Ark. Code Ann. § 16-97-103 (2026)

Case Notes

Constitutionality.

Arkansas' bifurcated sentencing procedures in § 5-4-103 and this section are not violative of the ex post facto clause in the United States Constitution or Ark. Const., Art. 2, § 17. Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995).

The fact that a jury may take into consideration when a person convicted of a certain class of felony is eligible for parole or transfer is in no way a usurpation of the executive' department's power and authority to decide when an individual defendant should be released, and does not violate Ark. Const., Art. 4. Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997).

In General.

Sentencing is now, in essence, a trial in and of itself, in which new evidence may be submitted. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).

Defendant's allegation that subdivision (1) conflicts with court rules was without merit where he failed to cite any express rule with which it conflicts. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997).

The evidence listed in the statute, including victim-impact evidence, is subject to the rules of evidence. Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999).

Although defendant had been accused but not yet convicted of forgery, evidence that defendant was out on bond when he committed residential burglary and theft of property provided proof of his character and was relevant to the jury's determination of an appropriate punishment; the jury need not have learned of the details of defendant's bond requirements to understand that the fact that defendant was out on bond when he committed the new crimes said something about his character. Helms v. State, 92 Ark. App. 79, 211 S.W.3d 53 (2005).

Construction.

This section simply allows the jury or court to exercise its discretion in considering all evidence relevant to sentencing and does not mandate automatic enhancement due to prior misdemeanor convictions. Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997).

Applicability.

The trial court's retroactive employment of the 1994 versions of § 5-4-103 and this section to offenses committed in 1993 did not subject defendant to substantive prejudice in violation of the Ex Post Facto Clause of the United States Constitution. Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994).

The admission of the defendant's prior juvenile adjudications did not violate the ex post facto principle, notwithstanding the contention that this section was improperly applied retroactively, since the admission of the prior adjudications did not change the nature or definition of the offense or increase the penalty to which he was subject. Snyder v. State, 332 Ark. 279, 965 S.W.2d 121 (1998).

Admissibility.

The introduction of evidence during this stage must be governed by the rules of admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster, which is all the more reason to permit appeal. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).

Testimony regarding defendant's prior robbery attempt was properly admitted as an aggravating circumstance of the present robbery conviction under subdivision (6) of this section. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).

Evidence of uncharged misconduct held admissible as an aggravating factor during the sentencing phase. Davis v. State, 60 Ark. App. 179, 962 S.W.2d 815 (1998).

Evidence of defendant's prior deferred sentence in Oklahoma and plea of nolo contendere to the offense of rape in the first degree held admissible for sentencing purposes. McClish v. State, 331 Ark. 295, 962 S.W.2d 332 (1998).

Trial court did not err by allowing two witnesses to testify during sentencing that they had seen defendant “acting suspiciously” in the neighborhood park on the day of his initial contact with police because the trial court specifically instructed the jury that the testimony was only to be considered to show why the witnesses called the police and was not offered for the truth of the matter asserted, the testimony was not unduly prejudicial, and the testimony went to defendant's character. Adkins v. State, 371 Ark. 159, 264 S.W.3d 523 (2007).

Trial court did not err by allowing a police officer to testify that defendant's pants were unbuttoned and unzipped at the time of his arrest because defendant cured any prejudice by cross-examining the officer and the appearance of defendant's clothing was relevant to why the officer searched defendant. Adkins v. State, 371 Ark. 159, 264 S.W.3d 523 (2007).

Court did not abuse its discretion by allowing into evidence the transcript of chats between defendant and the officer, whom defendant believed to be a 14-year old female, because the transcript was the best method for the court to gauge the veracity of defendant's attempts to downplay his activities and contained much relevant information not found in the agreed statement of facts; in this section, the Arkansas Legislature listed several other types of evidence that could be considered, including evidence relevant to guilt presented at the first stage. Howerton v. State, 2012 Ark. App. 331, 413 S.W.3d 861 (2012).

In an aggravated robbery case, a trial court did not abuse its discretion by admitting evidence at sentencing of appellant's participation in a prior robbery; it was of no consequence that appellant had not yet been convicted in the robbery at issue. As to relevance, the fact that appellant was an active participant in two robberies, just days apart and committed in nearly the same fashion, was relevant character evidence and was evidence of aggravated circumstances showing his propensity to engage in similar criminal conduct. Thomas v. State, 2012 Ark. App. 466, 422 S.W.3d 217 (2012).

