Cite as 2021 Ark. App. 117 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION IV integrity of this document No. CR-20-314 2023.06.22 15:07:56 -05'00' 2023.001.20174 Opinion Delivered: March 10, 2021
RODNEY L. BAKER APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-17-1269]
V. HONORABLE ROBIN F. GREEN, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
PHILLIP T. WHITEAKER, Judge
A Benton County jury convicted appellant Rodney Baker of one count of aggravated
residential burglary and one count of first-degree battery. He was sentenced to a total of
eighteen years in the Arkansas Department of Correction. On appeal, Baker challenges the
sufficiency of the evidence supporting his convictions; in addition, he argues that the circuit
court erred in denying his motion for a mistrial and in denying his motion for continuance
after the mistrial was denied. We find no error and affirm.
I. Factual Background
In June 2017, Kevin Luper was severely beaten and injured. Baker was arrested,
charged, and convicted in relation to this beating and injury. We find it helpful to explain
the relationships among the individuals involved in the case and the facts that led to the
battery. Kevin, the victim, was dating Baker’s niece, Dreama Helvey. Kevin lived in an
apartment over his truck-repair shop, and Dreama occasionally would spend the night with
Kevin. She did so on the night before the beating. On the day of the beating, Kevin and
Dreama were at Kevin’s place and were joined by Diane Arnold, Dreama’s mother. Kevin
had been drinking and was intoxicated. Dreama left Kevin’s place for a while, leaving Kevin
and Diane alone. When Dreama returned, Diane was “really upset” and accused Kevin of
sexually assaulting her.
After leaving Kevin’s place, Diane drove to an E-Z Mart in Lowell where she called
her sister, Karen “Sue” Baker, the wife of appellant Baker. On the phone, Diane was
extremely upset and “screaming and yelling.” At Sue’s request, Baker and a friend drove to
the E-Z Mart, picked up Diane, and took her back to Baker’s house. At Baker’s home,
Diane reported that Kevin had “stuck his tongue down her throat and reached up her
shorts.” Baker then angrily called Dreama to confront her about what had happened.
Dreama insisted that Kevin was drunk and had just “gotten handsy” with Diane. About half
an hour later, however, Baker texted Dreama the following message: “So you didn’t tell the
whole story did you tell that mother fucker come on out I got something for him.” 1
Meanwhile, Dreama’s brother, Mitchell Arnold, became aware of the allegations
Diane had made against Kevin. Mitchell called Matthew “Ryder” Vansickle and Noah
Craig and told them that Kevin had sexually assaulted his mother. Mitchell, Noah, Ryder,
and their girlfriends, Karen Hatfield and Stacy Carmichael, went to Baker’s house. At
1 Dreama did not see the text until later in the evening.
2 Baker’s home, the four men––Baker, Mitchell, Ryder, and Noah––talked about going to
Kevin’s house to “whip his ass.” After they talked for about fifteen minutes, Mitchell and
Noah got in one car, Ryder and Baker got in another, and they drove to Kevin’s.
Back at Kevin’s place, Dreama had gone upstairs to bed while Kevin was passed out
in the bed of a flatbed truck that was parked in his truck-repair shop. When Baker and the
others arrived, they banged on the door awaking Dreama. Eventually, Baker and the others
entered Kevin’s place, 2 pulled Kevin out of the truck bed, and begin hitting and kicking
him.
After the attack, Baker and the others returned to Baker’s house. Dreama called 911
to report the attack. In her report, she was able to identify the assailants, including Baker. 3
Kevin was severely beaten in the attack. His mandible was fractured in several places, and
both cheekbones and his eye sockets had multiple fractures.
Baker was charged as an accomplice in the aggravated residential burglary and first-
degree battery. The information also reflected an enhancement for engaging in violent
criminal group activity. Following a jury trial, Baker was convicted on both counts and the
enhancement. The jury imposed a sentence of ten years for the aggravated residential
burglary and eight years for the first-degree battery and recommended that they be served
consecutively. The circuit court accepted the jury’s recommendation, and Baker was
sentenced to a total of eighteen years in prison. His timely appeal followed.
