ROBERT SMITH III v. STATE OF ARKANSAS
No. CR-21-195
SUPREME COURT OF ARKANSAS
May 5, 2022
2022 Ark. 95
HONORABLE TROY BRASWELL, JUDGE
APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-18-929]; AFFIRMED; REMANDED TO CORRECT SENTENCING ORDER.
Appellant Robert Smith III appeals a Faulkner County Circuit Court order convicting him of capital murder, kidnapping, aggravated robbery, and theft of property and sentencing him to consecutive terms of life, forty years, forty years, and ten years, respectively. For reversal, Smith argues that (1) substantial evidence does not support his capital-murder, kidnapping, and aggravated-robbery convictions; (2) the circuit court erred in denying his motion to suppress evidence; (3) his sentence of life without parole is illegal; (4) the circuit court abused its discretion by admitting text messages between Smith‘s codefendant, Tacori Mackrell, and Mackrell‘s girlfriend; (5) the circuit court erred by allowing the State to inquire about three of Smith‘s prior bad acts; (6) the State impermissibly shifted the burden of proof to the defense while cross-examining Smith; (7) the circuit court abused its discretion during closing arguments by preventing Smith from commenting on the State‘s failure to call Mackrell as a witness; and (8) the circuit court abused its discretion during sentencing by allowing the State to introduce a music video in which Smith appeared. We affirm but remand for the circuit court to correct the sentencing order.
On July 7, 2018, around noon, seventy-two-year-old Elvia Fragstein left her home in her 2018 silver Honda CR-V to go shopping in Conway. When she did not return home that evening, her husband, Helmut, became worried. Fragstein did not have a cell phone with her so Helmut checked her credit-card purchases in an attempt to locate her. She had made purchases that day at Kroger, a liquor store, and TJ Maxx. He called 911 and reported Fragstein missing.
Arkansas State Police Trooper Kevin Helm worked Highway Patrol that day. At 5:00 p.m., Trooper Helm ran the license plate for a silver Honda CR-V that passed him on the southbound side of Interstate 530 a few miles north of Pine Bluff. It was registered to Fragstein, but there was no indication then that the vehicle had been stolen.
Investigators with the Faulkner County Sheriff‘s Office reviewed surveillance footage from the Conway stores where Fragstein had shopped on July 7. A surveillance video from Kroger on Salem Road showed that after Fragstein finished shopping there, she walked outside to her CR-V, cautiously backed out, and exited the parking lot. Video footage from TJ Maxx in the Conway Commons shopping center revealed that she then shopped there and exited the store at approximately 3:43 p.m.
Exterior cameras from a nearby Target store showed other activity in the Conway Commons parking lot. Videos showed two males arrive at the shopping center a few minutes before 3:00 p.m. They walked around for almost an hour and moved their Chrysler PT Cruiser to several different parking spots during that time. One individual was wearing a white shirt, and the other was wearing a t-shirt with a graphic design on the front and a solid white back. At 3:42 p.m., the individuals walked in front of TJ Maxx. At 3:43 p.m., Fragstein exited TJ Maxx and walked in the same direction. Minutes later, the cameras showed Fragstein‘s CR-V being driven erratically at a high rate of speed. Video recovered from a nearby UPS store also showed multiple occupants inside
On the morning of July 11, a farmer discovered a female body at a Jefferson County farm outside Pine Bluff. The body, which had deteriorated and was infested with maggot and insect activity, was identified through dental records as Fragstein. On July 17, Fragstein‘s burned CR-V was found in a secluded area of Pine Bluff.
Dr. Stephen Erickson, the deputy chief medical examiner for the Arkansas State Crime Laboratory, performed the autopsy. He testified that Fragstein‘s body had undergone extensive decomposition, and there was significant tissue loss in her face, neck, and chest areas. Dr. Erickson discovered crushing neck trauma that he classified as strangulation. He found a fractured second cervical vertebra indicating that a high degree of force had been applied to the left side of the neck, crushing the side of that vertebra where an important vessel supplies blood to the brain. He also found six right-rib fractures and two left-rib fractures. Dr. Erickson stated that the right-rib injuries were probably caused by a significant amount of force. He agreed that a person “could get that [type of an injury] if the ribs are stomped or crushed.” Dr. Erickson concluded that there was “a severe prolonged multi-factorial assault[;] her cause of death was a combination of the injuries that [he] found—strangulation, blunt force trauma of the chest[,] and blunt force trauma of the cervical spine.”
