John A. Roberts v. State of Arkansas , 2023 Ark. App. 115 ( 2023 )

Cite as 2023 Ark. App. 115ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-22-444
Opinion Delivered March 1, 2023
JOHN A. ROBERTS
APPELLANT APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
V. [NO. 63CR-21-113]
HONORABLE KEN CASADY, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED; REMANDED TO
CORRECT SENTENCING
ORDER
STEPHANIE POTTER BARRETT, Judge
John Roberts was convicted by a Saline County Circuit Court jury of murder in the
second degree and two counts of failure to appear. He was sentenced as a habitual offender
with more than four felony convictions to sixty years’ imprisonment on the second-degree
murder conviction and thirty years’ incarceration for each of the failure-to-appear
convictions. The sentences were ordered to be served consecutively, for a total of 120 years.
On appeal, Roberts argues (1) there was insufficient evidence that he caused Oliver’s death;
(2) there was insufficient evidence that the Saline County Circuit Court had jurisdiction; (3)
the circuit court abused its discretion by refusing to instruct the jury on jurisdiction; and (4)
the circuit court erred by permitting the State to make an improper closing argument in
rebuttal. We affirm the convictions, but we remand to correct an error in the sentencing
order.
I. Facts
The testimony relevant to the issues on appeal included that of Alexander Chief of
Police Robert Burnett, who testified that on October 14, 2020, he was traveling on Highway
111 South in Alexander at approximately 9:30 in the morning, when he saw three people he
believed were working on a vehicle on Vine Street. However, as he came around the curve,
he noticed a young man kicking someone lying on the ground in the middle of the street.
Chief Burnett, realizing there was a problem, turned around and came up behind the vehicle
on Vine Street; by that time, according to Chief Burnett, the victim, later identified as
Michael Oliver, had rolled into a field, and a person Chief Burnett identified as Roberts was
still kicking Oliver in the head, neck, and shoulders. After Chief Burnett arrived at the
scene, Roberts began trying to help Oliver off the ground, which Chief Burnett testified
“wasn’t working out too good” because Oliver was “like a limp noodle,” and he was
screaming that he could not see. Chief Burnett explained that when Roberts could not get
Oliver up, he “kind of picked him up and was kind of dragging him to the car” and put
Oliver in the driver’s seat; Chief Burnett believed Roberts was attempting to downplay the
situation by saying that they “were good.” Chief Burnett testified that even though he did
not see any blood on Oliver, his condition worsened after medical assistance and backup
were called; that Oliver had a lot of snot and fluid coming out of his nose and mouth; and
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that Oliver lost consciousness and never regained consciousness before an ambulance
transported him to the hospital.
Detective Sergeant Jessica Burnett of the Alexander Police Department testified that
she responded to the incident for backup, and she was responsible for processing the scene.
When she arrived at the scene, she found Oliver in the driver’s seat of a vehicle with his head
leaned back, completely unresponsive, with excessive mucus and drool coming from his
mouth and nose, and he had urinated on himself. She found no weapons at the scene, and
although there was no bruising, injuries, or blood she could see on Oliver, she stated that he
appeared to be injured because he was “completely unresponsive.”
Dr. Frank Peretti, a recently retired associate medical examiner at the Arkansas State
Crime Laboratory, testified that Oliver died on November 8, 2020, and he performed
Oliver’s autopsy on November 10, 2020. He explained that Oliver had developed a subdural
hematoma—a blood clot on his brain—as a result of the assault, and it was necessary to
perform surgery to remove it and to relieve pressure on his brain; otherwise, herniation of
the spinal cord would occur, rendering him brain dead. Dr. Peretti explained that Oliver’s
injury was contained inside of his skull, on the top of the brain; however, the excess mucus
and drool, the seizures, and the inability to see were all symptoms consistent with a subdural
hematoma.
Dr. Peretti determined that Oliver’s cause of death was pneumonia complicating
blunt-force head injuries, and the manner of death was homicide, meaning that his death
was caused by another person. When asked how the manner of death could be homicide if
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the cause of death was pneumonia complicating blunt-force head injuries, Dr. Peretti
explained that Oliver had sustained significant head trauma and had undergone extensive
surgical intervention; on October 21, while still recovering from surgery in the hospital,
Oliver fell, hit his head, and became bedbound; he then developed pneumonia and died.
Dr. Peretti opined that Oliver developed pneumonia as a result of his assault; if Oliver had
not been assaulted and required surgery, he would not have been in the hospital and fallen,
and he would not have developed pneumonia. Dr. Peretti considered the time from the
assault on October 14 to Oliver’s death on November 8 to be an uninterrupted sequence of
events.
