Ark. Code Ann. § 5-1-110 (2026)

Research References

ALR.

Propriety of lesser included offense charge in state prosecution of narcotics defendant — Marijuana cases. 1 A.L.R.6th 549.

Propriety of lesser included offense charge in state prosecution of narcotics defendant-Cocaine cases. 2 A.L.R.6th 551.

Ark. L. Rev.

Note, Missouri v. Hunter and the Legislature: Double Punishment Without Double Jeopardy, 37 Ark. L. Rev. 1000.

Note, United States v. Dixon: What Does “Same Offense” Really Mean?, 48 Ark. L. Rev. 709.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

Recent Development: Arkansas Criminal Law — Felony Manslaughter as a Lesser-Included Offense, 60 Ark. L. Rev. 1017.

U. Ark. Little Rock L.J.

Davis, Survey of Arkansas Law: Criminal Law, 2 U. Ark. Little Rock L.J. 193.

Survey — Criminal Law, 10 U. Ark. Little Rock L.J. 137.

Survey — Criminal Law, 12 U. Ark. Little Rock L.J. 183.

Note, Constitutional Law — Goodbye Grady! Blockburger Wins the Double Jeopardy Rematch: United States v. Dixon, 113 S. Ct. 2849, 509 U.S. 688, 125 L. Ed. 2d 556 (1993), 17 U. Ark. Little Rock L.J. 369.

Case Notes

Purpose.

The purpose of this section is to allow a conviction of a lesser included offense when the accused is not convicted of the greater offense. Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983); Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993).

The purpose of this section is to allow a conviction of a lesser included offense when the accused is not convicted of the greater offense and to prohibit an accused from being convicted of more than one offense when the proof required to establish the offense necessarily includes proof of every element of another. Handy v. State, 24 Ark. App. 122, 749 S.W.2d 683 (1988).

Applicability.

Unless an offense is defined as a “continuing course of conduct crime,” this section does not apply. Hagen v. State, 318 Ark. 139, 883 S.W.2d 832 (1994).

A defendant cannot object to a double jeopardy violation until he has actually been convicted of the multiple offenses because it is not a violation of double jeopardy under subsection (a)(1) of this section for the state to charge and prosecute on multiple and overlapping charges; it is only after the jury returns guilty verdicts on both offenses that the trial court is required to determine whether convictions could be entered as to both based on the same conduct. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001).

Trial court did not err in denying defendant's post-conviction motion to dismiss his first-degree battery conviction based on double jeopardy because separate convictions and sentences for criminal attempt to commit murder in the first degree were statutorily authorized, each gunshot wound that defendant inflicted on the victim constituted a separate battery, battery was not a continuing course of conduct, and multiple crimes committed on a single episode could be separately punished. Copeland v. State, 2013 Ark. App. 747 (2013).

Continuing Criminal Enterprise.

Simultaneous convictions and sentences for continuing criminal enterprise and its predicate felony offenses do not violate the protection against multiple punishments for the same offense afforded by the federal and Arkansas constitutional double jeopardy clauses, U.S. Const. Amend. 5 and Ark. Const., Art. 2, § 8. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995).

Based on examination of § 5-64-414 and this section, as amended by Acts 1995, No. 595, the General Assembly intended to authorize separate punishments for violations of § 5-64-414 and the underlying substantive predicate offenses. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995).

Continuing Offenses.

A continuing offense must be a continuous act or series of acts set on foot by a single impulse and operated by an intermittent force. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied, Rowe v. Arkansas, 450 U.S. 1043, 101 S. Ct. 1764 (1981); Watson v. State, 295 Ark. 616, 752 S.W.2d 240 (1988).

Subdivision (a)(5) of this section did not change the common law rule that when the impulse is single only one charge lies, no matter how long the action may continue, however, if successive impulses are separately given, even though all unite in swelling a common stream of action, separate charges lie; the test is whether the individual acts are prohibited or the course of action they constitute is prohibited, if the former, each act is punished separately, if the latter, there can be but one penalty. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied, Rowe v. Arkansas, 450 U.S. 1043, 101 S. Ct. 1764 (1981).

Certain offenses held not to be defined as constituting a course of conduct. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied, Rowe v. Arkansas, 450 U.S. 1043, 101 S. Ct. 1764 (1981).

Acts held not to be one continuous offense so as to prohibit defendant from being convicted of several offenses. Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984).

Rape is not defined as a continuing offense; it is a single crime that may be committed in either of two ways, by engaging in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986).

Where the defendant committed three acts of aggravated robbery separated in point of time and place, there was not a single continuing offense and the trial court did not err in convicting and sentencing him for three offenses. Madewell v. State, 290 Ark. 580, 720 S.W.2d 913 (1986).

Subdivision (a)(5) of this section is not applicable where defendant is charged with two separate offenses and for different conduct for each offense; thus, defendant cannot be charged with several counts for the same continuous crime. Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987).

Aggravated robbery is not a continuing offense. Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987).

Aggravated robbery and aggravated assault, arising from the same incident, overlap. Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988), overruled in part, Matthews v. State, 2009 Ark. 321, 319 S.W.3d 266 (2009).

For subdivision (a)(5) of this section to be applicable, the conduct must be defined as a continuing course of conduct crime. Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987); Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988).

Neither terroristic threatening nor false imprisonment is defined as a continuing offense and, because neither offense is defined as a continuing course of conduct, subdivision (a)(5) of this section has no application. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988).

Neither manslaughter nor second degree battery is specifically defined as a continuing course of conduct. Lawrence v. State, 39 Ark. App. 39, 839 S.W.2d 10 (1992).

The crime of committing a terroristic act is not a continuous course of conduct crime and, therefore, the defendant was properly convicted of three separate terroristic acts where he fired three quick, successive shots into his girlfriend's apartment. McLennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999).

Instructions.

