Cite as 2019 Ark. App. 354 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.07.22 10:25:20 DIVISION II -05'00' No. CR-18-891 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: September 4, 2019
JERAN KYLER SORUM APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04CR-14-415]
STATE OF ARKANSAS APPELLEE HONORABLE BRAD KARREN, JUDGE
AFFIRMED
BART F. VIRDEN, Judge
A Benton County Circuit Court jury convicted appellant Jeran Kyler Sorum of rape,
second-degree sexual assault, and first-degree computer exploitation of a child. He was
sentenced to an aggregate term of twelve years in prison, and his conviction was affirmed
on appeal. See Sorum v. State, 2017 Ark. App. 384, 526 S.W.3d 50. This appeal stems from
the trial court’s denial of Sorum’s subsequent Rule 37 petition and related motions and the
trial court’s decision to strike the subsequent petition. We affirm.
I. Relevant Facts
On September 28, 2017, Sorum filed a ten-page petition for postconviction relief in
which he raised three claims: (1) trial counsel was ineffective for failing to file a motion to
dismiss on double-jeopardy grounds; (2) trial counsel was ineffective for failing to make a
meritorious directed-verdict motion regarding the offense of computer exploitation of a child; and (3) trial counsel was ineffective for failing to argue that rape required the State to
prove sexual gratification in addition to penetration. The same day, Sorum filed a motion
for leave to file an enlarged Rule 37 petition arguing that the ten-page limit was insufficient
for the additional issues he wished to raise. The trial court did not rule on the motion.
On December 28 Sorum filed an amended, twenty-two-page Rule 37 petition that
included two additional issues. On January 30, 2018, the trial court entered an order striking
Sorum’s enlarged petition and finding that Sorum filed the overlength petition without leave
of the court. The court concluded that the strict requirements on the form of a Rule 37.1
petition are reasonable and proper. The court also found that Rule 37’s procedural
requirements do not violate due process, and the petition failed to comply with those
requirements.
On February 7, Sorum filed a motion for reconsideration of the motion for leave to
file an amended and enlarged petition stating that
[t]he Petitioner has two issues to present in good-faith in his Rule 37 Petition that were unable to fit within the ten-page original petition. Those issues regarding accomplice corroboration and the rape shield hearing are legitimate and unable to be presented. Those issues can best be seen by looking at the amended and enlarged Rule 37 Petition and comparing it with the initial Rule 37 Petition.
The trial court denied the motion, reiterating the previous conclusion that “it is not
a violation of petitioner’s due process rights nor is it fundamentally unfair for this court to
adhere to strict requirements on the form of a Rule 37.1 petition.”
On April 2, Sorum filed a motion for leave to file an amended ten-page petition,
stating that he had “culled” his original three arguments and the two additional points he
2 wished to make. He attached the amended petition to the motion. The next day, the trial
court struck the amended petition stating that “this court finds no change of circumstances
from the previous ruling of this court as stated in its order, January 30, 2018, and that the
hearing in this matter on April 27, 2018, will not be continued in order to allow the State
additional time to respond to an amended petition.” The same day, Sorum filed a motion
for reconsideration, asserting that the State “has been well aware of these additional
arguments for months based on prior pleadings,” and he contended that the allotted response
time was only twenty days and that it was twenty-four days until the hearing.
On April 4, the trial court entered an order denying the motion to reconsider, finding
no change of circumstances from the previous rulings. Additionally, the court prohibited
Sorum from filing any further motions concerning an amended Rule 37 petition. After a
hearing the court denied the petition. Sorum timely filed a notice of appeal.
II. Standard of Review and Applicable Law
When reviewing a trial court’s ruling on a Rule 37.1 petition, we will not reverse
the trial court’s decision granting or denying postconviction relief unless it is clearly
erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A finding is clearly
erroneous when, although there is evidence to support it, the appellate court after reviewing
the entire evidence is left with the definite and firm conviction that a mistake has been
committed. Id.
