crime or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990).

A defendant can be an accomplice to murder even though the defendant's participation in the murder is, compared to that of the principal, relatively passive. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).

No accomplice criminal responsibility results from supplying an intoxicant to one allegedly responsible as a principal for violations of § 5-10-104(a)(1), § 5-13-204(a), or § 27-53-101(a)(1). Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993).

A person need not take an active part in an offense to be convicted in violation of this section if the person accompanied the person or persons who actually committed the offense and assisted in such commission. Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994).

Given defendant's presence and his willingness to make change and comment on the quality of the drugs being purchased, it is apparent he was aiding or attempting to aid in the consummation of the sales; the evidence thus was sufficient to show he was an accomplice. Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994).

Stolen goods recovered from a dwelling shared by an accomplice is not sufficient corroboration standing alone of accomplice liability; however, possession of stolen property by the accused is a proper circumstance to consider in determining whether there was evidence tending to connect him with the crimes of burglary and grand larceny; the presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime; a person's flight to avoid arrest may be considered as corroboration of evidence tending to establish his guilt. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996).

Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of the crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation. Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996).

Where more than one weapon was fired and the State presented evidence by which the jury could conclude that defendant aided in the commission of the murder and battery, the defendant's culpability was not affected by which bullets actually killed one victim and wounded another. Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996).

Defendant, as an accomplice to arson, did not have to have a “conscious object” to commit arson. Reed v. State, 326 Ark. 27, 929 S.W.2d 703 (1996).

Even though “mere presence” does not make one an accomplice, there can be enough presence to constitute probable cause to arrest. State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997).

Under principles of accomplice liability, defendant's culpability was not diminished by the fact that the accomplice was not also in possession of a weapon. Releford v. State, 59 Ark. App. 136, 954 S.W.2d 295 (1997).

Duress.

The trial court did not err by refusing to declare witness an accomplice as a matter of law; the evidence was such that it was appropriate for the jury to decide whether his participation was under duress under § 5-2-208 and thus that it was not his purpose to aid in the commission of the crime. Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996).

Employment Relationship.

Where an employee killed his employer's neighbor when the neighbor pointed a gun at the employer, the employee was liable for manslaughter and his employer was an accomplice to that manslaughter. Costner v. Adams, 82 Ark. App. 148, 121 S.W.3d 164 (2003).

Evidence.

The fact that a witness was suspected, arrested and bound over to await the action of the grand jury did not show that she was an accomplice in the commission of the crime where she was never indicted for the offense and there was nothing in the evidence to warrant an indictment against her. Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918) (decision under prior law).

Evidence sufficient to support conviction of accessory. Warford v. State, 214 Ark. 423, 216 S.W.2d 781 (1949); Kurck v. State, 242 Ark. 742, 415 S.W.2d 61 (1967) (preceding decisions under prior law) Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987); Cassell v. Lockhart, 886 F.2d 178 (8th Cir. 1989), cert. denied, 493 U.S. 1092, 110 S. Ct. 1164 (1990); Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990); Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997).

Evidence was sufficient to prove intent requisite for conviction. Murrah v. State, 253 Ark. 432, 486 S.W.2d 897 (1972), overruled in part, Waters v. State, 271 Ark. 33, 607 S.W.2d 336 (Ark. 1980) (decision under prior law).

Question as to whether the defendant was an accomplice was properly submitted to the jury. Wilson v. State, 261 Ark. 820, 552 S.W.2d 223 (1977); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990).

Evidence was sufficient to support conviction as accomplice on one count but not for the other since there was no evidence showing that he was aware that a crime was being committed. Martinez v. State, 269 Ark. 231, 601 S.W.2d 576 (1980).

Concerted action to commit an unlawful act may be shown by circumstantial evidence, without direct proof of a conspiracy by prior agreement; hence, defendant could properly be found guilty of offense not only by her own conduct but also by that of her two accomplices. King v. State, 271 Ark. 417, 609 S.W.2d 32 (1980).

There was sufficient evidence to support conviction. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, Henry v. Arkansas, 464 U.S. 835, 104 S. Ct. 121 (1983); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998).

Where evidence concerning the defendant showed only that he was present at the scene of crime and that he had on previous occasions heard his brother discuss his intentions to commit crime, the trial court's finding that the defendant knowingly participated in the crime was clearly against the preponderance of the evidence. Estate of Sargent v. Benton State Bank, 279 Ark. 402, 652 S.W.2d 10 (1983).

Defendant has burden of proving witness is an accomplice whose testimony must be corroborated. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993).

Defendant's presence at the crime scene and knowledge of the crime was shown, but such was insufficient to make him an accomplice. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991).

Evidence held sufficient to sustain a conviction for first degree murder based on accomplice liability. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994); Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001).

Evidence of shooting held sufficient to support first degree murder conviction. Robinson v. State, 318 Ark. 33, 883 S.W.2d 469 (1994).

Where defendant's incriminating statement allegedly was uttered after a shooting murder occurred, it was not “in furtherance” of a crime, and was admissible because it tended to show the effect on the listener, i.e., instigating defendant's immediate response showing his approval of the shooting and tending to prove defendant's status as an accomplice. Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996).

Evidence held sufficient to establish the joint nature of appellant's activities with the co-defendants. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996).

Where witness lured murder victim to the murder site, but there was no evidence that witness had knowledge of the crime that was going to occur, the facts did not show conclusively that witness was an accomplice as a matter of law. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996).

Evidence sufficient to support conviction for capital murder based on accomplice liability. Allen v. State, 324 Ark. 1, 918 S.W.2d 699 (1996).

Evidence determining defendant's liability for crime as an accomplice need only be sufficient to show he encouraged or aided in the commission of the crime. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

Evidence of first-degree murder held sufficient where an accomplice carried a .38-caliber handgun on the night of the murder, and expert testimony indicated that the bullets recovered from the victim were fired from such a weapon. Matthews v. State, 56 Ark. App. 141, 940 S.W.2d 498 (1997).

The evidence was sufficient to show that defendant possessed the requisite knowledge and intent and was an accomplice in three murders. Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).

Evidence was insufficient to establish the defendant's accomplice liability for delivery of a counterfeit substance where a police officer testified that (1) he was working undercover with two other individuals, purchasing illegal drugs, and they drove up to defendant, who was standing on a street corner, and asked if he had a twenty-dollar rock of cocaine that he would sell to them, (2) the defendant answered, “No” and then looked over to three individuals seated on a park bench and asked if they had any drugs to sell, (3) one of those individuals stood up, approached the car and handed the officer three wrapped rocks of what appeared to be rock cocaine, and (4) when the officer returned to the police station and unwrapped the rocks, he found they were only gravel. Heard v. State, 71 Ark. App. 377, 32 S.W.3d 30 (2000).

In a murder prosecution, the defendant was not entitled to a directed verdict on the basis that the only witness against him was an accomplice to the crime and that his testimony was not corroborated by additional evidence as there was no uncontroverted evidence that the witness aided, agreed to aid, or attempted to aid in planning or engaging in the conduct that resulted in the victim's death, the witness had no legal duty to prevent the defendant's conduct which resulted in the victim's death, and, therefore, the trial court properly submitted the issue to the jury. Raynor v. State, 343 Ark. 575, 36 S.W.3d 315 (2001).

In accord with Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994). See Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001).

Defendant could not be convicted of being an accomplice to the manufacture of methamphetamine, based on her possession and sale of some of its ingredients, when there was no evidence that methamphetamine had been manufactured. Ford v. State, 75 Ark. App. 126, 55 S.W.3d 315 (2001).

Evidence was sufficient to support a conviction for capital murder based on accomplice liability where it was shown that defendant was involved in the planning of the murder, that he helped the killer set up his alibi, and that he selected the grave site and helped dig the grave where the victim's body was to be buried. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002).

There was sufficient evidence to support a conviction for manufacturing methamphetamine based on accomplice liability where the evidence showed that drug manufacturing was taking place on defendant's property, defendant admitted knowledge of the operation, and a co-defendant also testified regarding defendant's knowledge of the operation. George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004).

There was sufficient evidence to support the verdict finding the first defendant guilty of first-degree murder where (1) the first defendant gave two recorded statements in which she admitted to being at the crime scene, (2) in one of her statements, the first defendant told the police that she intended to kill the victim but was unable to muster the strength and that she handed the murder weapon to the second defendant after he stated that he would kill the victim, thus, confessing to either murdering or aiding in the murder of the victim, and (3) the victim died as a result of a homicide. Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004).

Evidence was sufficient to sustain a conviction for attempted capital murder where there was substantial evidence that defendant was not merely engaged in the “act of driving”; the victim, a police officer, testified that the driver attempted to run him over, he observed a flash from the passenger side window, he realized that he had heard a gunshot, and an officer identified defendant as the driver of the vehicle. Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004).

Although the state conceded that it was the principal, and not defendant, who fired the fatal shot, evidence was sufficient to prove that defendant had the purpose of promoting or facilitating the commission of the offense and that he aided, agreed to aid, or attempted to aid the principal in the commission of the murder. Woods v. State, 363 Ark. 272, 213 S.W.3d 627 (2005).

Court did not err in denying defendant's motions for a directed verdict because defendant's silence, knowledge, concealment, and failure to inform law enforcement officers of the sexual assaults committed against her daughter by two men who had resided with defendant made her an accomplice to those assaults under subdivision (a)(1) of this section; there was no doubt that defendant was aware that the men were raping her daughter at various times when the girl was between eight or nine and 15 years of age. Hutcheson v. State, 92 Ark. App. 307, 213 S.W.3d 25 (2005).

Defendant's conviction for theft by receiving was proper as the evidence established that his companion was in the store where the victim worked around the time that her credit card was stolen, defendant presented that credit card at a gas station a short time later, and defendant and his companion tried to purchase over $100 in merchandise; the state provided sufficient evidence to prove that defendant was at least an accomplice in the crime. Henson v. State, 94 Ark. App. 163, 227 S.W.3d 450 (2006).

Evidence was sufficient to convict defendant of first degree murder and theft where, in addition to the testimony of defendant's wife, who was an accomplice, defendant's own statements to the police, his conduct before and after the crime, and statements of the victim's friends regarding her fear of defendant tended to connect him to the crimes; further, although there was no evidence that defendant ever drove victim's Cadillac or had the vehicle in his possession, the jury might have determined that defendant facilitated the theft by leaving the accomplice without a vehicle at the victim's house, and there was evidence that the theft of the Cadillac was part of the plan to murder the victim. MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006).

Defendant's conviction for capital murder was supported by substantial evidence where he served as an accomplice to the murder by directing his brother to “come on down” from the attic because the victim moved, suggesting that his brother needed to finish killing the victim, which he did while defendant watched. Wilson v. State, 365 Ark. 664, 232 S.W.3d 455 (2006).

There was sufficient evidence to support a residential burglary conviction under § 5-39-201 based on defendant's act of helping to remove, transport, and sell stolen items, even though he did not enter a residence himself. Therefore, a motion for a directed verdict was properly denied. Hickman v. State, 99 Ark. App. 363, 260 S.W.3d 747 (2007), rev'd, 372 Ark. 438, 277 S.W.3d 217 (2008).

Pursuant to subsection (b) of this section, the state presented sufficient evidence of premeditation and deliberation: the evidence presented at trial showed that defendant was aware that several individuals desired that the victim be killed; that the killer who stabbed the victim approached defendant on at least three occasions about joining him in committing the killing; that despite his close relationship with the victim, defendant never warned her of any danger; that on the day of the murder, the killer announced to defendant they were going to “make this money”; that defendant rode with the killer and two other individuals to the victim's home; that defendant gained entry to the victim's home; and that defendant was present in the bedroom where the victim's body was found. In addition, defendant fled to Cleveland, Ohio after the crime. Lawshea v. State, 2009 Ark. 600, 357 S.W.3d 901 (2009).

Substantial evidence supported defendant's convictions for aggravated robbery, kidnapping, aggravated assault, theft of property, unlawful discharge of a firearm from a vehicle, and fleeing because while the state did not prove that defendant actually entered a bank, it did provide substantial evidence that he was the driver of the getaway car and thus was an accomplice of the two men who committed the aggravated robbery, kidnapping, and theft of property; while defendant did not personally shoot at an officer's vehicle, his conduct of driving the fleeing vehicle while another person in the car fired the shots sufficiently implicated him as an accomplice to unlawfully discharging a firearm from a vehicle. Barber v. State, 2010 Ark. App. 210, 374 S.W.3d 709 (2010).

State presented sufficient evidence to show that defendant was an accomplice to his traveling companion's crime of robbing a bank because defendant was in proximity of the crime, he had the opportunity to help the companion get away from the bank, and he associated with the companion both immediately before and immediately after the companion robbed the bank; defendant and the companion were traveling together for at least three weeks before the bank robbery, they arrived at the bank separately, defendant left the parking lot as the companion exited the vehicle to rob the bank, and he picked the companion up off the premises. Grissom v. State, 2010 Ark. App. 504 (2010).

Defendant's convictions for breaking or entering, in violation of § 5-39-202(1), and theft of property, in violation of § 5-36-103(a)(1), were supported by the evidence because defendant's unlawful presence near a storage shed, flight from the victim, and association with persons involved in the crimes suggested that defendant jointly participated in the crimes under subdivision (b)(2) of this section. Goforth v. State, 2010 Ark. App. 735 (2010).

Sufficient evidence supported defendant's convictions as an accomplice, as defined in this section, to aggravated robbery and theft of property because defendant was present during the crime, the state established a substantial association between defendant and codefendant, and, based on those linking facts, it was reasonable for the jury to conclude that defendant assisted her codefendant by finding the victim, setting up a meeting, leading the victim to a remote location, assuring the victim would have a substantial amount of cash, moving to the backseat of the car during the robbery, and by encouraging the victim to give codefendant the cash. Ramsey v. State, 2010 Ark. App. 836, 378 S.W.3d 797 (2010).

Trial court did not err in denying defendant's motion for a directed verdict during a trial for first-degree murder as an accomplice, in violation of § 5-10-102(a)(2) and subdivision (a)(1) of this section, because a codefendant testified that defendant hired the codefendant to murder his wife; the state presented the testimony of five witnesses concerning the fear of defendant's wife that he would kill her. Camp v. State, 2011 Ark. 155, 381 S.W.3d 11 (2011).

Judgment finding that appellant was an accomplice to misdemeanor theft of property was affirmed because appellant and the thief stood outside the off-limits locker room together, looked down the hall, went into the locker room together, looked out of and reentered the locker room more than once, and then left the locker room together. T.D. v. State, 2012 Ark. App. 140 (2012).

Substantial evidence supported a juvenile's second-degree battery disposition based on accomplice liability under subdivisions (a)(1)-(2) and (b)(1)-(2) of this section because a codefendant testified that the juvenile solicited and encouraged the plan to beat her boyfriend, who she suspected of cheating; the juvenile could be found guilty of the conduct of her accomplices who threw the punches. L.C. v. State, 2012 Ark. App. 666, 424 S.W.3d 887 (2012).

Evidence was sufficient to support convictions of aggravated robbery, theft of property, aggravated assault, and an enhancement due to the use of a firearm because the victim identified appellant as the principal involved in several crimes and the accomplice under subsection (a) of this sectionas to the theft. The jury did not have to believe testimony from the other participant about appellant's involvement, and there were other factors linking appellant to the crimes; both appellant and the other participant fled the scene, they were both found hiding in the same apartment, and they were both in proximity to a loaded gun and the victim's pants. Bass v. State, 2013 Ark. App. 55 (2013).

Evidence was sufficient to support convictions of aggravated robbery, theft of property, aggravated assault, and an enhancement due to the use of a firearm because the victim identified appellant as the principal involved in several crimes and the accomplice under subsection (a) of this sectionas to the theft. The jury did not have to believe testimony from the other participant about appellant's involvement, and there were other factors linking appellant to the crimes; both appellant and the other participant fled the scene, they were both found hiding in the same apartment, and they were both in proximity to a loaded gun and the victim's pants. Bass v. State, 2013 Ark. App. 55 (2013).

Evidence was sufficient to sustain convictions for capital murder and aggravated robbery because a witness's testimony corroborated that defendant was an accomplice to the aggravated robbery, defendant knew there was a large amount of marijuana at the home, a gun was used during the robbery, and the victim's death occurred during the robbery under circumstances manifesting extreme indifference to the value of human life. Bradley v. State, 2013 Ark. 58, 426 S.W.3d 363 (2013).

There was substantial evidence to support convictions for two aggravated-robbery counts based on accomplice liability where defendant was in a car moving away from the robbery scene, he was found with roughly the same amount of money that was stolen in the robbery, and he used a false name. Moreover, one of the vehicle's passengers was wearing clothing that matched the description of the perpetrator. Davis v. State, 2013 Ark. App. 658, 430 S.W.3d 190 (2013).

Appellant, a juvenile, was improperly adjudicated delinquent of the crime of accomplice to theft of property; there was no direct evidence that appellant took a phone, and circumstantial evidence did not exclude every other reasonable hypothesis consistent with innocence. There was no evidence that he solicited, advised, encouraged, or coerced anyone to take the phone, or that he aided, agreed to aid, or attempted to aid another person in planning or committing a theft, and the possibility that someone else took the phone remained. J.J. v. State, 2014 Ark. App. 267 (2014).

Evidence was sufficient to convict defendant of eight counts of theft for stealing horses, a horse trailer, and tack from a university and to deny her motion for directed verdict because several witnesses testified that defendant planned the thefts, gave a map of the stables to her boyfriend and his friend, provided the use of her truck for the thefts, assisted her boyfriend and his friend in hiding the trailer at her aunt and uncle's home, directed her boyfriend to kill one horse and hide the remaining four horses, and secured a place for her boyfriend and his friend to hide at her daughter's house. Cox v. State, 2014 Ark. App. 321 (2014).

Trial court properly found defendant guilty as an accomplice to the crime of kidnapping because defendant not only accompanied her son to the victim's apartment, she also assisted him in beating her, encouraged him to “get” her, he forcibly exposed the victim to defendant, choked her, and then forced her down the hallway into a bedroom where he raped her orally and vaginally. Singleton-Harris v. State, 2014 Ark. App. 436, 439 S.W.3d 720 (2014).

Evidence was sufficient to convict defendant of theft as an accomplice because defendant asked the complainant to give the back-seat passenger a ride; the back-seat passenger took the complainant's wallet and the $3700 it contained while defendant struggled with the complainant to take her cell phone; it was up to the circuit court to decide whether defendant and the back-seat passenger acted in concert to divert the complainant's attention and steal her money; defendant's account of events differed so significantly from the testimony of other witnesses that the trial court, as the trier of fact, could readily discount her entire testimony; and her attempt to flee from the crime scene was relevant to the issue of guilt. Cosey v. State, 2014 Ark. App. 441, 439 S.W.3d 731 (2014).

Defendant juvenile attempted to aid her boyfriend by shielding his actions and then looking around, she knew he was going to steal, and her actions aided the commission of the theft; the court affirmed defendant's delinquency adjudication for being an accomplice to theft of property based on the sufficient evidence. H.V. v. State, 2014 Ark. App. 607, 447 S.W.3d 619 (2014).

While no witness directly identified defendant as being the actual robber, a person was criminally liable for the conduct of another when he was an accomplice; defendant's car was stopped driving away from a robbery, he had two passengers with him, inside the car was the same amount of money that had been stolen, and the clothing in the car matched the description of what the robber wore, and the jury was permitted to weigh the evidence in reaching its guilty verdict. Richardson v. State, 2014 Ark. App. 679, 449 S.W.3d 718 (2014).

Evidence was sufficient to support convictions for aggravated robbery and capital murder because defendant's intent was inferred from the actions of his accomplice; defendant's statement to police provided direct evidence of the accomplice's intent to commit an aggravated robbery, and his account of how the accomplice murdered the victim by shooting her in the forehead was substantial evidence of causing the death of a person under circumstances manifesting extreme indifference to the value of human life. There was ample proof of defendant's participation as he accompanied others to the victim's residence, persuaded her to open the door, helped search the residence, and collected and kept his own share of the property that was stolen. Conway v. State, 2016 Ark. 7, 479 S.W.3d 1 (2016).

Evidence Sufficient.

Evidence was sufficient to convict defendant of aggravated residential burglary because defendant was an accomplice in the aggravated residential burglary, and, thus, it was irrelevant whether defendant entered the house or not as her accomplice clearly entered the house; defendant was in the vicinity of the crime, she was holding a knife, and, according to the victim's testimony, she ran toward the victim with the knife after the victim chased the accomplice out of his house; and the trial court was not required to believe defendant's version of events that the accomplice never asked defendant to assist with the crime, and her testimony that she would never use a knife in a violent manner. Wilson v. State, 2016 Ark. App. 218, 489 S.W.3d 716 (2016).

There was sufficient evidence that defendant was an accomplice to the crimes of aggravated robbery and capital murder as defendant admitted that he and the codefendants sat in a car planning the theft of beer from a gas station and convenience store and surveillance videos showed that defendant and a codefendant rushed into the store together, that codefendant shot the store clerk, and that defendant attempted to open the cash register, appeared to look around for something to steal, and searched the victim's pockets before fleeing. Williams v. State, 2017 Ark. 287, 528 S.W.3d 839 (2017).

In a case where defendant was convicted of two counts of aggravated robbery, there was sufficient evidence presented to corroborate the accomplice's testimony because defendant told a detective he was at the store on the date of the robbery; surveillance tapes showed defendant, co-defendant, and the accomplice in the store at the same time as the victim, leaving the store immediately after the victim, and leaving the parking lot right behind the victim; defendant's mother testified that the vehicle police were searching for in connection with the aggravated robberies belonged to defendant; and, at trial, the victim's sister identified defendant as the person who committed the aggravated robberies with co-defendant. Foster v. State, 2017 Ark. App. 63, 510 S.W.3d 782 (2017).

Evidence was sufficient to convict under § 5-14-103 where the victim testified that the juvenile and codefendant had forced her into a fieldhouse and that codefendant had touched her on the inside with his finger while the juvenile restrained her by the waist and grabbed her hands, and there was nothing inherently improbable or physically impossible about the testimony. K.B. v. State, 2017 Ark. App. 478, 531 S.W.3d 420 (2017).

Substantial evidence supported defendant's convictions as an accomplice to first-degree murder and aggravated robbery as defendant was in the proximity of the crime, a video put defendant inside the victim's home shortly before the video tended to establish the victim had been killed, and he had the opportunity to aid in the commission of the crime. Jackson v. State, 2018 Ark. App. 330, 552 S.W.3d 55 (2018).

Evidence was sufficient to convict defendant of aggravated robbery either as a principal or as an accomplice because defendant's boyfriend told her they were going to pick up the victim and that he intended to beat him up and take anything that the victim had on him; despite knowing the boyfriend's purpose, defendant still agreed to drive him; substantial corroborating evidence connecting defendant to the crime included two interviews she gave to the police and her written statement, which were admitted at trial; and the victim's death made the offense an aggravated robbery regardless of her knowledge of whether a gun might be used. Vaughan v. State, 2018 Ark. App. 439, 555 S.W.3d 922 (2018).

Grant of Immunity.

A grant of immunity alone does not cause a witness to be an accomplice as a matter of law. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990).

Hindering Apprehension and Prosecution.

Hindering apprehension or prosecution is not a lesser included offense of the offense of being an accomplice. Ritchie v. State, 31 Ark. App. 177, 790 S.W.2d 919 (1990).

Information.

Trial court had not erred when it allowed the State to go forward with an accomplice theory even though the information failed to allege such where the information in fact named the offense and the party to be charged, it contained the elements of the offense intended to be charged and it apprised appellant of what he had to be prepared to meet. Polk v. State, 82 Ark. App. 210, 105 S.W.3d 797 (2003).

Instructions.

In prosecution for manslaughter instruction that unless jury believed that defendant was driving the truck at the time of the collision which resulted in death, defendant should be acquitted was properly refused. Fitzhugh v. State, 207 Ark. 117, 179 S.W.2d 173 (1944), superseded by statute as stated in, Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993) (decision under prior law).

Jury instruction that, if defendant was found to have aided, abetted or assisted in the perpetration of the crime, his punishment was to be assessed as if he were a principal was erroneous as it equated guilt with punishment. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983).

Evidence insufficient to find that defendant was entitled to an instruction that witnesses were accomplices as a matter of law; however, their status as accomplices was in dispute and the court should have given instructions on accomplices. Robinson v. State, 11 Ark. App. 18, 665 S.W.2d 890 (1984).

There was no abuse of discretion in the trial court's refusal to give an accomplice instruction, where the alleged accomplice testified that she was at work during the time of the break-in, there was no testimony contradicting this, and she denied that she knew anything about the burglary and theft before the fact, but she lied to the police initially. Hopes v. State, 306 Ark. 492, 816 S.W.2d 167 (1991).

Instruction that a person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense and stating that an accomplice is one who directly participates in the commission of an offense or who with the purpose of promoting or facilitating the commission of an offense agrees to aid, aids, or attempts to aid the other person or persons in the planning or committing the offense was consistent with Arkansas Model Criminal Instruction 401 and this section. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702.

According to the evidence presented at trial, there was a plan between defendant and the accomplice to kill a drug dealer during the drug transaction, defendant admitted to driving the truck to a remote location, there was also some evidence that defendant was in a scheme to murder the victim for a fee, defendant lied about the victim's whereabouts, and defendant fled from the scene; thus, there was ample evidence to rationally support the giving of an instruction on the lesser-included offense of first-degree murder. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003).