2 Witnesses’ accounts differed about whether Dreama opened the door or the men burst in, which will be discussed in more detail later in this opinion. 3 In her 911 report, Dreama did not identify her brother, Mitchell, as an assailant but did so later in the investigation.
3 II. Sufficiency of the Evidence
Baker’s first four points on appeal challenge the sufficiency of the evidence
supporting his convictions for aggravated residential burglary and first-degree battery. In
reviewing a challenge to the sufficiency of the evidence, this court determines whether the
verdict is supported by substantial evidence, direct or circumstantial. Anderson v. State, 2011
Ark. 461, 385 S.W.3d 214. Substantial evidence is evidence forceful enough to compel a
conclusion one way or the other beyond suspicion or conjecture. Camp v. State, 2011 Ark.
155, 381 S.W.3d 11. On appeal, we review the evidence in the light most favorable to the
State and consider only the evidence that supports the verdict. Milner v. State, 2020 Ark.
App. 546.
A. Residential Burglary
Of his four arguments challenging the sufficiency of the evidence, Baker raises two
arguments challenging his conviction for aggravated residential burglary. We therefore set
out the relevant statutory provisions here. A person commits aggravated residential burglary
if he or she inflicts or attempts to inflict death or serious physical injury on another person
while committing residential burglary as defined in Ark. Code Ann. § 5-39-204(a)(2) (Repl.
2013). A person commits residential burglary if he or she enters or remains unlawfully in a
residential occupiable structure of another person with the purpose of committing in the
residential occupiable structure any offense punishable by imprisonment. Ark. Code Ann. §
5-39-201(a)(1) (Repl. 2013). A “residential occupiable structure” means a vehicle, building,
or other structure in which any person lives or that is customarily used for overnight
4 accommodation of a person whether or not a person is actually present. Ark. Code Ann. §
5-39-101(8)(A) (Supp. 2019).
Baker argues first that the building in which the assault took place was not a
“residential occupiable structure.” He contends that the truck-repair shop where the attack
happened was not Kevin’s residence, so he therefore could not be guilty of aggravated
residential burglary. We disagree.
According to our caselaw, “[j]ust as the definition of ‘occupiable’ does not depend
on the presence of a person in a building, it does not depend on whether it is being used
for some other purpose as long as ‘the nature of the premise’ is that it is ‘occupiable.’” Julian
v. State, 298 Ark. 302, 304, 767 S.W.2d 300, 301 (1989). In Horton v. State, 2014 Ark. App.
250, this court held that a garage attached to a house was a residential occupiable structure
despite appellant’s argument that there was no evidence that the burglary victim lived in the
garage or customarily used it for overnight accommodation. This court determined that
because the garage was attached to the home and was an integral part of the home and was
a place “where people are likely to be,” it met the statutory definition of a residential
occupiable structure. Id. at 6.
Applying this caselaw to the facts presented at trial, we conclude that Kevin’s shop
was an “occupiable residential structure.” Dreama testified that Kevin had a “room upstairs”
in his truck-repair shop and had been living there since 2015. She explained that he had a
bed and living space with running water, a bathroom, a place to cook, and an air
conditioner. She further testified that she stayed with Kevin three nights a week and had
spent the night there before the attack. Kevin testified that he had built the apartment in his
5 garage and had lived there for a year and half or two years; he said that he had running
water, was able to cook for himself, and had a bed and an air conditioner. Thus, the jury
was presented with evidence that the shop where Kevin built his apartment was
“occupiable” and was a place “where people are likely to be.”
Baker nonetheless argues that the State failed to prove that he or any of the
participants in the attack entered the residential portion of the building to commit the
offenses; rather, he contends that the evidence proves at best entry into the commercial
portion of the premises. However, he cites no authority for the premise that a crime must
be committed solely within the confines of a living space that is found within a larger
building. It is axiomatic that we will not consider arguments that are unsupported by
convincing argument or citation to relevant authority. See Butry-Weston v. State, 2021 Ark.
App. 51, 616 S.W.3d 685; King v. State, 2016 Ark. App. 292, 494 S.W.3d 463.