The benchmark question to be resolved in judging a claim of ineffective assistance
of counsel is whether counsel’s conduct so undermined the proper functioning of the
3 adversarial process that the trial cannot be relied on as having produced a just result. Norris
v. State, 2013 Ark. 205, 427 S.W.3d 626 (per curiam). A Rule 37 petitioner’s ineffective-
assistance-of-counsel claims are analyzed under the two-prong standard set forth in Strickland
v. Washington, 466 U.S. 668, 687 (1984), which requires a petitioner to show that his
counsel’s representation was deficient, and he suffered prejudice as a result. “Unless a
petitioner makes both showings, it cannot be said that the conviction resulted from a
breakdown in the adversarial process that renders the result unreliable.” State v. Barrett, 371
Ark. 91, 96, 263 S.W.3d 542, 546 (2007).
Pursuant to Strickland and its two-prong standard, first a petitioner raising a claim of
ineffective assistance must show that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the
United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). A
petitioner making an ineffective-assistance-of-counsel claim must show that counsel’s
performance fell below an objective standard of reasonableness, such that counsel committed
errors so serious as to not be functioning as counsel at all. Flores v. State, 350 Ark. 198, 205–
06, 85 S.W.3d 896, 901 (2002). A court must indulge in a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance. Springs v. State,
2012 Ark. 87, 387 S.W.3d 143. The burden is on the petitioner to overcome this
presumption by identifying specific acts or omissions by counsel that could not have been
the result of reasoned professional judgment. Bond v. State, 2013 Ark. 298, 429 S.W.3d 185.
4 Second, the petitioner must show that, considering the totality of the evidence before
the fact-finder, counsel’s deficient performance so prejudiced petitioner’s defense that he or
she was deprived of a fair trial. Springs, supra. The petitioner must show there is a reasonable
probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt
respecting guilt, i.e., the decision reached would have been different absent the errors.
Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes
both showings, it cannot be said that the conviction resulted from a breakdown in the
adversarial process that renders the result unreliable. Id.
III. Discussion
First, we address the three claims of ineffective assistance of counsel Sorum raised in
his original petition. For his first argument on appeal, Sorum contends that trial counsel was
ineffective for not moving for dismissal of the charge of second-degree sexual assault. He
asserts that his conviction for rape and second-degree sexual assault constitutes a double-
jeopardy violation because sexual assault is a lesser-included offense of rape. Sorum is correct
that second-degree sexual assault is a lesser-included offense of rape; however, in Small v.
State, 371 Ark. 244, 254, 264 S.W.3d 512, 518 (2007), our supreme court held that “where
the acts were of a different nature, a separate impulse was necessary and there were separate
5 offenses.” 1 At trial, the State argued that the sexual assault and the rape were distinctly
separate acts, were separate in time, and required separate impulses.
At the Rule 37 hearing, counsel testified that
[o]nce we knew we weren’t talking about a penis in a vagina type of rape, the foreign object, the broomstick in this case, then it cleared up for everyone the path the case would be taking. It solved the problem of the question of hey, this could be a double- jeopardy issue because in some circumstances sexual assault two is a lesser included of rape. I had argued several times in meeting how they are going to get past a double-jeopardy situation because you can’t have both. Our argument all along was
1 Arkansas Code Annotated section 5-1-110 (Repl. 2013) provides the criteria for determining whether an offense is a lesser included offense of another, and it provides that
(a) 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. He may not, however, be convicted of more than one (1) offense if:
(1) One offense is included in the other, as defined in subsection (b) of this section
....
(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all of the elements required to establish the commission of the offense charged.
Arkansas Code Annotated section 5-14-103 (Supp. 2017) provides in pertinent part that a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion who is incapable of consent because he or she is physically helpless or mentally incapacitated. Arkansas Code Annotated section 5- 14-125 provides that a person has committed second-degree sexual assault when he or she engages in sexual contact with another person by forcible compulsion; or engages in sexual contact with another person who is incapable of consent because he or she is physically helpless or mentally incapacitated.