On cross-examination, Dr. Peretti admitted Oliver had begun to recover from surgery
when he fell in the hospital and suffered new injuries. The new injury caused a rebleed
where the first subdural hematoma occurred, and Oliver developed another blood clot.
The State rested after Dr. Peretti’s testimony. Roberts moved for a directed verdict
on the charge of murder in the second degree, arguing the State had failed to prove he caused
Oliver’s death. The State argued that there could be concurrent causes of death, but conduct
that hastens or contributes to a person’s death is a cause of death. The circuit court denied
the directed-verdict motion, finding it was a question for the jury.
After calling one witness whose testimony is not germane to the issues on appeal, the
defense renewed its directed-verdict motion, which was again denied by the circuit court.
The following morning, the defense moved to reopen its case, which was allowed without
objection. The defense then called Pam Wright, a geographical information systems
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administrator for Saline County. Wright was shown a parcel map of the area where the
altercation between Roberts and Oliver had occurred. The location is on the Pulaski/Saline
County line, and Wright testified that all of the 8-1-0 parcel numbers on the map are billed
and represented in Saline County, including the parcel in question, 810-65022-000. She
explained that a parcel is not divided between counties even if it is in two counties, and that
all of the parcels in question are considered to be in Saline County. Wright agreed that if
part of the crime was committed on parcel 810-65022-000, which is in both Saline and
Pulaski Counties, it is considered to be in Saline County.
After Wright’s testimony, Roberts renewed his directed-verdict motion regarding
murder in the second degree, and he added the argument that because it was unclear whether
the fatal blow happened in Saline County, there was a jurisdictional issue. The State
responded that venue and jurisdiction are appropriate if part of the crime occurred in Saline
County, and the fatal blow did not have to occur in Saline County. The circuit court denied
Roberts’s motion, stating that the jury could weigh the evidence.
The State recalled Chief Burnett as a rebuttal witness. He testified that when he first
saw Oliver, he was “right about” on the county line, but when he circled back around, Oliver
was in a grassy area clearly in Saline County. After Chief Burnett’s testimony, Roberts again
moved for a directed verdict, which was again denied.
During discussion of jury instructions, Roberts requested a jury instruction based on
Arkansas Code Annotated section 5-1-111 (Repl. 2013), stating that an issue of fact as to
jurisdiction had been raised and that the State would need to prove beyond a reasonable
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doubt that the incident had occurred in Saline County. The State objected, arguing that if
one part of the crime happened in one county and another part of the crime happened in
another county, charges could be brought in either county, and Roberts had not presented
any evidence that part of the crime had not occurred in Saline County. The circuit court
denied Roberts’s request for the jury instruction, finding that the State was not required to
prove venue or jurisdiction unless evidence was admitted affirmatively showing that the
circuit court lacked jurisdiction, which it did not believe had been shown.
II. Sufficiency of the Evidence—Murder in the Second Degree
Roberts argues the circuit court erred in denying his motions for directed verdict on
the charge of murder in the second degree because the State failed to prove that he caused
Oliver’s death. A motion for directed verdict is a challenge to the sufficiency of the evidence.
Benton v. State, 2020 Ark. App. 223, 599 S.W.3d 353. When reviewing a challenge to the
sufficiency of the evidence, this court assesses the evidence in the light most favorable to the
State, considering only the evidence supporting the verdict, to determine if there is
substantial evidence to support the verdict. Id. Substantial evidence can be direct or
circumstantial, and it is evidence of sufficient force and character to compel a conclusion
one way or the other, with reasonable certainty, without resorting to speculation or
conjecture. Id. The jury determines the credibility of the witnesses, and it is free to believe
all or part of any witness’s testimony and may resolve questions of conflicting testimony and
inconsistent evidence. Id.6
A person commits murder in the second degree if he or she (1) knowingly causes the
death of another person under circumstances manifesting indifference to the value of human
life; or (2) with the purpose of causing serious physical injury to another person, the person
causes the death of any person. Ark. Code Ann. § 5-10-103(a) (Repl. 2013). Arkansas Code
Annotated section 5-2-205 (Repl. 2013) provides:
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.
“Where there are concurrent causes of death, conduct which hastens or contributes to a
person’s death is a cause of death.” Cox v. State, 305 Ark. 244, 248, 808 S.W.2d 306, 309
(1991).
