Cite as 2021 Ark. App. 182 ARKANSAS COURT OF APPEALS Elizabeth Perry I attest to the accuracy and DIVISION IV integrity of this document No. CR-20-324 2023.06.26 15:31:22 -05'00' 2023.001.20174 Opinion Delivered: April 21, 2021
LINQUINTON DEAN APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT, FIRST DIVISION V. [NO. 60CR-17-2531]
HONORABLE LEON JOHNSON, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED
KENNETH S. HIXSON, Judge
Linquinton Dean appeals after he was convicted by a Pulaski County Circuit Court
jury of domestic battering in the first degree and battery in the second degree. The jury
found that appellant had committed both offenses in the presence of a child, and he was
sentenced as a habitual offender to serve an aggregate of 780 months’ imprisonment in the
Arkansas Department of Correction. On appeal, appellant argues that (1) the circuit court
abused its discretion when it denied defense counsel’s hearsay objection to Dr. Christi
Delcastillo-Hegyi’s testimony that the victim told her in the course of a medical examination
that her boyfriend had assaulted her; (2) the State failed to introduce substantial evidence
that he committed second-degree battery in the presence of a child; (3) the circuit court
erred when it denied defense counsel’s motion for mistrial made during the State’s closing
argument; and (4) there is an inconsistency between the October 18, 2019, amended
sentencing order and the circuit court’s oral sentence pronouncement. We affirm. I. Relevant Facts
Appellant was charged by amended information with domestic battering in the first
degree in violation of Arkansas Code Annotated section 5-26-303 (Repl. 2013), a Class B
felony, and battery in the second degree in violation of Arkansas Code Annotated section
5-13-202(a)(4) (Supp. 2019), a Class D felony. The amended information further notified
appellant that the State sought to enhance any punishment pursuant to Arkansas Code
Annotated section 5-4-702 (Repl. 2013) as appellant committed each felony in the presence
of a child and pursuant to Arkansas Code Annotated section 5-4-501(b) (Supp. 2019) as
appellant was a habitual offender in that appellant had been previously convicted of four or
more felonies.
These charges arose after law enforcement was called to respond to a disturbance at
Kimara Lewis’s apartment on June 15, 2017. When they arrived, appellant answered the
door, holding a baby, A.B. A.B. had a cut above his bruised right eye, and his eye was
swollen shut. Appellant told law enforcement that his girlfriend, referring to Ms. Lewis,
was not at home and that A.B. had fallen. However, law enforcement eventually found
Ms. Lewis in a bedroom sitting beside the bed naked and in the fetal position. Three
additional children were found watching a movie in another bedroom. Ms. Lewis had been
severely beaten. Blood was found on the floor and walls throughout the apartment and
there was a hole in the wall of the bedroom where Ms. Lewis was found. Ms. Lewis was
subsequently hospitalized for approximately six days and had sustained several injuries.
A.B.’s forehead also needed stitches.
2 A three-day jury trial began on September 10, 2019; notably, Ms. Lewis refused to
testify. Officer John Mack testified that he responded to a disturbance call at Ms. Lewis’s
apartment complex. When he arrived, he spoke with the apartment manager. Thereafter,
Officer Mack knocked on Ms. Lewis’s door, and appellant answered with the security chain
still connected to the door. Appellant told Officer Mack and Officer Mack’s partner, Officer
Parker, that no one else was in the apartment. Once appellant let them into the apartment,
Officer Mack saw that A.B.’s right eye was bruised and had a cut above it. Appellant told
them that “his girlfriend had left the apartment and the baby had fell.” At that point, Officer
Mack stayed with appellant while Officer Parker searched the rest of the apartment. Officer
Parker located the injured Ms. Lewis in the bedroom. When Officer Parker returned, he
advised Officer Mack to place appellant under arrest. Officer Mack placed appellant in his
vehicle. While appellant was inside Officer Mack’s vehicle, appellant claimed that several
other “black females” had beaten Ms. Lewis “with sticks and pipes.”