Although there was sufficient evidence to support a burglary conviction, a trial court committed reversible error when it failed to give a disputed accomplice jury instruction; the evidence showed that a witness in the case did more than just acquiesce to the burglary and fail to notify police. Specifically, the witness accompanied defendant and an associate when they left the scene of the crime; the witness knew that the stolen merchandise was transported in defendant's van; the witness accepted a stolen check from the associate; he was present when the stolen merchandise was sold; and he did not reveal the information to authorities until he was arrested for using the stolen check. Hickman v. State, 99 Ark. App. 363, 260 S.W.3d 747 (2007), rev'd, 372 Ark. 438, 277 S.W.3d 217 (2008).

During defendant's trial for aggravated robbery, theft, and battery, the trial court did not err in instructing the jury on accomplice liability under subsection (a) of this section; the jury could have considered defendant a principal or an accomplice to the persons involved in a “drug deal gone bad.” Taylor v. State, 2013 Ark. App. 146 (2013).

Trial court did not err in instructing the jury on accomplice liability during defendant's murder and kidnapping trial because testimony from five witnesses supported the theory that he was either a principal or an accomplice with his son; defendant's cell mate testified that defendant confessed to killing one victim and concealing the other three homicides from law enforcement. Green v. State, 2013 Ark. 497, 430 S.W.3d 729 (2013).

Intent.

Defendant, as an accomplice to arson, did not have to have a “conscious object” to commit arson. Reed v. State, 326 Ark. 27, 929 S.W.2d 703 (1996).

Liability.

One need not actually take an active part in an offense to be convicted of that charge. Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979).

When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979).

Each participant in a crime is liable for his own conduct but he cannot disclaim responsibility for all of the conduct in a particular episode because he did not personally take part in every act which it took to accomplish the crime. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979); Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979); Alford v. State, 33 Ark. App. 179, 804 S.W.2d 370 (1991).

There is no distinction between the criminal responsibility of an accomplice and the person who actually commits the offense. Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981).

An accomplice's liability does not attach until the state proves that the substantive crime was completed; therefore, where defendant was charged as an accomplice to an offense, he could only be convicted if the state proved the crime was committed. Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983).

When two or more persons assist one another in the commission of a crime, each is an accomplice and is criminally liable for the conduct of both, and a participant cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole. Booker v. State, 32 Ark. App. 94, 796 S.W.2d 854 (1990).

Although defendant never actually possessed the gun, he was liable as an accomplice because he assisted and actively participated in the crime. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991).

As the proof at trial was amply sufficient in illustrating the joint nature of defendant's and co-defendant's activities, the fact that the co-defendant's shots may have actually inflicted the victim's fatal injuries and a bystander's leg wounds was irrelevant to the question of defendant's criminal liability for the offenses. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).

So long as a defendant renders the requisite aid or encouragement to the principal with regard to the offense at issue, the defendant is an accomplice even though the defendant may have rendered the encouragement or aid reluctantly. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).

When two people assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both; one cannot disclaim accomplice liability simply because he did not personally take part in every act that went to make up the crime as a whole. Henson v. State, 94 Ark. App. 163, 227 S.W.3d 450 (2006).

Defendant's conviction for capital murder, in violation of § 5-10-101(a)(4), was proper because there was substantial evidence that defendant was guilty as an accomplice pursuant to §§ 5-2-401, 5-2-402(2) and subdivisions (b)(1) and (2) of this section, and his argument that there was insufficient evidence of his acting as an accomplice by encouraging, aiding, or assisting the killer in stabbing the victim, was not preserved for review. Lawshea v. State, 2009 Ark. 600, 357 S.W.3d 901 (2009).

Because the juvenile was not “charged with supervision of a minor” as set forth in § 5-27-205, she was not in the class of persons who could commit the offense of first-degree endangering the welfare of a minor, and thus she could not be principally culpable for committing the offense. The juvenile's sister, and not the juvenile, was identified as the babysitter of the one-year-old child. And because the juvenile, and not her sister, was the person who sparked the stun gun at the child, she could not be charged as an accomplice and therefore her adjudication was reversed. K.F. v. State, 2019 Ark. App. 312, 578 S.W.3d 324 (2019).

Question of Law or Fact.

Whether a witness was an accomplice to an alleged crime was generally a question of fact for the jury; if the facts were in dispute, it was a mixed question of law and fact. Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918) (decision under prior law).

It was error to refuse to submit to the jury the question of whether or not the state's witnesses were accomplices. Satterfield v. State, 245 Ark. 337, 432 S.W.2d 472 (1968) (decision under prior law).

Where the testimony of the witnesses showed conclusively that they were accomplices and took part in the conspiracy, the question of whether they were accomplices for purposes of § 16-89-111 is one of law. Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997).

Testimony.

Defendant's convictions for capital murder and kidnapping were appropriate because a witness' testimony alone was enough to corroborate an accomplice's testimony against defendant. Evidence showed that bullets found near the victims' bodies were fired from a .22 caliber rifle and a .38 caliber revolver and according to another witness, an individual wanted to buy a .38 caliber revolver from defendant; essentially, when all of the evidence was viewed in a light most favorable to the state, it tended to connect defendant to the commission of the crimes. Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70 (2009), appeal dismissed, 2011 Ark. 108 (2011).

Cited: Bowles v. State, 265 Ark. 457, 579 S.W.2d 596 (1979); Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981); Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982); Blann v. State, 15 Ark. App. 364, 695 S.W.2d 382 (1985); Heffernan v. Lockhart, 834 F.2d 1431 (8th Cir. 1987); Wilson v. State, 25 Ark. App. 126, 753 S.W.2d 287 (1988); Perkins v. State, 298 Ark. 322, 767 S.W.2d 514 (1989); Wilford v. State, 300 Ark. 185, 777 S.W.2d 855 (1989); Wilson v. State, 301 Ark. 342, 783 S.W.2d 852 (1990); Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990); Wofford v. State, 44 Ark. App. 94, 867 S.W.2d 181 (1993); Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996); Peete v. State, 59 Ark. App. 186, 955 S.W.2d 708 (1997); Strain v. State, 2012 Ark. 42, 394 S.W.3d 294 (2012).

5-2-404. Defenses.

  1. Unless otherwise provided by the statute defining the offense, a person is not an accomplice in an offense if:
    1. The person is a victim of the offense; or
    2. The offense is defined so that the person's conduct is inevitably incident to the commission of the offense.
  2. It is an affirmative defense to a prosecution for an offense respecting which the liability of the defendant is based on the conduct of another person that the defendant terminates his or her complicity prior to the commission of the offense and:
    1. Wholly deprives his or her complicity of effectiveness in the commission of the offense;
    2. Gives timely warning to an appropriate law enforcement authority; or
    3. Otherwise makes a proper effort to prevent commission of the offense.

History. Acts 1975, No. 280, § 305; 1977, No. 474, § 1; A.S.A. 1947, § 41-305.

Research References

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Criminal Law, 1 U. Ark. Little Rock L.J. 153.

Case Notes

Conduct Incident to Offense.

The person who purchased a controlled substance from defendant was not an accomplice, whether or not the buyer solicited the sale. Long v. State, 260 Ark. 417, 542 S.W.2d 742 (1976).

Conspiracy.

Where an individual agreed to join conspiracy and provided funds for the accomplishment of its purpose, he did not withdraw as an accomplice when he retrieved his money; the conspiracy was in effect at the time he joined it, and his act of putting money into the scheme sealed his status as an accomplice and co-conspirator. Strickland v. State, 16 Ark. App. 293, 701 S.W.2d 127 (1985).

Victim of Offense.

If the “victim” of incest is in fact a victim, she, or he, is not an accessory. Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986).

The incest statute existed to protect the minor stepdaughter, even assuming that she was a willing participant; therefore the stepdaughter was a victim, not an accomplice, and corroboration of her testimony was not required. Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991), overruled, Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995), overruled in part, Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995).

Cited: Butler v. State, 261 Ark. 369, 549 S.W.2d 65 (1977); Shrader v. State, 13 Ark. App. 17, 678 S.W.2d 777 (1984); Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986); Wilkins v. State, 324 Ark. 60, 918 S.W.2d 702 (1996).

5-2-405. Claims that are not defenses to liability for another.

In any prosecution for an offense in which the liability of the defendant is based on conduct of another person, it is no defense that:

  1. The offense charged, as defined, can be committed only by a particular class of persons and the defendant not belonging to that particular class of persons is for that reason legally incapable of committing the offense in an individual capacity, unless imposing liability on the defendant is inconsistent with the purpose of the provision establishing his or her incapacity;
  2. The other person has not been charged with, prosecuted for, convicted of, or has been acquitted of any offense or has been convicted of a different offense or degree of offense, based upon the conduct in question, even if the defendant and the other person were tried jointly; or
  3. The other person has a legal immunity from prosecution based upon the conduct in question.

History. Acts 1975, No. 280, § 304; A.S.A. 1947, § 41-304; Acts 1995, No. 1294, § 1.

A.C.R.C. Notes. Acts 1995, No. 1294, § 3, provided:

“By these amendments the General Assembly of the State of Arkansas legislatively overrules Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987).”

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law: Criminal Law, 4 U. Ark. Little Rock L.J. 189.

Case Notes

Charges Against Another.

The dismissal of charges against the principal cannot be used as a defense by an accused accomplice, and the accomplice could still be convicted. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982).

The trial judge's refusal to allow the defendant accomplice to inform the jury, through instruction, testimony, etc., that the principal's conviction was reversed and dismissed on appeal, or that the principal was not currently charged, were all proper rulings by the trial judge since it was irrelevant to the accomplice's trial or sentence that the principal was released. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982).

This section clearly indicates that the absence of a battery charge against defendant's accomplice was irrelevant to the question of defendant's liability. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).

Cited: Jared v. State, 17 Ark. App. 223, 707 S.W.2d 325 (1986); Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991); Parnell v. State, 323 Ark. 34, 912 S.W.2d 422 (1996).

5-2-406. Multiple convictions — Different degrees.

When two (2) or more persons are criminally liable for an offense of which there are different degrees, each person is liable only for the degree of the offense that is consistent with the person's own:

  1. Culpable mental state; or
  2. Accountability for an aggravating fact or circumstance.

History. Acts 1975, No. 280, § 306; A.S.A. 1947, § 41-306.

Case Notes

Applicability.

Although this section is a correct statement of the law, it is not a model jury instruction; it is unnecessary to give it to the jury when its substance is covered by other instructions. Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006).

During defendant's trial for capital murder, the trial court correctly refused to give a proffered non-model jury instruction because defendant was tried alone and the liability of her sons, who were also charged with capital murder for the murder of their landlord, had not been decided; this section is not relevant where the defendant is tried alone. Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006).

Trial court did not err in refusing to give the jury instruction concerning different criminal liabilities of co-defendants because the jury found defendant guilty of capital murder, even though it had been instructed on the lesser included offenses of first and second-degree murder; thus, any error in failing to give a manslaughter or negligent homicide instruction was cured. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006).

Proper Convictions.

The court did not err in convicting defendant as an accessory to a lesser degree of an offense even though both he and the principal were indicted for a higher degree of the offense and the principal was convicted of higher degree of the offense. Fields v. State, 213 Ark. 899, 214 S.W.2d 230 (1948) (decision under prior law).

There was no inconsistency in holding one codefendant guilty of being an accomplice to a lesser included offense while holding the other codefendant guilty of the greater offense. Blann v. State, 15 Ark. App. 364, 695 S.W.2d 382 (1985).

Cited: Ventress v. State, 303 Ark. 194, 794 S.W.2d 619 (1990); Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990); Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Strain v. State, 2012 Ark. 42, 394 S.W.3d 294 (2012).

Subchapter 5 — Organizations and Their Agents

Research References

Am. Jur. 21 Am. Jur. 2d, Crim. L., § 210.

C.J.S. 22 C.J.S., Crim. L., § 84.

U. Ark. Little Rock L.J.

Survey of Arkansas Law: Criminal Law, 4 U. Ark. Little Rock L.J. 189.

5-2-501. Definitions.

As used in this subchapter:

  1. “Agent” means any officer, director, or employee of an organization or any other person who is authorized to act in behalf of an organization;
  2. “High managerial agent” means an agent or officer of an organization who has duties of such responsibility that his or her conduct reasonably may be assumed to represent the policy of the organization; and
  3. “Organization” means a legal entity and includes:
    1. A corporation, company, association, firm, partnership, or joint-stock company;
    2. A foundation, institution, society, union, club, or church; or
    3. Any other group of persons organized for any purpose.

History. Acts 1975, No. 280, § 401; A.S.A. 1947, § 41-401.

5-2-502. Liability of organizations.

  1. An organization commits an offense if:
    1. The organization omits to discharge a specific duty of affirmative performance imposed on an organization by law and the omission is prohibited by criminal law;
    2. The conduct or result specified in the definition of the offense is engaged in, authorized, solicited, requested, commanded, or recklessly tolerated by the board of directors of a corporation or by the executive board of another type of organization or by a high managerial agent acting within the scope of his or her office or employment and in behalf of the organization; or
    3. The conduct or result specified in the definition of the offense is engaged in or caused by an agent of the organization while acting within the scope of his or her office or employment and in behalf of the organization and the offense is:
      1. A violation;
      2. A misdemeanor of any class; or
      3. Defined by a statute that clearly indicates a legislative purpose to impose criminal liability on an organization.
  2. Notwithstanding a provision of this subchapter, if the statute defining an offense designates an agent for whose conduct an organization is liable or the circumstances under which an organization is liable, the provisions of that statute apply.

History. Acts 1975, No. 280, § 402; A.S.A. 1947, § 41-402.

5-2-503. Liability of agents.

  1. A person is criminally liable for any conduct constituting an offense that he or she performs or causes to be performed in the name of or in behalf of an organization to the same extent as if that conduct were performed in his or her own name or behalf.
    1. When a duty to act or refrain from acting is imposed by law upon an organization, any agent of the organization having primary responsibility for the discharge of the duty is criminally liable for a reckless performance or omission to perform the required act to the same extent as if the duty were imposed by law directly upon the agent.
    2. A person convicted of an offense by reason of his or her criminal liability for the conduct of an organization is not subject to the sentence authorized by § 5-4-201(e).

History. Acts 1975, No. 280, § 403; A.S.A. 1947, § 41-403.

Subchapter 6 — Justification

Publisher's Notes. For Comments regarding the Criminal Code, see Commentaries Volume B.

Effective Dates. Acts 1981, No. 884, § 3: Mar. 28, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that in many instances felons have successfully sued their victims or bystanders as a result of the victims or bystanders attempting to protect themselves or others from personal injury during the commission of a felony; that such situation is fundamentally unjust; and that this Act is immediately necessary to correct such injustice. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

Am. Jur. 6 Am. Jur. 2d, Asslt. & B., § 46 et seq.

Ark. L. Rev.

1976 Criminal Code — General Principles, 30 Ark. L. Rev. 111.

C.J.S. 6A C.J.S., Asslt. & B., § 99 et seq.

22 C.J.S., Crim. L., § 53.

U. Ark. Little Rock L.J.

Survey of Arkansas Law: Criminal Law, 4 U. Ark. Little Rock L.J. 189.

5-2-601. Definitions.

As used in this subchapter:

  1. “Common carrier” means any vehicle used to transport for hire any member of the public;
  2. “Deadly physical force” means physical force that under the circumstances in which it is used is readily capable of causing death or serious physical injury;
  3. “Dwelling” means an enclosed space that is used or intended to be used as a human habitation, home, or residence on a temporary or permanent basis;
  4. “Minor” means any person under eighteen (18) years of age;
    1. “Occupiable structure” means a vehicle, building, or other structure:
      1. Where any person lives or carries on a business or other calling;
      2. Where people assemble for a purpose of business, government, education, religion, entertainment, or public transportation; or
      3. That is customarily used for overnight accommodation of a person whether or not a person is actually present.
    2. “Occupiable structure” includes each unit of an occupiable structure divided into a separately occupied unit;
  5. “Physical force” means:
    1. Any bodily impact, restraint, or confinement; or
    2. The threat of any bodily impact, restraint, or confinement;
  6. “Premises” means:
    1. An occupiable structure; or
    2. Any real property;
  7. “Unlawful physical force” means physical force that is employed without the consent of the person against whom it is directed and the employment of the physical force constitutes a criminal offense or tort or would constitute a criminal offense or tort except for a defense other than the defense of justification or privilege; and
  8. “Vehicle” means any craft or device designed for the transportation of a person or property across land or water or through the air.

History. Acts 1975, No. 280, § 501; A.S.A. 1947, § 41-501.

Case Notes

Deadly Physical Force.

The provocation restriction on the defense of justification applies equally to the use of “physical force” and “deadly physical force” because “deadly physical force” is defined under this section to include “physical force.” Jones v. State, 1 Ark. App. 318, 615 S.W.2d 388 (1981).

Preponderance of the evidence supported the district court's finding that defendant's use of deadly physical force under subdivisions (2) and (6)(B) of this section, which occurred when he pointed a loaded pistol at an undercover officer, was not justified or in self defense, and thus, he was guilty of the felony of aggravated assault under Arkansas law, and the four-level enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5), now (b)(6), was properly imposed because (1) defendant did not act in self-defense within the meaning of § 5-13-204(c)(2) as he used deadly force against men who had obeyed his command to leave his property and who were loitering on the public sidewalk in front of his house as there was no evidence they were imminently endangering defendant's life under § 5-2-607(a); (2) under § 5-2-607(b)(1), defendant could not use deadly force after he had retreated safely to his house and returned later, unprovoked, to threaten the men; (3) defendant's conduct was not justified as permissible defense of his property within the purview of § 5-2-608 because use of deadly physical force was not authorized by § 5-2-607, and he had no reason to believe that the men who had quietly obeyed a command to leave his property would come back to commit arson or burglary; and (4) defendant's conduct was not justified to defend his home under § 5-2-620 because the men defendant assaulted were not attempting to enter his home, so the statute did not apply. United States v. Raglin, 500 F.3d 675 (8th Cir. 2007).

Cited: David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Stalnaker v. State, 2014 Ark. App. 412, 437 S.W.3d 700 (2014).

5-2-602. Defense.

In a prosecution for an offense, justification as defined in this subchapter is a defense.

History. Acts 1975, No. 280, § 502; A.S.A. 1947, § 41-502.

Case Notes

General Denial and Justification.

In a bench trial resulting in defendant's convictions for aggravated assault on a family member and aggravated assault, the circuit court erred as a matter of law in refusing to consider the defense of justification by ruling that defendant could not present the inconsistent defenses of a general denial and justification; where there is evidence that would support a finding of self-defense, case law has held that a jury instruction is appropriate notwithstanding defendant's testimony that he did not commit the crime. Thus, the circuit court committed an error of law in ruling that defendant was required to choose between the defenses of general denial and justification. Gray v. State, 2019 Ark. App. 543, 590 S.W.3d 177 (2019).

Cited: Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979); Brizendine v. State, 4 Ark. App. 19, 627 S.W.2d 26 (1982); Taylor v. State, 28 Ark. App. 146, 771 S.W.2d 318 (1989).

5-2-603. Execution of public duty.

  1. Conduct that would otherwise constitute an offense is justifiable when it is:
    1. Required or authorized by law or by a judicial decree; or
    2. Performed by a public servant or a person acting at the public servant's direction in a reasonable exercise or performance of the public servant's official power, duty, or function.
  2. The justification afforded by this section applies if the actor reasonably believes his or her conduct is required or authorized:
    1. By the judgment or direction of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or tribunal or defect in the legal process; or
    2. To assist a public servant in the performance of the public servant's duty, notwithstanding that the public servant has exceeded the public servant's legal authority.

History. Acts 1975, No. 280, § 503; A.S.A. 1947, § 41-503.

Case Notes

Applicability.

Defendant who sold a controlled substance to an undercover police officer was not entitled to claim justification under subdivision (b)(2) of this section. Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994).

In a case in which defendant, a former correctional officer, was convicted by a jury for possession of methamphetamine with the intent to deliver, possession of marijuana with the intent to deliver, possession of drug paraphernalia, and furnishing prohibited articles, he argued unsuccessfully that the circuit court erred in rejecting a proffered jury instruction on justification. Defendant did not testify at trial, and there was no evidence presented below supporting appellant's claim that his possession was the result of confiscating the contraband; rather, the testimony indicated that he was attempting to evade detection. Waller v. State, 2010 Ark. App. 56 (2010).

Public Servants.

An undercover police officer who purchases a controlled substance from a narcotics dealer is not an accomplice of the seller. Brizendine v. State, 4 Ark. App. 19, 627 S.W.2d 26 (1982).

5-2-604. Choice of evils.

  1. Conduct that would otherwise constitute an offense is justifiable when:
    1. The conduct is necessary as an emergency measure to avoid an imminent public or private injury; and
    2. According to ordinary standards of reasonableness, the desirability and urgency of avoiding the imminent public or private injury outweigh the injury sought to be prevented by the law proscribing the conduct.
  2. Justification under this section shall not rest upon a consideration pertaining to the morality or advisability of the statute defining the offense charged.
  3. If the actor is reckless or negligent in bringing about the situation requiring a choice of evils or in appraising the necessity for his or her conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish a culpable mental state.

History. Acts 1975, No. 280, § 504; A.S.A. 1947, § 41-504.

Research References

ALR.

Application of Defense of Necessity to Murder, 23 A.L.R.7th Art. 1 (2018).

Case Notes

In General.

The language of this section differs to some extent from that of Tentative Draft No. 8 of the Model Penal Code and is more limiting, but the basic principles of the defense are similar to those espoused by that draft. Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980).

Construction.

This section is to be narrowly construed and applied. Stultz v. State, 20 Ark. App. 90, 724 S.W.2d 189 (1987); Pursley v. State, 21 Ark. App. 107, 730 S.W.2d 250 (1987).

In defendant's insurance fraud case, the trial court did not engage in a statutory interpretation of this section but, instead, simply applied the statute to the evidence presented at trial; because the state's argument merely raised the issue of application and not the interpretation of a statutory provision, the state's appeal did not involve the correct and uniform administration of the criminal law and the argument was not a proper basis for an appeal by the State. State v. Hagan-Sherwin, 356 Ark. 597, 158 S.W.3d 156 (2004).

Applicability.

Justification as argued under this section does not appear to be appropriate in a charge of homicide. Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979).

The choice of evils instruction should not be given in a homicide case when self-defense is argued by the defendant. Hart v. State, 296 Ark. 290, 756 S.W.2d 451 (1988).

Actor's Conduct.

A justification defense was unavailable under subsection (c) to parolee who knowingly and recklessly placed himself in a position where he could get into trouble. Polk v. State, 329 Ark. 174, 947 S.W.2d 758 (1997).

In a case where defendant was found guilty of being a felon in possession of a firearm, the trial court properly denied his request for a jury instruction on the “choice of evils” defense under this section because (1) although he needed money, the situation did not rise to the level of the extraordinary attendant circumstances that was required to invoke the “choice of evils” defense; and (2) there were reasonable, legal alternatives to his conduct such as having his father or another non-felon pawn the firearm. Prodell v. State, 102 Ark. App. 360, 285 S.W.3d 673 (2008).

Defendant's act of going outside with the gun and continuing interaction with the victim was sufficient evidence to reject the choice of evils defense under subdivision (a)(1) of this section and sustain his conviction for being a felon in possession of a firearm. Green v. State, 2011 Ark. App. 700 (2011).

Proof.

In order for choice of evils defense to be available, there must be proof of extraordinary attendant circumstances requiring emergency measures in order to avoid an imminent public or private injury. Pursley v. State, 21 Ark. App. 107, 730 S.W.2d 250 (1987).

5-2-605. Use of physical force generally.

The use upon another person of physical force that would otherwise constitute an offense is justifiable under any of the following circumstances:

  1. A parent, teacher, guardian, or other person entrusted with care and supervision of a minor or an incompetent person may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent reasonably necessary to maintain discipline or to promote the welfare of the minor or incompetent person;
  2. A warden or other authorized official of a correctional facility may use nondeadly physical force to the extent reasonably necessary to maintain order and discipline;
  3. A person responsible for the maintenance of order in a common carrier or a person acting under the responsible person's direction may use nondeadly physical force to the extent reasonably necessary to maintain order;
  4. A person who reasonably believes that another person is about to commit suicide or to inflict serious physical injury upon himself or herself may use nondeadly physical force upon the other person to the extent reasonably necessary to thwart the suicide or infliction of serious physical injury;
  5. A duly licensed physician or a person assisting a duly licensed physician at the duly licensed physician's direction may use physical force for the purpose of administering a recognized form of treatment reasonably adapted to promoting the physical or mental health of a patient if the treatment is administered:
    1. With the consent of the patient or, if the patient is a minor who is unable to appreciate or understand the nature or possible consequences of the proposed medical treatment or is an incompetent person, with the consent of a parent, guardian, or other person entrusted with the patient's care and supervision; or
    2. In an emergency when the duly licensed physician reasonably believes that no person competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

History. Acts 1975, No. 280, § 505; A.S.A. 1947, § 41-505; Acts 2007, No. 827, § 12.

Cross References. Guards and other officials, powers and duties toward working county inmates, § 27-66-602.

Teachers, discipline of students, § 6-18-501 et seq.

Research References

ALR.

Application of Defense of Necessity to Murder, 23 A.L.R.7th Art. 1 (2018).

Case Notes

Discipline.

Evidence was insufficient to support a finding that the physical force used by the defendant in disciplining her grandchild was unreasonable or inappropriate under the circumstances. Sykes v. State, 57 Ark. App. 5, 940 S.W.2d 888 (1997).