Court held to have acted properly in not giving instruction on lesser included offense. Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976); Walker v. State, 262 Ark. 331, 556 S.W.2d 655 (1977); Hair v. State, 266 Ark. 583, 587 S.W.2d 34 (1979); Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981); Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982); Wood v. State, 287 Ark. 203, 697 S.W.2d 884 (1985).

The trial court is not obligated to charge the jury with respect to an included offense unless there is a rational basis for a possible verdict acquitting the defendant of the offense charged and for convicting of defendant the included offense. Crenshaw v. State, 271 Ark. 484, 609 S.W.2d 120 (Ct. App. 1980); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981); Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983); Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984); Wood v. State, 287 Ark. 203, 697 S.W.2d 884 (1985).

It is not error to refuse to instruct the jury on a lesser included offense where the evidence clearly shows that the defendant is either guilty of the greater offense or innocent. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

Refusal to give correct instruction on a lesser included offense and its punishment when there is testimony furnishing a reasonable basis on which the accused may be found guilty of the lesser offense or where there is the slightest evidence tending to disprove one of the elements of the larger offense is error. Bongfeldt v. State, 6 Ark. App. 102, 639 S.W.2d 70 (1982).

Where there is no evidence tending to disprove one of the elements of the larger offense the court is not required to instruct on the lesser one because, absent such evidence, there is no reasonable basis for finding an accused guilty of the lesser offense. Bongfeldt v. State, 6 Ark. App. 102, 639 S.W.2d 70 (1982).

Trial court erred in failing to give instruction on lesser included offense. Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983); O'Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989).

When the jury convicts a defendant of a serious offense rather than a less serious included offense about which the jury was also instructed, the court's refusal to submit a third offense that is included but is even less serious than the other two cannot be prejudicial. McKinnon v. State, 287 Ark. 1, 695 S.W.2d 826 (1985).

In a prosecution for forgery, the trial court did not err by refusing to instruct the jury on the lesser included offense of criminal attempt to commit forgery; the crime of forgery was complete upon the defendant's being in possession of the forged instrument, upon his attempt to pass the check, or upon his passing of the check, and the defendant was either guilty of forgery or nothing. McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986).

Where the defendant was charged with homicide in the course of a burglary, the failure to instruct on first degree murder was not reversible error because the objection of counsel was that the court should have given the instruction because of evidence, which counsel could not recite, that the defendant entered the victim's residence for a purpose other than to commit a burglary. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986).

A lesser included offense instruction need not be given unless there is a rational basis. Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986); Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992), superseded by statute as stated in, State v. Galyean, 315 Ark. 699, 870 S.W.2d 706 (1994).

In prosecution for rape of his daughter, where defendant's defense was one of complete innocence and that nothing improper occurred between him and his daughter, he was not entitled to jury instructions on the lesser included offenses of carnal abuse in the third degree and sexual misconduct. Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986).

The trial court is not obligated to charge the jury with respect to a lesser included offense when there is no rational basis for the jury to find appellant guilty of a lesser included offense. Tarkington v. State, 313 Ark. 399, 855 S.W.2d 306 (1993).

Subsection (c) of this section does not delegate the decision regarding the propriety of a lesser included offense instruction to the defendant but, rather, requires the trial court to determine whether the proffered instruction concerns a lesser included offense and, if so, whether a rational basis exists for a verdict acquitting the defendant of the greater offense and convicting him of the lesser. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995).

Although there was no evidence to support the lesser-included-offense instruction at the time the instructions were discussed, the court had been alerted by defense counsel that such evidence was forthcoming and should have withheld ruling on the instructions pending presentation of the defense case. Allen v. State, 53 Ark. App. 225, 920 S.W.2d 860 (1996), rev'd, 326 Ark. 541, 932 S.W.2d 764 (Ark. 1996).

In a first-degree battery case, a trial court did not err by refusing to give an instruction on second-degree battery because it was not a lesser included offense; both alternatives given in the proffered instruction required an additional element, serious physical injury, that was not required in the first-degree battery instruction that was given, which only required physical injury when the injury was caused by a firearm. Further, the proffered instruction was not a lesser-included offense because the offense was not an attempt offense, and the proffered instruction did not differ from the offense charged only in the respect that a less serious injury to the same person sufficed to establish the offense's commission. Spight v. State, 101 Ark. App. 400, 278 S.W.3d 599 (2008).

Circuit court did not abuse its discretion in denying defendant's second-degree battery instruction because the offense charged was first-degree battery pursuant to § 5-13-201(a)(3), and the jury was not required to find that defendant employed a firearm in order to convict him of that offense, nor was the jury required to apply the firearm enhancement if it convicted defendant of first-degree battery; the firearm enhancement was not an element of the first-degree-battery offense but was an additional sentence authorized by statute if defendant was convicted of first-degree battery, and the jury determined that defendant employed a firearm during commission of that offense. Reed v. State, 2011 Ark. App. 352, 383 S.W.3d 881 (2011).

Where a defendant appealed his conviction for first-degree battery, a trial court abused its discretion in failing to instruct the jury on third-degree battery since there was some evidence to support such an instruction. The defendant testified that he did not mean to drop the infant on her head and that it was an accident, and an expert offered his opinion that a baby's skull could be fractured by a fall such as the one described by the defendant. Washington v. State, 2014 Ark. App. 122 (2014).

Lesser-Included Offenses.

Where the offense of which defendant was found guilty is a lesser included offense of that offense with which he was charged, he is in no position to complain of being convicted of the lesser crime. France v. State, 262 Ark. 193, 555 S.W.2d 225 (1977).

Offenses held not to be lesser included offenses. McDonald v. State, 266 Ark. 56, 582 S.W.2d 272 (1979); Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984); Collins v. Lockhart, 771 F.2d 1580 (8th Cir. 1985).