Officer Michael Murmert testified that he arrived at the scene after Officer Mack had
taken appellant into custody and was still in the parking lot. Officer Murmert then went
inside the apartment to assist Officer Parker. Officer Murmert testified that the apartment
was a small two- or three-bedroom apartment. He observed blood on the tile by the front
door and down the hallway leading to the bedroom where Ms. Lewis was located. He
stated that there were three other children watching a movie in another bedroom, which
was approximately twenty or thirty feet from Ms. Lewis’s bedroom. Officer Murmert
determined the three children did not see the fight between appellant and Ms. Lewis. In
3 Ms. Lewis’s bedroom, Officer Murmert observed blood on the walls and a hole in the wall
next to the closet door.
Meagan Buchert, a crime specialist with the Little Rock Police Department, testified
that she observed blood “inside the entrance of the apartment, as well as in the hallway from
the living quarters to the bedrooms, as well as outside and inside the bedroom and the
attached bathroom.” She also noticed several broken items in the living room, including a
broken metal pole and a broken wooden board that appeared to be a wooden beam or bed
rail. She found another broken board in the bedroom.
Chaundra Hegwood, a paramedic for MEMS ambulance, testified that she attended
to A.B. at the scene while her partner treated Ms. Lewis. She eventually learned that A.B.
was approximately one year old. She explained that A.B.’s eye was swollen shut, and the
side of his face was swollen. A.B. had blood on his hands and a laceration above his eye.
Ms. Hegwood was told that A.B. had been hit with a stick. Ms. Hegwood also testified that
she later attended to Ms. Lewis. Ms. Lewis had multiple injuries. She had a swollen eye,
appeared to have two broken arms, bruising on her thigh, bruising on her arm, and an
avulsion on her buttocks.
Amanda Burks, another paramedic for MEMS ambulance, testified that she initially
treated Ms. Lewis. When she entered Ms. Lewis’s bedroom, she saw that Ms. Lewis was
“beside the bed on the floor sitting down, drawn in the fetal position, naked.” She noticed
that Ms. Lewis had swelling to her face and eye, an abrasion to her face, a penetrating wound
to her left upper arm, an avulsion on her bottom, and a welt on her leg. She also noticed
that there was a stick-like object on the floor beside the wall and blood splatters on the wall.
4 Ms. Burks testified that she recalled seeing two other children besides A.B. in the apartment
who appeared to be “[m]aybe five, six to -- five to eight-ish.”
Ms. Lewis and A.B. were transported from the scene by ambulance. A.B. was
transported to Arkansas Children’s Hospital, and Ms. Lewis was transported to CHI St.
Vincent Infirmary. Ms. Burks testified that she noticed additional injuries once Ms. Lewis
was in the ambulance. She noticed that both of Ms. Lewis’s forearms appeared to be broken.
She also saw multiple avulsions on Ms. Lewis’s arms, buttocks, and breast. Ms. Lewis also
had multiple abrasions and swelling. Ms. Burks testified that, in her opinion, Ms. Lewis had
sustained “serious injuries.”
Dr. April Clawson, a physician in the emergency department at Arkansas Children’s
Hospital, testified that she treated A.B. She was told that A.B.’s mother had been assaulted
with a bed rail or broom handle. Dr. Clawson testified that A.B. had signs of head trauma
with swelling around his right eye and a small shallow laceration above his right eyebrow.
Dr. Christi Delcastillo-Hegyi, an emergency physician at CHI St. Vincent Infirmary,
testified that she had treated Ms. Lewis. Dr. Delcastillo-Hegyi testified that Ms. Lewis told
her that she had received her injuries after being punched, kicked, and hit multiple times
with a stick. Over defense counsel’s objection, Dr. Delcastillo-Hegyi testified that
Ms. Lewis had told her that it was Ms. Lewis’s “boyfriend” who had committed the assault.
Dr. Delcastillo-Hegyi testified that Ms. Lewis had the following injuries:
I observed a left periorbital or around her eye swelling, bruising, you know, injuries to – lacerations and bruises to both her arms, her legs. She had a laceration to her right breast. Those are the major ones. . . . So left face, left scalp, left periorbital area around the eye, both arms, both legs, both breasts, her back. She had an abrasion to her lower back. . . . a two-centimeter laceration to the right breast, which we later determined was a stab wound. One and a half centimeter -- two one-and-a-half
5 centimeter lacerations to the left upper arm, several puncture wounds to the left posterior and lateral thigh, so the back and the left -- the outside of the thigh, of the left thigh. Abrasions over the back and the right thigh, there was a kind of skin tear.