Mackrell‘s girlfriend, Eriya Evans, testified that Mackrell and Smith are cousins. During the summer of 2018, she lived in an apartment across the street from Smith and his family. She remembered the day that Mackrell went to Conway. She had communicated with Mackrell that day via text message, and he had used a cell phone that she had given him. Evans identified a series of text messages between Mackrell and her from July 7. One text message from him stated, “I just
Another witness, Tashemia Bullard, testified that on July 9 or 10, Mackrell‘s sister picked her up from her house in a silver CR-V. A day or two later, Mackrell picked Tashemia up in the same CR-V and took her and her son to run an errand. When she retrieved her bags from the car, she opened the trunk and saw a bottle of fingernail polish in a white bag. The CR-V was then parked behind Tashemia‘s house for about two days. She later told the police about her concern that the vehicle was stolen. Three men eventually came to Tashemia‘s house in a PT Cruiser and picked up the CR-V. Tashemia‘s sister, Marquita Bullard, also recalled that three or four men arrived in a blue PT Cruiser to pick up the CR-V. Although Marquita did not actually see any of the men drive off in the CR-V, she identified two of the men as Smith and Mackrell.
Police obtained a search warrant for Smith‘s residence, and during the search officers recovered several items of clothing, including jeans, a white t-shirt that was air-brushed on one side, and a pair of Nike shoes that appeared to be the ones worn by one of the individuals in the surveillance video. Blood was identified on four different areas of the shoes—the outer side of the left shoe, the outer bottom of the left shoe, the outer bottom of the right shoe, and two spots on the outer bottom of the right shoe. All four of the swabs taken from the Nike shoes matched Fragstein‘s DNA.
Smith admitted on cross-examination that he had talked to the police two different times and told them several lies, including that he was not in Conway on July 7, had never been to Conway, did not know if he had ever ridden in his family‘s PT Cruiser, and had never seen Fragstein‘s Honda CR-V. The second time he spoke with police, he admitted that he was in a picture taken from the surveillance footage at Target, but still said that “[he] had nothing to do with it” and that “[he didn‘t] know anything about it.” At trial, Smith admitted that his statement was also a lie.
Smith acknowledged that if Mackrell sent Evans a text saying that “cuz” snatched a purse, Smith was the “cuz” about whom Mackrell was referring. But Smith claimed at trial that Mackrell
After deliberations, the jury convicted Smith of capital murder, kidnapping, aggravated robbery, and theft of property. He was sentenced to a cumulative term of life imprisonment plus ninety years. He filed a timely notice of appeal, and this appeal followed.
II. Points on Appeal
A. Sufficiency of the Evidence
Smith first argues that the circuit court erred in denying his motion for directed verdict on the capital-murder, kidnapping, and aggravated-robbery charges.1 Although Smith admits that he drove to and from the crime scene with Mackrell, he contends that there was no evidence he “did anything with the purpose of promoting or facilitating the crimes.”
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. McClendon v. State, 2019 Ark. 88, at 3, 570 S.W.3d 450, 452. In reviewing this challenge, we view the evidence in a light most favorable to the State, considering only the evidence that supports the
Smith committed capital-felony murder if, acting alone or with another person, he committed or attempted to commit the offense of robbery or kidnapping, and, in the course of and in furtherance of the felony or in immediate flight therefrom, he or a person acting with him, caused the death of a person under circumstances manifesting extreme indifference to the value of human life.
In cases implicating a theory of accomplice liability, we will affirm if substantial evidence exists that the defendant acted as an accomplice in the commission of the alleged offense. Finley, 2019 Ark. 336, at 2, 587 S.W.3d at 226. A person acts as an accomplice of another person if, with
Here, with regard to his aggravated-robbery conviction, Smith contends that the State failed to present substantial evidence that he had the purpose to commit a theft or that he employed physical force against Fragstein. On his kidnapping conviction, Smith contends that Fragstein was already dead while he got into her CR-V, so the State failed to prove that he restrained her at any point when she was alive. Finally, on the capital-felony-murder conviction, Smith again argues that Fragstein was already dead when he got into her vehicle and that the State presented insufficient evidence of the underlying felonies of either kidnapping or robbery.