Where, in proving a specified offense, there must be proof of the same or less than all the elements required to establish the commission of a greater offense, the specified offense is thus an included offense which falls within the double conviction prohibition of this section, and the double jeopardy prohibition of the Fifth Amendment of the United States Constitution. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981).

Court could include offense as a lesser included offense pursuant to subsection (b). Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981).

Conviction held to be proper under subdivision (b)(3) as a lesser included offense. Slavens v. State, 1 Ark. App. 245, 614 S.W.2d 529 (1981).

Offense held to be a lesser included offense of another offense. Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982); Robinson v. State, 279 Ark. 61, 648 S.W.2d 446 (1983); James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983).

Where an offense requires proof of a fact which is not an element in the proof of another greater offense, the lesser offense is not included in the greater offense. Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983), cert. denied, 472 U.S. 1019, 105 S. Ct. 3482, 87 L. Ed. 2d 617 (1985).

An offense is not a lesser included offense solely because a greater offense includes all of the elements of an underlying offense; the lesser included offense doctrine additionally requires that the two crimes be of the same generic class and that the differences between the offenses be based upon the degree of risk or risk of injury to person or property or else upon grades of intent or degrees of culpability. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

Offenses held to be of a different nature and not of the same generic class and, consequently, one offense was not a lesser offense included within the other. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

Offense held not to be a lesser included offense of another because the two offenses each contain an element that the other does not; therefore, the two crimes do not meet the statutory definition of an included offense since one offense is not established by proof “of the same or less” than the elements required to prove the other greater offense. Henderson v. State, 286 Ark. 4, 688 S.W.2d 734 (1985), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), but see McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), restating the test for determining when an offense is included in another offense Hall v. State, 15 Ark. App. 309, 692 S.W.2d 769 (1985).

When the commission of a criminal offense by definition cannot be established without the commission of any underlying criminal offense, convictions for both offenses are barred by this section. Ward v. State, 20 Ark. App. 172, 726 S.W.2d 289 (1987); Ballew v. State, 298 Ark. 175, 766 S.W.2d 14 (1989).

Since rape and attempted rape are lesser included offenses of capital murder, it was error for the defendant to be convicted and sentenced for attempted rape. Carmichael v. State, 296 Ark. 479, 757 S.W.2d 944 (1988).

Arson is neither a lesser offense included within conspiracy to commit theft by deception nor an “element included offense” of conspiracy to commit theft by deception. Shamlin v. State, 23 Ark. App. 39, 743 S.W.2d 1 (1988), rehearing denied, 23 Ark. App. 39, 744 S.W.2d 405 (1988), cert. denied, Shamlin v. Arkansas, 488 U.S. 863, 109 S. Ct. 163 (1988).

Trial court did not err in refusing to reduce charge to second-degree murder on double jeopardy grounds. Lamb v. State, 23 Ark. App. 115, 743 S.W.2d 399 (1988).

Neither rape nor kidnapping is a lesser included offense of the other, as each involves separate elements, and it is not necessary to prove one offense in order to prove the other. Handy v. State, 24 Ark. App. 122, 749 S.W.2d 683 (1988).

A kidnapping which qualifies as a Class B felony is not a lesser included offense of a kidnapping which constitutes a Class Y felony. Rather, the offense is still kidnapping, even when there is a voluntary, safe release of the victim. Woods v. State, 302 Ark. 512, 790 S.W.2d 892 (1990).

An offense is not a lesser included offense solely because a greater offense includes all the elements of the lesser offense; the lesser included offense doctrine additionally requires that the two offenses be of the same generic class and that the difference between the offenses be based upon the degree of risk or risk of injury to person or property or else upon grades of intent or degrees of culpability. Ritchie v. State, 31 Ark. App. 177, 790 S.W.2d 919 (1990).

Aggravated robbery is not a “lesser included offense” of capital felony murder because robbery and murder are not in the same generic class; however, aggravated robbery is an “element included offense” of capital felony murder because, by statutory definition, capital murder could not be committed without committing aggravated robbery in a case where aggravated robbery is the underlying felony supporting the capital murder charge. Mullins v. State, 303 Ark. 695, 799 S.W.2d 550 (1990).

Rape and first degree battery are separate and distinct crimes with different elements of proof; and neither is a crime which can be subsumed under the other. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991).

Where defendant was convicted of both attempted capital murder, ostensibly the more serious crime, which was a Class A felony, and aggravated robbery, a Class Y felony, the trial court properly set aside the attempted capital murder conviction based on the classification of the crime, rather than whether it was a lesser included offense. Beard v. State, 306 Ark. 546, 816 S.W.2d 860 (1991).

Aggravated and first degree assault are not lesser included offenses of resisting arrest. Enoch v. State, 37 Ark. App. 103, 826 S.W.2d 291 (1992).

Violation of the implied consent law is not a lesser included offense of driving while intoxicated, and the offense of driving while intoxicated is not a lesser included offense of violation of the implied consent law. Frana v. State, 323 Ark. 1, 912 S.W.2d 930 (1996).

In a prosecution for kidnapping, aggravated robbery, and theft of property, the defendant was not entitled to have the jury instructed with regard to false imprisonment as a lesser included offense since his defense was based on a denial of all charges and, thus, his instruction request was inconsistent with his own proof. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000).

There was no double jeopardy violation where a defendant was convicted of both possession with intent to deliver a controlled substance and simultaneous possession of drugs and firearms, notwithstanding that possession of a controlled substance with intent to sell is an included offense within simultaneous possession of a controlled substance and a firearm, since the General Assembly made it clear that it wished to assess an additional penalty for simultaneously possessing controlled substances and a firearm. Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000).

Driving while intoxicated is a lesser included offense of negligent homicide; therefore, the trial court erred in sentencing the defendant separately on that count. Montague v. State, 68 Ark. App. 145, 5 S.W.3d 101 (1999), aff'd, 341 Ark. 144, 14 S.W.3d 867 (2000).