We hold that the State provided sufficient evidence that Roberts caused Oliver’s
death. Dr. Peretti testified that Oliver sustained significant head trauma and underwent
extensive surgical intervention as a result of Roberts’s assault on him; he sustained a fall in
the hospital while recovering from surgery for the injuries caused by Roberts; and he
contracted pneumonia after becoming relegated to bed after the fall. Dr. Peretti explained
that if Oliver had not been assaulted by Roberts, he would not have been in the hospital; he
would not have sustained a fall in the hospital while recovering from surgery; and he would
not have developed pneumonia as a result of being bedbound. While pneumonia may have
been a cause of Oliver’s death, the State produced sufficient evidence that Roberts’s assault
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on Oliver was a contributing cause to his death as well, and the jury, as the trier of fact, was
entitled to believe Dr. Peretti’s expert testimony as to what caused Oliver’s death. The circuit
court did not err in denying Roberts’s directed-verdict motions.
III. Sufficiency of Evidence—Jurisdiction
Roberts next argues there was insufficient evidence that the Saline County Circuit
Court had jurisdiction to hear his case.1 We disagree.
No person may be convicted of an offense unless jurisdiction and venue are proved
beyond a reasonable doubt, except as provided otherwise in the statute. Ark. Code Ann. §
5-1-111(a) (Repl. 2013). Subsection (b) of this statute states that the State is not required to
prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the
court lacks jurisdiction or venue. Ark. Code Ann. § 5-1-111(b).
If an offense is committed on the boundary of two or more counties or if it is
uncertain where the boundary is, either county has jurisdiction to hear the matter. Ark.
Code Ann. § 16-88-108(a) (Repl. 2005). If an offense is committed partly in one county and
partly in another, jurisdiction is in either county. Ark. Code Ann. § 16-88-108(c). There is
a presumption that the court had venue. Penix, supra. There must be positive evidence that
an offense occurred outside the jurisdiction of the court before the State is required to offer
evidence of jurisdiction or venue. Id. The test is “whether the record contains substantial
1
While Roberts designates this argument as one of jurisdiction, he does not argue
that the Saline County Circuit Court did not have subject-matter jurisdiction; rather his real
argument is venue—the geographic area where an action is brought to trial. See Penix v. State,
2022 Ark. App. 407, 654 S.W.3d 828.
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evidence showing that the offense, or elements of it, occurred within the jurisdiction and
venue of the court.” Penix, 2022 Ark. App. 407, at 14, 654 S.W.3d at 836 (citing Lindsey v.
State, 54 Ark. App. 266, 268, 925 S.W.2d 441, 442–43 (1996)).
Roberts argues that Pam Wright’s testimony showed that the parcel of property where
Oliver was injured, while located near the Pulaski/Saline County line, was located “entirely
within Pulaski County.” This is an incorrect characterization of Wright’s testimony. She
testified that all of the 810 parcel numbers were considered to be Saline County parcels.
Chief Burnett’s rebuttal testimony supported Wright’s testimony: he stated that he first saw
Roberts and Oliver right on the county line, but they were in Saline County when he turned
around to investigate the incident. Because Roberts failed to present substantial evidence
that the offense occurred outside of Saline County, the State was not required to offer
evidence of jurisdiction or venue. We hold that the charges were properly brought in Saline
County.
IV. Refusal to Give Jurisdiction Jury Instruction
Roberts next argues that the circuit court erred in refusing to instruct the jury on the
jurisdictional element. Roberts’s proffered instruction provided, “Arkansas Code Section 5-
1-111, Burden of Proof, Jurisdiction. The issue of jurisdiction as a defense has been
submitted to the jury. Any reasonable doubt on the issue requires that the Defendant be
acquitted.”
A party is entitled to a jury instruction when it is a correct statement of the law and
when there is some basis in the evidence to support giving the instruction. Keesee v. State,
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2022 Ark. 68, 641 S.W.3d 628. The circuit court’s decision to give or reject an instruction
will not be reversed unless the court abused its discretion. Id. Because of our disposition of
Roberts’s jurisdictional argument, as discussed above, we hold the circuit court did not abuse
its discretion in refusing to give the proffered instruction.
V. Improper Closing Rebuttal Argument
Roberts argues the circuit court erred in permitting the State to make the following
improper closing argument in rebuttal:
Causation is not an issue, ladies and gentlemen. He talks about—and did you
see his reaction? Were you watching when they were talking about how he fell in the
hospital? And that’s the only time I’ve seen any reaction from him at all. He hasn’t
shown any remorse for the person who died at his hands. But when they talked about
him falling in the hospital, he was over there, Yeah, yeah. Like that absolves him
from responsibility, ladies and gentlemen. That’s abhorrent. It’s abhorrent. That
fall in the hospital only happened because he beat him down so severely that he had
to have brain surgery.