Circuit court did not abuse its discretion by allowing testimony about subsequent crimes, as they were similar to the crimes in the present appeal, and the testimony was relevant as an aggravating circumstance and showed defendant's character and his lack of potential for rehabilitation, plus prejudice could not be shown as his sentence was under the maximum amount allowed. Stover v. State, 2014 Ark. App. 393, 437 S.W.3d 695 (2014).

Trial court did not abuse its discretion in admitting on-line chats and photographs depicting snuff sexual acts found on defendant's computer in the sentencing phase of his jury trial where the photos were the best method for the jury to gauge the veracity of defendant's attempts to downplay his activities, and they directly challenged witness testimony about defendant's care for his disabled wife and his good reputation in the community. Shreck v. State, 2016 Ark. App. 374, 499 S.W.3d 677 (2016).

In the sentencing hearing for defendant's convictions under § 5-27-602, the circuit court did not abuse its discretion in admitting testimony from defendant's former stepdaughter in which she identified herself and her sister in photographs found at defendant's residence and testified about defendant's past molestation of her when she was a child many years earlier; defendant's history of attraction to underage girls was relevant to his character and the crimes for which he was convicted. Antoniello v. State, 2018 Ark. App. 105, 542 S.W.3d 878 (2018).

Aggravating Circumstances.

In a prosecution for violation of a minor, the testimony of the victim's mother that defendant violated a no contact order, which provided that defendant was to have no contact with the victim, was evidence of an aggravating circumstance because it related to the offenses for which defendant was convicted; when he violated the no contact order, defendant continued to harm the victim, thus adding to the injurious consequences of his crime. Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003).

Section 16-90-804 clearly indicates that the list of departure factors in that section is not exclusive; therefore, evidence of subsequent drug manufacturing was admissible in the sentencing phase of a drug trial because it was relevant for departure purposes. Crawford v. State, 362 Ark. 301, 208 S.W.3d 146 (2005).

Trial court did not err in admitting testimony during sentencing that defendant had raped another boy subsequent to his rape of the victim in the present case as the evidence was relevant to defendant's character and his propensity to continue to engage in similar activity in the future. Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005).

During the penalty phase of defendant's trial for driving while intoxicated in violation of § 5-65-103 and refusal to submit to a chemical test in violation of § 5-65-205, the trial court did not err by admitting evidence of his prior convictions for refusal to submit to a chemical test; the evidence was admissible under this section, as it was relevant to his sentencing as either character evidence or aggravating circumstances. Williams v. State, 2009 Ark. App. 554 (2009).

Appeal.

Review on appeal shall be confined to nonjurisdictional issues which arise during the penalty phase of the trial. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).

Character Evidence.

Plain language of this section indicates that, while evidence introduced during the sentencing phase may include evidence described in this section, the list is not exhaustive; thus, evidence of subsequent drug manufacturing was admissible in the sentencing phase of the trial despite the fact that it was inadmissible in the guilt phase under Ark. R. Evid. 404. Crawford v. State, 362 Ark. 301, 208 S.W.3d 146 (2005).

After defendant was convicted of second-degree sexual assault, a woman was properly allowed to testify at the sentencing hearing that he had raped her nine years earlier, as other crime evidence that might not be admissible at the guilt phase under Ark. R. Evid. 404(b) was admissible at sentencing under subdivision (5) of this section as relevant evidence of defendant's character that the jury could consider in determining the appropriate sentence. McElroy v. State, 2011 Ark. App. 533, 385 S.W.3d 406 (2011).

Although the testimony of the three witnesses regarding prior incidents involving defendant did not involve kidnapping, given the similarities between the events, including missing underwear, deceptive tactics to gain entry into a witness's home, use of a latex glove, and his use of a pellet gun and his threat to attack another witness's husband, under Ark. R. Evid. 401 and subdivision (5) of this section, the trial court did not abuse its discretion in admitting the testimony at the sentencing phase of the trial. Huff v. State, 2012 Ark. 388, 423 S.W.3d 608 (2012).

Trial court did not abuse its discretion in allowing evidence of subsequent charges against defendant in the sentencing phase of his trial pursuant to this section. Vaughn v. State, 2015 Ark. App. 136, 456 S.W.3d 767 (2015).

Trial court did not err in permitting questions regarding defendant's past behavior in the sentencing phase of his murder trial where he posed a broad question regarding his aggressiveness, thereby opening the door to questions regarding specific instances in which he had displayed aggression. Kinsey v. State, 2016 Ark. 393, 503 S.W.3d 772 (2016).