The State presented evidence that Smith participated in the kidnapping and aggravated robbery. On July 7, Smith and Mackrell walked the same direction as Fragstein about a minute before she exited TJ Maxx, and just before her Honda CR-V was seen being driven erratically at a high rate of speed. Mackrell sent his girlfriend a text message telling her that Smith “snatched the
The State also presented evidence that Smith participated in the capital-felony murder. Dr. Erickson testified that Fragstein suffered a “severe, prolonged and multi-factorial” assault and that her injuries were consistent with someone “stomping” on her. Smith admitted that he is in a music group that has songs about killing people and stomping someone to death. And Fragstein‘s blood was found at multiple locations on Smith‘s shoes. Although Smith testified that he did not injure Fragstein and that she appeared to be dead when he got into her CR-V, the jury was not required to believe Smith‘s testimony. See Price v. State, 2019 Ark. 323, at 6, 588 S.W.3d 1, 5. Finally, he lied to police multiple times about his involvement in the crimes, which could be considered by the jury as circumstances tending to establish guilt. See Hyatt v. State, 2018 Ark. 85, at 12–13, 540 S.W.3d 673, 680.
We hold that the evidence above, viewed in the light most favorable to the State, constitutes substantial evidence of Smith‘s participation as an accomplice in the capital-felony murder, kidnapping, and aggravated robbery of Fragstein. See
B. Motion to Suppress Evidence
Smith next argues that the circuit court‘s denial of his motion to suppress evidence found in the search of his residence was clearly against the preponderance of the evidence. He claims that the search-warrant affidavit did not describe any circumstances showing that evidence of the crimes against Fragstein would be discovered at Smith‘s residence.
Here, the affidavit supporting the search warrant stated that the affiant, Jefferson County Investigator Johnathan Powell, had reason to believe that on the premises or inside Smith‘s residence
there is now being concealed certain property or persons, namely: Any property believed to belong to Elvia Fragstein, property or documents identifying Elvia Fragstein or her 2013 Honda CRV, any electronic communications devices believed to belong to Robert Smith, and any property believed to be related to the crimes of kidnapping, theft of a vehicle, and capital murder[.]
A “continuation for affidavit,” which was attached to the affidavit, contained a sworn statement by Investigator Powell detailing the following facts in support of his request: the finding of a female body on July 11; the discovery the next day that the victim was Fragstein, who had gone missing from a Conway shopping center on July 7; his review of video surveillance from Conway Commons showing two black males in a blue Chrysler PT Cruiser moving to different parking
After a hearing, the circuit court denied Smith‘s motion and found that
[t]he examination of the four-corners of the document, the affidavit, and the continuation for affidavit provides this Court with the information to conclude that probable cause existed. Further, the information establishes a nexus with the items located during the search under Johnson v. State, 2015 Ark. 387. Therefore, the motion to suppress is DENIED.
We agree with the circuit court that the affidavit and continuation for affidavit established a nexus between Smith‘s residence and the items sought in the investigation of the crimes committed against Fragstein. See, e.g., Johnson v. State, 2015 Ark. 387, at 6, 472 S.W.3d 486, 489. The affidavit placed Smith with Mackrell at the time Fragstein disappeared, and it described in detail the clothing worn by Smith that day. It stated that Smith had been arrested at that residence. It established a close relationship between Mackrell, Smith, and Smith‘s mother. It also indicated that Smith‘s mother warned Mackrell that police were looking for the stolen CR-V.2 Given these facts, we hold that the circuit court‘s conclusion that the affidavit established probable cause for a search
C. Smith‘s Life-Without-Parole Sentence
Smith next argues that his sentence of life imprisonment without the possibility of parole for his capital-murder conviction was illegal because Arkansas law does not allow a juvenile to be sentenced to life without parole for any homicide offense. He argues that we should remand to the circuit court for his sentence to be modified.
Capital murder is punishable as follows:
. . .
(B) If the defendant was younger than eighteen (18) years of age at the time he or she committed the capital murder, life imprisonment with the possibility of parole after serving a minimum of thirty (30) years’ imprisonment.
Here, it is undisputed that Smith was sixteen years old at the time of the capital murder. Thus, he was ineligible for a sentence of life without the possibility of parole.
