A person who commits any of the following offenses may be subject to an enhanced sentence of an additional term of imprisonment of not less than one (1) year and not greater than ten (10) years if the offense is committed in the presence of a child:
Capital murder, § 5-10-101;
Murder in the first degree, § 5-10-102;
Murder in the second degree, § 5-10-103;
Aggravated robbery, § 5-12-103;
A felony offense of assault or battery under § 5-13-201 et seq.;
Rape, § 5-14-103;
Sexual assault in the second degree, § 5-14-125; or
A felony offense of domestic battering or assault on a family or household member under §§ 5-26-303 — 5-26-309.
Any person who commits the offense of aggravated cruelty to a dog, cat, or equine under § 5-62-104 may be subject to an enhanced sentence of an additional term of imprisonment not to exceed five (5) years if the offense is committed in the presence of a child.
To seek an enhanced penalty established in this section, a prosecuting attorney shall notify the defendant in writing that the defendant is subject to the enhanced penalty.
If the defendant is charged by information or indictment, the prosecuting attorney may include the written notice in the information or indictment.
The enhanced portion of the sentence is consecutive to any other sentence imposed.
Any person convicted under this section is not eligible for early release on parole or community correction transfer for the enhanced portion of the sentence.
Amendments.
The 2009 amendment by No. 33, in (a), updated an internal reference and made a minor stylistic change; inserted (b); and redesignated the remaining subsections accordingly.
The 2017 amendment substituted “equine” for “horse” in (b).
The 2019 amendment substituted “A person who commits any of the following offenses may be subject” for “Any person who commits a felony offense involving homicide, §§ 5-10-101 – 5-10-103, assault or battery, § 5-3-201 et seq., or domestic battering or assault on a family member or household member, §§ 5-26-303 – 5-26-309, may be subject” in the introductory language of (a) and added (a)(1) through (a)(8).
Research References
Ark. L. Rev.
Mark James Chaney, Recent Developments: Arkansas Supreme Court Denies Judges' Discretion to Suspend Enhanced Criminal Sentences Imposed by Statute and Holds All Suspensions of Enhanced Sentences Allowed Under Law Must Run Concurrently with the Primary Sentence, 66 Ark. L. Rev. 907 (2013).
U. Ark. Little Rock L. Rev.
Annual Survey of Case Law: Criminal Law, 29 U. Ark. Little Rock L. Rev. 849.
Case Notes
Construction.
Use of the word “may” does not mean that a jury has the discretion as to whether to impose an enhanced sentence where a crime of domestic violence was committed in the presence of a child, rather, it means the state had the option of seeking the enhancement; thus, where no sentence was imposed by the jury, a trial court did not err by imposing one under § 16-90-107(a). Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006).
Trial court lacked authority to impose a 10-year enhanced sentence on defendant for committing manslaughter in the presence of a child because the sentence was illegal where manslaughter was not referenced in the enhancement statute.
Hart v. State, 2014 Ark. 250 (2014).
Evidence.
Evidence was sufficient to convict defendant of committing aggravated assault and terroristic threatening in the presence of a child, his infant son; in her 911 call, defendant's wife stated that defendant choked her, she could not breathe, and he threatened to kill her, all in the presence of their child.
Mathis v. State, 2012 Ark. App. 285, 423 S.W.3d 91 (2012).
Evidence was sufficient for the enhancement under this section where a sibling was tearful and shaken and indicated to responding officers that she was not okay, she had heard the sounds of her brother being beaten and her mother pleading, and defendant knew or had reason to know that the sibling lived in the home with her brother and would be there.
Jefferson v. State, 2017 Ark. App. 492, 532 S.W.3d 75 (2017).
When a statute, such as the definition of “in the presence of a child” under § 5-4-701, provides that a defendant must know or have reason to know a fact, the defendant's knowledge may be inferred from the circumstances.
Williams v. State, 2019 Ark. App. 152, 573 S.W.3d 547 (2019).
Evidence at trial was sufficient to prove that defendant “had reason to know” that a person under the age of 16 was present at the time he shot the victim; the testimony showed that eight children were at the house the day of the shooting, six of whom were under the age of 16, one child had come out on the porch immediately before the shooting while defendant was in the driveway, and several children were on the porch while defendant was firing his gun. Thus, the circuit court did not err in denying defendant's motion for directed verdict on the enhancement for committing the offense of battery in the presence of a child.
Williams v. State, 2019 Ark. App. 152, 573 S.W.3d 547 (2019).
Notes of Decisions
Cited in 31
cases (19 in the last 5 years), 2006–2026 · leading case: State v. Colvin, 427 S.W.3d 635 (Ark. 2013).
State v. Colvin, 427 S.W.3d 635 (Ark. 2013). · cites it 50דThe information also included the allegation that any sentence she might receive for that offense was subject to enhancement, pursuant to Arkansas Code Annotated section 5-4-702 (Supp.2011), for committing the offense in the presence of a child.”
Sullivan v. State, 234 S.W.3d 285 (Ark. 2006). · cites it 24דIn addition, the State sought an enhanced penalty under Ark. Code Ann. § 5-4-702 (Repl.2006) because the crimes were committed in the presence of a child.”
Hart v. State, 2014 Ark. 250 (Ark. 2014). · cites it 24דAppellant, Richard Eli Hart, was charged with first-degree murder.”