Circuit court properly admitted into evidence, during the sentencing phase of defendant's trial, conversations regarding “snuff” sex; while the evidence was obviously prejudicial to defendant, the evidence was both relevant and not unduly prejudicial. Defendant was convicted of conspiracy to commit rape of two minor children and he not only expressed his interest in snuff sex during the planning of the act with an undercover police officer, he also indicated that he was interested in performing it with minors. Shreck v. State, 2017 Ark. 39, 510 S.W.3d 750 (2017).

Trial court misapplied the law by overruling defendant's objection at sentencing to admission of evidence concerning nude images found on his computer without first engaging in the required Ark. R. Evid. 403 inquiry; from the trial court's comments from the bench in response to defendant's objection, it was apparent that the trial court was under the erroneous impression that Rule 403 did not apply at the sentencing stage of the proceedings. Peebles v. State, 2019 Ark. App. 483, 588 S.W.3d 355 (2019).

Consideration of Evidence.

In sentencing defendant for first-degree murder, the circuit court clearly considered defendant's intoxication but determined that it was not a mitigating factor, which the circuit court was free to do. Griffin v. State, 2015 Ark. 340, 470 S.W.3d 676 (2015).

Criminal History.

Trial court's decision to permit the introduction of evidence relating to defendant's criminal history during the sentencing phase of his trial was consistent with the mandates of this section; at sentencing, under § 5-4-401(a)(1), defendant was subjected to the normal ranges of Class A and Y felonies as opposed to the enhanced ranges designated for habitual offenders. Defendant actually received the minimum sentences allowed on two of his four convictions and less than the maximum on the other two and, under § 5-4-403, his sentences were ordered to run concurrently rather than consecutively, as they could have; thus, defendant not only failed to establish a threshold evidentiary error supporting reversal, but he also failed to show that he suffered prejudice during sentencing. Wilson v. State, 100 Ark. App. 14, 262 S.W.3d 628 (2007).

Circuit court did not abuse its discretion in allowing evidence of defendant's previous convictions to be introduced during the sentencing phase after he was convicted of a single misdemeanor count of harassment; the circuit court did not act improvidently, thoughtlessly, or without due consideration in deciding to admit the evidence, it recognized that the jury could give the evidence whatever weight it chose, and it acknowledged the defense's prerogative to argue what weight the jury should give the evidence. Rose v. State, 2018 Ark. App. 446, 558 S.W.3d 415 (2018).

Circuit court did not abuse its discretion in admitting the Department of Correction pen pack and an uncertified copy of a court of appeals opinion for sentencing-enhancement purposes; although the pen pack incorrectly reflected a guilty plea to two prior felonies, it included defendant's prior convictions, offense dates, sentencing dates, felony classifications, and sentences for each conviction, and the appellate opinion showed that the conviction and sentence were affirmed. Although neither of the documents strictly complied with § 5-4-504(b), the documents did satisfy the circuit court beyond a reasonable doubt under § 5-4-504(a) that defendant had been found guilty of the prior felonies. Rayburn v. State, 2019 Ark. 254, 583 S.W.3d 385 (2019).

Different Judge.

While evidence presented during the guilt phase of a trial was relevant to sentencing under subdivision (7) of this section, there was no merit to defendant's claim that having a different judge preside over the sentencing phase of trial meant that the evidence presented during the guilt phase would not be considered. Rasul v. State, 2013 Ark. App. 137 (2013).

Discretion of Court.

Permitting the state rebuttal argument in the sentencing phase when it has the burden of obtaining some penalty falls within the court's broad discretion. Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995), cert. denied, Caldwell v. Arkansas, 517 U.S. 1124, 116 S. Ct. 1361, 134 L. Ed. 2d 528 (1996).

Evidence Held Irrelevant.

The court properly refused to allow defendant at sentencing phase to testify as to his experiences of prison life as such observations are irrelevant under this section. Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997).

Failure to Object.

Upon defendant's conviction for rape and second-degree battery, he argued that the admission of evidence of his prior alleged misconduct involving a minor during the sentencing phase of trial violated his rights under the Confrontation Clause; however, the error was not preserved for review. Pursuant to this section, certain evidence was admissible at sentencing that would not have been admissible at the guilt phase of a trial, and if defendant did not wish for this evidence to come in during sentencing, he should have raised an objection. White v. State, 2012 Ark. 221, 408 S.W.3d 720 (2012).

Fugitive Status.