Dr. Delcastillo-Hegyi further testified that Ms. Lewis required two units of red blood cells
and a chest tube to prevent her lung from collapsing and from having a life-threatening
internal hemorrhage. Some of the lacerations needed sutures. She explained that some of
the jagged lacerations were consistent with blunt-force trauma with an object like a stick.
After conducting tests, it was determined that Ms. Lewis did not have any broken bones. 1
Dr. Delcastillo-Hegyi opined that the injuries Ms. Lewis had sustained could have
potentially been life-threatening.
Sergeant Scott Anthony Thomisee, an investigator at the Pulaski County Regional
Detention Facility, testified that his job entails monitoring jail phone calls and conducting
surveillance at the jail. Sergeant Thomisee testified that appellant’s PIN and password were
used to make several outbound phone calls from the jail. Those phone calls were recorded
and subsequently delivered to the investigators.
Sergeant Brittany Gunn testified that at the time of the incident, she was the detective
assigned to investigate this case. She testified that after interviewing Ms. Lewis on the day
of the incident, she returned to her office and interviewed appellant after reading him his
Miranda rights. Because appellant became extremely irate and refused to answer any
additional questions, she stopped the interview. Sergeant Gunn testified that at that point,
appellant was arrested and charged. Sergeant Gunn explained that later in the investigation
1 Multiple pictures of both victims’ injuries were admitted throughout the trial.
6 she was given the phone-call recordings from the jail and listened to them. She stated that
from her investigation, she recognized the two voices on the phone calls as being the voices
of appellant and Ms. Lewis. An excerpt from one of the phone calls was played for the jury
at trial.
During the phone call, appellant told Ms. Lewis, “I apologize for all that[.]”
Ms. Lewis told appellant that she had apologized for what she did but that it “didn’t give
[appellant] the right to . . . beat [her].” Ms. Lewis further accused appellant of trying to kill
her and told him that she had to have a tube inserted to help her breathe. Ms. Lewis’s
description of her injuries was consistent with the injuries described during Dr. Delcastillo-
Hegyi’s testimony. When Ms. Lewis told appellant that her arm was not broken as was
thought, appellant responded, “I ain’t do too much then. I thought I’d be out . . . that shit
was fucked up.” After the phone call was played for the jury, Sergeant Gunn stated that
there were hundreds of similar phone calls that were recorded.
Thereafter, the State rested, and defense counsel moved for a directed verdict. In
summary, counsel argued regarding the charge of first-degree domestic battering that there
was no eyewitness testimony that appellant was the perpetrator in this case, no evidence that
appellant and Ms. Lewis had been in a dating relationship, and no evidence that Ms. Lewis’s
injuries constituted a “serious physical injury” as required. Regarding the second charge of
battery in the second degree, defense counsel argued that there was no evidence that
appellant had injured A.B. Defense counsel also moved for a directed verdict as to the
present-child enhancements. Specifically, he argued that law enforcement testified that the
other children were in another room watching television when the incident occurred. He
7 further explained that there was no evidence about how loud the incident was or if based
on the State’s evidence that the other children were even aware that the incident had
occurred. The circuit court denied these motions.
Appellant offered the testimony of Sergeant Lesa Warner. Sergeant Warner testified
that she did not have any independent, personal knowledge of visitations that may have
taken place between Ms. Lewis and appellant while appellant was in jail. She explained that
any knowledge she had would be according to what the jail records indicated.
After appellant rested his case, defense counsel renewed his motions for directed
verdict, which were denied. The jury found appellant guilty of both offenses and found
that he had committed those offenses in the presence of a child. Appellant was sentenced
as a habitual offender and with all enhancements to serve an aggregate of 780 months’
imprisonment in the Arkansas Department of Correction. 2 This appeal followed.
II. Second-Degree Battery in the Presence of a Child
We must address appellant’s second argument first because double-jeopardy
considerations require this court to review a challenge to the sufficiency of the evidence
before we review the other issues on appeal. Martin v. State, 2018 Ark. App. 143, 545
S.W.3d 785. We treat a motion for a directed verdict as a challenge to the sufficiency of
the evidence. Armstrong v. State, 2020 Ark. 309, 607 S.W.3d 491. In reviewing a sufficiency
challenge, we assess the evidence in the light most favorable to the State and consider only
2 After the record was lodged with this court, we granted the State’s motion to supplement the record with an amended sentencing order that was filed on April 17, 2020. This amended sentencing order is the most recent order and accurately reflects appellant’s aggregate sentence of 780 months’ imprisonment as imposed by the circuit court.