The State contends that the life-without-parole notation on Smith‘s sentencing order appears to be a clerical error because all parties below agreed that Smith would be eligible for parole on his capital-murder conviction after thirty years.
When there is a discrepancy between the sentencing order and the pronouncement of sentence, the sentencing order controls. Martinez v. State, 2019 Ark. 85, at 2, 569 S.W.3d 333, 335. But clerical errors do not prevent enforcement of a judgment, and a circuit court can enter an order nunc pro tunc at any time to correct clerical errors in a judgment. Id., 569 S.W.3d at 335. We therefore remand and instruct the circuit court to correct the sentencing order so that it accurately reflects that Smith was sentenced to “Life” for capital murder, which in his case means that he is eligible for parole after thirty years.
D. Text Messages3
Smith next argues that the circuit court abused its discretion in admitting three exhibits—State‘s exhibits 50, 110, and 111—over his hearsay objections. The circuit court admitted State‘s exhibits 50 and 110 on two bases—as nonhearsay statements made by a co-conspirator in furtherance of the conspiracy under
Circuit courts have broad discretion in deciding evidentiary issues, and we will not reverse a circuit court‘s ruling on the admission of evidence absent an abuse of discretion. Collins v. State, 2019 Ark. 110, at 5, 571 S.W.3d 469, 472. Abuse of discretion is a high threshold that does not simply require error in the circuit court‘s decision, but requires that the circuit court act
“‘Hearsay‘” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
1. State‘s exhibit 50
State‘s exhibit 50 was a text message from Mackrell to Evans at 11:31 p.m. on July 7, 2018, stating, “I just got the texts and when we was up there cuz snatched the purse and shidd it had 60 dollars in it he got 30 I got 30 I put 20 in the tank and he bought ah 20.”4 In addressing admissibility of the exhibit under
We agree with the circuit court‘s ruling. First, we see no error in the finding that there was conspiracy between Smith and Mackrell for the reasons articulated by the circuit court as well as Smith‘s own testimony about his participation in the crimes. Second, the circuit court‘s conclusion that the message was sent during the course of the conspiracy was not erroneous because it was sent the night that Fragstein went missing. Several days later, Smith and Mackrell went to the Bullards’ house after Mackrell was asked to move the CR-V. Additionally, Fragstein‘s body was discovered on July 11, and her CR-V was found on July 17. The conspiracy between Smith and Mackrell had not concluded when Mackrell sent the text. Third, we agree that the statement was made in furtherance of the conspiracy. This court has previously addressed the “in furtherance of” requirement:
Although this court has had few opportunities to discuss the “in furtherance of” element of Rule 801(d)(2)(v), it has held that statements designed to further the specific objective of the conspiracy are made in furtherance of the conspiracy. Federal cases interpreting the corresponding federal rule of evidence hold that this requirement should be interpreted broadly. Thus, statements that have an overall effect of facilitating the conspiracy or that somehow advance the objectives of the conspiracy are said to be in furtherance of the conspiracy.
Dyer v. State, 343 Ark. 422, 429, 36 S.W.3d 724, 728 (2001) (internal citations omitted).
In this case, the text message stating that “cuz snatched the purse” was admitted into evidence after Evans testified about her receipt of a brown purse following Mackrell‘s trip to Conway. That text message also stated that Mackrell “put 20 in the tank.” Evans testified that, a few days after his trip to Conway, Mackrell drove her to the Dollar Store in a vehicle that looked like Fragstein‘s CR-V. Evans further admitted that she had taken a photograph of herself inside the CR-V. Given Evans‘s testimony about receiving a purse and riding in the CR-V, we conclude that Mackrell‘s text message to her was made in the furtherance of the conspiracy. Thus, we hold that
2. State‘s exhibit 110
State‘s exhibit 110 was a series of five text messages that Mackrell and Evans exchanged between 8:04 p.m. and 8:10 p.m. on July 7. Although Smith challenges the entire exhibit, he alleges that he was prejudiced by only a single text message within that exhibit—a message from Mackrell to Evans stating, “[C]ause we not finna park this truck there and don‘t you got eniya unless she coming.” The circuit court rejected Smith‘s hearsay objection to this exhibit, ruling that it was admissible under
We agree that this statement concerned Mackrell‘s intent to do something in the future, which this court has said is admissible pursuant to
3. State‘s exhibit 111
State‘s exhibit 111 was a series of five text messages from Evans to Mackrell between 4:35 p.m. and 6:53 p.m. on July 7. Smith argues that two of the text messages within that exhibit were inadmissible because they were offered to prove the truth of the matter asserted. First, he asserts that Evans‘s message to Mackrell ending in “cause you been from Conway,” was a statement offered to show that Mackrell had been in Conway for an extended period of time. Second, he contends
We have stated that merely cumulative evidence is not prejudicial. Davis v. State, 368 Ark. 401, 411, 246 S.W.3d 862, 871 (2007). We will not reverse unless an appellant demonstrates that he was prejudiced by an evidentiary ruling. Collins, 2019 Ark. 110, at 5, 571 S.W.3d at 472. State‘s exhibit 111 is duplicative of surveillance footage of Smith and Mackrell at the Conway Commons shopping center as well as Smith‘s own testimony that he was in Conway with Mackrell the afternoon of July 7. Because Smith has failed to show any prejudice in the admission of Exhibit 111, we hold that the circuit court did not abuse its discretion in admitting it.