Felony manslaughter is not a lesser included offense of capital felony murder or first-degree felony murder. Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), but see McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), restating the test for determining when an offense is included in another offense.

There was no violation of this section where the defendant was convicted of both manufacturing methamphetamine and possession of methamphetamine with intent to distribute, since the latter crime is not a lesser included offense of the former crime. Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001).

Trial court was not obligated under subsection (c) to instruct the jury on second degree murder as a lesser included offense where there sufficient corroborated testimony and medical evidence supporting a verdict of first degree murder. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002).

Sections 5-27-303(b) and 5-27-403(a) constituted two separate offenses in that the actor and prohibited conduct in § 5-27-303(b) was different from the actor and prohibited conduct in § 5-27-403(a); as a guardian to the child, defendant husband's conduct was prohibited under § 5-27-303(b), and under § 5-27-403(a), defendant was a person who produced, directed, or promoted a website which included photographs depicting the lewd exhibition of the breasts of a female and the genitals or pubic area of the child, who was younger than 17. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003).

Operation of a vehicle without a valid license plate in violation of § 27-14-304 is not a lesser included offense of willfully attempting to evade or defeat the payment of tax, in violation of § 26-18-201(a), and failure to pay tax, in violation of § 26-18-202; it is possible to commit the greater offenses without committing the offense of operating a vehicle without a license plate, and the lesser charge requires proof of an additional element not required under the greater offenses. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003).

Defendant's conviction for first-degree murder was improper where the evidence warranted a manslaughter instruction that should have been presented to the jury; because there was evidence that warranted an instruction on a lesser-included offense, including the fact that the victim shot at defendant first until his gun jammed, it was in error to refuse to give the manslaughter instruction. Whittier v. State, 84 Ark. App. 362, 141 S.W.3d 924 (2004).

Court did not err in refusing to instruct the jury on sexual indecency with a child where it was not a lesser included offense of rape because committing the crime of sexual indecency with a child was not an attempt to commit rape, and the injury or risk of injury was the same for both offenses; specifically, subjecting the victim to deviate sexual activity was the injury or risk of injury for both offenses. Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004).

Because sexual misconduct was not a lesser-included offense of rape, the trial court did not abuse its discretion in denying defendant's proffered lesser-included instructions. McDuffy v. State, 359 Ark. 180, 196 S.W.3d 12 (2004).

Trial court erred in finding defendant guilty of second-degree forgery as it was not a lesser-included offense of first-degree forgery, set forth in the charging instrument and under which the trial proceeded; as provided in § 5-37-201(b) and (c), second-degree forgery requires proof of documents different from those for first-degree forgery and does not meet the requirements of the tests set out in subsection (b) of this section for a lesser-included offense, therefore, they are two separate crimes. Eagle v. State, 92 Ark. App. 328, 213 S.W.3d 661 (2005).

Court did not err in denying an instruction on the lesser-included offense of second-degree murder where defendant was unable to point to any evidence in the record that supported a knowing mental state rather than a purposeful mental state because he proclaimed his innocence throughout the trial and even took the stand in his own defense, denying any involvement in the murder; moreover, the jury was instructed on both capital murder and first-degree murder, but convicted defendant of the greater offense of capital murder. Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005).

Second-degree false imprisonment is not a lesser included offense of kidnapping; thus, instruction on second-degree or first-degree false imprisonment was not required in a kidnapping case. Davis v. State, 365 Ark. 634, 232 S.W.3d 476 (2006).

Circuit court erred in instructing the jury on felony manslaughter as a lesser included offense of capital felony murder, because the “extreme indifference” element was not a culpable mental state relating to a specific homicide victim but merely described the dangerous circumstances generally set in motion by defendant, and since the “extreme indifference” standard was not a mens rea related to a specific victim, it could not support a lesser included offense based on a less culpable mental state; the sole mens rea element in capital felony murder and first degree felony murder related to the underlying felony and not to the homicide itself. Perry v. State, 371 Ark. 170, 264 S.W.3d 498 (2007).

First-degree battery is not a lesser included offense of aggravated robbery as it is not established by proof of the same or less than all of the elements required to prove aggravated robbery. First-degree battery requires proof of the use of a firearm, whereas aggravated robbery does not; aggravated robbery requires proof of a robbery, whereas first-degree battery does not. Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008).

Prohibition against double jeopardy was not violated when defendant was convicted of first-degree battery and aggravated robbery because the elements of the offenses were not the same, and first-degree battery was not a lesser included offense of aggravated robbery. Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008).

Neither § 5-64-401(c)(1) nor § 5-64-403(c)(1)(A)(i) are lesser included offenses of the other pursuant to the terms of subsection (b) of this section because the plain language shows that possession of a controlled substance does not require the simultaneous possession of paraphernalia, and possession of paraphernalia does not require the simultaneous possession of a controlled substance; the elements of the two offenses can be completely exclusive of each other. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008).

Trial court did not err during defendant's trial in refusing to instruct a jury on the lesser offense of sexual assault in the second degree, in violation of § 5-14-125(a)(3)(A)-(B), on one count of rape, in violation of § 5-14-103(a)(3)(A), because sexual assault was not established by proof of the same or less than all of the elements required to establish rape, as required by subsection (b) of this section to be a lesser-included offense. Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54, cert. denied, 558 U.S. 1047, 130 S. Ct. 736, 175 L. Ed. 2d 514 (2009).

Trial court did not err in refusing to instruct the jury on aggravated assault during defendant's trial for aggravated robbery because aggravated assault, in violation of § 5-13-204(a)(1) and (2), was not a lesser-included offense of aggravated robbery pursuant to subdivision (b)(1) of this section as the two offenses required different elements of proof; aggravated assault required proof of circumstances manifesting extreme indifference to the value of human life, whereas aggravated robbery did not require such proof. Matthews v. State, 2009 Ark. 321, 319 S.W.3d 266 (2009).

