Cite as 2022 Ark. App. 303 ARKANSAS COURT OF APPEALS DIVISION I No. CR-21-471
SAMUEL T. MCKAIG Opinion Delivered August 31, 2022 APPELLANT APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT V. [NO. 26CR-17-422]
STATE OF ARKANSAS HONORABLE MARCIA R. APPELLEE HEARNSBERGER, JUDGE
AFFIRMED; MOTION TO WITHDRAW GRANTED
STEPHANIE POTTER BARRETT, Judge
Samuel McKaig was convicted by the Garland County Circuit Court of battery in the
first degree and Class C felony failure to appear. He was sentenced to twenty years’
imprisonment on the battery conviction and ten years’ imprisonment on the failure-to-appear
conviction, with the sentences to be served concurrently. Pursuant to Anders v. California, 386
U.S. 738 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of
Appeals, McKaig’s counsel has filed a no-merit brief and a motion to withdraw, asserting that
there is no issue of arguable merit to raise on appeal. The clerk of this court provided McKaig
with a copy of his counsel’s brief and notified him of his right to file a pro se statement of points
for reversal, which he has done. We affirm McKaig’s convictions and grant counsel’s motion to
withdraw. The first-degree-battery charge resulted from an altercation between McKaig and Chris
Bond on May 7, 2017.1 Bond and his wife, Debra, were walking on a neighborhood street in
Hot Springs Village when McKaig’s vehicle rounded the corner and drove into the lane where
the Bonds were walking, causing them to have to jump out of the way of the vehicle. Bond
yelled at the driver of the vehicle to stay in his lane; McKaig backed up to where the couple was
standing, got out of his vehicle, and according to Bond, began to savagely beat him with a rock
and his hands. McKaig bit the sixty-nine-year-old Bond several times, and he “chewed” on
Bond’s thumb to the point it was partially amputated and had to be reattached. All the bones
in Bond’s face were either broken or fractured, and he required over one hundred stitches as
well as twenty-seven staples to close his wounds. Bond was in the hospital for nine days, and
while his thumb was successfully reattached, he testified that he lost one-third of his thumb in
the attack. The doctor who reattached Bond’s thumb testified that Bond had permanently lost
some of the use in his thumb due to the injury. Bond explained that he had a concealed-carry
license and was carrying a loaded revolver on his walk; he said that when McKaig attacked him,
he unloaded his weapon into the ground because he was afraid McKaig might overtake him and
use the firearm on him.
McKaig told a very different version of events, claiming Bond attacked him when he got
out of his vehicle and then shot at him. He claimed he was only acting in self-defense when he
hit Bond. McKaig was not shot or seriously injured; he declined medical care at the scene.
1 The failure-to-appear charge stemmed from McKaig’s failure to appear on September 11, 2018, for an omnibus hearing in the first-degree-battery case.
2 McKaig moved for a “directed verdict” at the close of the State’s case with respect to the
first-degree-battery charge,2 arguing that first-degree battery required a loss of bodily function,
and while there was damage to Bond’s thumb, he was still able to use it as a thumb. This motion
was denied. McKaig testified in his own defense; after his testimony, he rested his case, and the
circuit court found him guilty of both charges.
A motion to dismiss at a bench trial is identical to a motion for directed verdict at a jury
trial in that it is a challenge to the sufficiency of the evidence. Colen v. State, 2022 Ark. App. 148,
643 S.W.3d 274. In a nonjury trial, a motion to dismiss must be made at the close of all the
evidence and must state the specific grounds relied on for dismissal; if the defendant moves for
dismissal at the close of the prosecution’s case, the motion must be renewed at the close of all
the evidence. Ark. R. Crim. P. 33.1(b) (2021). Failure to challenge the sufficiency of the
evidence at the times and in the manner required constitutes a waiver of any argument
pertaining to the sufficiency of the evidence to support the judgment. Ark. R. Crim. P. 33.1(c).