In his second challenge to his conviction for aggravated residential burglary, Baker
contends that the evidence was insufficient to support the “burglary” element of his
conviction because there was no evidence that he unlawfully entered the premises. As noted
above, to commit aggravated residential burglary, one must commit residential burglary,
which requires that one enter or remain unlawfully in a residential occupiable structure with
the purpose of committing any offense punishable by imprisonment. To “enter or remain
unlawfully” means “to enter or remain in or upon premises when not licensed or privileged
to enter or remain in or upon the premises.” Ark. Code Ann. § 5-39-101(3)(A); Jefferson v.
State, 2017 Ark. App. 492, 532 S.W.3d 75.
6 Baker contends that there was no proof that he “entered [the] shop illegally or [was]
told to get out.” We disagree. Admittedly, the jury was presented with conflicting evidence
of how entry was obtained. Dreama testified that she was awakened by loud banging at the
door and that she was only halfway across the room when the door swung open with Baker
and the others making uninvited entry. On the other hand, Baker, Ryder, and Noah all
testified that Dreama opened the door to the shop. Obviously, the jury was presented with
conflicting evidence about entry. The jury was not, however, obligated to believe Baker’s
self-serving account, see, e.g., Scaggs v. State, 2020 Ark. App. 142, 596 S.W.3d 562, nor are
we.
We conclude that Baker’s argument does not address the entirety of the evidence
that was presented to the jury. For example, although Noah testified that Dreama opened
the door, he added that “[they] all kind of pushed [their] way past her and went inside. She
did not invite us in. We forced our way in.” Ryder likewise testified that Dreama opened
the door, but he added that as they went in, Mitchell hit the door and told Dreama he
should “beat your ass, bitch, for letting this happen to mom” before “storming in.” There
was therefore evidence from which the jury could conclude that Baker and the others
entered the premises when not licensed to do so.
Moreover, even assuming that Dreama did, in fact, open the door and permit the
men’s entry, our court has noted that a person’s license or privilege to enter a home is
revoked once that person inflicts injury on the owner. Holland v. State, 2017 Ark. App. 49,
at 5, 510 S.W.3d 311, 314 (citing Holt v. State, 2011 Ark. 391, 384 S.W.3d 498); see also
Rose v. State, 2015 Ark. App. 563, 472 S.W.3d 167. Thus, even assuming Baker’s entry into
7 the building was lawful, once the assault on Kevin began, his privilege to be there was
revoked. We therefore affirm on this issue as well.
B. First-Degree Battery
In his next challenge to the sufficiency of the evidence, Baker argues that Kevin’s
injuries were not sufficiently severe to support his conviction for first-degree battery. Baker
was charged with and convicted of first-degree battery under Arkansas Code Annotated
section 5-13-201(a)(3) (Supp. 2019), which provides that a person commits this offense if
he or she “causes serious physical injury to another person under circumstances manifesting
extreme indifference to the value of human life.” “Serious physical injury” is defined as
“physical injury that creates a substantial risk of death or that causes protracted disfigurement,
protracted impairment of health, or loss or protracted impairment of the function of any
bodily member or organ.” Ark. Code Ann. § 5-1-102(21) (Repl. 2013).
Baker does not dispute that Kevin was badly beaten. He argues, however, that his
injuries did not meet the definition of a “serious physical injury” because none of his injuries
were permanent. We disagree with Baker’s assessment of the evidence.
The jury was presented sufficient evidence of serious physical injury. The State
introduced graphic photographs at trial depicting the injuries to Kevin’s face and head. The
jury heard testimony from medical professionals concerning the seriousness of the injury.
Victor Cozens, the paramedic who responded to Dreama’s 911 call and treated Kevin at the
scene, explained that Kevin had a broken mandible, missing teeth, and a large amount of
blood loss. Dr. Burdge Green, the emergency-room doctor who treated Kevin at the
hospital, testified that Kevin experienced multiple facial fractures. He reported that it would
8 take between eight and twelve weeks for Kevin’s fractures to heal, that the fractured cheek
bones could cause potential long-term scarring and disfigurement, and the injuries to the
eye sockets could cause vision changes. Dr. Green further explained that Kevin could be
dealing with his injuries “for a year out or more,” noting that there are nerves in the
mandible that could cause chronic pain.