There was substantial evidence to support the jury's finding that defendant committed the crime of false imprisonment of her daughter by exercising excessive and unreasonable restraint that created a substantial risk of serious physical injury; there was no merit to defendant's argument that, as a parent, she could not be held liable for criminal conduct committed against her daughter because she had the lawful authority to consent to restraint of her child. Dick v. State, 364 Ark. 133, 217 S.W.3d 778 (2005).

Evidence supported the second-degree domestic battering conviction under § 5-26-304 where neighbors heard sounds of loud banging and yelling, and defendant beat the child with a leather belt repeatedly for at least five minutes, causing welts and lashings. Jefferson v. State, 2017 Ark. App. 492, 532 S.W.3d 75 (2017).

Cited: Walton v. State, 53 Ark. App. 18, 918 S.W.2d 192 (1996).

5-2-606. Use of physical force in defense of a person.

    1. A person is justified in using physical force upon another person to defend himself or herself or a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force by that other person, and the person may use a degree of force that he or she reasonably believes to be necessary.
    2. However, the person may not use deadly physical force except as provided in § 5-2-607.
  1. A person is not justified in using physical force upon another person if:
    1. With purpose to cause physical injury or death to the other person, the person provokes the use of unlawful physical force by the other person;
      1. The person is the initial aggressor.
      2. However, the initial aggressor's use of physical force upon another person is justifiable if:
        1. The initial aggressor in good faith withdraws from the encounter and effectively communicates to the other person his or her purpose to withdraw from the encounter; and
        2. The other person continues or threatens to continue the use of unlawful physical force; or
    2. The physical force involved is the product of a combat by agreement not authorized by law.

History. Acts 1975, No. 280, § 506; A.S.A. 1947, § 41-506; Acts 2007, No. 827, § 13.

Research References

ALR.

Application of Defense of Necessity to Murder, 23 A.L.R.7th Art. 1 (2018).

U. Ark. Little Rock L.J.

Derden, Survey of Arkansas Law: Evidence, 2 U. Ark. Little Rock L.J. 232.

Case Notes

Evidence.

Evidence sufficient to find that defendant could not rely upon self defense or justification as defenses. Graham v. State, 2 Ark. App. 266, 621 S.W.2d 4 (1981); Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987).

Evidence held sufficient to support conviction. Gilliam v. State, 294 Ark. 115, 741 S.W.2d 631 (1987).

In a case involving terroristic acts under § 5-13-310(a)(1), the exclusion of a computer-generated threat to bolster a self-defense claim was error since the evidence was relevant under Ark. R. Evid. 401; however, the error was harmless since evidence of other threats could have been elicited. McKeever v. State, 367 Ark. 374, 240 S.W.2d 583 (2006).

Trial court did not abuse its discretion in refusing to give defendant's proffered justification-defense jury instruction because this section and § 5-2-607 and the model jury instructions demonstrated that only the deadly physical force model jury instruction was appropriate, if any instruction was appropriate. Stalnaker v. State, 2014 Ark. App. 412, 437 S.W.3d 700 (2014).

Instructions.

Evidence did not warrant the giving of an instruction on the justified use of force in self-defense. Walton v. State, 53 Ark. App. 18, 918 S.W.2d 192 (1996).

While this section and § 5-2-607 stated that the defendant was justified in using force or deadly force only if he reasonably believed that the situation necessitated the defensive force employed, both first-degree and second-degree assault were committed if defendant acted recklessly, under §§ 5-13-205 and 5-13-206, and § 5-2-614 provided that justification was not available as a defense to an offense for which recklessness suffices to establish culpability; therefore, defendant was not entitled to self-defense or justification instructions with regard to his charges for first and second-degree assault. Merritt v. State, 82 Ark. App. 351, 107 S.W.3d 894 (2003).

Justification.

Where the defendant had entertained a grudge against the deceased and had used language in his hearing to provoke him to anger and cause him to bring on a combat whereby the defendant might have the opportunity of killing him or doing him great bodily harm, the defendant would not be excused or justified in the killing unless he withdrew from the combat as far as he could and did all in his power consistent with his safety to avoid the danger and avert the necessity of the killing. Manasco v. State, 104 Ark. 397, 148 S.W. 1025 (1912) (decision under prior law).

Justification is not an affirmative defense; it becomes a defense when any evidence is offered tending to support its existence and such evidence may be introduced by either side. Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979).

The provocation restriction on the defense of justification applies equally to the use of physical force and deadly physical force because deadly physical force is defined to include physical force; therefore an instruction combining the law under this section and under § 5-2-607 held proper. Jones v. State, 1 Ark. App. 318, 615 S.W.2d 388 (1981).

Evidence held sufficient to find that refusal to give requested instruction regarding justification was error. Lucas v. State, 5 Ark. App. 168, 634 S.W.2d 145 (1982).

One who claims self-defense must show not only that the person killed was the aggressor, but that the accused used all reasonable means within his power and consistent with his safety to avoid the killing. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987).

Because a juvenile's father had not resorted to use of a deadly weapon during an argument, because there had been an interlude of approximately five minutes since their last confrontation, because the father, at the time he was struck, had turned away from the juvenile, and because the juvenile did not testify as to whether the juvenile's beliefs were reasonable, the juvenile lacked justification under subdivision (a)(1) of this section and §§ 5-1-102(18), 5-2-607(a)(1), (2), and was properly adjudicated as a delinquent for second-degree domestic battering. D.W. v. State, 2011 Ark. App. 187 (2011).

State of Mind.

Defendant, who alleged self-defense, should have been permitted to testify that he had been told that the deceased had previously killed three people, since the testimony was offered to show defendant's state of mind at the time of the shooting. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977).

In those cases in which the specific acts of violence by the victim were directed at the defendant or were within his knowledge before the crime, they are admissible as being probative of what he reasonably believed and therefore directly relevant to his plea of self-defense; testimony of specific acts not shown to have been within the knowledge of the defendant are not directly probative of defendant's beliefs. Britt v. State, 7 Ark. App. 156, 645 S.W.2d 699 (1983).

Who aggressed is only one factor or circumstance tending to shed light on the essential element of the defense, i.e., defendant's beliefs at the time of the crime and the fact of who aggressed does not prove defendant's beliefs directly. Britt v. State, 7 Ark. App. 156, 645 S.W.2d 699 (1983).

Victim's Prior Violent Acts.

The fact of the victim's aggressive character is probative of whether the victim was aggressor at the time of the crime, but the fact of who aggressed is not an element of the defense of justification. Britt v. State, 7 Ark. App. 156, 645 S.W.2d 699 (1983).

Exclusion of testimony purporting to prove a violent character trait of the victim by a specific instance of prior violent conduct which was not shown to have been within the knowledge of the defendant held proper; however, trial court properly admitted reputation evidence tending to show victim's trait for violence as probative of the issue of who was the aggressor. Britt v. State, 7 Ark. App. 156, 645 S.W.2d 699 (1983).

Cited: Hodges v. Everett, 2 Ark. App. 125, 617 S.W.2d 29 (1981); Wing v. Britton, 748 F.2d 494 (8th Cir. 1984).

5-2-607. Use of deadly physical force in defense of a person.

  1. A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is:
    1. Committing or about to commit a felony involving force or violence;
    2. Using or about to use unlawful deadly physical force; or
    3. Imminently endangering the person's life or imminently about to victimize the person as described in § 9-15-103 from the continuation of a pattern of domestic abuse.
  2. A person may not use deadly physical force in self-defense if the person knows that he or she can avoid the necessity of using deadly physical force:
      1. By retreating.
      2. However, a person is not required to retreat if the person is:
        1. Unable to retreat with complete safety;
        2. In the person's dwelling or on the curtilage surrounding the person's dwelling and was not the original aggressor; or
        3. A law enforcement officer or a person assisting at the direction of a law enforcement officer; or
    1. With complete safety by surrendering possession of property to a person claiming a lawful right to possession of the property.
  3. As used in this section:
    1. “Curtilage” means the land adjoining a dwelling that is convenient for residential purposes and habitually used for residential purposes, but not necessarily enclosed, and includes an outbuilding that is directly and intimately connected with the dwelling and in close proximity to the dwelling; and
    2. “Domestic abuse” means:
      1. Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members; or
      2. Any sexual conduct between family or household members, whether minors or adults, that constitutes a crime under the laws of this state.

History. Acts 1975, No. 280, § 507; A.S.A. 1947, § 41-507; Acts 1997, No. 1257, § 1; 2007, No. 111, § 1; 2009, No. 748, § 2; 2015, No. 828, § 1.

Amendments. The 2009 amendment, in (a)(3), deleted (a)(3)(B) and redesignated the remaining subdivision accordingly; made a stylistic change in the introductory language of (b); inserted (c)(2), redesignated the remainder of (c) accordingly, substituted “residential” for “family” twice in (c)(1), and made related changes.

The 2015 amendment deleted “with complete safety” at the end of the introductory language of (b); inserted present (b)(1)(B)(i) and redesignated the remaining subdivisions accordingly; and substituted “With complete safety by” for “By” in (b)(2).

Cross References. Evidence of victim's character, Evid. Rules 404 and 405.

Research References

ALR.

Application of Defense of Necessity to Murder, 23 A.L.R.7th Art. 1 (2018).

U. Ark. Little Rock L.J.

Derden, Survey of Arkansas Law: Evidence, 2 U. Ark. Little Rock L.J. 232.

Case Notes

Assault.

A condition precedent to a plea of self-defense is an assault upon the defendant of such a character that it is with murderous intent, or places the defendant in fear of his life, or great bodily harm; a mere assault is not sufficient to justify the plea of self-defense. Girtman v. State, 285 Ark. 13, 684 S.W.2d 806 (1985); Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992).

Avoidance of Danger.

In order to justify the taking of life in self-defense, the party must have employed all means within his power and consistent with his safety to have avoided the danger and averted the necessity. McPherson v. State, 29 Ark. 225 (1874); Palmore v. State, 29 Ark. 248 (1874); Fitzpatrick v. State, 37 Ark. 238 (1881); Dolan v. State, 40 Ark. 454 (1883); McDonald v. State, 104 Ark. 317, 149 S.W. 95 (1912) (preceding decisions under prior law).

One resisting an assault must have employed all the means in his power consistent with his safety to avoid the danger and to avert the necessity of killing; however, where such an assault was so fierce as to make it, apparently, as dangerous for the person assaulted to retreat as it was to stand, it was not his duty to retreat but he could stand his ground and, if necessary to save his own life or to prevent great bodily injury, could slay his assailant. Duncan v. State, 49 Ark. 543, 6 S.W. 164 (1887) (decision under prior law).

A requested instruction that, although the defendant went to a house where he knew the deceased to be and that the deceased would probably attack the defendant, that if, in the encounter the defendant acted in self-defense, he must be acquitted, was properly refused as being opposed to the rule that one must have done everything possible to avoid a killing. Valentine v. State, 108 Ark. 594, 159 S.W. 26 (1913) (decision under prior law).

Preponderance of the evidence supported the district court's finding that defendant's use of deadly physical force under § 5-2-601(2) and (6)(B), which occurred when he pointed a loaded pistol at an undercover officer, was not justified or in self defense, and thus, he was guilty of the felony of aggravated assault under Arkansas law, and the four-level enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5), now (b)(6), was properly imposed because (1) defendant did not act in self-defense within the meaning of § 5-13-204(c)(2) as he used deadly force against men who had obeyed his command to leave his property and who were loitering on the public sidewalk in front of his house as there was no evidence they were imminently endangering defendant's life under subsection (a) of this section; (2) under subdivision (b)(1) of this section, defendant could not use deadly force after he had retreated safely to his house and returned later, unprovoked, to threaten the men; (3) defendant's conduct was not justified as permissible defense of his property within the purview of § 5-2-608 because use of deadly physical force was not authorized by this section, and he had no reason to believe that the men who had quietly obeyed a command to leave his property would come back to commit arson or burglary; and (4) defendant's conduct was not justified to defend his home under § 5-2-620 because the men defendant assaulted were not attempting to enter his home, so the statute did not apply. United States v. Raglin, 500 F.3d 675 (8th Cir. 2007).

Directed Verdict.

Defendant convicted of murder did not preserve for review the denial of his directed verdict motion; in his motion, defendant failed to identify specifically how the State's proof was insufficient to negate defendant's claim of self-defense—e.g., whether the State failed to show that defendant lacked a reasonable belief that the victims were about to use deadly force; whether the State failed to demonstrate that defendant could not have retreated safely; or whether the State failed to demonstrate that the victims were not committing, or were about to commit, a felony involving force or violence. Kinsey v. State, 2016 Ark. 393, 503 S.W.3d 772 (2016).

Evidence.

Evidence of threats made by a third person against the defendant was incompetent when the same had no bearing upon the question whether or not the deceased was the aggressor. Carter v. State, 108 Ark. 124, 156 S.W. 443 (1913) (decision under prior law); Barker v. State, 21 Ark. App. 56, 728 S.W.2d 204 (1987).

Testimony showing victim had peaceful intentions toward defendant was admissible exception to hearsay rule where accused was claiming self-defense. Hill v. State, 255 Ark. 720, 502 S.W.2d 649 (1973) (decision under prior law).

It was improper to exclude evidence which showed that decedents had inflicted, and threatened, harm to the defendant, since, under § 16-41-101, Rule 404, where a claim of justification is raised, such evidence is relevant to the issue of who was the aggressor and whether the accused reasonably believed he was in danger of suffering unlawful deadly physical force. Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981).

Evidence sufficient to find that the killing was justified. Calaway v. Southern Farm Bureau Life Ins. Co., 2 Ark. App. 69, 619 S.W.2d 301 (1981).

Evidence sufficient to find that the defendant could not rely upon self defense or justification as defenses. Graham v. State, 2 Ark. App. 266, 621 S.W.2d 4 (1981); Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987); Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992).

The defendant in a murder prosecution was not entitled to have the jury instructed with regard to self-defense where (1) the defendant punched the victim in the face without provocation or aggressive action by the victim, (2) the victim did not pursue the defendant after that incident, (3) the defendant and his cohorts returned to the victim's truck, at which point the victim pointed a gun at their vehicle, (4) the defendant and his cohorts exited the vehicle and disarmed the victim, (5) the victim tried to punch the defendant, but the swing missed, (5) the defendant then knocked the victim to the ground, straddled him, and began punching him about the head and body, and (6) the defendant's cohorts then began kicking the victim about the head and body. Craig v. State, 70 Ark. App. 71, 14 S.W.3d 893 (2000).

Evidence was sufficient to rebut a claim of justification under this section and to convict defendant of attempted-capital murder and first-degree battery as defendant shot at the victim while he was running away, and defendant then drove around the neighborhood, found the victim, and fired more shots that struck the victim. Green v. State, 2011 Ark. App. 700 (2011).

Substantial evidence existed to support a second-degree murder conviction because defendant's justification defense could have been reasonably rejected; the jury could have credited testimony indicating that defendant walked towards the victim holding a gun after being told that the girls present did not want to fight. It was up to the jury to determine if it was reasonable for defendant to believe that she was in danger of being killed or suffering great bodily injury. Moody v. State, 2014 Ark. App. 538, 444 S.W.3d 389 (2014).

Evidence was sufficient to convict defendant of second-degree murder where the State's evidence rebutted defendant's claim of justification; defendant stabbed the victim, threw his knife in a creek, fled the scene, failed to alert law enforcement, and threw away his clothes in a dumpster at a hotel. Moreover, a jailhouse witness testified that defendant had stated that the crime was not committed in self-defense; rather, defendant stated he killed the victim during an attempted theft. Bailey v. State, 2016 Ark. App. 209, 489 S.W.3d 203 (2016).

Evidence was sufficient to support a conviction for second-degree murder because defendant was not justified in using deadly force against the victim based on a belief that the victim was reaching for a gun; defendant was the first and only person to draw a weapon, and surveillance video showed that defendant was the initial aggressor and failed to retreat. Wade v. State, 2017 Ark. App. 157, 516 S.W.3d 772 (2017).

In a second-degree murder case, there was no abuse of discretion in granting the State's motion to exclude testimony from the medical examiner that the victim had illegal controlled substances in his system at the time of his death because the report's probative value was far outweighed by the danger of unfair prejudice. The toxicology report was irrelevant because defendant did not know at the time of the shooting that the victim had ingested drugs; moreover, defendant was not prejudiced by the ruling because he presented proof of the victim's erratic and aggressive behavior. Wade v. State, 2017 Ark. App. 157, 516 S.W.3d 772 (2017).

Substantial evidence supported defendant's conviction for first-degree murder under the felony murder rule because defendant shot and killed a responding auxiliary sheriff's deputy while defendant was hiding two hours after fleeing from a residential burglary with items taken in the burglary. Furthermore, the jury reasonably found that defendant was not justified in his use of deadly force. Kauffeld v. State, 2017 Ark. App. 440, 528 S.W.3d 302 (2017).

Trial court did not err in allowing pictures defendant took on the victim's cell phone after the victim was dead because the pictures went to defendant's state of mind and were relevant to the State's theory that he committed first-degree murder and did not kill the victim in self-defense. Roberts v. State, 2018 Ark. App. 332, 552 S.W.3d 446 (2018).

Concerning the second-degree murder conviction, there was substantial evidence to refute defendant's claim that she was justified in using deadly physical force because the eyewitness testified that the victim never struck or even touched defendant before she attacked him from behind with a knife as the victim was walking away from her holding his infant daughter; although defendant claimed to have been punched in the face and dragged on the ground by the victim, she had no injuries to substantiate those claims; and the medical examiner testified that the victim died as a result of being forcefully stabbed over the shoulder with a knife from behind and that, in addition to that fatal wound, the victim had been stabbed or cut multiple additional times with the knife. Gillard v. State, 2019 Ark. App. 438, 586 S.W.3d 703 (2019).

Substantial evidence supported the jury's verdict that the State negated defendant's justification defense because (1) defendant approached the victim and pulled a gun out of his waistband, and, (2) considering eyewitness testimony and a surveillance video, a jury could find defendant's belief that he was justified in using deadly force was not reasonable. Brown v. State, 2020 Ark. App. 198, 595 S.W.3d 456 (2020).

Instructions.

Refusal to give requested instruction substantially in the language of former section defining justifiable homicide was not an error where other instructions given sufficiently covered that defense. Hogue v. State, 194 Ark. 1089, 110 S.W.2d 11 (1937) (decision under prior law).

Instruction following the wording of former similar section held proper. Gentry v. State, 201 Ark. 729, 147 S.W.2d 1 (1941) (decision under prior law).

Defendant held entitled to an instruction on justifiable homicide. Jordon v. State, 238 Ark. 398, 382 S.W.2d 185 (1964) (decision under prior law).

Refusal to instruct the jury of self-defense held proper. Jackson v. State, 245 Ark. 331, 432 S.W.2d 876 (1968) (decision under prior law).

A permissible addition to a jury instruction on self-defense was where an assailant abandoned an attack which was later renewed voluntarily without justification by the person attacked, then the person renewing the attack could not prevail on a claim of self-defense. Chaney v. State, 256 Ark. 198, 506 S.W.2d 134 (1974) (decision under prior law).

Trial court held not required to include in its instructions to the jury the exceptions found in subdivision (b)(1). Ervin v. State, 262 Ark. 439, 557 S.W.2d 617 (1977).

Court did not err in giving justification instruction based on this section rather than defendant's proffered instruction, based on § 5-2-614, since defendant's instruction was a misapplication of § 5-2-614. Kendrick v. State, 6 Ark. App. 427, 644 S.W.2d 297 (1982).

The trial court did not err in refusing to give one of the defendant's proposed instructions, where the defendant offered a modification of the model instruction based on this section, which modification would have changed the law that a person doesn't have to retreat if in his dwelling, to, if in his dwelling or on his curtilage. David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985).

Where the undisputed proof was that defendant walked away from the victim, went to the waiting car, got his loaded pistol from under the car seat, and then walked back to the place of confrontation and killed the victim, the defendant could have avoided the use of force with complete safety; therefore, he was not entitled to the instruction on justification. Martin v. State, 290 Ark. 293, 718 S.W.2d 938 (1986).

Trial court did not err in declining proffered instruction that “dwelling” included the curtilage, and it did not err in failing to instruct that “dwelling” included porch. AMCI 4105 instruction represents an accurate statement of Arkansas law. Hopes v. State, 294 Ark. 319, 742 S.W.2d 561 (1988).

Where there is evidence of self-defense it is error for the court not to give an appropriate instruction, but the question is one of fact for the jury. Taylor v. State, 28 Ark. App. 146, 771 S.W.2d 318 (1989).

Evidence did not warrant an instruction on the justified use of deadly physical force in self-defense. Walton v. State, 53 Ark. App. 18, 918 S.W.2d 192 (1996).

Jury instruction on justification should have been given where there was conflicting evidence on justification and the State had the burden of showing that it was the defendant's alleged excessive force, rather than his initial response, that resulted in the death of the victim. Humphrey v. State, 332 Ark. 398, 966 S.W.2d 213 (1998).

While § 5-2-606 and this section stated that the defendant was justified in using force or deadly force only if he reasonably believed that the situation necessitated the defensive force employed, both first-degree and second-degree assault were committed if defendant acted recklessly, under §§ 5-13-205 and 5-13-206, and § 5-2-614 provided that justification was not available as a defense to an offense for which recklessness suffices to establish culpability; therefore, defendant was not entitled to self-defense or justification instructions with regard to his charges for first and second-degree assault. Merritt v. State, 82 Ark. App. 351, 107 S.W.3d 894 (2003).

Since defendant was not at his own home and was by all accounts standing outside when he commenced the shooting, and defendant failed to proffer an instruction with a complete statement of the law regarding the use of deadly force only if retreat was not possible, the trial court did not err in declining to give an instruction on self-defense. Ghoston v. State, 84 Ark. App. 387, 141 S.W.3d 907 (2004).

Because second-degree battery has as one of its elements the infliction of serious physical injury, it is a “felony involving force or violence”; thus, in a second-degree murder case, the trial court erred by failing to give a jury instruction for justification that had both second-degree battery and unlawful deadly physical force alternatives since both were warranted by evidence that defendant was confronted by three men in an attack before he stabbed one of them in the heart with a pocket knife. Hamilton v. State, 97 Ark. App. 172, 245 S.W.3d 710 (2006).

Defendant's challenge to the jury instruction used by the trial court for justification and use of physical force in defense of a person was more lenient than the instruction that defendant requested, which was based upon the use of deadly physical force, pursuant to this section, and defendant did not have a cognizable habeas corpus claim based upon the use of the instruction. Cagle v. Norris, 474 F.3d 1090 (8th Cir. 2007).

In a case in which the jury was instructed on justification and the use of deadly force in defense of a person under Ark. Model Jury Instruction Crim. § 705 (2d ed.) that reflected the language of this section and defendant was convicted by a jury of second-degree murder and was sentenced to prison under the enhancement provision for a total of 540 months, defendant argued unsuccessfully that the circuit court erred by refusing the jury instruction he proffered on self-defense, a non-model jury instruction reflecting the language of § 5-2-620. There was no merit to his argument that mere technical changes to § 5-2-620 and the legislature's reaffirmation of the statute's public policy somehow translated into legislative intent that juries in criminal cases be instructed as to an individual's right to defend himself or herself against a person intruding into his or her home. Hutchinson v. State, 2010 Ark. App. 235 (2010).

Trial court did not abuse its discretion in refusing to give defendant's proffered justification-defense jury instruction because § 5-2-606 and this section and the model jury instructions demonstrated that only the deadly physical force model jury instruction was appropriate, if any instruction was appropriate. Stalnaker v. State, 2014 Ark. App. 412, 437 S.W.3d 700 (2014).

In a second-degree murder case, a trial court did not err by refusing to give a proffered instruction on justification because the grassy area where defendant confronted the victim and shot her was not properly considered curtilage. Moody v. State, 2014 Ark. App. 538, 444 S.W.3d 389 (2014).

Circuit court did not err in refusing to give defendant's proffered instruction on self-defense where the model jury instruction was a complete statement of the law; the appellate court rejected defendant's argument that the model jury instruction incorrectly allocated the burden of proof on self-defense to the defendant. Kinsey v. State, 2016 Ark. 393, 503 S.W.3d 772 (2016).

Defendant's proffered instruction on self-defense was not a complete instruction of the law because it presumed that justification is an element of the offense when that is a question for the jury. Kinsey v. State, 2016 Ark. 393, 503 S.W.3d 772 (2016).

Necessity.

No one, in resisting an assault made upon him in the course of a sudden quarrel, or upon a sudden reencounter, or in a combat on a sudden quarrel, or which was made from anger suddenly aroused at the time the assault is made, was justified or excused in taking the life of his assailant, unless he was so endangered by such assault as to make it necessary to kill the assailant to save his own life or to prevent a great bodily injury. Duncan v. State, 49 Ark. 543, 6 S.W. 164 (1887) (decision under prior law).

Homicide was justifiable if it appeared necessary to defendant. Smith v. State, 59 Ark. 132, 26 S.W. 712 (1894); Carpenter v. State, 62 Ark. 286, 36 S.W. 900 (1896) (preceding decisions under prior law).