8 the evidence that supports the verdict. Id. We will affirm a judgment of conviction if
substantial evidence exists to support it. Id. Substantial evidence is evidence that is of
sufficient force and character that it will, with reasonable certainty, compel a conclusion one
way or the other without resorting to speculation or conjecture. Id. Circumstantial
evidence may provide a basis to support a conviction, but it must be consistent with the
defendant’s guilt and inconsistent with any other reasonable conclusion. Id. Whether the
evidence excludes every other hypothesis is left to the jury to decide. Id. Further, the
credibility of witnesses is an issue for the jury, not the court; the trier of fact is free to believe
all or part of any witness’s testimony and may resolve questions of conflicting testimony and
inconsistent evidence. Id.
A criminal defendant’s intent or state of mind is seldom apparent. Wells v. State,
2012 Ark. App. 596, 424 S.W.3d 378. One’s intent or purpose, being a state of mind, can
seldom be positively known to others, so it ordinarily cannot be shown by direct evidence,
but may be inferred from the facts and circumstances. Id. Because intent cannot be proved
by direct evidence, the fact-finder is allowed to draw upon common knowledge and
experience to infer it from the circumstances. Id. Due to the difficulty in ascertaining a
defendant’s intent or state of mind, a presumption exists that a person intends the natural
and probable consequences of his acts. Id.
On appeal, appellant argues that the State failed to introduce substantial evidence that
he committed second-degree battery in the presence of a child. He does not challenge the
sufficiency of the evidence that he committed the second-degree battery. Instead, his only
argument concerns the sentence enhancement applied to the charge of battery in the second
9 degree. Appellant specifically argues that the State failed to introduce substantial evidence
that the three other children in the apartment were “physically” present during the incident
or that appellant knew or had reason to know that they were present and may have seen or
heard appellant’s act of battery. We disagree.
A person who commits any of the offenses enumerated in Arkansas Code Annotated
section 5-4-702, including a felony offense of battery, may be subject to an enhanced
sentence of an additional term of imprisonment of not less than one year and not greater
than ten years if the offense is committed in the presence of a child. Ark. Code Ann. § 5-
4-702(a). A “child” is defined as a person under eighteen years of age. Ark. Code Ann. §
5-4-701(1) (Repl. 2013). “In the presence of a child” is defined as “the physical presence
of a child or knowing or having reason to know that a child is present and may see or hear an act.”
Ark. Code Ann. § 5-4-701(6) (emphasis added).
In other words, the enhancement statute requires proof that the defendant knew or
had reason to know that a child was present at the commission of the offense. Here, the
jury was instructed on this enhancement:
The State has alleged that Linquinton Dean committed the offense of Battering in the Second Degree in the Presence of a Child.
To sustain this allegation, the State must prove beyond a reasonable doubt that Linquinton Dean committed the offense of Battering in the Second Degree knowing or having reason to know that a person under 18 years of age was present and may see or hear an act of Battery in the Second Degree.
(Emphasis added.) When a statute provides that a defendant must know or have reason to
know a fact, the defendant’s knowledge may be inferred from the circumstances. Williams
v. State, 2019 Ark. App. 152, 573 S.W.3d 547.
10 The jury heard testimony that appellant and Ms. Lewis were not strangers but were
in a dating relationship. Appellant even referred to Ms. Lewis as his girlfriend when he
answered the door of her apartment holding her child on the day of the incident. At that
time, he was untruthful to law enforcement when he told them that no one else was in the
apartment. However, both Officer Murmert and Ms. Burks testified that Ms. Lewis and
other children were found in the apartment. Officer Murmert testified that the apartment
was a small two- or three-bedroom apartment. He observed blood on the tile by the front
door and down the hallway leading to the bedroom where Ms. Lewis was located.