6 that it was neither, that Sorum didn’t commit any rapes. At the pretrial hearing where it was stipulated that it would be about the broomstick, at that point we all agree there’s not a double-jeopardy problem because two separate touchings if you will with the broomstick.
At the trial, the State present evidence of two separate touchings—one constituting
rape and the other constituting second-degree sexual assault—including (1) a video showing
Sorum touching K.G. with a broomstick over her clothes; (2) Sorum’s testimony that he
prodded K.G. with a broomstick in her “thigh region”; (3) Detective Lira’s testimony that
the video shows that Sorum prodded K.G. in her anal and vaginal areas and that he could
be heard on the video saying, “‘should we really put a condom on it and fuck her with it?
You gotta hold her shorts,’”, “‘I want to fuck that again, Drew,’”, “‘Watch this. This is
redneck fucking, dude.’”; (4) Drew Wall’s testimony that Sorum removed K.G.’s clothes
and penetrated K.G. with a broomstick; and (5) testimony from three witnesses that Sorum
told them that he penetrated K.G. with a broomstick.
The State presented evidence of separate impulses comprising separate acts
conforming with the definitions of rape and second-degree sexual assault; thus, Sorum’s
assertion that a motion to dismiss on the charge of second-degree sexual assault based on a
double-jeopardy violation would have been successful is unpersuasive. When it is asserted
that counsel was ineffective for the failure to make a motion or an argument, the petitioner
must show that the motion or argument would have been meritorious because the failure
to make an argument that is meritless is not ineffective assistance of counsel. Sanders v. State,
2018 Ark. App. 604, at 4, 567 S.W.3d 76, 80.
7 Sorum’s second argument on appeal is that counsel was ineffective for failing to move
for a directed verdict on the offense of computer exploitation of a child on the correct
grounds. Specifically, Sorum contends that counsel failed to argue that the State did not
offer sufficient evidence that he engaged K.G. in sexually explicit conduct in the video
recording, and counsel did not assert that the State failed to present evidence that Sorum
knew, had reason to know, or intended the conduct to be filmed. Sorum contends that if
counsel had made the directed-verdict motion on these grounds, the trial court would have
granted the motion. We disagree.
In our opinion affirming Sorum’s conviction, we found that appellant’s insufficiency-
of-the-evidence argument was not preserved. See Sorum, 2017 Ark. App. 384, at 11–12, 526
S.W.3d at 56–57 2. We held that
[b]elow, Sorum argued that “sexually explicit conduct” must refer to “deviate sexual activity,” which requires the element of penetration and that evidence of penetration was lacking. His argument on appeal has changed, and Sorum relies on the subchapter definitions under Ark. Code Ann. § 5-27-302. He argues that K.G. was not engaged in “sexually explicit conduct” as defined by section 5-7-302(4) in that (1) the State alleged that actual conduct occurred—not simulated, and (2) the conduct alleged to
2 A person commits computer exploitation of a child in the first degree if the person causes or permits a child to engage in sexually explicit conduct and knows, has reason to know, or intends that the prohibited conduct may be photographed, filmed, reproduced, reconstructed in any manner, including on the Internet, or part of an exhibition or performance. Ark. Code Ann. § 5-27-605(a)(1) (Repl. 2013). “Sexually explicit conduct” means actual or simulated sexual intercourse or deviate sexual activity, and other acts not relevant here. Ark. Code Ann. § 5-27-601(15). “Deviate sexual activity” means any act involving the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5- 27-601(7)(B).
8 have occurred did not make it appear to a reasonable viewer to be “(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, (B) bestiality, (C) masturbation, (D) sadomasochistic abuse for the purpose of sexual stimulation, or (E) lewd exhibition of the genitals or pubic area of any person or the breast of a female.” Ark. Code Ann. § 5-27-302(4).
Subchapter 3’s title is the “Arkansas Protection of Children Against Exploitation Act of 1979.” Ark. Code Ann. § 5-27-301. Subchapter 6 involves computer crimes against minors. Each subchapter has its own definitions section. Although there are similarities, we are dealing with subchapter 6 and not 3. Therefore, we cannot address what amounts to a new argument for the first time on appeal, and Sorum has abandoned his challenge regarding penetration under “deviate sexual activity” as defined by Ark. Code Ann. § 5-27-601(7)(B).