In a case in which defendant was convicted of simultaneous possession of drugs and firearms and possession of a controlled substance with the intent to deliver and he argued that the latter conviction was a lesser-included offense of the simultaneous-possession charge and that his double-jeopardy rights had been violated because he had been convicted twice of the same crime, the latter conviction did not violate subdivision (a)(1) of this section. Under the Rowbottom decision, convictions for simultaneous possession of drugs and firearms and for possession with the intent to deliver did not violate double-jeopardy rules. Lee v. State, 2010 Ark. App. 224 (2010).

Although there was not substantial evidence to support defendant's convictions for aggravated assault pursuant to § 5-13-204(a) with respect to defendant sideswiping a victim's vehicle on an interstate, under subsection (b) of this section, the evidence would clearly sustain convictions for the lesser-included offense of first degree assault under § 5-13-205(a); the testimony established defendant acted recklessly when he approached the victim's vehicle from the rear, going very fast, and in passing the victim's vehicle on the left, defendant sideswiped the vehicle. Mance v. State, 2010 Ark. App. 472 (2010).

Sexual indecency with a child was not a lesser included offense of sexual assault in the first degree, as sexual indecency with a child required solicitation, which was not required for sexual assault in the first degree, and sexual assault in the first degree required that the sexual conduct occur but not that the defendant solicit the conduct. Sexual indecency with a child requires proof that the victim was less than fifteen years old, whereas sexual assault in the first degree only requires that the victim was less than eighteen years old. Halliday v. State, 2011 Ark. App. 544, 386 S.W.3d 51 (2011).

In a case in which a jury convicted defendant of capital murder in the shooting death of his ex-wife, the trial court properly refused to instruct the jury on reckless manslaughter and negligent homicide. Defendant, who fired once into a residence, mortally striking his ex-wife in the back, offered no rational basis to support giving either instruction on the basis that his actions were reckless or negligent. Jones v. State, 2012 Ark. 38, 388 S.W.3d 411 (2012).

In a criminal trial, the circuit court did not abuse its discretion in denying defendant's request to instruct the jury that second-degree sexual assault under § 5-14-125(a)(3) was a lesser offense included in rape of a person less than fourteen years of age, as defined in § 5-14-103(a)(3)(A), because the offense contained two elements not included in rape: defendant's age and marital status. Therefore, second-degree sexual assault was not a lesser offense included in rape under the tests set forth in subsection (b) of this section. Webb v. State, 2012 Ark. 64 (2012).

Defense counsel was not ineffective for not objecting that defendants' convictions violated double jeopardy under subsection (b) of this section because possession of drug paraphernalia with intent to manufacture methamphetamine was not a lesser-included offense of manufacturing methamphetamine, in violation of § 5-64-101(m). Myers v. State, 2012 Ark. 143, 400 S.W.3d 231 (2012).

Appellant sentenced to 540 months' incarceration for manufacturing a controlled substance, two counts of possession of drug paraphernalia with the intent to manufacture methamphetamine, and failure to appear was not entitled to proceed with an appeal of the decision denying his petition for writ of habeas corpus. The trial court was not without jurisdiction to accept appellant's guilty plea for the charges of possession of drug paraphernalia with intent to manufacture methamphetamine, as it was not a lesser-included offense of manufacturing methamphetamine for purposes of subsection (b) of this section because the offenses do not share the same elements; a conviction for manufacturing methamphetamine requires the State to prove that a defendant is engaged in the production, preparation, propagation, compounding, conversion, or processing of methamphetamine, whereas possession of drug paraphernalia with intent to manufacture methamphetamine requires no such proof. McHaney v. Hobbs, 2012 Ark. 361 (2012).

Jury instruction on the lesser-included offense of attempted aggravated robbery was not warranted because there was no evidence of the offense of attempt under § 5-3-201(a)(2); when appellant stormed out of a retail store's stockroom brandishing a gun and pointing it employees, he actually completed the offense of aggravated robbery. Thomas v. State, 2012 Ark. App. 466, 422 S.W.3d 217 (2012).

In a theft trial, it was not necessary to instruct the jury on the lesser-included offense of attempted theft because defendant clearly exercised unauthorized control over a store's property when he threw it over a fence into an area off the store's parking lot; it was not necessary that defendant also “take” the property to complete the crime. Cole v. State, 2013 Ark. App. 492 (2013).

Circuit court did not abuse its discretion when it declined defendant's request to include a lesser-included-offense jury instruction for second-degree sexual assault; second-degree sexual assault is not a lesser-included offense of rape because it requires proof of two elements that rape does not: defendant's age (18 or over) and defendant's marital status (not married to the victim). Hartman v. State, 2015 Ark. 30, 454 S.W.3d 721 (2015).

Circuit court's decision to revoke defendant's probation based on his committing the crime of manufacturing methamphetamine was not in error; although the evidence was insufficient to show that defendant committed that offense, it was sufficient to support the offense of attempting to manufacture methamphetamine. Atteberry v. State, 2016 Ark. App. 331 (2016).

In a robbery case in which several witnesses testified that defendant shoved a store employee out of the way and swung at another store employee while trying to flee with a money bag, the trial court did not err in denying defendant's request that the jury be instructed on theft as a lesser-included offense of robbery. Cartwright v. State, 2016 Ark. App. 425, 501 S.W.3d 849 (2016).

Theft is not a lesser-included offense of robbery pursuant to subsection (b) of this section. The wrongful appropriation of the victim's property is an essential element of theft, while robbery can be committed without actually taking the property of another, since robbery is defined as employing or threatening to employ physical force upon another with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter. Cartwright v. State, 2016 Ark. App. 425, 501 S.W.3d 849 (2016).