The jury also heard layperson testimony concerning the seriousness of the injuries.
Dreama testified that Kevin’s face was swollen “about double in size for about a month”;
and he has scars on his face. Detective Hammontree testified that as he investigated the scene
and saw the sheer amount of blood on the floor of the shop, he was “worried it might turn
into a homicide investigation” and that when he went to interview Kevin in the hospital,
he believed he was “there to possibly take what is called a dying declaration.” Finally, Kevin
himself testified about his injuries. He was hospitalized for three days and had to remain on
a liquid diet for about a month because of his broken jaw and missing teeth. In fact, by the
time of the trial, he was still having problems from some of his teeth that had been broken
in the attack. He stated that he has scars from the incident, including a hole in his lip and a
scar across his eye. Kevin explained that although he has insurance, it does not cover dental
or vision, so he is unable to get glasses to correct the vision problems that he sustained in
the attack.
Whether a person has suffered serious physical injury is ordinarily an issue for the
trier of fact. Johnson v. State, 2017 Ark. App. 71, 510 S.W.3d 298. It is not necessary that
the impairment be permanent but only protracted, and the fact that the victim ultimately
recovers has no bearing on whether the injury sustained is serious. Huggins v. State, 2021
9 Ark. App. 74, 618 S.W.3d 187. The evidence described above clearly supports the jury’s
conclusion that Kevin suffered “serious physical injuries” within the meaning of the statute,
and Baker’s argument regarding the permanency of Kevin’s injury is neither well-taken nor
supported by caselaw or the evidence. We therefore affirm Baker’s conviction for first-
degree battery.
C. Accomplice Liability
As mentioned above, Baker was charged as an accomplice to both aggravated
residential burglary and first-degree battery. In his final challenge to the sufficiency of the
evidence, he argues that the evidence failed to prove he was an accomplice “rather than
simply being in the wrong place at the wrong time.” 4
A person is criminally liable for the conduct of another person when he is the
accomplice of another person in the commission of an offense. Ark. Code Ann. § 5-2-402
(Repl. 2013); Davis v. State, 2013 Ark. App. 658, 430 S.W.3d 190. An accomplice is a
person who, with the purpose of promoting or facilitating the commission of an offense,
solicits, advises, encourages, or coerces the other person to commit it; aids, agrees to aid, or
4 We note that the original and amended criminal informations filed in this case charged Baker as an accomplice to both aggravated residential burglary and first-degree battery. Regarding aggravated residential burglary, the jury was instructed that it had to find that “Rodney Baker or an accomplice” committed the offense (emphasis added); however, the instruction regarding first-degree battery stated only that the jury had to find that “Rodney Baker caused serious physical injury to Kevin Luper under circumstances manifesting extreme indifference to the value of human life.” Nevertheless, the jury was also instructed regarding accomplice liability and informed that Ryder Vansickle and Noah Craig were accomplices and that the jury could not convict Baker of “aggravated residential burglary and battery in the first degree upon the testimony of those witnesses unless that testimony is corroborated by other evidence tending to connect the defendant with the commission of the offenses.” (Emphasis added.)
10 attempts to aid the other person in planning or committing it; or having a legal duty to
prevent the commission of the offense, fails to make a proper effort to do so. Ark. Code
Ann. § 5-2-403; Davis, supra.
When a theory of accomplice liability is implicated, we affirm if substantial evidence
exists to show that the defendant acted as an accomplice in the commission of the alleged
offense. Price v. State, 2019 Ark. 323, at 5, 588 S.W.3d 1, 4. We have said that there is no
distinction between principals on the one hand and accomplices on the other, insofar as
criminal liability is concerned. Id. When two people assist one another in the commission
of a crime, each is an accomplice and criminally liable for the conduct of both. Id. One
cannot disclaim accomplice liability simply because he or she did not personally take part in
every act that went to make up the crime as a whole. West v. State, 2020 Ark. App. 522.