Sorum also argues for the first time on appeal that there was no evidence that he knew, had reason to know, or intended the conduct would be filmed. A directed- verdict motion requires the movant to apprise the trial court of the specific basis on which the motion is made. Patton v. State, 2013 Ark. App. 583. Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal but are bound by the scope and nature of the objections and arguments presented at trial. Id.
According to appellant, had counsel made a more specific motion for directed verdict
regarding “sexually explicit conduct” as defined by subchapter 6—that the video did not
depict conduct involving sexual intercourse, deviate sexual activity, bestiality, masturbation,
lewd exhibition of genitals, sadomasochistic abuse, or simulated sexually explicit conduct—
“the trial court would have been obligated to dismiss the charge and the outcome would
have been different.” Sorum’s argument fails.
To prevail on a claim of ineffective assistance of counsel based on counsel’s failure to
preserve an issue for appeal, a petitioner must show that had the issue been preserved, the
appellate court would have reached a different decision. Strain v. State, 2012 Ark. 42, 394
S.W.3d 294. In the instant case, therefore, Sorum must demonstrate that the appellate court
9 would have found that the evidence adduced at trial was insufficient to support a conviction
and would have overturned his conviction for that reason. Id.
Here, the State presented evidence to support Sorum’s conviction of computer
exploitation of a child including video showing the broomstick touching K.G. and
Detective Lira’s testimony that the video showed the broomstick “going in the vaginal area,
as well as the anal area” over K.G.’s clothes. Moreover, Sorum testified that he prodded
K.G. with the broomstick around her thigh area. It was the duty of the jury to view the
video and determine if actual or simulated penetration of K.G.’s vagina or anus occurred.
Though Sorum asserts that the video does not show any penetration or simulated
penetration, it is the jury’s duty to weigh the evidence and resolve contradictions and
conflicts in testimony; in doing so, the jury may accept testimony it believes to be true and
disregard testimony it believes is false. Coleman v. State, 314 Ark. 143, 860 S.W.2d 747
(1993). Viewing the evidence in the light most favorable to the State, we hold that the
evidence is sufficient to support a conviction, and counsel was not ineffective for failing to
preserve the sufficiency-of-the-evidence issue for appeal.
Furthermore, the State presented evidence that Sorum had reason to know that the
cell phone may have been recording video of his actions against K.G. Sorum testified that
when he and Wall entered the room where K.G. was sleeping, “yes, we were recording, I
think. About the time we walked into the door we were probably recording.” Because the
State presented some evidence to support its contention that Sorum knew or had reason to
know the cell phone may have been recording, trial counsel was not ineffective for failing
10 to move for a directed verdict on the offense of computer exploitation of a child on these
grounds.
For his third argument on appeal, Sorum contends that counsel was ineffective for
failing to inform the jury that rape includes the element of sexual gratification. See Ark.
Code Ann. § 5-14-101(1). During closing argument, counsel stated, “If you feel, after
watching that video, that her labia majora was penetrated, then you’re going to find Jeran
Sorum guilty of rape.” Sorum contends that counsel’s statement eliminates the element of
sexual gratification; thus, counsel conceded one of the key elements of the offense of rape.
We disagree.
At the hearing, counsel explained that because the transcript of the video was not
favorable to Sorum and tended to support a finding of Sorum’s sexual gratification, counsel
chose to avoid calling attention to the transcript. Counsel stated, “I did say our theory was
that it was a prank of getting drunk and messing with another kid like writing on the
forehead and that would go to sexual gratification not toward penetration.” Counsel also
stated that he did not want to give the jury a reason to refer back to the transcript of the
video because “it was 50/50 whether the jury would buy it. . . . If we can show [Detective]
Lira was the source of the transcript and then point out the error of the transcript, they’ll
disregard the transcript and focus on the video. The theory was the video doesn’t show
anything.”