Defendants' argument that the firearm-enhancement statute was a lesser-included offense of any crime for which use of a firearm was an element, thereby making their sentences for the underlying felonies and the firearm enhancements illegal, was unpreserved for review because it was not properly framed as a challenge to an illegal sentence; the argument was a double-jeopardy challenge, and it had already been directly addressed and rejected. Anderson v. State, 2017 Ark. App. 300 (2017).

While the juvenile was charged with second-degree terroristic threatening and the circuit court in effect sua sponte amended the charge when it found the juvenile guilty of second-degree assault, and second-degree assault is not a lesser-included offense of second-degree terroristic threatening, the juvenile failed to raise the due process issue at the circuit court level and therefore failed to preserve the issue for appellate review. I.K. v. State, 2018 Ark. App. 584, 564 S.W.3d 579 (2018).

Revocation of defendant's suspended sentence was appropriate; even though the evidence did not establish any physical injury to the victim to support the allegation of second-degree battery on a law enforcement officer under § 5-13-202, the Court of Appeals without invitation held that the evidence was sufficient to support the lesser-included offense of second-degree assault under § 5-13-206. Caldwell v. State, 2018 Ark. App. 588, 565 S.W.3d 539 (2018).

Trial court did not err in failing to instruct the jury on negligent homicide because it was not a lesser-included offense of unlawful discharge of a firearm from a vehicle, and defendant's proffered instruction did not meet any of the three alternative tests set out in this section where the culpable mental state for negligent homicide was directed at the act of causing the death of another person and the culpable mental state for first-degree unlawful discharge of a firearm from a vehicle was directed at the act of discharging the firearm. Webb v. State, 2019 Ark. App. 436, 587 S.W.3d 252 (2019).

Multiple Charges.

Subsection (a) means that a defendant may be prosecuted for more than one offense, but, under specified circumstances, a judgment of conviction may only be entered for one of the offenses. Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993).

By allowing prosecution for both conspiracy and the underlying offense, this section does not merge the inchoate offense into the ultimate offense. Williams v. State, 54 Ark. App. 271, 927 S.W.2d 812 (1996), superseded, 328 Ark. 487, 944 S.W.2d 822 (1997).

Multiple Convictions.

Where offenses are separate, a defendant who had been convicted of the several offenses was not twice placed in jeopardy by being convicted of both offenses. King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977), overruled in part, State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).

Where separate offenses were committed, each commencing at a distinct point in time as the result of a separate impulse, and defendant could be convicted and sentenced for both offenses. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied, Rowe v. Arkansas, 450 U.S. 1043, 101 S. Ct. 1764 (1981).

There was error in entering a judgment of conviction on more than one offense where one of the offenses was established by proof of less than all of the elements required to establish the commission of another offense. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

There was no statutory or constitutional prohibition against convictions on separate counts, since, although the crimes were committed in the same escapade, they were not of the same conduct because they were committed against different persons, thus they were added elements of proof as to different victims. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981).

Where a defendant was sentenced for several offenses, the conviction for the greater offense was affirmed, but the conviction for the lesser included offense was set aside, since subdivisions (a)(1) and (b)(1) prohibit the entry of a judgment of conviction on the greater offense and on the underlying lesser included offense. Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981), cert. denied, Singleton v. Arkansas, 456 U.S. 938, 102 S. Ct. 1996, 72 L. Ed. 2d 458 (1982), cert. denied, Singleton v. Arkansas, 459 U.S. 882, 103 S. Ct. 184 (1982).

Subdivision (a)(1) only prohibits two convictions where one offense is included in another; accordingly, a defendant can be convicted of one offense and acquitted of another where the offenses arise out of the same conduct, since one offense is one of the elements of proof necessary to find a defendant guilty of the second so that acquittal of the second charge is not dispositive of the first charge. Johnson v. State, 274 Ark. 293, 623 S.W.2d 831 (1981).

It was not improper under subdivision (a)(1) to convict defendant of a lesser offense but acquit him of the greater offense since the greater offense required proof that the defendant committed the lesser offense and another fact. Johnson v. State, 274 Ark. 293, 623 S.W.2d 831 (1981).

Convictions on more than one count did not violate the prohibition against double jeopardy. Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982).

Where the prosecution of defendant for two offenses arose from the same incident, his convictions for both offenses violated the prohibition against double jeopardy since one offense was a lesser included offense of the other; therefore, his conviction and sentence for the lesser included offense would be set aside. Brewer v. State, 277 Ark. 40, 639 S.W.2d 54 (1982).

When there has been more than one finding of guilt resulting from the same conduct, the lesser penalty should be set aside. Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983).

When a criminal offense by definition includes a lesser offense, a conviction cannot be had for both offenses under this section. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

Where it was necessary to prove the elements of one or more offenses to prove the elements of another offense, the conviction and sentence imposed for the lesser included offenses were set aside, and the conviction and sentence for the greater offense were not disturbed. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

Where one offense was a lesser included offense of another, and the defendant had been convicted and sentenced for both offenses, the conviction and sentence for the lesser included offense would be set aside. Robinson v. State, 279 Ark. 61, 648 S.W.2d 446 (1983).

Where the defendant's convictions for two offenses grew out of a single act, and the proof required to prove the greater of the offenses necessarily included proof of the lesser offense, the defendant's conviction and sentence for the lesser offense had to be set aside. Sanders v. State, 279 Ark. 32, 648 S.W.2d 451 (1983).

This section prohibited a court from convicting and sentencing a defendant for several offenses involving the same victim where both charges arose from the same occurrence. Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983).

Where the same proof was required for each of two counts of an offense involving the same victim, the entry of conviction on both counts was prohibited by subdivisions (a)(1) and (b)(1). Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983).

Where none of the crimes was necessarily a lesser included offense of the other, since all involve separate elements, and it is not necessary to prove one offense in order to prove another, this section did not preclude defendant's conviction for all crimes charged. Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984).