Where a habitual offender with a prior child-molestation conviction in another state pleaded guilty to multiple child sexual-abuse charges in Arkansas, the trial court did not err in considering the fact that the defendant was a fugitive from an indictment for sexual solicitation of a child in that other state; the trial judge specifically stated that he would not be considering the indictment for purposes of a conviction or as evidence of guilt, and the defendant failed to meet his burden to overcome the presumption that the trial court only considered competent evidence. Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000).

Hearsay.

In a prosecution on two counts of delivery of a controlled substance, the trial court committed reversible error when it allowed a police officer to present hearsay testimony during the sentencing phase of the trial regarding prior drug activity of the defendant for which he was never charged, tried, or convicted; prejudice was shown by the fact that the jury sentenced the defendant to two life sentences. Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000).

Jury Instructions.

It is not error for a trial court to inform the jury of the Governor's power to pardon. Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997).

As this section controls over the ruling in Andrews v. State, the court did not err in permitting a jury instruction relating to parole and transfer. Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997).

In an aggravated robbery case where habitual offender status was at issue, a trial court did not err by refusing to give the jury an instruction on the sentences that appellant had received in federal court for prior bank robbery convictions because it was within the trial court's discretion to do so, pursuant to subdivision (2) of this section. Walden v. State, 2012 Ark. App. 307, 419 S.W.3d 739 (2012).

“Nature of Previous Convictions”.

The plain meaning of the term “nature of the previous convictions” refers to the general character of the pertinent crime. Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996).

Prejudicial Error Not Shown.

Circuit court properly convicted defendant of first-degree battery and second-degree murder because the admission of the prosecutor's report from his prior conviction for unlawful discharge of a firearm from a vehicle did not violate his rights under this section or his Confrontation Clause rights where he conceded that he received a sentence less than the maximum for both convictions; the fact that defendant was not parole eligible and had to serve 100% of his sentence did not change the result. Nelson v. State, 2015 Ark. App. 697, 477 S.W.3d 569 (2015).

Even if the circuit court erred in the sentencing hearing in failing to exclude the screenshots of the text messages between the undercover officer and the defendant, no prejudice was shown and any error was harmless; defendant had already pleaded guilty to the crimes and a defendant who has received a sentence within the statutory range short of the maximum sentence cannot show prejudice from the sentence itself. Montgomery v. State, 2019 Ark. App. 376, 586 S.W.3d 187 (2019).

Victim Impact Evidence.

Videotape of victim's family and friends and its concomitant narration held admissible where the trial judge viewed the videotape before allowing it to be played to the jury, ruled portions of the tape inadmissible, ordered the narrator to describe the pictures, but not embellish them, and otherwise gave expressed and careful consideration of the videotape's relevancy and purpose. Hicks v. State, 327 Ark. 727, 940 S.W.2d 855 (1997).

The trial court did not abuse its discretion in excluding, in the sentencing phase, victim-impact evidence of the victim's arrests that were abated by his death where the defendant was allowed to introduce the victim's prior felony convictions. Brooks v. State, 328 Ark. 32, 941 S.W.2d 409 (1997).

In the prosecution of a boy scout leader for the rapes of several boys under his care, testimony regarding the defendant's involvement in the murder of one of the boy's parents was not proper victim impact evidence. Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999).

Victim impact evidence is not applicable in juvenile proceedings as juveniles are not “convicted” and “sentenced” and, instead, are “adjudicated” and have their cases go to “disposition.” Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000).

As to the state's appeal regarding the defense's use of victim-impact evidence under this section, there was jurisdiction over the appeal because the application of statutory sentencing procedures required uniformity and consistency. However, the state's argument was not addressed because it was not preserved for review; the state's contemporaneous relevance objection did not encompass the arguments made on appeal. Jones v. State, 374 Ark. 475, 288 S.W.3d 633 (2008).

Testimony of the chairman of a non-profit group's board about the group's response to a flooding disaster, the resulting funerals, and the chairman's personal relationships with the bereaved was relevant victim-impact evidence under Ark. R. Evid. 402 and this section at defendant's sentencing hearing. Although the group was able to meet the disaster victims' needs, the testimony illustrated the difficulties the group experienced due to defendant's theft; the evidence was not unduly prejudicial. Brown v. State, 2011 Ark. App. 608 (2011).

Cited: Pryor v. Norris, 103 F.3d 710 (8th Cir. 1997); Vanesch v. State, 70 Ark. App. 277, 16 S.W.3d 306 (2000); Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002); MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006); Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007).