William Nelson v. State of Arkansas, 2024 Ark. 24 (Ark. 2024). · cites it 4דNeither the limitation of Andrews’s testimony nor the denial of Nelson’s motion for a continuance resulted from an abuse of discretion warranting reversal. We affirm. III. Cross-Appeal by the State The State appeals from the circuit court’s ruling directing a verdict on the…”
Linquinton Dean v. State of Arkansas, 2021 Ark. App. 182 (Ark. Ct. App. 2021). · cites it 4דThe amended information further notified appellant that the State sought to enhance any punishment pursuant to Arkansas Code Annotated section 5-4-702 (Repl. 2013) as appellant committed each felony in the presence of a child and pursuant to Arkansas Code Annotated section…”
Denzell Braud v. State of Arkansas, 2022 Ark. 169 (Ark. 2022). · cites it 4דA finding is clearly erroneous when, although there is evidence to support it, the 2 Braud was sentenced as follows: Count 1: Capital Murder – Life imprisonment without the possibility of parole, with a 12-month enhancement under Arkansas Code Annotated section 5-4-702(a)(1) to…”
Luis Artero v. State of Arkansas, 2025 Ark. App. 290 (Ark. Ct. App. 2025). · cites it 6דOn appeal, Artero argues that the circuit court erred in allowing expert testimony on the subject of delayed disclosure because the witness providing the testimony lacked the requisite credentials to provide such testimony.”
Flando Montgomery v. State of Arkansas, 2022 Ark. App. 329 (Ark. Ct. App. 2022). · cites it 2ד2016)), and the ten-year sentence for the presence-of- a-child enhancement provision ( Ark. Code Ann. § 5-4-702 (d) (Repl. 2016).”
Liggins v. State, 2015 Ark. App. 321 (Ark. Ct. App. 2015). · cites it 2ד§ 16-90-120 , and Ark. Code Ann. § 5-4-702 (Supp. 2013). 2 .”
Mathis v. State, 423 S.W.3d 91 (Ark. Ct. App. 2012). · cites it 2ד2006); enhanced penalties for offenses committed in the presence of a child in violation of Arkansas Code Annotated section 5-4-702 (Supp. 2011); and being a habitual criminal in violation of Arkansas Code Annotated section 5-4-501 (Supp.”
Jefferson v. State, 2017 Ark. App. 492 (Ark. Ct. App. 2017). · cites it 8ד” Ark. Code Ann. § 5-4-702 (a) (Repl. 2013).”
Wallace v. State, 537 S.W.3d 269 (Ark. Ct. App. 2017). · cites it 2ד2015); and (2) the “in the presence of a child” enhancement set forth in section 5-4-702(a)-(d) (Repl. 2013). On September 20, 2016, at the beginning of appellant’s trial, the State again amended the information to reduce the kidnapping charge from a Class Y felony to a Class B…”
State v. Colvin, 427 S.W.3d 635 (Ark. 2013). “The information also included the allegation that any sentence she might receive for that offense was subject to enhancement, pursuant to Arkansas Code Annotated section 5-4-702 (Supp.2011), for committing the offense in the presence of a child.”
Hart v. State, 2014 Ark. 250 (Ark. 2014). “Appellant, Richard Eli Hart, was charged with first-degree murder.”
Sullivan v. State, 234 S.W.3d 285 (Ark. 2006). “In addition, the State sought an enhanced penalty under Ark. Code Ann. § 5-4-702 (Repl.2006) because the crimes were committed in the presence of a child.”
Wallace v. State, 537 S.W.3d 269 (Ark. Ct. App. 2017). “2015); and (2) the “in the presence of a child” enhancement set forth in section 5-4-702(a)-(d) (Repl. 2013). On September 20, 2016, at the beginning of appellant’s trial, the State again amended the information to reduce the kidnapping charge from a Class Y felony to a Class B…”
Denzell Braud v. State of Arkansas, 2022 Ark. 169 (Ark. 2022). “A finding is clearly erroneous when, although there is evidence to support it, the 2 Braud was sentenced as follows: Count 1: Capital Murder – Life imprisonment without the possibility of parole, with a 12-month enhancement under Arkansas Code Annotated section 5-4-702(a)(1) to…”
Luis Artero v. State of Arkansas, 2025 Ark. App. 290 (Ark. Ct. App. 2025). “On appeal, Artero argues that the circuit court erred in allowing expert testimony on the subject of delayed disclosure because the witness providing the testimony lacked the requisite credentials to provide such testimony.”
— Ark. Code Ann. § 5-4-702(a)(8) — 2 cases
Denzell Braud v. State of Arkansas, 2022 Ark. 169 (Ark. 2022). “A finding is clearly erroneous when, although there is evidence to support it, the 2 Braud was sentenced as follows: Count 1: Capital Murder – Life imprisonment without the possibility of parole, with a 12-month enhancement under Arkansas Code Annotated section 5-4-702(a)(1) to…”
Sullivan v. State, 234 S.W.3d 285 (Ark. 2006). “In addition, the State sought an enhanced penalty under Ark. Code Ann. § 5-4-702 (Repl.2006) because the crimes were committed in the presence of a child.”
— Ark. Code Ann. § 5-4-702(d) — 4 cases
State v. Colvin, 427 S.W.3d 635 (Ark. 2013). “The information also included the allegation that any sentence she might receive for that offense was subject to enhancement, pursuant to Arkansas Code Annotated section 5-4-702 (Supp.2011), for committing the offense in the presence of a child.”
State v. Colvin, 427 S.W.3d 635 (Ark. 2013). “The information also included the allegation that any sentence she might receive for that offense was subject to enhancement, pursuant to Arkansas Code Annotated section 5-4-702 (Supp.2011), for committing the offense in the presence of a child.”
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