Where offense was not a lesser included offense of another offense, the defendant could be sentenced for both of these offenses without violating this section or the double jeopardy clause of the Fifth Amendment to the U.S. Constitution. Collins v. Lockhart, 771 F.2d 1580 (8th Cir. 1985).

Where the charges were based upon the same elements, the two felonies were merged into one, and under subdivision (b)(1) defendant could only be convicted of one offense; thus, defendant's conviction for the greater of the two offenses was affirmed and his conviction for the lesser of the two offenses was reversed and dismissed. Blair v. State, 16 Ark. App. 1, 696 S.W.2d 755 (1985).

Where the defendant raped the victim with his finger, and then, after leaving the bedroom and returning, got an erection and penetrated her, the two acts of rape were of a different nature and were separated in point of time, and the defendant was properly convicted of two counts of rape. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986).

The double jeopardy clause and subsection (a) and subdivision (b)(1) of this section did not preclude the defendant's convictions of both attempted first degree murder and aggravated robbery, where the defendant held the first victim at gunpoint and examined her jewelry with the purpose of committing a theft, and then he shot the second victim. Kinsey v. State, 290 Ark. 4, 716 S.W.2d 188 (1986).

Battery in the first degree is distinguishable from aggravated robbery in that (1) the battery offense requires serious physical injury to another, while aggravated robbery does not, and (2) aggravated robbery requires the purpose of committing robbery while being armed with a deadly weapon, or the representation that one is so armed, while first-degree battery, by statutory definition, requires neither of these two elements. Consequently, defendant can be prosecuted for both offenses. Robinson v. Lockhart, 823 F.2d 210 (8th Cir. 1987).

Where the restraint exceeds that which necessarily accompanies the crime of aggravated robbery, the robber is also subject to prosecution for kidnapping. Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987).

The criminal code does not excuse a defendant for multiple crimes committed during one escapade, and so convictions for burglary and breaking or entering are proper. Ward v. State, 20 Ark. App. 172, 726 S.W.2d 289 (1987).

Where evidence was sufficient to show successive and separate impulses as to theft of two persons' property, convictions on separate counts of theft were proper. Perkins v. State, 298 Ark. 322, 767 S.W.2d 514 (1989).

This section does not prohibit conviction for both conspiracy and the underlying substantive offense of delivery of a controlled substance where the conspiracy contemplated the commission of a series of criminal acts, not merely a single transaction. Lee v. State, 27 Ark. App. 198, 770 S.W.2d 148 (1989), cert. denied, Lee v. Arkansas, 493 U.S. 847, 110 S. Ct. 142 (1989).

A jury may convict on some counts but not on others, and may convict in different degrees on some counts, because of compassion or compromise and not solely because there was insufficient evidence of guilt. Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996).

Defendant, charged with two counts of capital murder, was properly found guilty of second-degree murder and attempted first-degree murder. Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996).

This section does not prohibit convictions for both delivery of a controlled substance and conspiracy to deliver. Williams v. State, 54 Ark. App. 271, 927 S.W.2d 812 (1996), superseded, 328 Ark. 487, 944 S.W.2d 822 (1997).

Merger of two capital murders was not required under § 5-1-110(d)(1), and where defendant waived a sentencing hearing, thereby giving the trial court sole sentencing authority under § 5-4-103(b)(4), the trial court had the authority to order defendant's sentences to run consecutively under § 5-4-403(a). Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003).

Multiple convictions were not allowed where a defendant was charged with attempted capital murder and two underlying felonies, kidnapping and aggravated robbery; thus, the kidnapping charge was selected in defendant's case to merge into the attempted capital murder conviction as the General Assembly did not clearly express an intent in this section to allow for multiple convictions for each of those crimes. Flowers v. Norris, 347 Ark. 760, 68 S.W.3d 289 (2002).

Pursuant to subdivision (d)(1), defendant's convictions for both first-degree murder and the underlying felony of aggravated robbery was authorized by the legislature and his convictions did not violate the federal or state Double Jeopardy Clauses. Hudson v. State, 85 Ark. App. 85, 146 S.W.3d 380 (2004).

Trial court did not err in sentencing defendant, who was convicted of two counts of committing a terroristic act, to 30 years' imprisonment pursuant to the “three strikes” provision of § 5-4-501 (d)(1) based on the fact that he had been convicted the previous month of three counts of aggravated robbery in an unrelated case. Benson v. State, 86 Ark. App. 154, 164 S.W.3d 495 (2004).

Defendant was properly convicted of capital murder and arson after he told a neighbor that his trailer home exploded while his girlfriend was inside; the constitutional prohibition against double jeopardy was not violated because subdivision (d)(1)(A) of this section permitted a sentence for both crimes. Meadows v. State, 358 Ark. 396, 191 S.W.3d 527 (2004).

Trial court did not err in determining that consecutive sentencing for aggravated robbery, § 5-12-103(a)(1), first-degree terroristic threatening, § 5-13-301(a)(1)(A), and second-degree battery, § 5-13-202(a)(2), did not violate the prohibition against double jeopardy in Ark. Const. Art. 2, § 8 and the Fifth Amendment because neither first-degree terroristic threatening nor second-degree battery was a lesser-included offense of aggravated robbery since both crimes required proof of additional facts not required by aggravated robbery; the offense of first-degree terroristic threatening requires the elements of threatening to cause the death of the victim and the purpose of terrorizing the victim, and a conviction for second-degree battery requires proof of purposely causing physical injury to the victim. Walker v. State, 2012 Ark. App. 61, 389 S.W.3d 10 (2012).

Since the underlying felony for the first-degree murder charge was robbery, it was proper for defendant to be sentenced on the first-degree murder conviction and its underlying felony of robbery and the trial court erred in imposing a sentence for aggravated robbery. Thompson v. State, 2015 Ark. 271 (2015).