Although McKaig challenged the evidence to support the first-degree-battery charge at
the close of the State’s evidence, he failed to renew this motion after he testified in his own
defense, and he never moved to dismiss regarding the failure-to-appear charge. Therefore, any
argument regarding the sufficiency of the evidence for either conviction is not preserved for
appeal.
The circuit court made an upward departure from the presumptive sentence for the first-
degree-battery conviction due to two aggravating factors—McKaig’s conduct during the
2 McKaig did not challenge his failure-to-appear conviction below nor does he challenge it on appeal.
3 commission of the offense “manifested deliberate cruelty to the victim exhibited by degrading,
gratuitous, vicious, torturous, and demeaning physical or verbal abuse, unusual pain, or violence
in excess of that necessary to accomplish the criminal purpose,” Ark. Code Ann. § 16-90-
804(d)(1) (Supp. 2021), and McKaig “knew or should have known that the victim was
particularly vulnerable or incapable of resistance due to . . . advanced age, disability, or ill
health.” Ark. Code Ann. § 16-90-804(d)(2). These factors were discussed extensively on the
record and reflected on the sentencing order as required by section 16-90-804(a)(1) and (2). The
facts of this case support this discretionary upward departure, and there is no issue of arguable
merit to be made on appeal that the circuit court erred in making this sentencing departure.
McKaig was removed from the courtroom during the formal sentencing hearing. When
the circuit court began reciting the findings relative to sentencing, McKaig continuously
interrupted the court, objected, interjected his version of the events, and yelled that he had proof
that Bond had attempted to murder him. After several disruptions, the circuit court informed
McKaig that if he could not let the court finish, it would “have to gag [him] or else you’ll have
to be––” to which McKaig responded, “You might as well.” McKaig was then removed from the
courtroom.
A defendant may lose his right to be present at trial if, after being warned he will be
removed from the courtroom due to disruptive and disorderly behavior, he nevertheless
conducts himself in such a manner that the trial cannot proceed. Illinois v. Allen, 397 U.S. 337,
343 (1970). The right to be present may be reclaimed when the defendant agrees “to conduct
himself consistently with the decorum and respect inherent in the concept of courts and judicial
proceedings.” Id. Circuit courts must be given sufficient discretion when confronted with
4 disruptive, defiant defendants. Id. Here, McKaig demonstrated that he was going to continue
to be disruptive, and he never requested to be readmitted to the courtroom after he was removed.
Furthermore, there was no violation of McKaig’s right to confront witnesses since this occurred
at the sentencing hearing, and there were no witnesses. The circuit court did not abuse its
discretion in having McKaig removed.
The last adverse ruling addressed by counsel is on the sentencing order for McKaig’s
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Cite as 2022 Ark. App. 303 ARKANSAS COURT OF APPEALS DIVISION I No. CR-21-471
SAMUEL T. MCKAIG Opinion Delivered August 31, 2022 APPELLANT APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT V. [NO. 26CR-17-422]
STATE OF ARKANSAS HONORABLE MARCIA R. APPELLEE HEARNSBERGER, JUDGE
AFFIRMED; MOTION TO WITHDRAW GRANTED
STEPHANIE POTTER BARRETT, Judge
Samuel McKaig was convicted by the Garland County Circuit Court of battery in the
first degree and Class C felony failure to appear. He was sentenced to twenty years’
imprisonment on the battery conviction and ten years’ imprisonment on the failure-to-appear
conviction, with the sentences to be served concurrently. Pursuant to Anders v. California, 386
U.S. 738 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of
Appeals, McKaig’s counsel has filed a no-merit brief and a motion to withdraw, asserting that
there is no issue of arguable merit to raise on appeal. The clerk of this court provided McKaig
with a copy of his counsel’s brief and notified him of his right to file a pro se statement of points
for reversal, which he has done. We affirm McKaig’s convictions and grant counsel’s motion to
withdraw. The first-degree-battery charge resulted from an altercation between McKaig and Chris
Bond on May 7, 2017.1 Bond and his wife, Debra, were walking on a neighborhood street in
Hot Springs Village when McKaig’s vehicle rounded the corner and drove into the lane where
the Bonds were walking, causing them to have to jump out of the way of the vehicle. Bond
yelled at the driver of the vehicle to stay in his lane; McKaig backed up to where the couple was
standing, got out of his vehicle, and according to Bond, began to savagely beat him with a rock
and his hands. McKaig bit the sixty-nine-year-old Bond several times, and he “chewed” on
Bond’s thumb to the point it was partially amputated and had to be reattached. All the bones
in Bond’s face were either broken or fractured, and he required over one hundred stitches as
well as twenty-seven staples to close his wounds. Bond was in the hospital for nine days, and
while his thumb was successfully reattached, he testified that he lost one-third of his thumb in
the attack. The doctor who reattached Bond’s thumb testified that Bond had permanently lost
some of the use in his thumb due to the injury. Bond explained that he had a concealed-carry
license and was carrying a loaded revolver on his walk; he said that when McKaig attacked him,
he unloaded his weapon into the ground because he was afraid McKaig might overtake him and
use the firearm on him.