Therefore, the extent of the battery was not confined to the one bedroom––evidence of the
battery was found throughout the apartment. Officer Murmert stated that there were three
other children watching a movie in another bedroom approximately twenty or thirty feet
from Ms. Lewis’s bedroom. He also observed blood on the walls and a hole in the wall
next to the closet door of Ms. Lewis’s bedroom. Ms. Burks testified that she recalled seeing
two other children besides A.B. in the apartment who appeared to be “[m]aybe five, six to
-- five to eight-ish.” This was sufficient evidence from which the jury could infer that
appellant had reason to know that children under the age of eighteen were present and
could see or hear the act of second-degree battery that he inflicted on A.B. We therefore
hold that the circuit court did not err in denying appellant’s motion for directed verdict on
the enhancement for committing the offense of second-degree battery in the presence of a
child, and we affirm on this point.
11 III. Hearsay Objection
Appellant next argues that the circuit court abused its discretion when it denied
defense counsel’s hearsay objection to Dr. Delcastillo-Hegyi’s testimony that Ms. Lewis told
her in the course of a medical examination that her “boyfriend” had assaulted her. The
decision to admit or exclude evidence is within the sound discretion of the circuit court,
and we will not reverse a circuit court’s decision regarding the admission of evidence absent
a manifest abuse of discretion. Rodriguez v. State, 372 Ark. 335, 276 S.W.3d 208 (2008).
Moreover, we will not reverse absent a showing of prejudice. Id.
“Hearsay” is defined as “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.” Ark. R. Evid. 801(c). Hearsay is not admissible except as provided by law or by
the rules of evidence. Here, the State argued that Dr. Delcastillo-Hegyi’s statement was
admissible as an exception to the hearsay rule pursuant to Ark. R. Evid. 802. Arkansas Rule
of Evidence 803(4) provides an exception to the rule against hearsay for statements made
for purposes of medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensation, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment.
In Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002), our supreme court adopted a
test that was articulated by the Eighth Circuit in United States v. Iron Shell, 633 F.2d 77 (8th
Cir. 1980), to assist in determining whether hearsay evidence fits within the medical-
treatment exception under Arkansas Rule of Evidence 803(4). The two-prong test asks
first, is the declarant’s motive consistent with the purpose of the rule; and second, is it
12 reasonable for the physician to rely on the information in diagnosis or treatment. Flores,
supra. After applying this test to the facts in Flores, our supreme court determined that,
under the medical-treatment exception, the circuit court properly admitted the mother’s
statement to the doctor concerning the fact that the child was physically abused but had
improperly admitted the portion of the testimony that identified Flores as the child’s
attacker. Id. It explained that the identification of the perpetrator was not used by the
physician in the diagnosis or treatment of the child’s injuries. Accordingly, it concluded
that the statement identifying the perpetrator was improperly admitted pursuant to Rule
803(4). Flores, supra. In other cases, our supreme court has expressly held that “the medical-
treatment exception to the hearsay rule permits hearsay identifying the perpetrator in the
special case of a child-abuse victim where the abuser is a member of the child’s immediate household
and the statement is made in the course of a medical examination for the purpose of diagnosis
and treatment.” Elliott v. State, 2010 Ark. App. 809, at 6, 379 S.W.3d 101, 105 (citing
Hawkins v. State, 348 Ark. 384, 72 S.W.3d 493 (2002)) (emphasis added).
Appellant argues that Ms. Lewis was not a child victim and that there was no evidence
that appellant lived in the same household as Ms. Lewis. Therefore, under Flores, he argues
that Dr. Delcastillo-Hegyi should not have been allowed to testify that Ms. Lewis told her
that her “boyfriend” was the perpetrator (which, in turn, identified appellant as the
perpetrator from other evidence presented at trial). The State nevertheless argues in part
that Dr. Delcastillo-Hegyi’s testimony was admissible under the medical-treatment
exception to the hearsay rule because Dr. Delcastillo-Hegyi also testified that she needed to
13 “know who assaulted the patient” in order to provide treatment. Dr. Delcastillo-Hegyi
explained that she needed to know the assailant’s identity
in order to assess whether the patient continues to have a safety issue, is going to be repeatedly exposed to the assailant. I need to know if there are other people involved, including children and other family members that this assailant, alleged assailant, may potentially pose a risk to, a threat to. That’s -- those are the main concerns. And that would help me recruit social work, as well law enforcement, to secure the safety of all people involved, as well as staff in the emergency room, if that’s required.