Circuit court properly denied defendant's petition for writ of habeas corpus because a conviction under § 5-27-602(a)(1) for each photograph sent by defendant did not violate double jeopardy, even though he sent only one email with one attachment. The number of charges brought against defendant was authorized by the legislature, defendant did not dispute that the email he sent contained 30 separate photographs depicting children engaging in sexually explicit conduct, and, although “computer file” is included in the list of media in § 5-27-602(a)(1), the fact that the 30 photographs were attached to the email in a single file was not relevant where it is the number of photographs distributed, not the manner of distribution, that gives rise to the number of permissible charges. Pelletier v. Kelley, 2018 Ark. 347, 561 S.W.3d 730 (2018).

Multiple Impulses.

Where the evidence displayed defendant's impulse to kidnap the victim and additional impulses to batter and threaten to kill her when she resisted the kidnapping, convictions for the separate offenses of first degree terroristic threatening (§ 5-13-301), second degree battery (§ 5-13-202), and attempted kidnapping (§ 5-3-201) were upheld because defendant's criminal acts were not all part of the attempted kidnapping and were not a continuing course of conduct. Hagen v. State, 318 Ark. 139, 883 S.W.2d 832 (1994).

Defendant was properly charged with multiple counts of rape rather than one count where there were separate penetrations occurring as a result of separate impulses, notwithstanding that the acts were not separated in time. Ricks v. State, 327 Ark. 513, 940 S.W.2d 422 (1997).

Parole.

Denial of parole is not a new punishment for purposes of double jeopardy. Clawitter v. Lockhart, 286 Ark. 131, 689 S.W.2d 558 (1985).

Review.

Appeal which raised an issue of the application of subsection (c), rather than its interpretation, did not involve the correct and uniform administration of the criminal law and was not addressed by the Supreme Court. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995).

A defendant is required to address the lesser included offenses in his motion for a directed verdict to preserve on appeal a challenge to the sufficiency of the evidence necessary to support a conviction for a lesser included offense; failure to question the sufficiency of the evidence for lesser included offenses, either by name or by apprising the trial court of the elements of the lesser included offenses, at the close of the state's case constituted a waiver of the argument. Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996).

Defendant failed to preserve his double-jeopardy argument for appellate review because he failed to raise the argument after the jury had returned its guilty verdicts. Sheppard v. State, 2014 Ark. App. 206 (2014).

Court of Appeals lacked jurisdiction to consider defendant's interlocutory appeal because his notice of appeal was untimely; the circuit court's denial of defendant's motion to dismiss was necessarily a denial of his res judicata arguments, and thus, the dismissal order was the one from which defendant should have filed his notice of appeal. Shaver v. State, 2018 Ark. App. 242, 548 S.W.3d 222 (2018).

Separate Acts.

Prosecutor explained there were three aggravated assaults, plus the prosecutor identified the injuries the victim suffered from defendant's actions, and these were separate acts resulting from separate impulses, even though they happened during the same criminal episode, and they constituted distinct acts, such that the trial court did not err in denying the motion to dismiss. Rodriguez v. State, 2014 Ark. App. 660, 449 S.W.3d 306 (2014).

Trial court did not abuse its discretion in denying postconviction relief because trial counsel was not ineffective for failing to move for dismissal of the charge of second-degree sexual assault on double jeopardy grounds, as the State presented evidence of separate impulses comprising separate acts conforming with the definitions of rape and second-degree sexual assault. Sorum v. State, 2019 Ark. App. 354, 582 S.W.3d 18 (2019).

Writ of Error Coram Nobis.

Double-jeopardy claims do not fall within any of the four categories of recognized claims for a writ of error coram nobis. Pelletier v. State, 2015 Ark. 432, 474 S.W.3d 500 (2015).

Cited: Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977); Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978); Sbabo v. State, 264 Ark. 497, 572 S.W.2d 585 (1978); Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978); Utley v. State, 266 Ark. 794, 586 S.W.2d 242 (Ct. App. 1979); Lewis v. State, 267 Ark. 933, 591 S.W.2d 687 (Ct. App. 1979); Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981); Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1982); Robinson v. State, 278 Ark. 516, 648 S.W.2d 444 (1983); Moore v. State, 280 Ark. 222, 656 S.W.2d 698 (1983); Thomas v. State, 280 Ark. 593, 660 S.W.2d 169 (1983); Rowe v. Lockhart, 736 F.2d 457 (8th Cir. 1984); Shrader v. State, 13 Ark. App. 17, 678 S.W.2d 777 (1984); Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985); Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985); Speer v. State, 18 Ark. App. 1, 708 S.W.2d 94 (1986); Holloway v. State, 18 Ark. App. 136, 711 S.W.2d 484 (1986); Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986); Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988); Rolark v. State, 299 Ark. 299, 772 S.W.2d 588 (1989); Yates v. State, 301 Ark. 424, 785 S.W.2d 199 (1990); Jeffers v. State, 301 Ark. 590, 786 S.W.2d 114 (1990); Harrison v. State, 303 Ark. 247, 796 S.W.2d 329 (1990); Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991); Frazier v. State, 309 Ark. 228, 828 Ark. 838, 828 S.W.2d 838 (1992); Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992); Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993); Lindsey v. State, 54 Ark. App. 266, 925 S.W.2d 441 (1996); Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996); Brown v. State, 74 Ark. App. 281, 47 S.W.3d 314 (2001); Wyatt v. State, 75 Ark. App. 1, 54 S.W.3d 549 (2001); Hardman v. State, 356 Ark. 7, 144 S.W.3d 744 (2004); Porter v. State, 358 Ark. 403, 191 S.W.3d 531 (2004); Harper v. State, 359 Ark. 142, 194 S.W.3d 730 (2004); Coombs v. Hot Springs Village Prop. Owners Ass'n, 98 Ark. App. 226, 254 S.W.3d 5 (2007); Rea v. State, 2015 Ark. 431, 474 S.W.3d 493 (2015).