McKaig told a very different version of events, claiming Bond attacked him when he got
out of his vehicle and then shot at him. He claimed he was only acting in self-defense when he
hit Bond. McKaig was not shot or seriously injured; he declined medical care at the scene.
1 The failure-to-appear charge stemmed from McKaig’s failure to appear on September 11, 2018, for an omnibus hearing in the first-degree-battery case.
2 McKaig moved for a “directed verdict” at the close of the State’s case with respect to the
first-degree-battery charge,2 arguing that first-degree battery required a loss of bodily function,
and while there was damage to Bond’s thumb, he was still able to use it as a thumb. This motion
was denied. McKaig testified in his own defense; after his testimony, he rested his case, and the
circuit court found him guilty of both charges.
A motion to dismiss at a bench trial is identical to a motion for directed verdict at a jury
trial in that it is a challenge to the sufficiency of the evidence. Colen v. State, 2022 Ark. App. 148,
643 S.W.3d 274. In a nonjury trial, a motion to dismiss must be made at the close of all the
evidence and must state the specific grounds relied on for dismissal; if the defendant moves for
dismissal at the close of the prosecution’s case, the motion must be renewed at the close of all
the evidence. Ark. R. Crim. P. 33.1(b) (2021). Failure to challenge the sufficiency of the
evidence at the times and in the manner required constitutes a waiver of any argument
pertaining to the sufficiency of the evidence to support the judgment. Ark. R. Crim. P. 33.1(c).
Although McKaig challenged the evidence to support the first-degree-battery charge at
the close of the State’s evidence, he failed to renew this motion after he testified in his own
defense, and he never moved to dismiss regarding the failure-to-appear charge. Therefore, any
argument regarding the sufficiency of the evidence for either conviction is not preserved for
appeal.
The circuit court made an upward departure from the presumptive sentence for the first-
degree-battery conviction due to two aggravating factors—McKaig’s conduct during the
2 McKaig did not challenge his failure-to-appear conviction below nor does he challenge it on appeal.
3 commission of the offense “manifested deliberate cruelty to the victim exhibited by degrading,
gratuitous, vicious, torturous, and demeaning physical or verbal abuse, unusual pain, or violence
in excess of that necessary to accomplish the criminal purpose,” Ark. Code Ann. § 16-90-
804(d)(1) (Supp. 2021), and McKaig “knew or should have known that the victim was
particularly vulnerable or incapable of resistance due to . . . advanced age, disability, or ill
health.” Ark. Code Ann. § 16-90-804(d)(2). These factors were discussed extensively on the
record and reflected on the sentencing order as required by section 16-90-804(a)(1) and (2). The
facts of this case support this discretionary upward departure, and there is no issue of arguable
merit to be made on appeal that the circuit court erred in making this sentencing departure.