Roberts admits he failed to object to the prosecutor’s statements at trial. Generally,
issues raised for the first time on appeal, even constitutional ones, will not be considered.
Witherspoon v. State, 2020 Ark. App. 468. Roberts nonetheless contends that his argument
should be reached as one of the exceptions to the contemporaneous-objection rule found in
Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Four exceptions to the
contemporaneous-objection rule are set forth in Wicks: (1) when a circuit court, in a death-
penalty case, fails to bring to the jury’s attention a matter essential to its consideration of the
death penalty itself; (2) a circuit court errs at a time when defense counsel has no knowledge
of the error and thus no opportunity to object; (3) a circuit court should intervene on its
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own motion to correct a serious error; and (4) the admission or exclusion of evidence affects
a defendant’s substantial rights. Wicks, 270 Ark. at 785–87, 606 S.W.2d at 369–70. Roberts
submits that this court can reach his argument under the third Wicks exception—that the
circuit court should have intervened on its own motion to correct the prosecutor’s improper
appeal to the jury’s passions and emotions by commenting on his alleged lack of remorse.
We disagree. In Wicks, our supreme court held:
We implied in Wilson v. State, 126 Ark. 354, 190 S.W. 441 (1916), that no objection
is necessary if the trial court fails to control a prosecutor's closing argument and allows
him to go too far: “Appellant cannot predicate error upon the failure of the court to
make a ruling that he did not at the time ask the court to make, unless the remarks
were so flagrant and so highly prejudicial in character as to make it the duty of the
court on its own motion to have instructed the jury not to consider the same. See
Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256, 85 S.W. 428 (1905); Harding v. State,
94 Ark. 65, 126 S.W. 90 (1910).”
It must be noted that, first, we did not reverse the judgment in Wilson, and
second, the quoted statement was taken essentially from the cited Murphy case, where
we went on to say explicitly that if the court fails to restrain on improper argument,
counsel should make a definite objection and call for a ruling. We have mentioned
the Wilson suggestion in two recent cases, but in neither one was the judgment actually
reversed because of the trial court’s failure to act on its own motion. Ply v. State, 270
Ark. 554, 606 S.W.2d 556 (1980); Wilson and Dancy v. State, 261 Ark. 820, 552
S.W.2d 223 (1977). Thus every statement of the original Wilson suggestion has been
obiter dictum, because no judgment has been reversed on account of the trial court’s
failure to intervene. Such a reversal would necessarily be an extremely rare exception
to our basic rule.
270 Ark. at 786–87, 606 S.W.2d at 369–70. Our case law is clear that Wicks exceptions are
narrow and are to be rarely applied. In Anderson v. State, 353 Ark. 384, 398, 108 S.W.3d
592, 600–01 (2003) (citations omitted), our supreme court held:
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Our case law is clear that Wicks presents only narrow exceptions that are to be
rarely applied. Specifically, the third Wicks exception has only been applied to cases
in which a defendant’s fundamental right to a trial by jury is at issue. The third Wicks
exception has not been applied to consider possible prosecutorial errors in relation
to cross examination, to privileged testimony, or closing arguments.
See also Tiarks v. State, 2021 Ark. App. 325, 633 S.W.3d 788 (third Wicks exception has not
been applied to possible prosecutorial errors in cross-examination; privileged testimony; or
closing arguments). Under our case law, the third Wicks exception requiring the circuit court
to intervene of its own accord is not applicable in this case, and Roberts’s failure to object
during the State’s rebuttal closing argument precludes consideration of his argument on
appellate review.
Although we affirm Roberts’s convictions, we remand this case for the limited
purpose of correcting a clerical error in the sentencing order. The State charged Roberts as
a habitual offender who had previously been convicted of more than four felonies, and
Roberts was sentenced accordingly. However, on the sentencing order, the habitual-offender
boxes are not checked; rather, the third page of the sentencing order identifies “5-4-501
Habitual Offender” as a separate offense. Habitual-offender status is not a separate crime or
offense. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793. The circuit court is free to
correct a clerical error to have the judgment speak the truth; therefore, we remand to the
circuit court with instructions to correct the sentencing order by marking the boxes
indicating that Roberts was sentenced as a habitual offender on all three offenses and
removing the improper listing of habitual offender as a separate offense. See Carter v. State,
2019 Ark. App. 57, 568 S.W.3d 788.
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Affirmed; remanded to correct sentencing order.
ABRAMSON and GRUBER, JJ., agree.
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att’y Gen., by: Walker K. Hawkins, Ass’t Att’y Gen., for appellee.
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