We agree with appellant that the circuit court abused its discretion in permitting
Dr. Delcastillo-Hegyi to testify that Ms. Lewis identified her boyfriend as her assailant under
Flores and Rule 803(4). Further, the facts of this case are not like those in Hawkins, which
our supreme court recognized was a special case. See Hawkins, supra. In Hawkins, our
supreme court explained that Rule 803(4) applied because R.T.’s identification of Hawkins
as her abuser allowed Dr. Hawawini to take steps to prevent further abuse by her stepfather,
who was a member of her household; R.T.’s identification of appellant as her abuser allowed
Dr. Hawawini to take steps to treat the emotional and psychological injuries that
accompanied the rape; R.T.’s statements led to Dr. Hawawini’s referral to a physician at
Arkansas Children’s Hospital who specialized in treating children who are sexually abused;
and R.T.’s identification of appellant as her abuser permitted Dr. Hawawini to fulfill her
legislatively imposed duty of calling the child-abuse hotline and reporting the crime. Here,
Ms. Lewis is not a minor victim; there was no testimony that appellant lived in Ms. Lewis’s
household; and although Dr. Delcastillo-Hegyi testified that she needed to know the
assailant’s identity, she did not testify that Ms. Lewis’s identification led her to treat
Ms. Lewis any differently. Under these facts, we cannot say that the second prong of the
14 Flores test was satisfied. It was not reasonable for Dr. Delcastillo-Hegyi to rely on
Ms. Lewis’s identification of her boyfriend in diagnosis or treatment. Where such
information is not relevant for diagnosis but rather an attempt to fix blame, it must be
excluded. Id. Accordingly, we conclude that the circuit court erred in allowing
Dr. Delcastillo-Hegyi to testify that “the boyfriend” assaulted Ms. Lewis.
That said, even though we agree with appellant that the circuit court erred in
permitting Dr. Delcastillo-Hegyi to testify that the victim told her in the course of a medical
examination that her boyfriend had assaulted her, we must nevertheless agree with the State
that this was harmless error. Our supreme court has said that even when a circuit court errs
in admitting evidence, this court will affirm the conviction and deem the error harmless if
there is overwhelming evidence of guilt and the error is slight. Eastin v. State, 370 Ark. 10,
257 S.W.3d 58 (2007). To determine if the error is slight, this court looks to see whether
the defendant was prejudiced by the erroneously admitted evidence. Id. Prejudice is not
presumed, and this court will not reverse a conviction absent a showing of prejudice by the
defendant. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). No prejudice results when
the evidence erroneously admitted was merely cumulative, and we do not reverse for
harmless error in the admission of evidence. Id.; see Elliott, supra; Wright v. State, 368 Ark.
629, 249 S.W.3d 133 (2007).
Here, Dr. Delcastillo-Hegyi’s testimony regarding the identity of Ms. Lewis’s
assailant was cumulative to the admission of other evidence. In the recorded phone
conversation between appellant and Ms. Lewis that was also admitted into evidence,
appellant specifically told Ms. Lewis, “I apologize for all that[.]” Ms. Lewis told appellant
15 that she had apologized for what she did but that it “didn’t give [appellant] the right to . . .
beat [her].” Ms. Lewis further accused appellant of trying to kill her and told him that she
had to have a tube inserted to help her breathe. When Ms. Lewis told appellant that her
arm was not broken as was thought, appellant responded, “I ain’t do too much then. I
thought I’d be out . . . that shit was fucked up.” Therefore, even though appellant attempted
to downplay the severity of his actions, the jury heard evidence that not only had Ms. Lewis
identified appellant as her assailant but also that appellant had discussed his participation in
the incident. Additionally, the jury heard testimony that appellant had answered the door
to law enforcement immediately after the incident while holding A.B., who had blood on
his hands. At that point, appellant told law enforcement that his girlfriend was not in the
apartment. Appellant was obviously untruthful to law enforcement because Ms. Lewis was
subsequently found in the bedroom, severely beaten. Further, blood was found near the
front door, on the floor, and on the walls throughout the apartment, and there was a hole
in the wall of the bedroom where Ms. Lewis was found. Accordingly, because the admission
of Dr. Delcastillo-Hegyi’s testimony was harmless error due to its cumulative nature, we
affirm on this point.