Where deceased was a law enforcement officer and the jury was instructed that if defendant had no notice of the fact, or reasonable grounds to know that the deceased was an officer and the killing was apparently necessary to save his own life or to prevent his receiving great bodily injury, the killing of the deceased was homicide in self-defense, it was not prejudicial error to refuse a further instruction to the effect if the killing appeared to the defendant to be necessary, he was justified in taking the life of the deceased. Bruce v. State, 68 Ark. 310, 57 S.W. 1103 (1900) (decision under prior law).

An instruction that, if the defendant shot the deceased under compulsion by third parties to save his own life, the jury should acquit, was properly refused, as unlawful compulsion was not a sufficient justification for taking the life of an innocent person. Brewer v. State, 72 Ark. 145, 78 S.W. 773 (1904) (decision under prior law).

A killing in self-defense was justifiable only when it was necessary. Thomas v. State, 74 Ark. 431, 86 S.W. 404 (1905) (decision under prior law).

In a prosecution for murder, an instruction on self-defense that “it must appear to the defendant at the time of the difficulty that the danger was so urgent and pressing that in order to save his own life or to prevent his receiving great bodily injury, the killing of the deceased was necessary” was not erroneous as taking away the right of one to stand his own ground in his own home and to resist assaults. Bealmear v. State, 104 Ark. 616, 150 S.W. 129 (1912) (decision under prior law).

It must have appeared to defendant that the killing was necessary to save his own life, or to prevent great bodily harm. Fisher v. State, 109 Ark. 456, 160 S.W. 210 (1913) (decision under prior law).

Preservation for Review.

In an appeal of convictions for second-degree battery and aggravated residential burglary, the appellate court could not address defendant's argument that the evidence was insufficient to negate self-defense because it was not preserved for appeal. Defendant's directed-verdict motion to the circuit court did not mention self-defense or the elements of self-defense the State failed to negate. Thompson v. State, 2019 Ark. App. 391 (2019).

Prior Violent Acts of Victims.

Refusal to admit testimony of specific prior violent acts of the victims which were unknown to the defendant held proper. Halfacre v. State, 277 Ark. 168, 639 S.W.2d 734 (1982).

Exclusion of testimony purporting to prove a violent character trait of the victim by a specific instance of prior violent conduct which was not shown to have been within the knowledge of the defendant held proper; however, trial court properly admitted reputation evidence tending to show victim's trait for violence as probative of the issue of who was the aggressor. Britt v. State, 7 Ark. App. 156, 645 S.W.2d 699 (1983).

In those cases in which the specific acts of violence by the victim were directed at the defendant or were within his knowledge before the crime, they are admissible as being probative of what he reasonably believed and therefore directly relevant to his plea of self-defense; testimony of specific acts not shown to have been within the knowledge of the defendant are not directly probative of defendant's beliefs. Britt v. State, 7 Ark. App. 156, 645 S.W.2d 699 (1983).

The fact of the victim's aggressive character is probative of whether the victim was aggressor at the time of the crime, but the fact of who aggressed is not an element of the defense of justification. Britt v. State, 7 Ark. App. 156, 645 S.W.2d 699 (1983).

In a murder trial where defendant asserted self-defense and was convicted of manslaughter, evidence of specific instances of the victim's past violent conduct was not relevant for the purpose for which it was offered because events of which the defendant was not aware could not have affected his state of mind. Therefore, the exclusion of the evidence was not arbitrary and did not violate defendant's constitutional right to present a complete defense. Schnarr v. State, 2017 Ark. 10 (2017).

In a murder trial where defendant asserted self-defense and was convicted of manslaughter, the circuit court did not err in excluding evidence of specific instances of the victim's past violent conduct where defendant had no knowledge of that past conduct and the purpose for which the evidence was offered pertained to defendant's state of mind. Schnarr v. State, 2017 Ark. 10 (2017).

When self-defense is asserted, the evidentiary rules governing the admissibility of specific instances of the victim's past violent conduct are Ark. R. Evid. 404(a)(2) and 405. Schnarr v. State, 2017 Ark. 10 (2017).

In a murder trial where defendant asserted self-defense and was convicted of manslaughter, defendant's contention that evidence of specific instances of the victim's past violent conduct was admissible to corroborate defendant's testimony that the victim was the aggressor was not made below and thus was not reviewable on appeal. Schnarr v. State, 2017 Ark. 10 (2017).

Trial court did not err in limiting defendant's presentation of prior violent altercations between him and the victim, his brother, to those that occurred within five years of the murder because that was when defendant began to interact with the victim after a 35-year absence; defendant was still permitted to introduce multiple recent instances in which the victim had attacked him, and thus imposing the five-year limitation was harmless and did not prejudice defendant. Roberts v. State, 2018 Ark. App. 332, 552 S.W.3d 446 (2018).

Provocation by Defendant.

Where the defendant brought upon himself a difficulty in which he continued until he brought upon himself a necessity to kill, the law would not hold him guiltless, yet a person accused of crime could show in justification that, although he brought the danger upon himself, he changed his conduct and endeavored to escape but could not without striking the mortal blow. Aikin v. State, 58 Ark. 544, 25 S.W. 840 (1894); Wheatley v. State, 93 Ark. 409, 125 S.W. 414 (1910); Ferguson v. State, 95 Ark. 428, 129 S.W. 813 (1910); Price v. State, 114 Ark. 398, 170 S.W. 235 (1914) (preceding decisions under prior law).

Refusal to instruct that, although the defendant went to the room of the deceased for the purpose of bringing on a difficulty, and such difficulty was brought on by the defendant and such fight ensued, still if the deceased engaged in such fight with a chair, the same being a deadly weapon or one calculated to inflict great bodily injury upon the defendant and the defendant after being set upon with a chair, drew his pistol and fired the fatal shot, he should be acquitted held proper. Blair v. State, 69 Ark. 558, 64 S.W. 948 (1901) (decision under prior law).

A plea of self-defense could not be sustained where defendant called to deceased and made no effort to avoid a difficulty. Clingan v. State, 77 Ark. 141, 91 S.W. 12 (1905) (decision under prior law).

One using opprobrious words was not precluded from acting in self-defense, unless he used them to bring on the opportunity to kill. Wheatley v. State, 93 Ark. 409, 125 S.W. 414 (1910); Ferguson v. State, 95 Ark. 428, 129 S.W. 813 (1910) (preceding decisions under prior law).

Where the defendant had entertained a grudge against the deceased and had used language in his hearing to provoke him to anger and cause him to bring on a combat whereby the defendant might have the opportunity of killing him or doing him great bodily harm, the defendant would not be excused or justified in the killing unless he withdrew from the combat as far as he could and did all in his power consistent with his safety to avoid the danger and avert the necessity of the killing. Manasco v. State, 104 Ark. 397, 148 S.W. 1025 (1912) (decision under prior law).

Defendant could not provoke an assault, and then without making any effort to abandon the difficulty, shoot his assailant while his own life was not in danger. Arnott v. State, 109 Ark. 378, 159 S.W. 1105 (1913) (decision under prior law).

Where defendant claimed self-defense but the undisputed evidence showed him as an aggressor, there was no prejudice where the court modified the instruction on self-defense by fully explaining to the jury the applicability of such defense. Chaney v. State, 256 Ark. 198, 506 S.W.2d 134 (1974) (decision under prior law).

Although no mention of provocation is found in this section, obviously the provocation restriction on the defense of justification from § 5-2-605 applies equally to the use of “physical force” and “deadly physical force” is defined under § 5-2-601 to include “physical force.” Jones v. State, 1 Ark. App. 318, 615 S.W.2d 388 (1981).

A plea of self-defense is not justified where the evidence showed the defendant armed himself and went to a place in anticipation that the decedent would be there and would attack him; or that the defendant provoked an attack upon himself by the decedent with the intention of killing the decedent. Girtman v. State, 285 Ark. 13, 684 S.W.2d 806 (1985).

Reasonable Belief or State of Mind.

Where defendant acted too hastily and without due care in killing one whom he thought was about to assault him, he was guilty of manslaughter, and not justifiable or excusable homicide. Bruder v. State, 110 Ark. 402, 161 S.W. 1067 (1913) (decision under prior law).

It must have appeared that the circumstances were sufficient to have excited the fears of a reasonably prudent person; a bare fear that deceased would commit the act, to prevent which the homicide was committed, was not sufficient. Plumley v. State, 116 Ark. 17, 171 S.W. 925 (1914) (decision under prior law).

Where the defendant fired the fatal shot under the belief that it was necessary in order to protect himself from great harm, and he fired the shot for that purpose, he should be acquitted, although the jury believed that the accused was mistaken in his conclusion as to the danger to himself. Biddle v. State, 131 Ark. 537, 199 S.W. 913 (1917) (decision under prior law).

One who slew another under the honest belief that his life or limb was in imminent peril and committed the act to prevent the apprehended danger was in the exercise of a lawful act, but unless he acted with due caution and circumspection, he was guilty of manslaughter. Deatherage v. State, 194 Ark. 513, 108 S.W.2d 904 (1937) (decision under prior law).

Instruction regarding fear sufficient to justify killing was not improper nor in conflict with instruction on self-defense. Young v. State, 206 Ark. 19, 176 S.W.2d 151 (1943) (decision under prior law).

Defendant should have been permitted to testify that he had been told that the deceased had previously killed three people, since the testimony was offered to show defendant's state of mind at the time of the shooting. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977).

The actor must have a reasonable belief that the situation necessitates the defensive force employed; in addition, the defense is available only to one who acts reasonably in administering such force. Kendrick v. State, 6 Ark. App. 427, 644 S.W.2d 297 (1982).

Who aggressed is only one factor or circumstance tending to shed light on the essential element of the defense, i.e., defendant's beliefs at the time of the crime and the fact of who aggressed does not prove defendant's beliefs directly. Britt v. State, 7 Ark. App. 156, 645 S.W.2d 699 (1983).

The question of justification is a matter of the defendant's intent, and is a question of fact to be decided by the trier of fact. Taylor v. State, 28 Ark. App. 146, 771 S.W.2d 318 (1989).

Because a juvenile's father had not resorted to use of a deadly weapon during an argument, because there had been an interlude of approximately five minutes since their last confrontation, because the father, at the time he was struck, had turned away from the juvenile, and because the juvenile did not testify as to whether the juvenile's beliefs were reasonable, the juvenile lacked justification under §§ 5-1-102(18), 5-2-606(a)(1), and subdivisions (a)(1) and (2) of this section, and was properly adjudicated as a delinquent for second-degree domestic battering. D.W. v. State, 2011 Ark. App. 187 (2011).

Requirement to Retreat.

Defendant's argument focused on her belief that she was in danger of great bodily harm, but it disregarded the requirement in this section that she attempt to retreat if she was not at her own residence and could do so safely; it was this requirement that the trial court found defendant was unable to satisfy in her defense of justification, which was not error. Graves v. State, 2019 Ark. App. 293 (2019).

Self-Defense.

Deadly physical force is justified as self-defense only if the use of such force cannot be avoided as by retreating. Girtman v. State, 285 Ark. 13, 684 S.W.2d 806 (1985).

Where the defendant was walking away when the victim aimed a pistol at his back, the victim admitted she would have shot him, and a bystander warned the defendant that he was about to be shot when the defendant turned around and shot the victim, the defendant could not have retreated with complete safety and was assaulted in a manner sufficient to cause a realistic fear for his life; therefore, justification was an available defense. Martin v. State, 290 Ark. 293, 718 S.W.2d 938 (1986).

One who claims self-defense must show not only that the person killed was the aggressor, but that the accused used all reasonable means within his power and consistent with his safety to avoid the killing. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987).

Neither § 5-1-111(d) nor subsection (a) of this section defines justification or self-defense as an affirmative defense. Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991).

Regardless of the trial court's mistake in describing justification or self-defense as an affirmative defense, there was no reversible error because no objection was made to the instruction. Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991).

Where defendant fired four to five shots at the victim from his car, the victim was in his car at the time and did not do anything threatening or pose any immediate harm to defendant and defendant presented little evidence to support his claim that the shooting was in self-defense, his claim was self-defense was properly rejected. Walker v. State, 91 Ark. App. 300, 210 S.W.3d 157 (2005).

When defendant shot and killed the victim outside his aunt's home, she testified that the victim took a few steps backward, and defendant raised his shirt, brandished a weapon, and fired upon the victim; she did not see a gun in the victim's hand, and her son also testified that defendant was the first to draw a weapon. In defendant's criminal prosecution for murder, the trial court made a credibility determination, found that defendant was the initial aggressor in the deadly altercation, and rejected his self-defense claim under subdivision (a)(2) of this section; the Court of Appeals of Arkansas found substantial evidence to support the trial court's decision. Dishman v. State, 2009 Ark. App. 715 (2009).

Substantial evidence negated defendant's claim of self-defense under subdivision (a)(2) of this section in his trial for first degree battery, under § 5-13-201, because there was no evidence that the victim was armed when defendant shot him and, although defendant testified that the victim attacked him earlier in the day, there was no evidence of an injury to defendant and defendant testified that he was not afraid of the victim; although defendant testified at trial that he was afraid that the victim was going to attack him at the time that he shot him, defendant never made a similar claim in his statement to the police after the incident. Metcalf v. State, 2011 Ark. App. 55 (2011).

During petitioner's capital murder trial, counsel did not perform deficiently by failing to present the affirmative defense of self-defense; evidence showed that petitioner initiated the encounter on the day of the shooting by traveling to his former wife's home while carrying a firearm. Dansby v. Hobbs, 766 F.3d 809 (8th Cir. 2014), cert. denied, — U.S. —, 136 S. Ct. 297, 193 L. Ed. 2d 46 (2015).

Trial court did not err in refusing to give a justification of deadly force jury instruction as defendant offered an incorrect version of the law. Gould v. State, 2014 Ark. App. 543, 444 S.W.3d 408 (2014).

Defendant argued that because there were only two witnesses to the actual shooting, and one was not credible and another's testimony was that the victim was the aggressor, the State failed to disprove the justification defense beyond a reasonable doubt, but this argument was rejected; because there was evidence from which the jury could have found defendant not to be justified in his use of deadly force in this instance, the court affirmed on this point. Lewis v. State, 2014 Ark. App. 730, 451 S.W.3d 591 (2014).

Petitioner was not entitled to a writ of error coram nobis on the ground that the prosecutor withheld material exculpatory evidence in violation of Brady because the presentation of the witness's account of events would not have changed the outcome of the trial by establishing that petitioner fired in self-defense; petitioner admitted that he did not see a gun in the victim's possession and that he could have retreated. Stenhouse v. State, 2016 Ark. 295, 497 S.W.3d 679 (2016), cert. denied, — U.S. —, 137 S. Ct. 837, 197 L. Ed. 2d 75 (2017).

In a first-degree murder trial, there was substantial evidence supporting the jury's verdict that the State disproved defendant's justification defense; there was no other weapon found in the car with the victim, who was shot in the head from behind, defendant immediately fled the scene, defendant admitted it was his immediate reaction to shoot in response to the victim's grabbing him, and justification was a question of fact for the jury to resolve. Jimmerson v. State, 2019 Ark. App. 578, 590 S.W.3d 764 (2019).

Withdrawal of Aggressor.

One who killed his adversary while the latter was manifestly seeking to retire from the combat was guilty of murder or manslaughter, according to the circumstances; but, where one was defending himself from an unlawful attack, it was not incumbent upon him to suspend his defense because assailant was withdrawing himself from the immediate locality of the attempt if such withdrawal was apparently for the purpose of securing a position from which to renew the combat with effect. Luckenbill v. State, 52 Ark. 45, 11 S.W. 963 (1889); Weaver v. State, 83 Ark. 119, 102 S.W. 713 (1907); McDonald v. State, 104 Ark. 317, 149 S.W. 95 (1912) (preceding decisions under prior law).

Even if the jury believed that the victim was the original aggressor, it was not established, as a matter of law, that the use of deadly physical force by the defendant was justified even though, as an occupant of the house, he was not required to retreat; and even if the victim was the original aggressor, if he had, in good faith, withdrawn from the encounter, and the danger to the defendant was no longer immediate, urgent and pressing, the defendant was not justified in pursuing him to continue the fight or to use deadly physical force on him. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979).

Cited: Hampton v. State, 6 Ark. App. 245, 639 S.W.2d 754 (1982); Smith v. State, 30 Ark. App. 111, 783 S.W.2d 72 (1990); Sharp v. State, 90 Ark. App. 81, 204 S.W.3d 68 (2005); Stocker v. State, 2012 Ark. App. 624 (2012).

5-2-608. Use of physical force in defense of premises.

  1. A person in lawful possession or control of premises or a vehicle is justified in using nondeadly physical force upon another person when and to the extent that the person reasonably believes the use of nondeadly physical force is necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises or vehicle.
  2. A person may use deadly physical force under the circumstances set forth in subsection (a) of this section if:
    1. Use of deadly physical force is authorized by § 5-2-607; or
    2. The person reasonably believes the use of deadly physical force is necessary to prevent the commission of arson or burglary by a trespasser.

History. Acts 1975, No. 280, § 508; A.S.A. 1947, § 41-508.

Case Notes

Evidence.

Defendant was entitled to have the jury consider all the conduct of the decedent in order to determine whether there was a necessity for defendant to act in defense of another or the defense of his household. Brockwell v. State, 260 Ark. 807, 545 S.W.2d 60 (1976).

Preponderance of the evidence supported the district court's finding that defendant's use of deadly physical force under § 5-2-601(2) and (6)(B), which occurred when he pointed a loaded pistol at an undercover officer, was not justified or in self defense, and thus, he was guilty of the felony of aggravated assault under Arkansas law, and the four-level enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5), now (b)(6), was properly imposed because (1) defendant did not act in self-defense within the meaning of § 5-13-204(c)(2) as he used deadly force against men who had obeyed his command to leave his property and who were loitering on the public sidewalk in front of his house as there was no evidence they were imminently endangering defendant's life under § 5-2-607(a); (2) under § 5-2-607(b)(1), defendant could not use deadly force after he had retreated safely to his house and returned later, unprovoked, to threaten the men; (3) defendant's conduct was not justified as permissible defense of his property within the purview of this section because use of deadly physical force was not authorized by § 5-2-607, and he had no reason to believe that the men who had quietly obeyed a command to leave his property would come back to commit arson or burglary; and (4) defendant's conduct was not justified to defend his home under § 5-2-620 because the men defendant assaulted were not attempting to enter his home, so the statute did not apply. United States v. Raglin, 500 F.3d 675 (8th Cir. 2007).

Defendant's conviction for battery in the second degree was proper because he did not have a justification defense under subsection (a) of this section since his version of the events was unbelievable; any reasonable person would have realized that the victim was acting on behalf of a repossession agency and therefore, defendant could not have been acting on a reasonable belief that he was preventing a criminal trespass. There was also no evidence to indicate that the victim used force against defendant or threatened him with force. Washington v. State, 2010 Ark. App. 339, 374 S.W.3d 822 (2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 379 (June 24, 2010).

Guests.

A guest had the same right as his host to resist a violent attempt of another to enter the house for the purpose of assaulting “any person dwelling or being therein.” King v. State, 55 Ark. 604, 19 S.W. 110 (1892) (decision under prior law).

Instructions.

Giving an instruction to show that the theory of the state in a prosecution for manslaughter was that deceased had abandoned the controversy and that defendant renewed it was not error, where defendant's theory of self-defense and defense of home and property was fully presented in other instructions given. Connelly v. State, 233 Ark. 826, 350 S.W.2d 298 (1961) (decision under prior law).

Jury Question.

Whether assault was justified as in defense of accused's home was for jury. Davis v. State, 206 Ark. 726, 177 S.W.2d 190 (1944) (decision under prior law).

Retreat.

One who was assaulted in his own home was not bound to retreat, and if the circumstances were such as reasonably to cause the defendant to believe that he was in imminent danger of losing his own life or of receiving great bodily harm and he did so believe, then he was justified in using the force necessary to protect himself and, if necessary, to this end, he could kill the assailant. Elder v. State, 69 Ark. 648, 65 S.W. 938 (1901) (decision under prior law).

State of Mind.

Verdict for defendant was authorized by evidence that defendant in his own premises shot decedent believing him to be armed and fearing an attack. Phillips v. Turney, 198 Ark. 364, 129 S.W.2d 963 (1939) (decision under prior law).

Instruction that if accused made the assault acting in good faith as a reasonable person under apprehension that his house or residence was about to be entered by some person for purpose of committing burglary or robbery or assaulting any person dwelling therein, and that he fired the shots under that belief in good faith, he would not be guilty, was proper. Davis v. State, 206 Ark. 726, 177 S.W.2d 190 (1944) (decision under prior law).

5-2-609. Use of physical force in defense of property.

A person is justified in using nondeadly physical force upon another person when and to the extent that the person reasonably believes the use of nondeadly physical force is necessary to prevent or terminate the other person's:

  1. Commission or attempted commission of theft or criminal mischief; or
  2. Subsequent flight from the commission or attempted commission of theft or criminal mischief.

History. Acts 1975, No. 280, § 509; A.S.A. 1947, § 41-509; Acts 2003, No. 1090, § 1.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Criminal Law, Criminal Liability, 26 U. Ark. Little Rock L. Rev. 373.

5-2-610. Use of physical force by law enforcement officers.

  1. A law enforcement officer is justified in using nondeadly physical force or threatening to use deadly physical force upon another person if the law enforcement officer reasonably believes the use of nondeadly physical force or the threat of use of deadly physical force is necessary to:
    1. Effect an arrest or to prevent the escape from custody of an arrested person unless the law enforcement officer knows that the arrest is unlawful; or
    2. Defend himself or herself or a third person from what the law enforcement officer reasonably believes to be the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape.
  2. A law enforcement officer is justified in using deadly physical force upon another person if the law enforcement officer reasonably believes that the use of deadly physical force is necessary to:
    1. Effect an arrest or to prevent the escape from custody of an arrested person whom the law enforcement officer reasonably believes has committed or attempted to commit a felony and is presently armed or dangerous; or
    2. Defend himself or herself or a third person from what the law enforcement officer reasonably believes to be the use or imminent use of deadly physical force.

History. Acts 1975, No. 280, § 510; A.S.A. 1947, § 41-510; Acts 2005, No. 1994, § 491.

Case Notes

Conduct of Officer.

A peace officer could not avail himself of the plea of self-defense in justification of a homicide, the necessity for which grew out of his own unlawful conduct in making an arrest. Roberson v. State, 53 Ark. 516, 14 S.W. 902 (1890) (decision under prior law).

If the defendant brought on the difficulty, he could not take shelter behind his character as an officer, but, rather, he stood as any other person. Johnson v. State, 58 Ark. 57, 23 S.W. 7 (1893) (decision under prior law).

Necessity.

Officers' right in resisting assault could rise no higher than the right of self-defense and, before taking human life, they must have at least acted with due care and circumspection. Deatherage v. State, 194 Ark. 513, 108 S.W.2d 904 (1937) (decision under prior law).

Preventing Escape.

An officer could kill to prevent the escape of a felon. Cavaness v. State, 43 Ark. 331 (1884); Green v. State, 91 Ark. 510, 121 S.W. 727 (1909) (preceding decisions under prior law).

An officer could not kill to prevent the escape of one guilty of a misdemeanor. Thomas v. Kinkead, 55 Ark. 502, 18 S.W. 854 (1892); Smith v. State, 59 Ark. 132, 26 S.W. 712 (1894) (preceding decisions under prior law).

Cited: Heslip v. Lobbs, 554 F. Supp. 694 (E.D. Ark. 1982); Forrest v. Ford, 324 Ark. 27, 918 S.W.2d 162 (1996).

5-2-611. Use of physical force by private person aiding law enforcement officers.

  1. A person is justified in using nondeadly physical force when and to the extent the person reasonably believes the use of nondeadly physical force is necessary to:
    1. Effect the arrest of a person reasonably believed to be committing or to have committed a felony; or
    2. Prevent the escape of a person reasonably believed to have committed a felony.
  2. A person who has been directed by a law enforcement officer to assist in effecting an arrest or in preventing an escape is justified in using nondeadly physical force when and to the extent that the person reasonably believes the use of nondeadly physical force is necessary to carry out the law enforcement officer's direction.
  3. A person who has been directed by a law enforcement officer to assist in effecting an arrest or in preventing an escape is justified in using deadly physical force if the person reasonably believes the use of deadly physical force is necessary to defend himself or herself or a third person from what the person reasonably believes to be the use or imminent use of deadly physical force.

History. Acts 1975, No. 280, § 511; 1977, No. 474, § 2; A.S.A. 1947, § 41-511.

5-2-612. Use of physical force in resisting arrest.

Whether the arrest is lawful or unlawful, a person may not use physical force to resist an arrest by a person who is known or reasonably appears to be a:

  1. Law enforcement officer; or
  2. Private citizen directed by a law enforcement officer to assist in effecting an arrest.

History. Acts 1975, No. 280, § 512; A.S.A. 1947, § 41-512.

Case Notes

Purpose.

This section is designed to ensure that law enforcement activities are conducted peacefully by discouraging violent responses to both legal and illegal arrests. Heslip v. Lobbs, 554 F. Supp. 694 (E.D. Ark. 1982).

Defenses.

This section does not deprive one of the defense of justification if a law enforcement officer uses excessive force in making an arrest; one may use such force as he reasonably believes necessary to defend against any unlawful force he reasonably believes a law enforcement officer is about to inflict upon him. Carter v. State, 9 Ark. App. 206, 657 S.W.2d 213 (1983).

The defense of justification will fail if interposed in a case involving resistance to a lawful or unlawful arrest, whether or not under warrant, so long as the person resisting knew or should have known the arrest was by a law enforcement officer or a person acting under his direction. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

Instructions.