The State presented testimony at the hearing that counsel did not do away with the
element of sexual gratification but instead chose to focus the jury’s attention on the element
11 of penetration as a matter of trial strategy; thus, the trial court did not clearly err in rejecting
Sorum’s ineffective-assistance-of-counsel claim.
When a decision by counsel was a matter of trial tactics or strategy, and that decision
is supported by reasonable professional judgment, then counsel’s decision is not a basis for
relief under Rule 37.1. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477. Counsel wished
to avoid referring the jury to the transcript of the video containing Sorum’s statements that
support a finding of sexual gratification—“I want to get in that ass,” “I want to fuck that
again,” and “Give me the condom, you know we are going to fuck her with a broomstick.”
Moreover, during closing argument, counsel stated, “Let’s talk about here just a little bit the
first charge, rape. Now, I’m not going to rehash all the elements. You heard and saw them
on the Power Point. They’re on the jury instructions.” Counsel directed the jurors to the
complete jury instruction regarding the offense of rape, and jurors are presumed to
comprehend and follow court instructions. See Nalls v. State, 2014 Ark. 434, at 7, 445
S.W.3d 509, 515.
We now turn to Sorum’s arguments regarding the Rule 37 petitions themselves.
First, Sorum asserts that the trial court erred by denying his request to file an enlarged
petition; however, the trial court never ruled on his motion to amend and enlarge the
petition. The burden is on the movant to obtain a ruling from the trial court, and a ruling
cannot be presumed. Barton v. State, 366 Ark. 339, 341, 235 S.W.3d 511, 513 (2006). The
State correctly asserts that this issue is not preserved; thus, we do not address it on appeal.
12 Second, Sorum contends that the trial court was required to accept the April 2 ten-
page amended petition after the trial court had struck the December 28 petition. To support
his argument, Sorum relies on Butler v. State, 367 Ark. 318, 324, 239 S.W.3d 514, 519
(2006), in which our supreme court held that
when seeking to file a petition in excess of the ten-page limit provided in Ark. R. Crim. P. 37.1(b), a motion must set forth a legitimate ground or justification for an enlarged petition. Here, appellant’s counsel did not seek to file an enlarged petition. Rule 37.2(e) contains no such prerequisite and requires only that a petitioner file the motion for leave to amend before the trial court acts on the original petition. Furthermore, appellant’s attempt to amend his postconviction petition did not occur on the day of the Rule 37 hearing.
Arkansas Rule of Criminal Procedure 37(e) provides that “before the court acts upon
a petition filed under this rule, the petition may be amended with leave of the court.”
Recently, in a footnote in Robinson v. State, 2018 Ark. 406, at 2 n. 1, this court held that
“Rule 37.2(e) provides that the petition may be amended before it is acted on if the court
grants permission to file an amended petition.” Butler neither overrides the requirement that
the court grant leave nor divests the court of discretion to grant leave. The trial court struck
the amended petition because it found “no change in circumstances from the previous
ruling” and additionally because “the hearing in this matter on April 27, 2018, will not be
continued in order to allow the State additional time to respond to an amended petition.”
In his motion to reconsider, Sorum asserted that the State was already aware of the additional
arguments he wished to raise. Sorum also claimed that the State had not shown that
additional time would be necessary because the State was allotted twenty days to respond to
the amended petition, and the hearing would take place in twenty-four days. The trial court
13 denied the motion for reconsideration again stating that it found “no change in
circumstances” from its January 30 ruling and forbade Sorum from submitting any additional
motions regarding the matter.
As we previously stated, the standard for reviewing a trial court’s decision to strike
an amended motion is abuse of discretion. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151
(2004). Here, we cannot say that the court acted arbitrarily, thoughtlessly, groundlessly or
without due consideration, and we affirm. Because we hold that the trial court did not abuse
its discretion in striking Sorum’s amended petition, we need not reach the issues raised
therein.
Affirmed.
HARRISON and KLAPPENBACH, JJ., agree.
Short Law Firm, by: Lee D. Short, for appellant.
Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.