E. Prior Bad Acts
Smith next argues that the circuit court abused its discretion by allowing the State to question him about three prior bad acts in violation of
On cross-examination at trial, Smith testified that he remembered the police telling him what had happened to Fragstein, and he told the police that he would not put himself in a situation like that. On redirect examination, Smith testified as follows:
[DEFENSE COUNSEL]: Do you remember [the prosecutor] asked you about putting yourself in this situation?
[SMITH]: Yes, sir.
[DEFENSE COUNSEL]: That‘s not the kind of person you are, correct?
[SMITH]: No, sir.
The prosecutor then argued to the circuit court in a bench conference that Smith‘s responses had opened the door to questioning about Smith‘s previous incidents related to his character. The circuit court ruled that Smith had opened the door to otherwise inadmissible character evidence, and it
In admitting the evidence, the circuit court relied on Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996). There, Smallwood‘s attorney asked him, “Did you threaten [the victim] with a knife or with anything?” Smallwood responded, “No, I didn‘t threaten her with a knife. I‘m not that type of person. I didn‘t threaten her with a knife.” Id. at 819, 935 S.W.2d at 533 (emphasis in original). This court recognized that
otherwise inadmissible testimony may be offered when one party has opened the door for another party to offer it. This is most often permitted when a defendant has been untruthful about a former crime or has brought up otherwise inadmissible character evidence which the State may then rebut.
Id. at 819, 935 S.W.2d at 533. (emphasis in original) (quoting Larimore v. State, 317 Ark. 111, 120, 877 S.W.2d 570, 574 (1994)). In Smallwood, by claiming that he was not the “type of person” to threaten someone with a knife, Smallwood placed his propensity toward violence in issue. Id., 935 S.W.2d at 533. We held that the circuit court properly allowed the State to question Smallwood about other violent acts or threats. Id., 935 S.W.2d at 533.
Smallwood is dispositive of the issue here. Smith‘s own testimony elicited by his trial counsel opened the door to questioning about his propensity toward violence. Smith claimed that he was “not the kind of person” to place himself in a kidnapping-robbery-murder scenario in which the victim suffered a “severe prolonged multi-factorial assault.” Thus, we hold that the circuit court did not abuse its discretion by finding that Smith opened the door to evidence of his past violent acts and participation in a music group that has songs about killing people and stomping someone to death. We therefore affirm on this point.
Smith next argues that the circuit court abused its discretion by permitting the prosecutor to shift the burden of proof to him during the following line of questioning:
[PROSECUTOR]: Okay. And you would agree that all the videos that were in evidence in this case and jury have seen, none of them show the PT Cruiser in this time frame before Trooper Helm clocks y‘all on Interstate 530, that the PT Cruiser is never seen leaving the Conway Commons, is it?
[SMITH]: I guess you guys didn‘t do enough backing up for the video because it had to have—
[PROSECUTOR]: Okay.
[SMITH]: –left the Conway Commons to get back to the Bingo hall, right?
[PROSECUTOR]: But you would agree that all the videos that are in evidence in this case during this time period don‘t ever show the PT Cruiser leaving, do they?
[SMITH]: No, ma‘am. No, ma‘am.