Where the jury could have found from the evidence that the defendant knew or reasonably should have known, that the man was a law enforcement officer, it was proper to instruct the jury that the defendant did not have the right to use force to resist arrest by a person who was known, or reasonably appeared, to be a law enforcement officer. Barnes v. State, 4 Ark. App. 84, 628 S.W.2d 334 (1982).

Refusal to give requested instruction for a charge under § 5-54-104, where there was evidence from which the jury might have found that the defendant reasonably believed the law enforcement officers were using, or about to use, excessive physical force upon a friend of his who lay handcuffed and bleeding on the ground, was ground for reversal. Lucas v. State, 5 Ark. App. 168, 634 S.W.2d 145 (1982).

Remedies for Arrestee.

While this section prohibits an arrestee from resorting to self-help remedies, such as resisting or fleeing an arresting officer, it does not foreclose legal remedies. Heslip v. Lobbs, 554 F. Supp. 694 (E.D. Ark. 1982).

5-2-613. Use of physical force to prevent escape from correctional facility or custody of correctional officer.

  1. Unless the correctional officer knows or reasonably should know that a prisoner is charged with or has been convicted of only a misdemeanor, a correctional officer employed by the Division of Correction or by a private contractor in a correctional facility housing inmates for the division or a city or county correctional officer employed in a correctional facility or jail is justified in using deadly physical force when and to the extent that the correctional officer reasonably believes the use of deadly physical force is necessary to prevent the escape of a prisoner from:
    1. A correctional facility; or
    2. Custody of a correctional officer outside a correctional facility for any purpose.
  2. If the correctional officer knows or reasonably should know that a prisoner is charged with or has been convicted of only a misdemeanor, only nondeadly physical force may be used.

History. Acts 1975, No. 280, § 513; A.S.A. 1947, § 41-513; Acts 1997, No. 525, § 1; 2019, No. 910, § 646.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a).

Cross References. Authority of Department of Correction officers and guards, § 12-29-115.

5-2-614. Use of reckless or negligent force.

  1. When a person believes that the use of physical force is necessary for any purpose justifying that use of physical force under this subchapter but the person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the justification afforded by this subchapter is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish a culpable mental state.
  2. When a person is justified under this subchapter in using physical force but he or she recklessly or negligently injures or creates a substantial risk of injury to a third party, the justification afforded by this subchapter is unavailable in a prosecution for the recklessness or negligence toward the third party.

History. Acts 1975, No. 280, § 514; A.S.A. 1947, § 41-514.

Case Notes

Administration of Force.

Where defendant acted too hastily and without due care in killing one whom he thought was about to assault him, he was guilty of manslaughter, and not justifiable or excusable homicide. Bruder v. State, 110 Ark. 402, 161 S.W. 1067 (1913) (decision under prior law).

One who slew another under the honest belief that his life or limb was in imminent peril and committed the act to prevent the apprehended danger was in the exercise of a lawful act, but unless he acted with due caution and circumspection, he was guilty of manslaughter. Deatherage v. State, 194 Ark. 513, 108 S.W.2d 904 (1937) (decision under prior law).

The actor must have a “reasonable belief” that the situation necessitates the defensive force employed; in addition, the defense in available only to one who acts reasonably in administering such force. Kendrick v. State, 6 Ark. App. 427, 644 S.W.2d 297 (1982).

Instructions.

It was proper for court to give instruction which was practically in language of former section which precluded bare fear of offenses from justifying a homicide. Lamb v. State, 218 Ark. 602, 238 S.W.2d 99 (1951) (decision under prior law).

Instruction based on § 5-2-607 rather than defendant's proffered instruction based on this section held proper. Kendrick v. State, 6 Ark. App. 427, 644 S.W.2d 297 (1982).

Where proffered instruction omitted the phrase “is necessary for any of the purposes justifying that use of force under this subchapter,” which appears in subsection (a), such instruction did not correctly state the law, the trial court did not err in refusing to give it. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 334 (1996).

Based upon the evidence presented at trial, there was no rational basis for the “imperfect self-defense” instruction where defendant left the residence, armed himself with a gun, returned to the residence, and opened fire upon entering the front door; therefore, defendant could not rationally argue that he recklessly or negligently formed the belief that the use of deadly force was necessary to protect himself. Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002).

While §§ 5-2-606 and 5-2-607 stated that the defendant was justified in using force or deadly force only if he reasonably believed that the situation necessitated the defensive force employed, both first-degree and second-degree assault were committed if defendant acted recklessly, under §§ 5-13-205 and 5-13-206, and this section provided that justification was not available as a defense to an offense for which recklessness suffices to establish culpability; therefore, defendant was not entitled to self-defense or justification instructions with regard to his charges for first and second-degree assault. Merritt v. State, 82 Ark. App. 351, 107 S.W.3d 894 (2003).

There was no abuse of discretion in a trial court's refusal of defendant's proffered imperfect self-defense jury instruction because there was no rational basis for the instruction where the only basis for the instruction was defendant's self-serving statements or testimony, contradicted by other witnesses. Norris v. State, 2010 Ark. 174, 368 S.W.3d 52 (2010), rehearing denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 292 (May 20, 2010).

Circuit properly refused to give an instruction based on imperfect self-defense where there was no evidence that the victim appeared to be armed or that he had made any threats to indicate that he was armed, and defendant denied that the victim had threatened him with bodily harm. Schnarr v. State, 2017 Ark. 10 (2017).

Circuit court properly denied appellant's petition for postconviction relief because trial counsel was not ineffective for failing to request a non-model jury instruction on imperfect self-defense pursuant to this section. Nelson v. State, 2018 Ark. App. 583, 566 S.W.3d 530 (2018).

Reasonable Belief.

It must have appeared that the circumstances were sufficient to have excited the fears of a reasonably prudent person; a bare fear that deceased would commit the act, to prevent which the homicide was committed, was not sufficient. Plumley v. State, 116 Ark. 17, 171 S.W. 925 (1914) (decision under prior law).

Where the defendant fired the fatal shot under the belief that it was necessary in order to protect himself from great harm, and he fired the shot for that purpose, he should be acquitted, although the jury believed that the accused was mistaken in his conclusion as to the danger to himself. Biddle v. State, 131 Ark. 537, 199 S.W. 913 (1917) (decision under prior law).

Instruction regarding fear sufficient to justify killing was not improper nor in conflict with instruction on self-defense. Young v. State, 206 Ark. 19, 176 S.W.2d 151 (1943) (decision under prior law).

In murder prosecution, trial court did not err in refusing to give requested jury instruction that the degree of force used in self-defense is presumed reasonable when a person is in his own home and, instead, submitting to the jury AMCI 4105 concerning reasonable belief. Jewell v. State, 38 Ark. App. 254, 832 S.W.2d 856 (1992).

In a trial for manslaughter under § 5-10-104, the circuit court erred when it did not instruct the jury on justification because, under this section, if defendant was reckless or negligent in forming the belief that force was necessary, then, and only then, was the defense unavailable; however, if defendant was not reckless or negligent in forming his belief, the defense was available, and that was a decision for the jury. Schnarr v. State, 2018 Ark. 333, 561 S.W.3d 308 (2018).

Denial of the justification is not triggered until culpability is determined. Prohibiting a justification defense because the charged offense involves recklessness would be premature as it is for the jury to determine culpability. Schnarr v. State, 2018 Ark. 333, 561 S.W.3d 308 (2018).

Plain language of this section provides that once the jury determines whether a defendant has been reckless or negligent in forming the belief that force is necessary, then the applicability of the justification defense is determined. Schnarr v. State, 2018 Ark. 333, 561 S.W.3d 308 (2018).

Justification is not an affirmative defense that must be pleaded but becomes a defense when any evidence tending to support its existence is offered to support it; a justification, such as self-defense, is considered an element of the offense under § 5-1-102(5)(C), and once raised, it must be disproved by the prosecution beyond a reasonable doubt. Schnarr v. State, 2018 Ark. 333, 561 S.W.3d 308 (2018).

5-2-615. Use of physical force by a pregnant woman in defense of her unborn child.

  1. As used in this section:
    1. “Pregnant” means the female reproductive condition of having an unborn child in the female's body; and
    2. “Unborn child” means the offspring of human beings from conception until birth.
  2. A pregnant woman is justified in using physical force or deadly physical force against another person to protect her unborn child if, under the circumstances as the pregnant woman reasonably believes them to be, she would be justified under § 5-2-606 or § 5-2-607 in using physical force or deadly physical force to protect herself against the unlawful physical force or unlawful deadly physical force she reasonably believes to be threatening her unborn child.
  3. The justification for using physical force or deadly physical force against another person to protect a pregnant woman's unborn child is not available if:
    1. The use of the physical force or deadly physical force for protection was used by a person other than the pregnant woman; or
      1. The use of the deadly physical force for protection would not be allowed under § 5-2-607(b).
      2. However, the pregnant woman is not obligated to retreat or surrender possession of property as described in § 5-2-607(b) unless the pregnant woman knows she can avoid the necessity of using deadly physical force and simultaneously ensure the complete safety of her unborn child.

History. Acts 2013, No. 156, § 3.

A.C.R.C. Notes. Acts 2013, No. 156, § 1, provided: Findings.

“The General Assembly finds that:

“(1) Violence and abuse are often higher during pregnancy than during any other period in a woman's lifetime;

“(2) Women are more likely to suffer increased abuse as a result of unintended pregnancies;

“(3) Younger women are at a higher risk for pregnancy-associated homicide;

“(4) A pregnant woman is more likely to be a victim of homicide than to die of any other cause;

“(5) Homicide and other violent crimes are the leading causes of death for women of reproductive age;

“(6) Husbands, ex-husbands, or boyfriends are often the perpetrators of pregnancy-associated homicide or violence;

“(7) Moreover, when husbands, ex-husbands, or boyfriends are involved, the violence is often directed at the unborn child or intended to end or jeopardize the pregnancy;

“(8) Violence against a pregnant woman puts the life and bodily integrity of both the pregnant woman and the unborn child at risk;

“(9) According to the Centers for Disease Control and Prevention, every year in the United States more than three hundred thousand (300,000) pregnant women experience some kind of violence involving an intimate partner;

“(10) The Centers for Disease Control and Prevention define domestic violence during pregnancy as ‘physical, sexual, or psychological/emotional violence or threats of physical or sexual violence that are inflicted on a pregnant woman’; and

“(11) In a household survey cited in ‘Battering and Pregnancy’ (Midwifery Today 19:1998), it was found that pregnant women are sixty and six tenths percent (60.6%) more likely to be beaten than women who are not pregnant.”

Acts 2013, No. 156, § 2, provided: Legislative intent.

“By passing this act, the General Assembly intends to:

“(1) Ensure that the affirmative right of a pregnant woman to carry her child to term is protected;

“(2) Ensure that defenses to criminal liability provide for a pregnant woman's right to use physical force including deadly force to protect her unborn child; and

“(3) Supplement, but not supersede, the applicability of any other defenses to criminal liability currently provided in the Arkansas Code.”

5-2-616 — 5-2-619. [Reserved.]

  1. The right of an individual to defend himself or herself and the life of a person or property in the individual's home against harm, injury, or loss by a person unlawfully entering or attempting to enter or intrude into the home is reaffirmed as a fundamental right to be preserved and promoted as a public policy in this state.
  2. There is a legal presumption that any force or means used to accomplish a purpose described in subsection (a) of this section was exercised in a lawful and necessary manner, unless the presumption is overcome by clear and convincing evidence to the contrary.
  3. The public policy stated in subsection (a) of this section shall be strictly complied with by the court and an appropriate instruction of this public policy shall be given to a jury sitting in trial of criminal charges brought in connection with this public policy.

History. Acts 1981, No. 880, § 1; A.S.A. 1947, § 41-507.1.

A.C.R.C. Notes. The effect of the presumption in subsection (b) of this section in a criminal case is questionable due to the requirements in § 5-1-111(c) that the prosecution rebut a defense by proof beyond a reasonable doubt. See Clark v. State, 15 Ark. App. 393, 695 S.W.2d 396 (1985).

Case Notes

Burden of Proof.

State's obligation to prove the elements of aggravated assault beyond a reasonable doubt subsumed the lesser burden of proof to overcome the presumption of legality in the defense of one's home. Montalvo v. State, 2012 Ark. App. 119 (2012).

Instructions.

The trial court did not err in refusing to instruct the jury upon this section where the jury was instructed pursuant to AMCI 4105. Clark v. State, 15 Ark. App. 393, 695 S.W.2d 396 (1985); Jewell v. State, 38 Ark. App. 254, 832 S.W.2d 856 (1992).

Trial court did not err in instructing the jury that “reasonably believes” or “reasonable belief” means the belief that an ordinary, prudent man would form under the circumstances in question and not one recklessly or negligently formed, pursuant to AMCI 4105; the court rejected defendant's argument that this definition would allow the jury to find defendant guilty, even if it believed facts that would require a finding of not guilty, since a finding that defendant acted negligently or recklessly would not support a conviction for first degree or second degree murder or manslaughter. Jewell v. State, 38 Ark. App. 254, 832 S.W.2d 856 (1992).

In a case in which the jury was instructed on justification and the use of deadly force in defense of a person under Ark. Model Jury Instruction Crim. § 705 (2d ed.) that reflected the language of § 5-2-607 and defendant was convicted by a jury of second-degree murder and was sentenced to prison under the enhancement provision for a total of 540 months, defendant argued unsuccessfully that the circuit court erred by refusing the jury instruction he proffered on self-defense, a non-model jury instruction reflecting the language of this section. There was no merit to his argument that mere technical changes to this section and the legislature's reaffirmation of the statute's public policy somehow translated into legislative intent that juries in criminal cases be instructed as to an individual's right to defend himself or herself against a person intruding into his or her home. Hutchinson v. State, 2010 Ark. App. 235 (2010).

Nature of Right.

This section gives one the right to defend himself and others and his property against unlawful intrusion, but not the right to be an aggressor. Carter v. State, 9 Ark. App. 206, 657 S.W.2d 213 (1983).

As far as this section may implicate the basic right to defend without retreat, a person may exercise that right “in his home” and that is consistent with § 5-2-607(b)(1) and AMCI 4105. Hopes v. State, 294 Ark. 319, 742 S.W.2d 561 (1988).

Unprovoked Attack.

Evidence was sufficient to find that the defendant's unprovoked physical attack was unlawful. Carter v. State, 9 Ark. App. 206, 657 S.W.2d 213 (1983).

Preponderance of the evidence supported the district court's finding that defendant's use of deadly physical force under § 5-2-601(2) and (6)(B), which occurred when he pointed a loaded pistol at an undercover officer, was not justified or in self defense, and thus, he was guilty of the felony of aggravated assault under Arkansas law, and the four-level enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5), now (b)(6), was properly imposed because (1) defendant did not act in self-defense within the meaning of § 5-13-204(c)(2) as he used deadly force against men who had obeyed his command to leave his property and who were loitering on the public sidewalk in front of his house as there was no evidence they were imminently endangering defendant's life under § 5-2-607(a); (2) under § 5-2-607(b)(1), defendant could not use deadly force after he had retreated safely to his house and returned later, unprovoked, to threaten the men; (3) defendant's conduct was not justified as permissible defense of his property within the purview of § 5-2-608 because use of deadly physical force was not authorized by § 5-2-607, and he had no reason to believe that the men who had quietly obeyed a command to leave his property would come back to commit arson or burglary; and (4) defendant's conduct was not justified to defend his home under this section because the men defendant assaulted were not attempting to enter his home, so the statute did not apply. United States v. Raglin, 500 F.3d 675 (8th Cir. 2007).

Cited: Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983).

5-2-621. [Transferred.]

Publisher's Notes. Former § 5-2-621 was renumbered as § 16-120-303 in 2016 by the Arkansas Code Revision Commission.

5-2-622. Gambling debts and losses.

It is no defense to a prosecution for a crime of violence that a person was seeking recovery or replevin of a gambling debt or loss in circumstances in which civil recovery is permitted by § 16-118-103.

History. Acts 2009, No. 460, § 1.

A.C.R.C. Notes. Acts 2009, No. 460, § 3, provided: “It is the intent of this Act to overrule Daniels v. State, 373 Ark. 536, ___ S.W.3d ___ (2008), and its interpretation of § 16-118-103(a)(1). That case and its interpretation of replevin and the holding in Davidson v. State, 200 Ark. 495, 139 S.W.2d 409 (1940), are contrary to the public policy of this State.”

5-2-325. [Repealed.]

5-2-620. Use of force to defend persons and property within home.

Chapter 3 Inchoate Offenses

Research References

Am. Jur. 21 Am. Jur. 2d, Crim. L., § 174 et seq.

C.J.S. 21 C.J.S., Crim. L., § 114 et seq., § 126 et seq.

Subchapter 1 — General Provisions

Publisher's Notes. For Comments regarding the Criminal Code, see Commentaries Volume B.

5-3-101. Mitigation — Affirmative defense.

It is an affirmative defense to a prosecution for criminal attempt, solicitation, or conspiracy that:

  1. The conduct charged to constitute the offense is inherently unlikely to result or to culminate in the commission of a crime; and
  2. Neither the conduct nor the defendant presents a public danger warranting imposition of criminal liability.

History. Acts 1975, No. 280, § 715; A.S.A. 1947, § 41-715.

Research References

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

Case Notes

Conduct Unlikely to Result in Crime.

The plan or plans discussed by which a crime could be committed certainly cannot be characterized as conduct inherently unlikely to result or to culminate in the commission of a crime. Chronister v. State, 265 Ark. 437, 580 S.W.2d 676 (1979).

5-3-102. Multiple convictions barred.

A person may not be convicted of more than one (1) offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same offense.

History. Acts 1975, No. 280, § 716; A.S.A. 1947, § 41-716.

5-3-103. Solicitation and conspiracy — Defenses and claims that are not defenses.

  1. It is a defense to a prosecution for solicitation or conspiracy to commit an offense that:
    1. The defendant is a victim of the offense; or
    2. The offense is defined so that the defendant's conduct is inevitably incident to the commission of the offense.
  2. It is not a defense to a prosecution for conspiracy or solicitation to commit an offense that:
    1. The defendant or the person whom the defendant solicits or with whom the defendant conspires does not occupy a particular position or have a particular characteristic that is an element of that offense, if the defendant believes that one (1) of the persons does;
    2. The person whom the defendant solicits or with whom the defendant conspires is irresponsible or is immune to prosecution or conviction for the commission of the offense or has feigned agreement;
    3. The person whom the defendant solicits or with whom the defendant conspires has not been charged with, prosecuted for, convicted of, or has been acquitted of an offense based upon the conduct alleged or has been convicted of a different offense or degree of offense, even if the defendant and the person whom the defendant solicits or with whom the defendant conspires were tried jointly;
    4. The person whom the defendant solicits or with whom the defendant conspires could not be guilty of committing that offense because that person is unaware of the criminal nature of the conduct in question or of the defendant's criminal purpose; or
    5. The offense charged, as defined, can be committed only by a particular class of persons, and the defendant, not belonging to that particular class of persons, is for that reason legally incapable of committing the offense in an individual capacity unless imposing liability on the defendant is inconsistent with the purpose of the provision establishing the defendant's incapacity.

History. Acts 1975, No. 280, § 713; A.S.A. 1947, § 41-713; Acts 1995, No. 1294, § 2.

A.C.R.C. Notes. Acts 1995, No. 1294, § 3, provided:

“By these amendments the General Assembly of the State of Arkansas legislatively overrules Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987).”

Research References

U. Ark. Little Rock L.J.

Survey — Criminal Law, 11 U. Ark. Little Rock L.J. 175.

Case Notes

Defense to Prosecution.

It is not a defense to a prosecution for conspiracy to commit an offense that the person with whom the defendant is alleged to have conspired has not been charged, prosecuted, convicted, or has been acquitted of an offense based upon the conduct alleged. Shamlin v. State, 19 Ark. App. 165, 718 S.W.2d 462 (1986); Shamlin v. State, 23 Ark. App. 39, 743 S.W.2d 1 (1988), rehearing denied, 23 Ark. App. 39, 744 S.W.2d 405 (1988), cert. denied, Shamlin v. Arkansas, 488 U.S. 863, 109 S. Ct. 163 (1988).

It is no defense that co-conspirators have been either acquitted or convicted of a different offense as the rationale allowing for inconsistent verdicts in conspiracy cases where the conspirators are separately tried does not pertain in the case of joint trials; unlike where separate trials are involved, in a joint trial the state tries the co-conspirator by use of the same proof bearing on the same charges and offered before the same court or jury. Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987).

Evidence.

Evidence held sufficient to support conviction. Guinn v. State, 23 Ark. App. 5, 740 S.W.2d 148 (1987).

Cited: Chronister v. State, 265 Ark. 437, 580 S.W.2d 676 (1979).

Subchapter 2 — Criminal Attempt

Publisher's Notes. For Comments regarding the Criminal Code, see Commentaries Volume B.

Research References

ALR.

Impossibility of consummation as defense to prosecution for attempt. 41 A.L.R.4th 588.

U. Ark. Little Rock L.J.

Survey of Arkansas Law: Criminal Law, 4 U. Ark. Little Rock L.J. 189.

5-3-201. Conduct constituting attempt.

  1. A person attempts to commit an offense if he or she purposely engages in conduct that:
    1. Would constitute an offense if the attendant circumstances were as the person believes them to be; or
    2. Constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as the person believes them to be.
  2. When causing a particular result is an element of the offense, a person commits the offense of criminal attempt if, acting with the kind of culpable mental state otherwise required for the commission of the offense, the person purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause the particular result.
  3. Conduct is not a substantial step under this section unless the conduct is strongly corroborative of the person's criminal purpose.

History. Acts 1975, No. 280, § 701; A.S.A. 1947, § 41-701.

Research References

Ark. L. Rev.

Case Note, Criminal Liability for Attempting to Inflict the AIDS Virus: Possibilities in Arkansas' Future, 45 Ark. L. Rev. 505.

U. Ark. Little Rock L.J.

Survey — Criminal Law, 10 U. Ark. Little Rock L.J. 137.

Case Notes

Applicability.

This section states that a person commits the criminal act of attempt when his conduct constitutes a substantial step intended to result in the commission of an offense; it does not exclude any crimes from its application, nor does it list any crimes to which it applies. Mitchell v. State, 290 Ark. 87, 717 S.W.2d 195 (1986).

Appeal.

Defendant's motion for acquittal on the attempted rape charge addressed the “substantial step” element of the crime and was therefore specific enough to preserve the issue on appeal. Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994).

Attempted Aggravated Robbery.

Jury instruction on the lesser-included offense of attempted aggravated robbery was not warranted because there was no evidence of the offense of attempt under subdivision (a)(2) of this section; when appellant stormed out of a retail store's stockroom brandishing a gun and pointing it employees, he actually completed the offense of aggravated robbery. Thomas v. State, 2012 Ark. App. 466, 422 S.W.3d 217 (2012).

Attempted Battery.

Attempted battery is a crime under this section. Mitchell v. State, 290 Ark. 87, 717 S.W.2d 195 (1986).

The fact that the victim was injured, but not seriously, did not preclude a charge of attempted first degree battery, even though the defendant's conduct also fit the definition of battery in the third degree. Mitchell v. State, 290 Ark. 87, 717 S.W.2d 195 (1986).

Where the defendant intended to kill or seriously injure the victim, and the defendant took a substantial step to carry out his purpose, and only because of the misfire was such a misfortune avoided, the evidence supported the charge of attempted battery in the first degree. Mitchell v. State, 290 Ark. 87, 717 S.W.2d 195 (1986).

Attempted Burglary.

Although the defendant was convicted of attempted burglary, it was nevertheless necessary to prove that he attempted to enter an occupiable structure with the purpose of committing therein an offense punishable by imprisonment. Cristee v. State, 25 Ark. App. 303, 757 S.W.2d 565 (1988).

Evidence sufficient to find appellant guilty of attempted breaking or entering. Powell v. State, 33 Ark. App. 1, 799 S.W.2d 566 (1990).

Where there was evidence that defendant made an attempt to enter a building by the use of a key, and that he had no permission to make such an entry, the evidence was sufficient to support the finding that defendant took a substantial step toward committing the offense of burglary. Ward v. State, 35 Ark. App. 148, 816 S.W.2d 173 (1991).

Where defendant attempted to enter a building at 3:00 a.m., which was closed to the public, and as there was no reasonable basis for the attempted illegal entry other than for the purpose of committing a theft therein, the evidence was sufficient to support that conviction. Ward v. State, 35 Ark. App. 148, 816 S.W.2d 173 (1991).

Evidence of breaking into a house is not evidence of intent to commit a crime therein. Tiller v. State, 42 Ark. App. 64, 854 S.W.2d 730 (1993).

Circuit court erred in convicting defendant of attempted residential burglary; even though he was caught unlawfully entering his girlfriend's former residence while holding a small bag and fled when her daughter yelled at him, there was no evidence that he did so with the purpose or specific intent of committing therein a theft of property. There was no evidence to show whether the bag was empty or contained something, defendant was not a complete stranger to the daughter or to the residence, the illegal entry was in the middle of the day, and the window was known to not close properly. Whitworth v. State, 2017 Ark. App. 462, 531 S.W.3d 407 (2017).

Attempted Capital Murder.

Evidence was sufficient to uphold conviction for attempted capital murder. Holbird v. State, 301 Ark. 382, 784 S.W.2d 171 (1990).