III. Closing Argument
Appellant additionally argues that the circuit court erred when it denied defense
counsel’s motion for mistrial made during the prosecutor’s closing argument. During
closing argument, the prosecutor made the following statements to the jury:
That’s all you have to take away from this. This isn’t hard. There’s no victim -- I mean, you didn’t hear a victim testify. It’s what we talked about in voir dire, everyone could come up with a reason why not only will the victim go back repeatedly to their abuser, but why they might not want to testify. And I’m not
16 excusing it, I’m not saying it’s -- is it right or wrong. But you all said why. Everyone gave a different reason. There are shortcomings you feel she may have. The fact of the matter is that I asked you if you could obey the law, if you could only consider the evidence presented to you. And the evidence presented to you has been very clear, that he caused serious physical injury to Kimara Lewis and knowingly caused physical injury to [A.B.]. And there’s not -- no doubt about that and there’s going to be nothing to rebut that, nothing. So there’s there’s no evidence to give a reasonable explanation for any of these injuries or for his conduct and for that reason, we ask that you find the Defendant guilty.
(Emphasis added.) Defense counsel moved for a mistrial and argued that the prosecutor had
implied that the burden had shifted to appellant instead of remaining with the State. He
further argued that a mistrial was warranted because the prosecutor was “referring to the
Defendant failing to put up proof.” The prosecutor disagreed and explained that it was not
insinuating anything other than the fact that there “was no explanation.” The circuit court
denied the request for a mistrial.
On appeal, appellant argues that the prosecutor’s statements were a comment on his
failure to testify and violated his constitutional right not to incriminate himself. Citing Aaron
v. State, 312 Ark. 19, 846 S.W.2d 655 (1993), appellant argues that a prosecutor may not
comment on the uncontradicted nature of the evidence when it is highly unlikely that
anyone other than the defendant could rebut the evidence. Therefore, he argues that the
circuit court’s failure to grant his motion for mistrial was reversible error. We disagree.
A mistrial is an extreme remedy that should not be declared unless there has been
error so prejudicial that justice cannot be served by continuing the trial or when the
fundamental fairness of the trial itself has been manifestly affected. Britton v. State, 2014 Ark.
192, 433 S.W.3d 856. The circuit court has wide discretion in granting or denying a motion
for mistrial, and absent an abuse of that discretion, the circuit court’s decision will not be
17 disturbed on appeal. Britton, supra. Among the factors we consider on appeal is whether
the defendant requested a cautionary instruction or an admonition to the jury. Bragg v.
State, 328 Ark. 613, 946 S.W.2d 654 (1997). Our supreme court has held that a cautionary
instruction or an admonition to the jury can make harmless any prejudice that might occur.
See Green v. State, 2013 Ark. 497, 430 S.W.3d 729. A mistrial is proper only when an error
is beyond repair and cannot be corrected by any curative relief. McClinton v. State, 2015
Ark. 245, 464 S.W.3d 913. The failure of the defense to request an admonition may negate
the mistrial motion. Bragg, supra. It is also true that the failure to give an admonition or a
cautionary instruction is not error if none is requested. Id. “The bottom line on mistrials
is that the incident must be so prejudicial that the trial cannot, in fairness, continue.” Boyd
v. State, 318 Ark. 799, 804, 889 S.W.2d 20, 22 (1994).
When a prosecutor is alleged to have made an improper comment on a defendant’s
failure to testify, the statements are reviewed in a two-step process. Jefferson v. State, 372
Ark. 307, 276 S.W.3d 214 (2008). First, we determine whether the comment itself is an
improper comment on the defendant’s failure to testify. Id. Even a veiled reference to the
defendant’s failure to testify is improper. Id. The basic rule is that a prosecutor may not
draw attention to, or comment upon, the defendant’s failure to testify. This is to prevent
the defendant from testifying against himself in violation of the Fifth Amendment. Id.
Second, if we determine that the prosecution’s remark was not proper under this analysis,
then we determine whether it can be shown beyond a reasonable doubt that the error did
not influence the verdict. Id.