On appeal, Baker argues that there was no proof that he and the others developed a
plan to beat Kevin or that he actually participated in the beating. In support of these
contentions, Baker cherry-picks the witnesses’ testimony and isolates specific phrases, such
as his own testimony that there was “never a plan . . . for me or anybody to go down there
and beat him half to death” and that he “did not ever touch the man.” He points to Dreama’s
statement that she did not remember who was hitting and kicking Kevin and that she did
not “literally see” Baker strike Kevin. Baker also cites Ryder’s and Noah’s testimony that
there was no plan to attack Kevin.
We are not persuaded by Baker’s arguments. Concerning whether he and the others
developed a plan to beat Kevin, Ryder testified that he, Baker, Noah, and Mitchell talked
in a group about going to Kevin’s house. Ryder said he had no doubt that Baker was “in
11 it with us that night. . . . [He was] the one responsible for sort of getting the group together.”
Finally, Ryder testified it was his “understanding that Rodney Baker and Mitchell Arnold
had a plan.” Both Stacy Carmichael, Ryder’s girlfriend, and Karen Hatfield, Noah’s
girlfriend, testified that the four men were huddled together talking before they all left at
the same time in separate vehicles.
Further, although Baker claims in his brief that “no one could even confirm they
actually saw [him] participate in any way other than just standing there,” this is categorically
untrue. Dreama testified that “all four [were] participating in the punching.” On a scale of
one to ten, she said it was “a ten” that she saw Baker, along with the others, punching
Kevin. Dreama stated, “I watched Rodney [and the others] punching and kicking Kevin.”
Ryder testified, “I saw Rodney punch Kevin. . . . I am 100 percent confident that I saw
Rodney Baker also throw a punch.” Noah said, “When I said they continued to beat on
him, I am talking about Rodney [and the others]. . . . I am very confident that Rodney,
Mitchell and Ryder were beating on Kevin. I saw all three of them throwing punches. I do
not recall any point in time when Rodney was standing away from the group.”
Additionally, the jury heard testimony that called Baker’s credibility into question.
On initial questioning by law enforcement, Baker denied any knowledge of what may or
may not have happened to Kevin. He told the detaining officer that he had not left his
residence all day. Despite denying that he had any knowledge of the attack, while he was
being detained, Baker told the others who were there, “[No]body answer any of their
questions” and moments later said, “[D]on’t consent to no search.”
12 At the police station, Baker changed his story to admit that he had contact with
Diane, heard her allegations against Kevin, and left his home to go and get her. He further
changed his story to admit his phone call and text to Dreama, although he continued to
deny having seen Kevin that day. When questioned about a cut on his hand, he told law
enforcement that he cut his finger on a piece of tin earlier in the day. Both Stacy Carmichael
and Karen Hatfield, however, testified that when they arrived at Baker’s home, his hand
was not wounded; but on his return from Kevin’s, he had a cut on his hand that required
bandaging, and he had blood on his shirt. Karen heard Mitchell yelling that they “got to
burn it all,” and Noah heard Baker say, “[N]obody talks, everybody walks.” This evidence
is clearly sufficient to support the jury’s finding that Baker was either an accomplice or a
principal to both the aggravated residential burglary and the first-degree battery.
III. Motion for Mistrial/Motion for Continuance
In his final point on appeal, Baker assigns error to the circuit court’s denial of his
motion for mistrial and motion for continuance that occurred during closing arguments.
We first set out the circumstances surrounding those motions.
At the completion of the guilt phase, the jury found Baker guilty. During the penalty
phase, Baker called several character witnesses, and the circuit court then instructed the jury
regarding sentencing from a set of instructions agreed to by the parties. Concerning the
offense of aggravated residential burglary, a Class Y felony, the court informed the jury that
this offense was punishable by imprisonment in the Arkansas Department of Correction for
“not less than ten years nor more than forty years, or life, or by a fine not exceeding $15,000,
or both an imprisonment and a fine.” (Emphasis added.)