[PROSECUTOR]: Okay. All right. And you‘ve chosen to testify willingly here today, haven‘t you?
[SMITH]: Yes, ma‘am.
[PROSECUTOR]: And if you thought you had a way to prove that with some video, you would show that, wouldn‘t you?
[SMITH]: I don‘t have access to videos.
Smith‘s trial counsel then objected on the basis that the prosecutor attempted to shift the burden of proof to Smith. The State responded that its questions were in response to Smith‘s testimony that the State did not back up the surveillance video far enough to show the PT Cruiser leaving Conway Commons in the time period he claimed. The circuit court overruled Smith‘s objection.
For reversal, Smith relies on Cook v. State, 316 Ark. 384, 872 S.W.2d 72 (1994), in which this court held that a prosecutor‘s comment in closing argument “[a]t most” constituted “an attempt
Here, we agree that Smith opened the door to the State‘s questions when he suggested that the State had not shown the part of the video that would confirm his testimony. Moreover, Smith did not request a mistrial or a limiting instruction, as was given in Cook. Any possible prejudice could have been easily cured by an admonishment, which defense counsel did not request. See, e.g., Noel v. State, 331 Ark. 79, 89, 960 S.W.2d 439, 444 (1998). Thus, we conclude that the circuit court properly rejected Smith‘s burden-shifting argument, and we affirm on this point.
G. Refusal to Allow Comment on Mackrell‘s Absence as a Witness
Next, Smith argues that the circuit court abused its discretion by refusing to allow his trial counsel to comment on the State‘s failure to call Mackrell as a witness at trial.
During guilt-phase closing argument, Smith‘s trial counsel stated,
They tell you about a text message. They said Tacori says that “cuz snatched the purse.” Now first of all, I‘m amazed that all of a sudden they wanted to listen to the same man that we all know is a violent vicious killer. So, all of a sudden now his telling—[Mackrell‘s] words should be credible. But we don‘t have him here to ask him, okay, explain to us why you say that, how you come to say that, and whatever. We don‘t have any of that stuff.
The State objected on the basis that “the State cannot call a co-defendant so that‘s an improper[,] misleading argument to the jury.” After some discussions, Smith‘s trial counsel responded, “But I‘m not saying anything else about this issue[.]” Thus, before the circuit court could rule on the objection, Smith‘s trial counsel announced that he would refrain from further mentioning Mackrell‘s not testifying at trial. We therefore hold that Smith‘s argument is unpreserved for our review, and we affirm without addressing it. See Hamilton v. State, 348 Ark. 532, 537–38, 74 S.W.3d 615, 618 (2002).
Finally, Smith argues that the circuit court abused its discretion in the sentencing phase of trial by permitting the State to introduce, over Smith‘s objection, a “Murder Gang” music video featuring Smith. When the State announced its intent to introduce two “Murder Gang” music videos at sentencing, Smith‘s attorney objected only to the video in which Smith did not appear. The circuit court agreed and excluded that video as evidence. Smith‘s attorney did not object to the one in which Smith did appear. Before that video was played for the jury, Smith‘s attorney stated, “Over the same objection that I had.”
Smith now contends that the music video in which he appeared was not relevant and that its admission was incredibly prejudicial. Because that specific objection was not made below, we hold that Smith‘s current argument is unpreserved. Friday v. State, 2018 Ark. 339, at 6, 561 S.W.3d 318, 322. We therefore affirm on this point.
III. Rule 4-3(a)
Because Smith received a life sentence, this court, in compliance with
Affirmed; remanded to correct sentencing order.
WOMACK, J., concurs.
SHAWN A. WOMACK, Justice, concurring. I join the majority‘s decision to affirm Robert Smith‘s convictions for capital murder, kidnapping, and aggravated robbery. But I write separately to note it is preferable to affirm Smith‘s sentence as modified rather than remand the matter to the circuit court. To efficiently administer justice, this court may correct an illegal sentence, particularly when the illegality stems from an apparent clerical error in the sentencing order. See Walden v. State, 2014 Ark. 193, at 11, 433 S.W.3d 864, 871 (holding that “[b]ecause neither issue relates to [the
Therefore, I respectfully concur.
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att‘y Gen., by: Rachel Kemp, Sr. Ass‘t Att‘y Gen.; and Karen Virginia Wallace, Ass‘t Att‘y Gen., for appellee.