18 We agree with the State that the prosecutor’s statements during closing argument
were not a comment upon, or a veiled reference to, appellant’s failure to testify, nor did it
shift the burden of proof to appellant. An expression on the part of the prosecuting attorney
attributable to the weight to be given evidence can be distinguished from an expression or
a gesture indicating to the jury that the defendant has not taken the witness stand. See Nalls
v. State, 2013 Ark. App. 183. Although the prosecutor’s arguments may have edged toward
territory that is best avoided, the prosecutor did not cross the line into impermissible
comments. The witnesses were consistent in their testimony that the victims’ injuries were
the result of being beaten with a stick. Moreover, although appellant did not testify, the
statements he made on the recorded phone calls were introduced, which also implicated
him as the perpetrator. The prosecutor’s statements, in our view, were nothing more than
a comment on the strength and undisputed nature of the evidence. Such remarks are not
improper. See Richmond v. State, 320 Ark. 566, 572, 899 S.W.2d 64, 67 (1995) (stating that
a prosecutor may mention the fact that the State’s evidence has remained undisputed); Beebe
v. State, 301 Ark. 430, 435–36, 784 S.W.2d 765, 768 (1990) (concluding that the
prosecutor’s statement “I submit to you that that evidence has not been disputed” was not
necessarily a comment on the defendant’s failure to testify); Davis v. State, 174 Ark. 891,
893, 298 S.W. 359, 360 (1927) (holding that prosecutor’s statement in closing argument—
that there was no denial that there was other evidence in the case beyond the evidence
presented by the State—did not constitute a comment upon the failure of the defendants to
testify but rather was an argument that the State’s evidence should be believed because it
was undisputed); Markham v. State, 149 Ark. 507, 513, 233 S.W. 676, 679 (1921) (holding
19 that remarks of the prosecuting attorney—that testimony tending to prove the guilt of the
accused was uncontradicted—should not be construed as a comment upon the failure of the
defendants to testify but rather as an expression of the prosecutor’s opinion as to the weight
of the State’s evidence); Davidson v. State, 108 Ark. 191, 211–12, 158 S.W. 1103, 1110
(1913) (rejecting the defendant’s claim that the prosecutor’s closing argument, which called
on the defense to explain undisputed witness testimony, was a comment on the defendant’s
failure to testify; holding that it was the expression of the opinion of counsel that the
testimony had not been rebutted and should be accepted as true).
Moreover, even if we were to find that the prosecutor’s comments were
impermissible, we are convinced that any error did not influence the verdict. The failure
to give an admonition or a cautionary instruction is not error when none is requested; here,
although appellant requested a mistrial, he did not request an admonition to the jury. See
Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001). That said, the circuit court specifically
instructed the jury that “[o]pening statements, remarks during the trial and closing
arguments of attorneys are not evidence, but are made only to help you in understanding
the evidence and applicable law. Any argument, statements or remarks of attorneys having
no basis in the evidence shall be disregarded by you.” The jury was also instructed that
appellant was presumed to be innocent and that “[a] Defendant has an absolute constitutional
right not to testify. The fact that Linquinton Dean did not testify is not evidence of guilt
or innocence and under no circumstances shall be considered by you in arriving at your
verdict.” We have previously held that a similar admonition to the jury at the conclusion
of the trial cured any possible error of improper comments that the prosecutor made during
20 opening arguments. See Nalls, supra. Thus, we agree with the State that the circuit court
did not abuse its discretion in denying appellant’s motion for mistrial, and we affirm on this
point.
IV. Sentence
Appellant lastly argues that there is an inconsistency between the October 18, 2019,
amended sentencing order and the circuit court’s oral sentence pronouncement. However,
appellant concedes in his reply brief that relief under this point is no longer required. The
circuit court’s October 18, 2019, amended sentencing order is not the most recent amended
sentencing order filed in this case. On November 18, 2020, we granted the State’s motion
to supplement the record on appeal with a certified copy of an amended sentencing order
that was filed in the circuit court in this case on April 17, 2020. That amended sentencing
order was filed one month before the record on appeal was lodged in this court on May 18,
2020. As appellant concedes, the April 17, 2020, amended sentencing order is consistent
with the circuit court’s oral pronouncement, and any relief he might have requested on the
erroneous sentence contained in the October 18, 2019, amended sentencing order is no
longer warranted. As such, we affirm.
Affirmed.
GLADWIN and BARRETT, JJ., agree.
William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender,
for appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.