13 During his closing argument, defense counsel argued that Baker had “lived a good
life except this one night” and implored the jury to impose only a fine. At that point, the
State interrupted Baker’s closing argument to point out that the Y felony jury instruction
the court had given was incorrect because the model instruction provided for only a prison
sentence and did not have an option for only a fine. The court and the attorneys looked at
the sentencing statute and realized that the instruction given had, in fact, been incorrect.
Defense counsel complained that his entire closing argument had been premised on the
possibility of a sentence of a fine and asked for a mistrial. The State objected, suggesting that
both parties had missed the error and that an admonishment would be sufficient to cure the
mistake. The court said it would let counsel start his closing argument over but denied the
motion for mistrial.
Defense counsel then argued that the error had “literally gutted [his] entire theme of
this entire case,” pointing out that he could have called more character witnesses if he had
known what the sentencing instruction was going to be. As a result, counsel asked the court
for a continuance until the next day to craft a new closing argument. The court denied that
request but offered a thirty-minute break to adjust his argument. The court then advised
the jury that there had been an error in the instructions and advised them of the correct
sentencing range on the Y felony offense. Baker’s attorney went on to conclude his closing
argument and asked the jury for the minimum sentence on both offenses. The jury
subsequently retired to deliberate and later returned with the minimum sentence of ten years
on the Y felony offense of aggravated residential burglary and eight years on the Class A
felony offense of first-degree battery.
14 Baker argues that the circuit court erred in denying his motion for a mistrial. A
mistrial is a drastic remedy and should be declared when there has been an error so
prejudicial that justice cannot be served by continuing the trial or when it cannot be cured
by an instruction. Halliburton v. State, 2020 Ark. 101, at 18, 594 S.W.3d 856, 867. The
grant or denial of a motion for mistrial lies within the sound discretion of the circuit court,
and the exercise of that discretion should not be disturbed on appeal unless an abuse of
discretion or manifest prejudice to the complaining party is shown. Barnum v. State, 2020
Ark. App. 523, 614 S.W.3d 453. Similarly, a circuit court’s decision to grant or deny a
continuance will not be reversed absent an abuse of discretion amounting to a denial of
justice. Walker v. State, 2020 Ark. App. 559.
We first point out that the original instruction the court gave the jury was indeed
incorrect, and Baker does not argue otherwise. Arkansas Code Annotated section 5-4-
401(a)(1) (Repl. 2013) provides that for a defendant convicted of a Class Y felony, the
sentence shall be not less than ten years and not more than forty years, or life. Arkansas
Code Annotated section 5-4-201 sets out which offenses are subject to a punishment of a
fine, and this statute does not provide the option for a fine for a Class Y felony.
We are not persuaded that Baker can demonstrate the prejudice necessary to warrant
a mistrial. Although defense counsel did have to recalibrate his closing argument, it was
nonetheless effective: counsel asked for the minimum sentence possible, and the jury obliged
him with a ten-year sentence, which is the minimum available for a Class Y felony.
Moreover, as the State notes, even if the jury had retired to deliberate with the erroneous
15 instruction and returned a sentence of a fine only on the Y felony, the circuit court would
have had to correct it under Arkansas Code Annotated section 16-90-107(d) (Repl. 2016):
If the jury in any case assesses a punishment, whether of fine or imprisonment, below the limit prescribed by law for offenses of which the defendant is convicted, the court shall render judgment and pronounce sentence according to the lowest limit prescribed by law in such cases.
(Emphasis added.) See also Adams v. State, 25 Ark. App. 212, 755 S.W.2d 579 (1988) (finding
no error when the circuit court imposed the minimum prison sentence after the jury applied
an erroneous sentencing instruction and sentenced defendant to only a fine). We find no
error in the court’s denial of a continuance applying the same reasoning.
Because Baker cannot demonstrate prejudice from the circuit court’s denial of his
mistrial and continuance motions, he is not entitled to reversal, and we therefore affirm.
Affirmed.
HARRISON, C.J., and MURPHY, J., agree.
Tapp Law Firm, P.A., by: Tylar C.M. Tapp III, for appellant.
Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.