McKaig was removed from the courtroom during the formal sentencing hearing. When
the circuit court began reciting the findings relative to sentencing, McKaig continuously
interrupted the court, objected, interjected his version of the events, and yelled that he had proof
that Bond had attempted to murder him. After several disruptions, the circuit court informed
McKaig that if he could not let the court finish, it would “have to gag [him] or else you’ll have
to be––” to which McKaig responded, “You might as well.” McKaig was then removed from the
courtroom.
A defendant may lose his right to be present at trial if, after being warned he will be
removed from the courtroom due to disruptive and disorderly behavior, he nevertheless
conducts himself in such a manner that the trial cannot proceed. Illinois v. Allen, 397 U.S. 337,
343 (1970). The right to be present may be reclaimed when the defendant agrees “to conduct
himself consistently with the decorum and respect inherent in the concept of courts and judicial
proceedings.” Id. Circuit courts must be given sufficient discretion when confronted with
4 disruptive, defiant defendants. Id. Here, McKaig demonstrated that he was going to continue
to be disruptive, and he never requested to be readmitted to the courtroom after he was removed.
Furthermore, there was no violation of McKaig’s right to confront witnesses since this occurred
at the sentencing hearing, and there were no witnesses. The circuit court did not abuse its
discretion in having McKaig removed.
The last adverse ruling addressed by counsel is on the sentencing order for McKaig’s
failure-to-appear conviction. The sentencing order states that the sentence was a dispositional
departure based on aggravating factor number seventeen, which is new criminal activity while
on pretrial release. The failure-to-appear offense was the new criminal activity during McKaig’s
pretrial release. This is a dispositional departure because the presumptive sentence guidelines
do not recommend an ADC disposition for a seriousness level 5 (failure to appear) with a
criminal history score of 0. The failure-to-appear charge is a Class C felony. For a Class C felony,
the sentence shall be not less than three years nor more than ten years. Ark. Code Ann. § 5-4-
401(a)(4) (Repl. 2013). McKaig was sentenced to the maximum for a Class C felony, ten years.
The dispositional departure is not erroneous under the circumstances, especially considering
that the failure-to-appear sentence ran concurrently with the battery sentence.
McKaig filed pro se points. His points can be grouped into three categories: (1)
sufficiency of the evidence to support his first-degree-battery conviction; (2) partiality of the
circuit court; and (3) ineffectiveness of trial counsel. None of these arguments is preserved for
As discussed above, the failure to renew his motion to dismiss at the close of all the
evidence waived any sufficiency argument on appeal. Furthermore, none of the sufficiency
5 arguments made by McKaig were raised to the circuit court. Arguments not raised at trial will
not be addressed for the first time on appeal. Still v. State, 2022 Ark. App. 156, 643 S.W.3d
830.
McKaig next argues that the circuit court was not impartial. A circuit judge is presumed
to be impartial. Kelly v. State, 2021 Ark. App. 160. The mere fact of adverse rulings is not
enough to demonstrate bias. Irvin v. State, 345 Ark. 541, 49 S.W.3d 635 (2001). McKaig made
no request below regarding his belief the circuit judge was not impartial; therefore, he is barred
from making any argument to that effect for the first time on appeal. Kelly, supra.
Finally, McKaig seems to argue that trial counsel was ineffective because evidence was
being hidden, and some of the statements given regarding the incident were “blatant lies.”
McKaig stated that he would not want legal counsel if his appeal was “granted,” as he had
“already witnessed how little some of these attorneys really care about the truth.” McKaig never
raised an ineffective-assistance-of-counsel argument to the circuit court, and such an argument
will not be considered on direct appeal unless the circuit court considered the issue. Gordon v.
State, 2015 Ark. 344, 470 S.W.3d 673.
Affirmed; motion to withdraw granted.
GLADWIN and MURPHY, JJ., agree.
Lancaster Law Firm, PLLC, by: Clinton W. Lancaster, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.