Under this section and § 5-10-101, premeditation and deliberation constitute the necessary mental state for the commission of attempted capital murder. Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990).

The trial court did not err in allowing the state to amend the information charging “attempt to commit capital felony murder” by allowing the deletion of the word “felony,” after the state had rested its case in chief, and after the defendant's motion to dismiss, because allowing the state to strike the word “felony” from each information did not cause any real change in the nature or degree of the charges against the defendant. Ledguies v. State, 46 Ark. App. 144, 877 S.W.2d 946 (1994).

Where evidence showed that there was a history of domestic abuse and threats, that defendant had a knife, a pair of handcuffs, duct tape, a leatherman-type tool, and gloves when he was arrested, and that defendant told the unavailable officer that defendant intended to tie the victim up and kill her, the state had no direct evidence of defendant's intent to commit murder without the improperly admitted testimony of the unavailable officer. Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002).

Evidence was sufficient to sustain a conviction for attempted capital murder where there was substantial evidence that defendant was not merely engaged in the “act of driving”; the victim, a police officer, testified that the driver attempted to run him over, he observed a flash from the passenger side window, he realized that he had heard a gunshot, and an officer identified defendant as the driver of the vehicle. Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004).

Trial court did not err in denying defendant's motion to supress certain statements she made during questioning regarding her missing child; although defendant claimed that she had done the best she could to convey to the officer that she was concerned about continuing to talk to him without a lawyer present, when the officer asked defendant whether she was asking for a lawyer, she did not answer that question but continued answering other questions and did not mention a lawyer again during the interview. Gilbert v. State, 88 Ark. App. 296, 198 S.W.3d 561 (2004).

Even if defendant's sufficiency of the evidence argument been preserved, the appellate court would have found that the evidence supporting the verdict of guilty of attempted first-degree murder and filing a false report was substantial where defendant reported her child as missing but later told police where they could find him. Gilbert v. State, 88 Ark. App. 296, 198 S.W.3d 561 (2004).

Evidence was sufficient to convict defendant of criminal attempt to commit capital murder where (1) while searching for a suspect, the trooper stopped in the middle of a street and observed a vehicle 30-40 yards away; (2) the vehicle began moving towards the trooper with its headlights on; (3) the trooper then observed a flash from the passenger-side window and heard a pop, which he thought was a gunshot; (4) the trooper believed that he was shot at because he was the only person on the street at 1:30 a.m.; (5) the vehicle was later stopped and a spent shell casing that was found inside the vehicle on the passenger side matched a weapon that was found about a block and a half away from where the vehicle ultimately stopped; and (6) witnesses testified that defendant and the driver had just left the home of the suspect's aunt, whom the trooper had been previously chasing. Simmons v. State, 89 Ark. App. 34, 199 S.W.3d 711 (2004).

Aggravated robbery is not a lesser included offense of attempted capital murder because, while an aggravated-robbery charge shares the intent to rob with attempted capital murder, aggravated robbery also requires one of three other elements. Two of those elements, being armed with a deadly weapon, or representing as such, are unique to aggravated robbery, and the third possible element of aggravated robbery is having inflicted or attempted to inflict death or serious physical injury upon another, which is not equivalent to the element in attempted capital murder that a defendant, in the course of or in flight from such robbery, caused the death of a person under circumstances manifesting extreme indifference to the value of human life. Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008).

Prohibition against double jeopardy was not violated when defendant was convicted of aggravated robbery and attempted capital murder because the robbery was the underlying felony, and aggravated robbery was not the lesser-included offense of attempted capital murder. Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008).

Defendant's conviction for attempted capital murder, in violation of § 5-10-101(a)(4) and subdivision (a)(2) of this section, was supported by the evidence because the victim, defendant's wife, testified that he came into the garage demanding to talk to her, shot her, and commented that she should die; defendant's coworker testified that defendant stated that he was going to shoot his wife if she had any divorce papers. Johnson v. State, 375 Ark. 462, 291 S.W.3d 581 (2009), cert. denied, Johnson v. Arkansas, 558 U.S. 847, 130 S. Ct. 118, 175 L. Ed. 2d 77 (2009).

Where defendant picked his ex-wife up from work, drove her to a bridge, stabbed her, threw her to the ground, and pushed her into the water, the evidence was sufficient to support his conviction for attempted first-degree murder in violation of § 5-10-102(a)(2) and subdivision (a)(2) of this section. When defendant learned the police had been called, he threw the victim a rope and told her to get herself out the water. Jones v. State, 2009 Ark. App. 135 (2009).

In a case in which defendant was found guilty on three counts of attempted first-degree murder, of being a felon in possession of a firearm, and three counts of committing a terroristic act, he unsuccessfully argued that substantial evidence did not support his convictions; while the evidence was circumstantial, substantial evidence supported the conclusion that defendant committed the crimes in question. Moments after the shooting, a dark-colored car was observed speeding away from the area without its lights on even though it was dark outside, that car crashed into another vehicle five blocks from the shooting, a witness positively identified defendant as the person who emerged from the driver's side of the car carrying a long rifle, shell casings from a rifle were recovered from the scene of the shooting, defendant's DNA was found on the driver's side airbag of the car, and the car contained a letter addressed to defendant. Smith v. State, 2010 Ark. App. 216 (2010).

Evidence was sufficient to sustain defendant's attempted capital murder convictions because, after shooting the officer in the shoulder, defendant fired five additional shots at the fleeing officers; the officer's pat-down of defendant showed that he was unarmed, but he had the wherewithal to run into the apartment and retrieve his gun. Inthisone v. State, 2013 Ark. App. 482 (2013).

Even assuming the witness was an accomplice, there was independent evidence tending to connect defendant with attempted capital murder, unlawful discharge of a firearm from a vehicle, and fleeing, as his letters and call to the witness were consistent with testimony that defendant was the shooter, and the jury could have found that defendant's alleged actions in firing the assault rifle at the officer and telling the driver to go aided and encouraged the driver in fleeing from the officer. Farmer v. State, 2019 Ark. App. 331 (2019).

Attempted Kidnapping.

The crime of attempted kidnapping is encompassed in this section and § 5-11-102. Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993).

Where the evidence displayed defendant's impulse to kidnap the victim and additional impulses to batter and threaten to kill her when she resisted the kidnapping, convictions for the separate offenses of first degree terroristic threatening (§ 5-13-301), second degree battery (§ 5-13-202), and attempted kidnapping were upheld because defendant's criminal acts were not all part of the attempted kidnapping and were not a continuing course of conduct. Hagen v. State, 318 Ark. 139, 883 S.W.2d 832 (1994).

Although defendant had a knife, a pair of handcuffs, duct tape, a leatherman-type tool, and gloves when he was arrested, the circumstantial evidence of defendant's intent to restrain the victim's liberty for the purpose of terrorizing or harming the victim was not overwhelming and defendant's conviction for attempted kidnapping, pursuant to § 5-11-102(a) and subdivision (a)(2) of this section, was reversed. Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002).

Attempted Murder.

Evidence was sufficient to sustain defendant's conviction for attempted first-degree murder under subdivision (a)(2) of this section and § 5-10-102(a)(1) as the evidence demonstrated that defendant, in the process of fleeing a store that he had just robbed at gunpoint, shot at a police officer two times. A jury could reasonably conclude that the act of shooting at someone was a substantial step toward causing that person's death. Lambert v. State, 2011 Ark. App. 258 (2011).

Defendant's convictions for first-degree murder and aggravated robbery, in violation of this § 5-10-102(a), this section, and § 5-12-103(a), were supported by sufficient evidence, as the evidence showed that defendant was armed with a deadly weapon for the purpose of committing the theft of a cab driver, that defendant threatened the driver, and that the driver was shot in the struggle over the gun. Garr v. State, 2011 Ark. App. 509 (2011).

Evidence was sufficient to sustain defendant's attempted first-degree murder conviction because defendant knocked on a door and fired a gun at the victim when he opened the door. The jury could reasonably have inferred that defendant purposely engaged in conduct that constituted a substantial step in a course of conduct known to cause death to another person, regardless of that person's identity. Wells v. State, 2012 Ark. App. 596, 424 S.W.3d 378 (2012).

There was sufficient evidence to convict defendant of attempted capital murder, where the evidence showed defendant threatened to kill the victim and made the conscious decision to attack him with a semiautomatic gun, but the weapon jammed when defendant pointed it at the victim in order to shoot and kill him, and the victim escaped before defendant could attempt to fire again. Hill v. State, 2015 Ark. App. 700, 478 S.W.3d 225 (2015).

Attempted Possession of Controlled Substance.

Evidence was sufficient to support a conviction for criminal attempt to possess crack cocaine where (1) the defendant approached an undercover officer posing as a street-level crack cocaine dealer and asked for a “thirty,” (2) the defendant was thereafter arrested and found to have $30 in his possession, and (3) the officer testified that, based on his experience in the area, the term “thirty” meant $30 of crack cocaine. Barnett v. State, 68 Ark. App. 38, 3 S.W.3d 344 (1999).

Attempted Rape.

A person attempts the offense of rape if he purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of rape whether or not the attendant circumstances are as he believes them to be. Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988).

Where defendant had taken sexual liberties with his twelve-year-old daughter, even though he had not forced intercourse or prevented her from leaving the bedroom, the evidence of criminal attempt to rape was sufficient. Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994).

Attempted removal of the victim's clothing is not essential to a finding of attempted rape; defendant's words and actions constituted substantial evidence that he intended to rape the victim and that he took a substantial step towards raping her. Hagen v. State, 47 Ark. App. 137, 886 S.W.2d 889 (1994).

There was sufficient evidence to convict defendant of attempted rape against an 11-year old fictional girl, who was a product of an internet email sting operation by police, because there was no defense of impossibility to attempt crimes, pursuant to subsection § 5-3-201(a)(2) of this section, and the fact that defendant drove from his home state to the alleged home state of the girl with sexual accessories and photographic equipment represented a substantial step towards completing the commission of the crime, pursuant to § 5-14-103(a)(1)(C)(i). Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003).

District court properly denied a habeas petition alleging violation of due process where substantial evidence supported attempted rape as the underlying felony for capital felony murder; review of the historical facts showed that the inmate unbuckled the victim's belt, unzipped her jeans, and removed her shirt and socks, and the inmate was seen by other witnesses in a state of partial undress. Nance v. Norris, 392 F.3d 284 (8th Cir. 2004), rehearing denied, — F.3d —, 2005 U.S. App. LEXIS 3898 (8th Cir. Mar. 8, 2005), cert. denied, 126 S. Ct. 133, 163 L. Ed. 2d 136 (U.S. 2005).

Evidence was sufficient to sustain an attempted rape conviction where defendant initiated a call to the 13 year old victim, picked her up under false pretenses, isolated her in a motel room, told her that he and his girlfriend intended to engage in sexual intercourse with her, and he returned to the motel room with his girlfriend; those steps went beyond mere planning and preparation. Mitchem v. State, 96 Ark. App. 78, 238 S.W.3d 623 (2006).

Defendant's conviction for attempted rape of his 13-year-old stepdaughter, in violation of § 5-14-103(a)(3)(A) and subsection (b) of this section, was supported by the evidence because the victim testified that defendant, who wanted oral sex from her, thrust himself upon her while she was in the shower until her grandmother, who lived next door, appeared at the front door. Forrest v. State, 2010 Ark. App. 686 (2010).

Conviction for aggravated residential burglary was reversed because there was insufficient evidence that defendant attempted to inflict a serious physical injury under § 5-39-204(a)(2). Serious physical injury could be inflicted during a sexual assault, but under current Arkansas law, a sexual assault does not necessarily constitute a serious physical injury; even assuming that defendant did intend to sexually assault the victim, defendant's intention, combined with his grabbing her shoulder and causing a minor scratch to her baby's face, did not constitute a substantial step toward inflicting a serious physical injury, as defined by § 5-1-102. Inskeep v. State, 2016 Ark. App. 135, 484 S.W.3d 709 (2016).

Attempted Reckless Manslaughter.

Trial court did not err by failing to instruct on attempted reckless manslaughter as a lesser-included offense of attempted second-degree murder because the crime of attempted reckless manslaughter is inherently contradictory. The attempted offense involved an intentional act, and it would have been illogical to ask the jury to find that defendant intended to act recklessly or that he purposely engaged in conduct that was a substantial step in a course of conduct intended to culminate in acting recklessly. Even if the instruction was based on sound law, there was no rational basis for giving it in this case where defendant's actions in running over people were intentional, regardless of whether he intended to bring about the particular result of death. Allen v. State, 2015 Ark. App. 360, 465 S.W.3d 9 (2015).

Attempted Robbery.

Substantial evidence supported defendant's capital murder conviction under § 5-10-101, as there was sufficient evidence that defendant committed the underlying felony of attempted robbery under § 5-12-102 and this section; defendant approached the victim with a weapon, demanded his phone, and pointed the weapon at the victim at point-blank range. Hicks v. State, 2017 Ark. 262, 526 S.W.3d 831 (2017).

Attempted Sexual Assault.

Defendant was charged with second-degree sexual assault but convicted of the lesser-included offense of attempted second-degree sexual assault and his sufficiency argument was not preserved for review; defendant's directed-verdict motion, which the trial court denied, pertained to the completed offense of second-degree sexual assault, and not its attempt, and to the extent the “mens rea” argument was even preserved, the jury could assume that defendant's purposeful acts of touching the 16-year-old victim's vagina and attempting to lift her shirt, combined with the questions he was asking her, were attempts to have sexual contact with her for his sexual gratification. Perea v. State, 2019 Ark. App. 426, 586 S.W.3d 690 (2019).

Attempted Theft by Deception.

For the offense of attempted theft by deception, the issues are the defendant's state of mind and his belief as to what the facts are, not whether an item taken has actual value or whether the defendant actually deceived the victim. Wilson v. State, 56 Ark. App. 47, 939 S.W.2d 313 (1997).

Evidence of attempted theft by deception held sufficient. Wilson v. State, 56 Ark. App. 47, 939 S.W.2d 313 (1997).

Commission of the Principal Offense.

Although defendant was obliged to abort his robbery of a small store, the evidence of kidnapping, aggravated robbery, and attempted murder held sufficient. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995).

Conduct Intended to Culminate in Crime.

To warrant a conviction of attempt to commit offense it had to appear not only that defendant intended to commit the offense, but that he did some overt act toward accomplishment of his purpose. Priest v. State, 204 Ark. 490, 163 S.W.2d 159 (1942); Boyd v. State, 207 Ark. 830, 182 S.W.2d 937 (1944) (preceding decisions under prior law).

Evidence sufficient to show that defendant had taken a substantial step intended to culminate in the offense. White v. State, 266 Ark. 499, 585 S.W.2d 952 (1979); Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983).

Evidence held insufficient to support the conviction. White v. State, 266 Ark. 499, 585 S.W.2d 952 (1979); Mills v. State, 270 Ark. 141, 603 S.W.2d 416 (1980); Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).

Criminal Purpose.

Premeditation, deliberation, and intent may be inferred from the circumstances, such as the character of the weapon used, the manner in which it is used, the nature, extent and location of the wounds inflicted, the conduct of the accused, etc. Davis v. State, 115 Ark. 566, 173 S.W. 829 (1914); Nunley v. State, 223 Ark. 838, 270 S.W.2d 904 (1954); Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975) (preceding decisions under prior law); Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978).

The intent to commit a crime could be inferred from acts and circumstances of the incident, but it could not be implied as a matter of law. Ward v. State, 208 Ark. 602, 186 S.W.2d 950 (1945) (decision under prior law).

It was not essential that intent should have existed for any particular length of time before the crime, as it could be conceived in a moment. Nunley v. State, 223 Ark. 838, 270 S.W.2d 904 (1954) (decision under prior law); Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978).

Premeditation and deliberation held established. Clay v. State, 262 Ark. 285, 556 S.W.2d 137 (1977).

Premeditation and deliberation can be instantaneous. Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978).

Evidence held sufficient to show premeditation and deliberation supporting a conviction. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977); Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990).

Whether criminal intent may be reasonably inferred from the evidence is a question of fact to be determined by the trier of fact who resolves any conflicts in testimony and determines the credibility of the witnesses, and its conclusion on credibility is binding on the appellate court. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992).

Since intent cannot be proven by direct evidence (intent or purpose, being a state of mind, can seldom be positively known to others), the factfinder is allowed to draw upon his own common knowledge and experience, and the presumption that a person intends the natural and probable consequences of his acts, to infer intent from the circumstances. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992).

Evidence.

Uncorroborated testimony of the minor victims was sufficient evidence to support convictions of rape and attempted rape. Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987).

Identifications of defendant from two photographic spreads upheld. Jackson v. State, 318 Ark. 39, 883 S.W.2d 466 (1994).

Evidence held sufficient to support conviction. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001).

Sufficient evidence supported the conclusion that a defendant intended to kill a victim: a witness testified that the witness gave defendant a gun, other witnesses testified that defendant shot the victim with that gun, defendant's girlfriend testified that while waiting for defendant in a car, the girlfriend heard two or three shots, and then defendant ran to the car, and inconsistent witness statements regarding whether the shooting occurred inside or outside the victim's apartment were not relevant to the conviction; therefore, defendant's motion for a directed verdict was properly denied. Hawkins v. State, 2009 Ark. App. 675 (2009).

Denial of appellant's, an inmate's, petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1 was appropriate because the evidence demonstrated that he was not prejudiced by his trial counsel's failure to properly renew his motion for directed verdict at the close of all the evidence. While the inmate was unable to challenge the sufficiency of the evidence in his direct appeal, there was substantial evidence to support the verdicts, including the inmate himself admitting to hitting his wife's car from behind and then getting out of his truck and shooting her; the surviving victim testified that after falling in an attempt to run away from the scene, she looked up and saw the inmate over her smiling and holding a shotgun. Davis v. State, 2011 Ark. 493 (2011).

Instructions.

Where act of defendant constituted crime, the trial court properly refused to instruct the jury on attempt. Mallett v. State, 17 Ark. App. 29, 702 S.W.2d 814 (1986).

Lesser Included Offenses.

Sexual abuse in the first degree is a lesser included offense of attempted rape. Speer v. State, 18 Ark. App. 1, 708 S.W.2d 94 (1986).

Where defendant was charged under § 5-37-207 for fraudulent use of a credit card but he never obtained property as required by the section, the case was remanded for judgment of conviction to be entered for the lesser included offense of attempted fraudulent use of credit cards. Davidson v. State, 305 Ark. 592, 810 S.W.2d 327 (1991).

During defendant's trial for attempted murder, the court did not err in refusing to instruct the jury on the lesser-included offense of attempted extreme-emotional-disturbance manslaughter, in violation of § 5-10-104(a)(1)(A) and subsection (b) of this section, because defendant's self-serving testimony was the only evidence of provocation presented; the evidence corroborated the victim's testimony that defendant stabbed the victim with a knife. Townsell v. State, 2010 Ark. App. 754 (2010).

In a theft trial, it was not necessary to instruct the jury on the lesser-included offense of attempted theft because defendant clearly exercised unauthorized control over a store's property when he threw it over a fence into an area off the store's parking lot; it was not necessary that defendant also “take” the property to complete the crime. Cole v. State, 2013 Ark. App. 492 (2013).

Cited: McGee v. State, 262 Ark. 473, 557 S.W.2d 885 (1977); Barnum v. State, 268 Ark. 141, 594 S.W.2d 229 (1980); Glenn v. United States Dep't of Labor, Occupational Safety & Health Admin., 517 F. Supp. 362 (E.D. Ark. 1981); Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980); Glason v. State, 272 Ark. 28, 611 S.W.2d 752 (1981); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); Sutton v. State, 1 Ark. App. 58, 613 S.W.2d 399 (1981); Wilson v. State, 272 Ark. 361, 614 S.W.2d 663 (1981); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Fisk v. State, 5 Ark. App. 5, 631 S.W.2d 626 (1982); Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982); Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982); Moore v. State, 280 Ark. 222, 656 S.W.2d 698 (1983); James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983); Rowe v. Lockhart, 736 F.2d 457 (8th Cir. 1984); Avery v. State, 15 Ark. App. 134, 690 S.W.2d 732 (1985); Weddle v. State, 15 Ark. App. 402, 695 S.W.2d 840 (1985); Muck v. State, 292 Ark. 310, 730 S.W.2d 214 (1987); Thompson v. State, 27 Ark. App. 164, 768 S.W.2d 39 (1989); Pharo v. State, 30 Ark. App. 94, 783 S.W.2d 64 (1990); Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993); Watkins v. State, 320 Ark. 163, 895 S.W.2d 532 (1995).

5-3-202. Complicity.

  1. A person attempts to commit an offense if, with the purpose of aiding another person in the commission of the offense, the person engages in conduct that would establish his or her complicity under § 5-2-402 if the offense were committed by the other person.
  2. It is not a defense to a prosecution under this section that:
    1. The other person did not commit or attempt to commit an offense; or
    2. It was impossible for the actor to assist the other person in the commission of the offense if the actor could have assisted the other person had the attendant circumstances been as the actor believed them to be.

History. Acts 1975, No. 280, § 702; A.S.A. 1947, § 41-702.

5-3-203. Classification.

A criminal attempt is a:

  1. Class Y felony if the offense attempted is capital murder;
  2. Class A felony if the offense attempted is treason or a Class Y felony other than capital murder;
  3. Class B felony if the offense attempted is a Class A felony;
  4. Class C felony if the offense attempted is a Class B felony;
  5. Class D felony if the offense attempted is a Class C felony;
  6. Class A misdemeanor if the offense attempted is a Class D felony or an unclassified felony;
  7. Class B misdemeanor if the offense attempted is a Class A misdemeanor;
  8. Class C misdemeanor if the offense attempted is a Class B misdemeanor; or
  9. Violation if the offense attempted is a Class C misdemeanor or an unclassified misdemeanor.

History. Acts 1975, No. 280, § 703; 1981, No. 620, § 3; A.S.A. 1947, § 41-703; Acts 2005, No. 1888, § 1.

Cross References. Fines, § 5-4-201.

Term of imprisonment, § 5-4-401.

Research References

Ark. L. Rev.

Case Note, Criminal Liability for Attempting to Inflict the AIDS Virus: Possibilities in Arkansas' Future, 45 Ark. L. Rev. 505.

Case Notes

Conviction Set Aside.

Where defendant was convicted of both attempted capital murder, ostensibly the more serious crime, which was a Class A felony, and aggravated robbery, a Class Y felony, the trial court properly set aside the attempted capital murder conviction based on the classification of the crime, rather than whether it was a lesser included offense. Beard v. State, 306 Ark. 546, 816 S.W.2d 860 (1991).

Reasonable Cause to Arrest.

Denial of motion to suppress was not clearly against the preponderance of the evidence, because the inventory search of defendant's vehicle was proper upon defendant's lawful arrest, and it was standard police policy to inventory the contents of any vehicle before having it towed; at the time of defendant's arrest theft of property was a Class C felony if the value of the property was less than $2,500 but more than $500, and criminal attempt was a Class D felony if the offense attempted was a Class C felony. Boykin v. State, 2012 Ark. App. 274, 409 S.W.3d 321 (2012).

Cited: Glenn v. United States Dep't of Labor, Occupational Safety & Health Admin., 517 F. Supp. 362 (E.D. Ark. 1981); Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982); Rowe v. Lockhart, 736 F.2d 457 (8th Cir. 1984); Bell v. Lockhart, 741 F.2d 1105 (8th Cir. 1984); Powell v. State, 33 Ark. App. 1, 799 S.W.2d 566 (1990); Davidson v. State, 305 Ark. 592, 810 S.W.2d 327 (1991); Wright v. State, 80 Ark. App. 114, 91 S.W.3d 553 (2002); Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007).

5-3-204. Renunciation.

    1. It is an affirmative defense to a prosecution under § 5-3-201(a)(2) or (b) that the defendant abandons his or her effort to commit the offense, and by the abandonment prevents the commission of the offense, under circumstances manifesting a voluntary and complete renunciation of his or her criminal purpose.
    2. However, the establishment of the affirmative defense under subdivision (a)(1) of this section does not affect the liability of an accomplice who does not join in the abandonment or prevention.
  1. It is an affirmative defense to a prosecution under § 5-3-202 that the defendant terminates his or her complicity in the commission of the offense and:
    1. Wholly deprives his or her complicity of effectiveness in the commission of the offense;
    2. Gives timely warning to an appropriate law enforcement authority; or
    3. Otherwise makes a substantial effort to prevent the commission of the offense, under circumstances manifesting a voluntary and complete renunciation of his or her criminal purpose.

History. Acts 1975, No. 280, § 704; A.S.A. 1947, § 41-704.

Research References

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

Case Notes

Cited: Gilbert v. State, 88 Ark. App. 296, 198 S.W.3d 561 (2004).

Subchapter 3 — Criminal Solicitation

Research References

ALR.

Solicitation to commit crime against more than one person or property, made in single conversation, as single or multiple crimes. 24 A.L.R.4th 1324.

5-3-301. Conduct constituting solicitation — Classification.

  1. A person solicits the commission of an offense if, with the purpose of promoting or facilitating the commission of a specific offense, the person commands, urges, or requests another person to engage in specific conduct that would:
    1. Constitute that offense;
    2. Constitute an attempt to commit that offense;
    3. Cause the result specified by the definition of that offense; or
    4. Establish the other person's complicity in the commission or attempted commission of that offense.
  2. Criminal solicitation is a:
    1. Class A felony if the offense solicited is capital murder, treason, or a Class Y felony;
    2. Class B felony if the offense solicited is a Class A felony;
    3. Class C felony if the offense solicited is a Class B felony;
    4. Class D felony if the offense solicited is a Class C felony;
    5. Class A misdemeanor if the offense solicited is a Class D felony or an unclassified felony;
    6. Class B misdemeanor if the offense solicited is a Class A misdemeanor;
    7. Class C misdemeanor if the offense solicited is a Class B misdemeanor; or
    8. Violation if the offense solicited is a Class C misdemeanor or an unclassified misdemeanor.

History. Acts 1975, No. 280, § 705; 1981, No. 620, § 4; A.S.A. 1947, § 41-705.

Cross References. Fines, § 5-4-201.

Term of imprisonment, § 5-4-401.

Case Notes

Evidence.

In a trial for solicitation to commit first-degree murder, evidence of the instrumentality to be used in the murder was entirely relevant since it clearly evidenced the purpose of the solicitation as well as the means that defendant promoted to perpetrate foul play; thus, a simulated bomb and a videotape depicting its detonation qualified as proof of a material fact under Evid. Rule 401. Loy v. State, 310 Ark. 33, 832 S.W.2d 499 (1992).

There was sufficient evidence to uphold defendant's conviction of solicitation of capital murder under this section where the record showed that appellant urged undercover officer to engage in specific conduct that would constitute capital murder under § 5-10-101. Jimenez v. State, 83 Ark. App. 377, 128 S.W.3d 483 (2003).

Evidence was sufficient for a conviction of committing sexual indecency with a child where defendant offered a 14 year old girl money in exchange for sex, she understood that he had meant sexual intercourse and that he was serious, and his request amounted to solicitation; further, the appellate court found no merit in defendant's argument that he was merely rhetorically questioning a 14-year-old girl about sex, rather than soliciting her. Heape v. State, 87 Ark. App. 370, 192 S.W.3d 281 (2004).

Jury Instructions.

Trial court properly refused to instruct the jury, in connection with defendant's trial for solicitation to commit capital murder in violation of this section, on the defense of impossibility because there was no evidence to support a finding that the murder of the police officers was inherently unlikely. Jimenez v. State, 83 Ark. App. 377, 128 S.W.3d 483 (2003).

Cited: Chronister v. State, 265 Ark. 437, 580 S.W.2d 676 (1979); Fisk v. State, 5 Ark. App. 5, 631 S.W.2d 626 (1982).

5-3-302. Renunciation.

It is an affirmative defense to a prosecution for criminal solicitation that the defendant prevented the commission of the offense solicited under circumstances manifesting a voluntary and complete renunciation of his or her criminal purpose.

History. Acts 1975, No. 280, § 706; A.S.A. 1947, § 41-706.

Research References

Ark. L. Rev.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

Subchapter 4 — Criminal Conspiracy

Publisher's Notes. For Comments regarding the Criminal Code, see Commentaries Volume B.

Cross References. Conviction on testimony of accomplice, § 16-89-111.

Research References

ALR.

Prosecution or conviction of one conspirator as affected by disposition of case against coconspirators. 19 A.L.R.4th 192.

5-3-401. Conduct constituting conspiracy.

A person conspires to commit an offense if with the purpose of promoting or facilitating the commission of any criminal offense:

  1. The person agrees with another person or other persons that:
    1. One (1) or more of the persons will engage in conduct that constitutes that offense; or
    2. The person will aid in the planning or commission of that criminal offense; and
  2. The person or another person with whom the person conspires does any overt act in pursuance of the conspiracy.

History. Acts 1975, No. 280, § 707; A.S.A. 1947, § 41-707.

Cross References. Overt acts in conspiracy, § 16-89-112.

Case Notes

Accomplices.

A coconspirator may also be an accomplice. Shrader v. State, 13 Ark. App. 17, 678 S.W.2d 777 (1984).

Consummation of Offense.

A conspiracy to commit a felony was merged in the felony when committed; after the felony was consummated, the conspiracy was not indictable. Elsey v. State, 47 Ark. 572, 2 S.W. 337 (1886) (decision under prior law).

Evidence.

For cases discussing admissibility of acts and declarations of coconspirators, see Benton v. State, 78 Ark. 284, 94 S.W. 688 (1906); Harper v. State, 79 Ark. 594, 96 S.W. 1003 (1906); Storms v. State, 81 Ark. 25, 98 S.W. 678 (1906); Cumnock v. State, 87 Ark. 34, 112 S.W. 147 (1908); Wiley v. State, 92 Ark. 586, 124 S.W. 249 (1909); Easter v. State, 96 Ark. 629, 132 S.W. 924 (1910); Parker v. State, 98 Ark. 575, 137 S.W. 253 (1911) (preceding decisions under prior law); Smith v. State, 6 Ark. App. 228, 640 S.W.2d 805 (1982).

A conspiracy would be shown by circumstantial evidence. Venable v. State, 156 Ark. 564, 246 S.W. 860 (1923). See also Powell v. State, 133 Ark. 477, 203 S.W. 25 (1918) (decision under prior law).

Under this section, it is required that state both allege and prove specific overt act evidencing that conspiracy has been put in motion, and, provided issue is properly raised, failure to both allege and prove such an act is fatal to a conviction. Guinn v. State, 23 Ark. App. 5, 740 S.W.2d 148 (1987).

State may rely on inferences drawn from the course of conduct of alleged conspirators to provide evidence of the agreement. Shamlin v. State, 23 Ark. App. 39, 743 S.W.2d 1 (1988), rehearing denied, 23 Ark. App. 39, 744 S.W.2d 405 (1988), cert. denied, Shamlin v. Arkansas, 488 U.S. 863, 109 S. Ct. 163 (1988).

Conspiracy to commit an unlawful act may be proved by circumstances and the inferences drawn from the course of conduct of the alleged conspirators. Lee v. State, 27 Ark. App. 198, 770 S.W.2d 148 (1989), cert. denied, Lee v. Arkansas, 493 U.S. 847, 110 S. Ct. 142 (1989).

Defendant's conviction for conspiracy to commit capital murder was supported by substantial evidence. Jones v. State, 45 Ark. App. 28, 871 S.W.2d 403 (1994).

Defendant committed an overt act in furtherance of a conspiracy to commit kidnapping, aggravated robbery, theft of property, and aggravated residential burglary because he took another person to his residence and showed the person the inside of the premises, discussed how to break in the residence and how to subdue his wife, and identified the property to be taken from the residence. Winkler v. State, 2012 Ark. App. 704, 425 S.W.3d 808 (2012).

Evidence was sufficient to convict defendant of conspiracy to deliver methamphetamine as the jury could infer that an agreement existed between defendant and the individual who sold the drugs to a confidential informant; defendant possessed a large amount of methamphetamine in his truck, he possessed the money that the confidential informant had previously given to the seller, the seller referred to defendant as his source, and defendant possessed digital scales with the methamphetamine. Vonholt v. State, 2018 Ark. App. 53, 540 S.W.3d 312 (2018).

Substantial evidence supported defendant's conviction for conspiracy to commit rape because there was evidence that he made a plan with an undercover officer posing as a father to rape his 13-year-old daughter, and defendant took overt steps in furtherance of the plan; the sexually graphic language used by defendant left no doubt that he wanted to have sex with the father's daughter, plus defendant showed up at the meeting place at the appointed time in the vehicle he said he would be driving, and he had two gifts in his vehicle for the daughter. Frederic v. State, 2018 Ark. App. 449, 560 S.W.3d 494 (2018).

Evidence was sufficient to support defendant's conviction of conspiracy to deliver where a confidential informant bought methamphetamine in a transaction that occurred in a vehicle occupied by defendant driver and the codefendant; the jury could reasonably conclude that defendant and codefendant were working together to deliver methamphetamine and that defendant assisted in that effort. Baker v. State, 2019 Ark. App. 515, 588 S.W.3d 844 (2019).

Inchoate Offense.

A conspiracy is an inchoate offense, and under Arkansas law it is a crime in and of itself. Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983).

Indictment or Information.

An indictment for conspiracy to commit a felony had to allege that the felony was not committed. Elsey v. State, 47 Ark. 572, 2 S.W. 337 (1886) (decision under prior law).

Indictment that charged defendant and others with the crime of conspiracy to commit a felony clearly apprised defendant of the crime charged and amendment of the indictment to add the words “the felony not having been committed” was simply a matter of form, which did nothing to change the nature of the crime otherwise charged. Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978) (decision under prior law).

Jury Question.

Where an individual's knowledge of conspiracy was in dispute, his complicity was a fact issue which was properly presented to the jury. Strickland v. State, 16 Ark. App. 293, 701 S.W.2d 127 (1985).

Liability.

A conspiracy offense under the Arkansas Criminal Code is intended to be a separate crime, and liability is not imposed on a conspirator for the substantive offenses that are the object of the conspiracy. Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983).

Where defendant was charged as a conspirator to commit a crime he could be convicted where State did not prove the crime was committed. Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983).

Where the combination of persons to do an unlawful act is shown, and the plan terminates in a crime, each person is liable for the acts of the others undertaken in furtherance of the plan. Lee v. State, 27 Ark. App. 198, 770 S.W.2d 148 (1989), cert. denied, Lee v. Arkansas, 493 U.S. 847, 110 S. Ct. 142 (1989).

Sentence.

There was no error in the trial court's sentencing of defendant because the court complied with the conspiracy statute and had the authority to impose a sentence of nine years' imprisonment with respect to the conspiracy conviction. Winkler v. State, 2012 Ark. App. 704, 425 S.W.3d 808 (2012).

Cited: Ellis v. State, 4 Ark. App. 201, 628 S.W.2d 871 (1982); Sweat v. State, 5 Ark. App. 284, 635 S.W.2d 296 (1982); Estate of Sargent v. Benton State Bank, 279 Ark. 402, 652 S.W.2d 10 (1983); Guinn v. State, 27 Ark. App. 260, 771 S.W.2d 290 (1989); Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994); Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997).

5-3-402. Scope of conspiratorial relationship.

If an actor knows or could reasonably expect that a person with whom the actor conspires has himself or herself conspired or will conspire with another person to commit the same criminal offense, the actor is deemed to have conspired with the other person, whether or not the actor knows the other person's identity.

History. Acts 1975, No. 280, § 708; A.S.A. 1947, § 41-708.

Case Notes

Meeting of Coconspirators.

Proof of the actual meeting of the alleged conspirators was not necessary if it was shown that two or more persons aimed their acts toward the accomplishment of the same unlawful purpose. Chapline v. State, 77 Ark. 444, 95 S.W. 477 (1906); Powell v. State, 133 Ark. 477, 203 S.W. 25 (1918) (preceding decisions under prior law).

5-3-403. Multiple criminal objectives.

If a person conspires to commit a number of criminal offenses, the person commits only one (1) conspiracy if the multiple offenses are the object of the same agreement or continuous conspiratorial relationship.

History. Acts 1975, No. 280, § 709; A.S.A. 1947, § 41-709.

Case Notes

Multiple Substantive Offenses.

If multiple substantive offenses are committed pursuant to a single conspiracy, a conspirator may be prosecuted for each separate substantive offense in which he is a principal or an accomplice. McMillen v. State, 302 Ark. 601, 792 S.W.2d 315 (1990).

Trial court did not err because judicial precedent allowed the prosecution of one count of conspiracy to commit multiple object offenses; moreover, defendant was not prejudiced by the inclusion of multiple object offenses in the single charge because he faced thirty years in prison but the jury sentenced him to nine years' imprisonment. Winkler v. State, 2012 Ark. App. 704, 425 S.W.3d 808 (2012).

Single Agreement or Continuous Relationship.

A single agreement or continuous conspiratorial relationship constitutes a single conspiracy offense, whether intended to culminate in distinct offenses or in successive violations of the same statute, and this section clearly precludes more than one conspiracy prosecution as a result of a single agreement or relationship. McMillen v. State, 302 Ark. 601, 792 S.W.2d 315 (1990).

Cited: Guinn v. State, 23 Ark. App. 5, 740 S.W.2d 148 (1987); Leach v. State, 303 Ark. 309, 796 S.W.2d 837 (1990); Leach v. State, 313 Ark. 80, 852 S.W.2d 116 (1993).

5-3-404. Classification.

Criminal conspiracy is a:

  1. Class A felony if an object of the conspiracy is commission of capital murder, treason, or a Class Y felony;
  2. Class B felony if an object of the conspiracy is commission of a Class A felony;
  3. Class C felony if an object of the conspiracy is commission of a Class B felony;
  4. Class D felony if an object of the conspiracy is commission of a Class C felony;
  5. Class A misdemeanor if an object of the conspiracy is commission of a Class D felony or an unclassified felony;
  6. Class B misdemeanor if an object of the conspiracy is commission of a Class A misdemeanor; or
  7. Class C misdemeanor if an object of the conspiracy is commission of a Class B misdemeanor.

History. Acts 1975, No. 280, § 714; 1981, No. 620, § 5; A.S.A. 1947, § 41-714.

Cross References. Fines, § 5-4-201.

Term of imprisonment, § 5-4-401.

Case Notes

Cited: Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996).

5-3-405. Renunciation of criminal purpose.

It is an affirmative defense to a prosecution for conspiracy to commit an offense that the defendant:

  1. Thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of the defendant's criminal purpose; or
  2. Terminated his or her participation in the conspiracy and:
    1. Gave timely warning to an appropriate law enforcement authority; or
    2. Otherwise made a substantial effort to prevent the commission of the offense, under circumstances manifesting a voluntary and complete renunciation of the defendant's criminal purpose.

History. Acts 1975, No. 280, § 710; A.S.A. 1947, § 41-710.

Research References

ALR.

Imprisonment as Constituting Withdrawal from Conspiracy. 100 A.L.R.6th 335 (2014).

Ark. L. Rev.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

Case Notes

Presumption of Continued Participation.

Unless a conspirator produces affirmative evidence of withdrawal, his participation in the conspiracy is presumed to continue until the last overt act by any of the conspirators. Gass v. State, 17 Ark. App. 176, 706 S.W.2d 397 (1986).

Sufficiency of Renunciation.

Defendant's actions failed to renounce the conspiracy. Strickland v. State, 16 Ark. App. 293, 701 S.W.2d 127 (1985); Gass v. State, 17 Ark. App. 176, 706 S.W.2d 397 (1986).

Cited: Shrader v. State, 13 Ark. App. 17, 678 S.W.2d 777 (1984).

5-3-406. Statute of limitations.

  1. For the purposes of § 5-1-109, a conspiracy is a continuing course of conduct that terminates when the offense or offenses that are the object of the conspiracy are committed.
  2. However, if a person abandons the agreement a conspiracy is terminated as to him or her only, when the person:
    1. Advises other persons with whom the person conspired of his or her abandonment; or
    2. Informs a law enforcement authority of the existence of the conspiracy and of his or her participation in the conspiracy.

History. Acts 1975, No. 280, § 711; A.S.A. 1947, § 41-711.

5-3-407. Venue for prosecution.

A prosecution for criminal conspiracy may be brought in any county where any overt act in furtherance of the conspiracy is alleged to have occurred, and that county is a proper place of venue for the prosecution of any person charged as a party to that conspiracy.

History. Acts 1975, No. 280, § 712; A.S.A. 1947, § 41-712.

Case Notes

Cited: Lee v. State, 27 Ark. App. 198, 770 S.W.2d 148 (1989).

Chapter 4 Disposition of Offenders

Research References

Ark. L. Rev.

1976 Criminal Code — General Principles, 30 Ark. L. Rev. 111.

Disposition of Offenders: Under Arkansas' New Criminal Code, 30 Ark. L. Rev. 222.

Wade, Comments: “Fine and/or Imprisonment”: Pauper's Dilemma or Delight? 33 Ark. L. Rev. 378.

U. Ark. Little Rock L.J.

Survey of Arkansas Law: Criminal Law, 4 U. Ark. Little Rock L.J. 189.

Legislative Survey, Criminal Law, 4 U. Ark. Little Rock L.J. 583.

Arkansas Law Survey, Wilson, Criminal Procedure, 7 U. Ark. Little Rock L.J. 191.

Legislative Survey, Criminal Law, 16 U. Ark. Little Rock L.J. 91.

Legislative Survey, Criminal Procedure, 16 U. Ark. Little Rock L.J. 99.

Case Notes

Cited: Johnson v. State, 331 Ark. 421, 961 S.W.2d 764 (1998); Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).

Subchapter 1 — General Provisions

Publisher's Notes. For Comments regarding the Criminal Code, see Commentaries Volume B.

Cross References. Judgment and sentence generally, § 16-90-101 et seq.

Restitution by offender to victim, § 16-90-301 et seq.

Effective Dates. Acts 1983, No. 409, § 6: July 1, 1983. Emergency clause provided: “It is hereby determined by the General Assembly that certain criminal sentencing statutes are in need of immediate clarification for the more efficient administration of justice in this State. Therefore, an emergency is hereby declared to exist, and this Act, being necessary for the preservation of the public peace, health and safety, shall be in full force and effect from and after July 1, 1983.”

Acts 1991, No. 608, § 8: Mar. 19, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly that there is considerable confusion concerning the application and effect of sentencing provisions for Class Y felonies, second degree murder, driving while intoxicated and drug related offenses; that amendment of existing provisions is necessary to clarify these provisions; and that this act is immediately necessary to achieve that end for the protection of the public health and safety and, therefore, should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act, being necessary for the preservation of public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1993, Nos. 532 and 550, § 13: Mar. 16, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the sentencing policies and standards of the State of Arkansas are in need of immediate reform in order to better provide for a balanced correctional system and to better effectuate the rehabilitation of persons convicted of crimes and to make possible their return as useful members of the community and passage of this act is necessary to facilitate these reforms. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect, unless provided for otherwise herein, from and after its passage and approval.”

Acts 2017, No. 539, § 14: Mar. 20, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that in light of recent United States Supreme Court decisions in Miller v. Alabama and Montgomery v. Louisiana, more than one hundred persons in Arkansas are entitled to relief under those decisions; and that this act is immediately necessary in order to make those persons eligible for parole in order to be in compliance with Montgomery v. Louisiana. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Power of court, during same term, to increase severity of sentence. 26 A.L.R.4th 905.

Power of court to increase severity of unlawful sentence. 28 A.L.R.4th 147.

Sentencing judge's consideration of defendant's perjury or lying in pleas or testimony in present trial. 34 A.L.R.4th 888.

Permissibility of sentence to a fine only, under statutory provision for imprisonment or imprisonment and fine. 35 A.L.R.4th 192.

Am. Jur. 21A Am. Jur. 2d, Crim. L., § 791 et seq.

Ark. L. Rev.

Note, Conley v. State: Mitigation Before Guilt, 45 Ark. L. Rev. 995.

C.J.S. 24 C.J.S., Crim. L., § 1458 et seq.

U. Ark. Little Rock L.J.

DiPippa, Suspending Imposition and Execution of Criminal Sentences, Etc., 10 U. Ark. Little Rock L.J. 367.

5-4-101. Definitions.

As used in this chapter:

    1. “Imprisonment” means:
      1. Incarceration in a detention facility operated by the state or any of its political subdivisions; or
      2. Home detention as described in § 16-93-708.
    2. “Imprisonment” may mean incarceration in a privately operated detention facility under contract to the state or any of its political subdivisions;
  1. “Probation” or “place on probation” means a procedure in which a defendant who pleads or is found guilty of an offense is released by the court without pronouncement of sentence but subject to the supervision of a probation officer;
  2. “Probation officer” means a salaried officer attached to the court pursuant to § 16-93-402 [repealed] or a reputable person designated by the court to supervise a defendant who is placed on probation;
  3. “Recidivism” means a criminal act that results in the rearrest, reconviction, or return to incarceration of a person with or without a new sentence during a three-year period following the person's release from custody;
    1. “Restitution” means the act of making good or giving equivalent value for any loss, damage, or injury.
    2. “Restitution” may also include in the event of an injury or loss that the offender has special capacity to restore or repair a sentence to perform that reparation; and
  4. “Suspension” or “suspend imposition of sentence” means a procedure in which a defendant who pleads or is found guilty of an offense is released by the court without pronouncement of sentence and without supervision.

History. Acts 1975, No. 280, § 801; 1981, No. 620, § 6; A.S.A. 1947, § 41-801; Acts 1993, No. 533, § 1; 1993, No. 553, § 1; 1999, No. 216, § 1; 2005, No. 680, § 1; 2013, No. 1030, § 1.

Amendments. The 2013 amendment added the definition for “Recidivism.”

A.C.R.C. Notes. Acts 2011, No. 570, § 91, repealed § 16-93-402 referenced in subdivision (3) of this section. For current law, see generally 16-93-301 et seq.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Criminal Law, 28 U. Ark. Little Rock L. Rev. 335.

Case Notes

Court.

The word “court” refers to the judge, not the judge and jury. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, Gardner v. Arkansas, 440 U.S. 911, 99 S. Ct. 1224, 59 L. Ed. 2d 460 (1979).

Restitution.

Trial court had no jurisdiction to revoke defendant's suspended sentence because defendant owed no restitution at the end of his suspended sentence, and the trial court could not retain jurisdiction over him; defendant's child support was not to make good an actual economic loss of a victim of his failure to comply with the reporting requirements of the Sex and Child Offender Registration Act. Owens v. State, 2009 Ark. App. 532, 337 S.W.3d 527 (2009).

Court retained jurisdiction to revoke the suspended sentence for failure to pay restitution, because the petitioner was charged with fleeing to avoid arrest for possession of marijuana and causing property damage while fleeing, and was ordered to pay restitution for the damage he caused during the course of the criminal episode. Arter v. State, 2012 Ark. App. 327, 414 S.W.3d 391 (2012).

Suspension or Probation.

A court is authorized to suspend imposition of sentence or place the defendant on probation but it may not do both since, by subsection (1) of this section, a suspension is “without supervision,” while under subsection (2) of this section, probation requires the “supervision of a probation officer.” Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980), superseded by statute as stated in, Smith v. State, 18 Ark. App. 152, 713 S.W.2d 241 (1986); Jefferson v. State, 270 Ark. 909, 606 S.W.2d 592 (1980).

Based on the clear, unambiguous language of § 12-12-1109(a)(2)(A) and § 12-12-1103(1), it was clear that the trial court did not illegally sentence defendant by requiring him to submit to a DNA sample after he received a suspended sentence because whatever conflict subsection (a) of this section might have provided, if any, was resolved by the fact that its definitions were used only for Title 5, Chapter 4. Davis v. State, 94 Ark. App. 240, 228 S.W.3d 529 (2006).

Trial court did not err in sentencing defendant after revoking his probation because defendant pleaded guilty to second-degree domestic battery, § 5-26-304, and third-degree domestic battery, § 5-26-305, and his sentences of ten and six years, respectively, were sentences that could have been originally imposed for the offenses of which he was found guilty. Jones v. State, 2012 Ark. App. 69, 388 S.W.3d 503 (2012).

Cited: Wolfe v. State, 266 Ark. 811, 586 S.W.2d 4 (Ct. App. 1979); McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980); Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983); Williams v. State, 280 Ark. 543, 659 S.W.2d 948 (1983); Smith v. State, 18 Ark. App. 152, 713 S.W.2d 241 (1986); Diffee v. State, 290 Ark. 194, 718 S.W.2d 94 (1986); Lee v. State, 299 Ark. 187, 772 S.W.2d 324 (1989); Ramey v. State, 62 Ark. App. 204, 972 S.W.2d 952 (1998); Bramucci v. State, 76 Ark. App. 8, 62 S.W.3d 10 (2001).

5-4-102. Presentence investigation.

  1. If punishment is fixed by the court, the court may order a presentence investigation before imposing sentence.
    1. The presentence investigation should be conducted by a presentence officer or another person designated by the court and should include an analysis of:
      1. The circumstances surrounding the commission of the offense;
      2. The defendant's history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, and personal habits; and
      3. Any other matter that the investigator deems relevant or the court directs to be included.
    2. In a case involving a violation of § 5-11-106 in which a minor was unlawfully detained, restrained, taken, enticed, or kept, the presentence investigation shall include ascertaining the expenses incurred by a law enforcement agency, the Department of Human Services, and the lawful custodian in searching for and returning the minor to the lawful custodian.
    1. Before imposing sentence, the court may order the defendant to submit to psychiatric examination and evaluation for a period not to exceed thirty (30) days.
    2. The defendant may be remanded for psychiatric examination and evaluation to the Arkansas State Hospital, or the court may appoint a qualified psychiatrist to make the psychiatric examination and evaluation.
    1. Before imposing sentence, the court shall advise the defendant or his or her counsel of the factual contents and conclusions of any presentence investigation or psychiatric examination and evaluation and afford fair opportunity, if the defendant so requests, to controvert the factual contents and conclusions.
    2. A source of confidential information does not need to be disclosed.
  2. If the defendant is sentenced to imprisonment, a copy of the report of any presentence investigation or psychiatric examination or evaluation shall be transmitted immediately to the Division of Correction or, when the defendant is committed to the custody of a specific institution, to that specific institution.

History. Acts 1975, No. 280, § 804; A.S.A. 1947, § 41-804; Acts 1987, No. 487, § 2; 2019, No. 910, § 647.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (e).

Case Notes

Defendant's Rights.

Where the sentencing court informed the defendant of the numerous factors that it was considering prior to pronouncing a sentence, and the defendant made no objection and did not request an opportunity to controvert the information under consideration, then the court committed no reversible error by considering such information in determining the defendant's sentence. Nash v. State, 267 Ark. 870, 591 S.W.2d 670 (Ct. App. 1979).

The defendant does not have the right to confront the witnesses against him on matters incident to sentencing. Nash v. State, 267 Ark. 870, 591 S.W.2d 670 (Ct. App. 1979).

Introduction of all defendant's prior convictions was unnecessary, and denied him protection of this section. Tatum v. State, 21 Ark. App. 237, 731 S.W.2d 227 (1987).

Presentence Report.

While it would have been better practice for the trial court to have permitted the defendant to prepare and submit a presentence report, in deciding the prison terms were to run consecutively, the trial court made reference to the evidence he had already heard, and thus it appeared that he exercised his discretion and did not just mechanically make the sentences consecutive. Scott v. State, 284 Ark. 388, 681 S.W.2d 915 (1985).

Nothing in this section requires that the trial judge follow the recommendation of the presentence report or that he specify the relative weight he attached to each element contained in the report before he sentences a defendant. Noland v. State, 265 Ark. 764, 580 S.W.2d 953 (1979).

Although this section states that the trial court “may” order a presentence investigation and report, if it fixes the punishment, there is no authority requiring the trial court to do so. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983).

Where punishment is to be fixed by the jury, a presentence report is not required to be given to the jury when the issue of punishment is submitted. Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).

Court did not abuse its discretion by admitting the presentence report into evidence, because the probation officer's report was not admitted as expert testimony and the court assured defendant it would give the report the proper weight, and defendant was aware of the contents of the report and elicited contradictory testimony from the therapist. Howerton v. State, 2012 Ark. App. 331, 413 S.W.3d 861 (2012).

5-4-103. Sentencing — Role of jury and court.

  1. If a defendant is charged with a felony and is found guilty of an offense by a jury, the jury shall fix punishment in a separate proceeding as authorized by this chapter.
  2. Except as provided by §§ 5-4-601 — 5-4-605, 5-4-607, and 5-4-608, the court shall fix punishment as authorized by this chapter in any case in which:
    1. The defendant pleads guilty to an offense;
    2. The defendant's guilt is tried by the court;
    3. The jury fails to agree on punishment;
    4. The prosecution and the defense agree that the court may fix punishment; or
    5. A jury sentence is found by the trial court or an appellate court to be in excess of the punishment authorized by law.

History. Acts 1975, No. 280, § 802; A.S.A. 1947, § 41-802; Acts 1993, No. 535, § 1; 1993, No. 551, § 1.

A.C.R.C. Notes. Acts 1995, No. 892, § 1, provided:

“The uncodified Section 7 of Act 551 of 1993 which sunsets the bifurcated sentencing procedures in Arkansas Code Annotated §§ 5-4-103, 16-97-101, 16-97-102, 16-97-103, and 16-97-104 is repealed.”

Publisher's Notes. Acts 1993, Nos. 535 and 551, § 7, provided:

“The bifurcation procedures in Sections 1 and 2 of this act [codified as § 5-4-103 and §§ 16-97-10116-97-104] shall become effective on January 1, 1994, and shall expire on June 30, 1997.”

Cross References. Fixing punishment, § 16-90-107.

Case Notes

Constitutionality.

Arkansas's new bifurcated sentencing laws did not violate the Ex Post Facto Clause because they did not criminalize conduct that was previously non-criminal, did not increase the severity or harshness of the punishment for the offenses that defendant committed, and did not deprive him of a defense that was available to him at the time he committed the offenses with which he was charged; because the penalty or sentence authorized under the prior and new sentencing statutes remains the same as applied in defendant's situation, any change was merely procedural and not substantively prejudicial or an ex post facto violation. Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994).

Arkansas's bifurcated sentencing procedures in §§ 5-4-103 and 16-97-103 are not violative of the ex post facto clause in the United States Constitution or Ark. Const., Art. 2, § 17. Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995).

Where, on the first day of trial, the trial court conducted a proceeding under the heading of “Bill of Exceptions” in which witnesses and other trial-related matters were discussed at length and defendant had ample opportunity to make any motions, and where defendant elected to wait until the second day of trial to file his motion concerning the constitutionality of Acts 1993, Nos. 535 and 551, and alerted the court of its pendency only on the third day of trial, because an issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal, the motion in question was untimely. Watkins v. State, 320 Ark. 163, 895 S.W.2d 532 (1995).

When defendant was originally tried and convicted in 1993, Arkansas law then authorized, and he received, a non-bifurcated trial. However, after his original conviction, but before his case was reversed and remanded, Arkansas law was amended to permit bifurcated trials in all felony cases. At defendant's second trial on remand, trying defendant's case pursuant to the newly-enacted bifurcated trial procedure did not violate the Ex Post Facto Clause. Suggs v. State, 322 Ark. 40, 907 S.W.2d 124 (1995).

In General.

Sentencing in Arkansas is entirely a matter of statute. State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993).

Since the court did not believe the “zero” punishment submitted by the jury in the primary verdict form was valid, the court could have opted to impose the jury's recommended alternative sentence of eighteen months probation instead of taking over sentencing. Slaughter v. State, 69 Ark. App. 65, 12 S.W.3d 240 (2000).

Construction.

Section 5-4-501, requiring that one who has previously been convicted of two or more violent felonies and who is then convicted of rape is to be sentenced to life imprisonment without parole, is not in conflict with subsection (a) of this section, providing that a jury is to fix punishment of one found guilty of a felony, because of the additional language of this section that the jury is to fix punishment “as authorized by this chapter.” Ricks v. State, 327 Ark. 513, 940 S.W.2d 422 (1997).

Applicability.

The trial court's retroactive employment of the 1994 versions of §§ 5-4-103 and 16-97-103 to offenses committed in 1993 did not subject defendant to substantive prejudice in violation of the Ex Post Facto Clause of the United States Constitution. Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994).

Authority of Court.

After the jury's confusion resulted in the jury returning two verdict forms, one recommending an alternative sentence of probation without specifying a term and the other recommending only a fine, there was no error when the circuit court accepted a sentencing agreement allowing the court to sentence defendant to a term of years of probation rather than resubmitting the matter to the jury. Barfield v. State, 2019 Ark. App. 501, 588 S.W.3d 412 (2019).

After the jury's confusion resulted in the jury returning two verdict forms, one recommending an alternative sentence of probation without specifying a term and the other recommending only a fine, the circuit court did not abuse its discretion in sentencing defendant to 10 years' probation and imposing a $3,500 fine; defense counsel agreed to allow the court to sentence defendant to a term of years of probation rather than resubmitting the matter to the jury and the circuit court accepted the jury's alternative sentencing recommendation of probation and expressly advised defendant that the fine was imposed as a condition of the probation. Barfield v. State, 2019 Ark. App. 501, 588 S.W.3d 412 (2019).

Construction With Other Laws.

This section does not repeal § 16-90-120; the statutes speak to two different issues and can be read in harmony. Watson v. State, 71 Ark. App. 52, 26 S.W.3d 588 (2000).

Merger of two capital murders was not required under § 5-1-110(d)(1), and where defendant waived a sentencing hearing, thereby giving the trial court sole sentencing authority under § 5-4-103(b)(4), the trial court had the authority to order defendant's sentences to run consecutively under § 5-4-403(a). Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003).

Sentence Fixed by Jury.

Under § 16-89-126(c) and this section, the defendant was entitled to have a jury fix his sentence for his conviction of driving while intoxicated, and his proffered jury instruction to this effect should have been given. Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988).

Neither the trial court nor counsel should comment on parole, because the jury would be inclined to impose excessive punishment in order to compensate for early release. Haynes v. State, 311 Ark. 651, 846 S.W.2d 179 (1993).

Trial court imposed an illegal sentence when it rejected a jury's verdict and took it upon itself to sentence defendant where the jury's sentencing verdict of zero years in prison and a fine of zero dollars was a proper and valid sentence for second-degree battery. Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007).

Petitioner's death sentence could not stand because the manner in which the jury completed its form allowed only the conclusion that it eliminated from its consideration all evidence presented of mitigating circumstances and sentenced petitioner to death solely based on an aggravating circumstance, which was reversible error. Williams v. State, 2011 Ark. 534 (2011), overruled, Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233 (2014).

Defendant's appeal of convictions for residential burglary and theft of property was frivolous because, inter alia, defendant was not entitled to have the trial court fix sentence, since a jury convicted defendant of a felony and the prosecutor did not consent to sentencing by the court. Guthrie v. State, 2017 Ark. App. 681 (2017).

Sentencing by Court.

Trial court's sentencing action was proper. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).

The requirement that the jury fix the sentence does not render the presentence report requirement of § 5-65-109 meaningless; there are situations when the report still will be of value, as when the court fixes the sentence under one of the exceptions of subsection (b) of this section. Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988).

Where none of the circumstances enumerated in subsection (b) were applicable, judge lacked statutory authority to increase term of imprisonment imposed by a jury, and his action was unauthorized and illegal. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992).

Where the judge said nothing about balancing the fine and imprisonment elements of the sentence when he reduced the fine and illegally increased the sentence, the appellate court had no reason to reverse the fine portion of the sentence. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992).

There is nothing in this section that limits a circuit court's discretion to what the jury was considering before the court assumed control of the matter, and sentence which was within the statutory range was not an abuse of the circuit court's discretion. Henderson v. State, 310 Ark. 287, 835 S.W.2d 865 (1992).

The trial court was authorized to fix punishment when the jury was unable to agree upon the punishment and only eleven jurors remained after one was disqualified. Johnson v. State, 328 Ark. 526, 944 S.W.2d 115 (1997).

Where the jury convicted defendant of possession of cocaine with intent to deliver and recommended a sentence of 3 years' probation, the trial court was permitted to sentence defendant to 20 years' imprisonment rather than follow the jury's recommendation; the jury's recommendation of 3 years' probation was not authorized by § 5-64-401(a)(1), which required a minimum sentence of 20 years. Ewings v. State, 85 Ark. App. 411, 155 S.W.3d 715 (2004).

Sentence imposed on the enhancement offense of commission of a felony with a firearm was not void or illegal as it was specifically allowed by statute. By failing to object when given the opportunity, defendants indicated their agreement with the trial court's fixing the punishment. Watkins v. State, 2009 Ark. App. 124, 302 S.W.3d 635 (2009).

Under subdivision (b)(4) of this section, the judge rather than the jury may impose a sentence where the prosecution and the defense agree that the court may fix punishment. Nevertheless, it is generally improper for the trial court to sentence on the enhancement provision in place of the jury. Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (2010).

Waiver of Sentence by Jury.

Defendant executed a written waiver of his right to a jury trial, which was signed by defendant, his attorney, the prosecutor, and the judge, and the circuit court made a verbatim record of defendant's personal waiver of his right to jury trial in open court; because defendant was waiving his right to be tried by a jury on the charges, he was also waiving his right to be sentenced by a jury on the charges. Johns v. State, 2014 Ark. App. 560, 444 S.W.3d 873 (2014).

Waiver form provided that defendant was facing sentences for up to 15 years, which range clearly showed the enhanced sentencing range, as ordinarily the range was not to exceed six years for a Class D felony, plus the circuit court directly referenced the enhanced punishment ranges and asked defendant if he understood the same; the waiver ensured that defendant understood that, if found guilty, he was to be sentenced by the circuit court, and his waiver was valid. Johns v. State, 2014 Ark. App. 560, 444 S.W.3d 873 (2014).

Cited: Killman v. State, 274 Ark. 422, 625 S.W.2d 489 (1981); Scott v. State, 284 Ark. 388, 681 S.W.2d 915 (1985); Davis v. State, 291 Ark. 191, 723 S.W.2d 366 (1987); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987); Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987); Mulanax v. State, 301 Ark. 321, 783 S.W.2d 851 (1990); Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992); Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992); Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997); Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); Brown v. State, 82 Ark. App. 61, 110 S.W.3d 293 (2003); Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006); Loar v. State, 368 Ark. 171, 243 S.W.3d 923 (2006); Henry v. State, 2011 Ark. App. 169, 378 S.W.3d 832 (2011).

5-4-104. Authorized sentences generally.

  1. No defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.
  2. A defendant convicted of capital murder, § 5-10-101, or treason, § 5-51-201, shall be sentenced to death or life imprisonment without parole in accordance with §§ 5-4-601 — 5-4-605, 5-4-607, and 5-4-608, except if the defendant was younger than eighteen (18) years of age at the time he or she committed the capital murder or treason he or she shall be sentenced to life imprisonment with the possibility of parole after serving a minimum of thirty (30) years' imprisonment.
    1. A defendant convicted of a Class Y felony or murder in the second degree, § 5-10-103, shall be sentenced to a term of imprisonment in accordance with §§ 5-4-401 — 5-4-404.
    2. In addition to imposing a term of imprisonment, the trial court may sentence a defendant convicted of a Class Y felony or murder in the second degree, § 5-10-103, to any one (1) or more of the following:
      1. Pay a fine as authorized by §§ 5-4-201 and 5-4-202;
      2. Make restitution as authorized by § 5-4-205; or
      3. Suspend imposition of an additional term of imprisonment, as authorized by subdivision (e)(3) of this section.
  3. A defendant convicted of an offense other than a Class Y felony, capital murder, § 5-10-101, treason, § 5-51-201, or murder in the second degree, § 5-10-103, may be sentenced to any one (1) or more of the following, except as precluded by subsection (e) of this section:
    1. Imprisonment as authorized by §§ 5-4-401 — 5-4-404;
    2. Probation as authorized by §§ 5-4-301 — 5-4-307 and 16-93-306 — 16-93-314;
    3. Payment of a fine as authorized by §§ 5-4-201 and 5-4-202;
    4. Restitution as authorized by a provision of § 5-4-205; or
    5. Imprisonment and payment of a fine.
      1. The court shall not suspend imposition of sentence as to a term of imprisonment nor place the defendant on probation for the following offenses:
        1. Capital murder, § 5-10-101;
        2. Treason, § 5-51-201;
        3. A Class Y felony, except to the extent suspension of an additional term of imprisonment is permitted in subsection (c) of this section;
        4. Driving or boating while intoxicated, § 5-65-103;
        5. Murder in the second degree, § 5-10-103, except to the extent suspension of an additional term of imprisonment is permitted in subsection (c) of this section; or
        6. Engaging in a continuing criminal enterprise, § 5-64-405.
        1. In any other case, the court may suspend imposition of sentence or place the defendant on probation, in accordance with §§ 5-4-301 — 5-4-307 and 16-93-306 — 16-93-314, except as otherwise specifically prohibited by statute.
        2. The court may not suspend execution of sentence.
    1. If the offense is punishable by fine and imprisonment, the court may sentence the defendant to pay a fine and suspend imposition of the sentence as to imprisonment or place the defendant on probation.
      1. The court may sentence the defendant to a term of imprisonment and suspend imposition of sentence as to an additional term of imprisonment.
      2. However, the court shall not sentence a defendant to imprisonment and place him or her on probation, except as authorized by § 5-4-304.
    1. If the court determines that an offender under eighteen (18) years of age would be more amenable to a rehabilitation program of the Division of Youth Services and that he or she previously has not been committed to the Division of Youth Services on more than one (1) occasion, the court may sentence the offender under eighteen (18) years of age to the Division of Correction for a term of years, suspend the sentence, and commit him or her to the custody of the Division of Youth Services.
    2. In a case under subdivision (f)(1) of this section, if the offender under eighteen (18) years of age completes the program of the Division of Youth Services satisfactorily, the Division of Youth Services shall return him or her to the sentencing court and provide the sentencing court with a written report of his or her progress and a recommendation that the offender under eighteen (18) years of age be placed on probation.
      1. In the event that the offender under eighteen (18) years of age violates a rule of the Division of Youth Services' program or facility or is otherwise not amenable to the Division of Youth Services' rehabilitative effort, the Division of Youth Services may return him or her to the sentencing court with a written report of his or her conduct and a recommendation that the offender under eighteen (18) years of age be transferred to the Division of Correction.
      2. If the court finds that the offender under eighteen (18) years of age has violated a rule of the Division of Youth Services' program or facility or is otherwise not amenable to the Division of Youth Services' rehabilitative effort, the court shall then revoke the suspension of the sentence originally imposed and commit the offender under eighteen (18) years of age to the Division of Correction.
  4. This chapter does not deprive the court of any authority conferred by law to:
    1. Order a forfeiture of property;
    2. Suspend or cancel a license;
    3. Dissolve a corporation;
    4. Remove a person from office;
    5. Cite for contempt;
    6. Impose any civil penalty; or
    7. Assess costs as set forth in subsection (h) of this section.
  5. A defendant convicted of violating § 5-11-106, in which a minor was unlawfully detained, restrained, taken, enticed, or kept, may be assessed and ordered to pay expenses incurred by a law enforcement agency, the Department of Human Services, or the lawful custodian in searching for or returning the minor to the lawful custodian.

History. Acts 1975, No. 280, § 803; 1981, No. 620, § 7; 1983, No. 409, § 1; A.S.A. 1947, § 41-803; Acts 1987, No. 487, § 1; 1991, No. 608, §§ 1, 2; 1993, No. 192, § 1; 1993, No. 532, §§ 5, 9; 1993, No. 533, §§ 2, 3; 1993, No. 550, §§ 5, 9; 1993, No. 553, §§ 2, 3; 2001, No. 559, § 8; 2009, No. 748, § 3; 2011, No. 570, §§ 3, 4; 2011, No. 1120, §§ 1, 2; 2013, No. 1490, § 2; 2015, No. 299, § 1; 2017, No. 539, § 3; 2019, No. 910, § 648.

A.C.R.C. Notes. Acts 1991, No. 608, § 4, provided:

“It is the express intent of this act to clarify current sentencing provisions for Class Y felonies, second degree murder, driving while intoxicated and drug related offenses under the Uniform Controlled Substances Act. Current provisions have created considerable confusion as to what forms of punishment are permitted or prohibited in certain cases. Part of the confusion stems from the fact that § 5-4-301 has never been amended to correlate with the language of § 5-4-104, nor with amendments to other criminal offense provisions. See Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985). Additional confusion has arisen because the intent underlying mandatory sentences for the enumerated offenses is not furthered by disallowing the imposition of other forms of punishment in addition to mandatory imprisonment. The intent of §§ 5-4-104(e)(1) and 5-4-301(a)(1) was to insure that persons convicted of serious offenses received, and were forced to serve, sentences commensurate with the severity of the offense committed. See id. at 62 (Glaze, J., concurring). It is inconceivable that one convicted of the most reprehensible crime must be imprisoned, but at the same time, cannot be fined or ordered to pay restitution to the victim or the victim's family, or be subjected to a suspended additional term of imprisonment.

“Finally, confusion has arisen by the fact that certain offenses codified outside of the Criminal Code contain specific sentencing provisions that may or may not be read consistently with sentencing provisions within the code. For example, current provisions under the Omnibus DWI Act (§ 5-65-101 et seq.) require mandatory imprisonment, but expressly disallow only probation for first offenders under § 16-93-303. Insofar as sentencing provisions within the Criminal Code do not expressly prohibit suspension of sentences or probation for offenses under the act, there is some question as to which provision prevails. See Lovell v. State, 283 Ark. 425, 678 S.W.2d 318, reh'g denied, 283 Ark. 434, 678 S.W.2d 318 (1984). It is the intent of this act to resolve the ambiguity.

“As noted in Lovell, id. at 434-B-C, statutes possessing their own penal provisions concerning probation and suspended sentences have been, and may later be, enacted. It is the intent of this act, in the amendment of §§ 5-4-104(e)(1) and 5-4-301(a)(1), to provide that provisions within acts possessing their own penal provisions will control.”

Acts 2011, No. 570, § 1, provided: “Legislative intent. The intent of this act is to implement comprehensive measures designed to reduce recidivism, hold offenders accountable, and contain correction costs.”

Acts 2013, No. 1490, § 1, provided: “Legislative intent.

“(a) It is the intent of the General Assembly to revise the punishments authorized for persons who are not yet eighteen (18) years of age when they commit capital murder after the effective date of this act.

“(b) It is not the intent of the General Assembly to authorize the revised punishments for those persons who committed capital murder when they were not yet eighteen (18) years of age prior to the effective date of this act.”

Acts 2017, No. 539, § 1, provided: “Title. This act shall be known and may be cited as the ‘Fair Sentencing of Minors Act of 2017’.”

Acts 2017, No. 539, § 2, provided: “Legislative intent.

“(a)(1) The General Assembly acknowledges and recognizes that minors are constitutionally different from adults and that these differences must be taken into account when minors are sentenced for adult crimes.

“(2) As the United States Supreme Court quoted in Miller v. Alabama, 132 S. Ct. 2455 (2012), ‘only a relatively small proportion of adolescents’ who engage in illegal activity ‘develop entrenched patterns of problem behavior,’ and ‘developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds,’ including ‘parts of the brain involved in behavior control’.

“(3) Minors are more vulnerable to negative influences and outside pressures, including from their family and peers, and they have limited control over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings.

“(4) The United States Supreme Court has emphasized through its cases in Miller, Roper v. Simmons, 543 U.S. 551 (2005), and Graham v. Florida, 560 U.S. 48 (2010), that ‘the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes’.

“(5) Youthfulness both lessens a juvenile's moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society.

“(b) In the wake of these United States Supreme Court decisions and the emerging juvenile brain and behavioral development science, several states, including Texas, Utah, South Dakota, Wyoming, Nevada, Iowa, Kansas, Kentucky, Montana, Alaska, West Virginia, Colorado, Hawaii, Delaware, Connecticut, Vermont, Massachussets, and the District of Columbia, have eliminated the sentence of life without parole for minors.

“(c) It is the intent of the General Assembly to eliminate life without parole as a sentencing option for minors and to create more age-appropriate sentencing standards in compliance with the United States Constitution for minors who commit serious crimes.”

Publisher's Notes. The later legislation enacting this section may have repealed § 16-90-202 by implication. See Hodge v. State, 320 Ark. 31, 894 S.W.2d 927 (1995).

Amendments. The 2009 amendment substituted “§ 5-64-405” for “former § 5-64-414” in (e)(1)(A)(vi).

The 2011 amendment by No. 570 inserted “5-4-307 and 16-93-306 — 16-93-314” in (d)(2) and (e)(1)(B)(i).

The 2011 amendment by No. 1120 substituted “§§ 5-4-201 and 5-4-202” for “§§ 5-4-2015-4-203” in (c)(2)(A) and (d)(3).

The 2013 amendment rewrote (b).

The 2015 amendment inserted “or boating” following “Driving” in (e)(1)(A)(iv).

The 2017 amendment deleted former (b)(1) and the former (b)(2) designation; and, in (b), inserted “or treason” and substituted “thirty (30)” for “twenty-eight (28)”.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Youth Services of the Department of Human Services” for “division” and similar language throughout (f).

Research References

ALR.

Downward departure under state sentencing guidelines permitting downward departure for defendants with significantly reduced mental capacity, including alcohol or drug dependency. 113 A.L.R.5th 597.

U. Ark. Little Rock L.J.

Legislative Survey, Criminal Law, 8 U. Ark. Little Rock L.J. 559.

Legislative Survey, Criminal Law, 14 U. Ark. Little Rock L.J. 753.

Annual Survey of Caselaw, Criminal Procedure, 26 U. Ark. Little Rock L. Rev. 885.

U. Ark. Little Rock L. Rev.

Annual Survey of Case Law: Criminal Law, 29 U. Ark. Little Rock L. Rev. 849.

Case Notes

In General.

Former section which fixed penalty for certain offense did not violate the Eighth Amendment of the U.S. constitution prohibiting cruel and unusual punishment, nor was penalty cruel and unusual punishment prohibited by state constitution. Johnson v. State, 214 Ark. 902, 218 S.W.2d 687 (1949) (decision under prior law).

The former statute providing life imprisonment without parole did not violate the constitutional provision vesting the power to grant pardons, reprieves and commutations of sentences in the governor. Tanner v. State, 259 Ark. 243, 532 S.W.2d 168 (1976) (decision under prior law).

The extent of sentencing in criminal cases is controlled by the legislature, and the Arkansas circuit courts have no inherent authority to fashion sentences. Shelton v. State, 44 Ark. App. 156, 870 S.W.2d 398 (1994).

Construction.

The Arkansas Supreme Court has expanded the literal meaning of subsection (a) of this section to say that statutes that define a criminal offense and also possess their own sentencing provisions will control over the general code language. State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).

Authorizing a particular form of punishment is a far cry from mandating that it be considered, or that the jury be instructed that it be considered in a given case. Dale v. State, 55 Ark. App. 184, 935 S.W.2d 274 (1996).

Act 192 of 1993 amended subdivision (e)(1) of this section and § 5-4-301(a)(1) to permit suspension and probation as alternative sentences for certain drug offenses. Crouse v. State, 2012 Ark. 442 (2012).

Where defendant was found guilty of aggravated robbery and theft of property, his sentence was enhanced by seven years pursuant to § 16-90-120 for employing a firearm in the commission of a felony. The enhancement did not violate the plain language of subsection (a) of this section, because subsection (a) and § 16-90-120(a)-(b) can be read harmoniously to mean that § 16-90-120(a)-(b) is only a sentence enhancement, while the Arkansas Criminal Code provides the minimum sentences to be imposed for each specific offense. Williams v. State, 2013 Ark. App. 179 (2013).

Two fifteen-year sentences imposed by the jury under the firearm enhancement were not illegal, because § 16-90-120 and this section could be read in a harmonious manner, and without statutory amendments, the appellate courts' interpretations of the statutes remained the law. Smith v. St