FROM THE BENTON COUNTY CIRCUIT COURT [NO. 60CR-2014-1089]
HONORABLE BRAD L. KARREN, JUDGE
M. "Robby" Golden, for appellant.
Rutledge, Att'y Gen., by: Kristen C. Green and Brooke
Jackson Gasaway, Ass't Attorneys Gen., for appellee.
JOSEPHINE LINKER HART, Justice
Holly was convicted by a Benton County jury of capital
murder, rape, kidnapping, and residential burglary. Holly
received the death penalty for capital murder, life sentences
for the rape and kidnapping counts, and a twenty-year
sentence for the residential burglary. On appeal, Holly
raises three points, arguing that the circuit court erred by
(1) denying his motion for a directed verdict for the
residential-burglary charge because there was insufficient
evidence that he entered or remained unlawfully in the home
of another person; (2) granting the State's motion in
limine and finding that his offer to plead guilty to capital
murder in exchange for a life sentence was not admissible as
a mitigating factor showing his acceptance of responsibility
for his crimes; and (3) denying his motion to suppress his
custodial statement. Our jurisdiction is pursuant to Arkansas
Supreme Court Rule 4-3(i) (2017). We affirm.
Holly only challenges the sufficiency of the evidence with
regard to his residential-burglary conviction, only a
somewhat abbreviated recitation of the facts is necessary.
The victim, J.B., was a six-year-old girl that Holly and his
wife Amanda often babysat while her mother, DesaRae Crouch,
at work. Both Holly and his wife had a key to the house where
the victim lived. Holly confessed to entering the residence
by an unlocked side door after J.B.'s mother had gone to
sleep. He went to the child's room, woke her, picked her
up, and carried her to a nearby vacant house. Holly stated
that after removing the child's pants, he "tried to
stick it in, " meaning penetrate the victim's vagina
with his penis. Holly recalled that he then tied the
child's pants in a knot around her neck and twisted the
pants until she stopped kicking. A medical examiner
determined the cause of death was ligature strangulation. A
swab of the victim's vagina revealed the presence of
semen that was a DNA match with Holly's.
first consider Holly's argument that the circuit court
erred in denying his motion for a directed verdict with
regard to the residential-burglary charge. The pertinent
evidence adduced at trial is as follows. DesaRae Crouch
testified that she was a close friend of Holly's wife,
Amanda. She had two young daughters who stayed with the
Hollys while she was at work. Crouch stated that she trusted
the Hollys to feed and bathe her children.
stated that on November 19, 2012, she ended her shift at a
local convenience store just after 11:30 p.m. As usual, she
collected her children from the Hollys' residence next
door where they had fallen asleep on the Hollys' couch.
Crouch carried one of her children, L.B., while Holly carried
J.B. L.B. and J.B. shared the same bed. However, during the
night, L.B. had a nightmare, so Crouch took her to her room
to sleep. She left the side door unlocked for her boyfriend
or for Amanda Holly to come in and get medicine. When Crouch
awoke at approximately 6:30 the next morning, she could not
confession, which was introduced into evidence, Holly stated
that he woke in the middle of the night on November 19, 2012.
He claimed he had an upset stomach and got out of bed in
search of some "Pepto." Clad only in his bathrobe,
Holly entered the victim's house by the unlocked side
door. In his confession, Holly denied knowing why he entered
the house. According to Holly, upon entering, he just looked
around. He saw that the door to Crouch's room was open
and that she was asleep. He then went to the children's
bedroom where he found J.B. and L.B. asleep. He woke J.B.,
and while she was still groggy, he told her to come with him.
He carried J.B. from the house. In Holly's statement to
the police, he claimed that he had not planned any of the
events that transpired.
trial, Holly preserved this issue by making the following
The last charge in the information, I believe, is residential
burglary. That's codified at [Arkansas Code Annotated
section] 5-39-201. Residential burglary. A person commits
residential burglary if he or she enters or remains
unlawfully in a residential occupiable structure of another
person with the purpose of committing in the residential
occupiable structure an offense punishable by imprisonment.
Your Honor, with regard to this one, I'm going to need to
direct the Court's attention also to [Arkansas Code
Annotated section] 5-39-101 because the definition is going
to be important there. In order to be guilty of residential
burglary, you must enter or remain unlawfully. "Enter or
remain unlawfully" is defined in [section]
5-39-101(2)(a). That definition says, "Enter or remain
unlawfully" means to enter or remain in or upon premises
when not licensed or privileged to enter or remain in or upon
the premises." Your Honor, in this case, the proof has
been that Desirea Bridgeman, through her testimony, was that
Zachary Holly and Amanda Holly both had keys to her
residence. They had the ability to come and go as they
pleased when they were taking care of the child. They were
allowed to go in and get things for the child. I believe she
did state that Amanda could come over and get the medicine
that night, but her testimony was they both had keys whenever
I asked her about whether or not they could come in the house
and then she said, of course, he had keys. So, Your Honor,
would I contend that residential burglary the aspect of the
enter or remain unlawfully has not been met in this case, and
we would move for a directed verdict with regard to that
charge, Your Honor, and specifically, just with regard to the
fact he did not enter or remain unlawfully and that is an
element of that crime. And the testimony we have before us
is-is inconsistent with that Your Honor.
circuit court denied Holly's directed-verdict motion.
first argues that the circuit court erred by denying his
motion for a directed verdict for the residential-burglary
charge because there was insufficient evidence that he
entered or remained unlawfully in the home of another person.
He asserts that neither DesaRae Crouch nor any other witness
testified that he was "without authority to enter or
remain in her home." Holly notes that the door was
unlocked and Amanda Holly had permission to enter and get
medicine. This argument is not persuasive.
review the denial of a directed-verdict motion challenging
the sufficiency of the evidence, we view the evidence in the
light most favorable to the verdict. Conway v.
State, 2016 Ark. 7, 479 S.W.3d 1. That means that we
consider only the evidence that supports the verdict and
determine whether the verdict is supported by substantial
evidence. Id. Substantial evidence is evidence of
sufficient certainty and precision to compel a conclusion one
way or another and pass beyond mere suspicion or conjecture.
sustain a conviction for residential burglary, the State must
show that a defendant entered or remained unlawfully in the
residence of another person with the purpose of committing an
offense punishable by imprisonment while inside the
residence. Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2013).
"To enter or remain unlawfully" is defined by
statute to mean "to enter or remain in or upon premises
when not licensed or privileged to enter or remain in or upon
the premises." Ark. Code Ann. § 5-39-101(2)(A).
mischaracterizes Crouch's testimony. It is true that
Crouch described a close friendship with Amanda Holly and
that she allowed Amanda to enter her home to get medicine.
However, there is no evidence that she had extended to
Zachary Holly a similar privilege, much less a privilege to
enter her home and take her children from their bed. See
Holt v. State, 2011 Ark. 391, at 9, 384 S.W.3d 498, 505
(holding that Holt was not privileged to remain in the
victim's residence once he began telling her that no one
could have her if he could not and stabbed her); Young v.
State, 371 Ark. 393, 402, 266 S.W.3d 744, 750 (2007)
(holding that Young was not licensed or privileged to remain
in the victim's trailer after Young began stabbing the
victim and removing his property). While it is not disputed
that the door was left unlocked, Crouch testified that she
left the door unlocked for her boyfriend and for Amanda-not
Zachary Holly. Accordingly, the circuit court did not err in
denying Holly's directed-verdict motion.
further argues that the residential-burglary statute contains
a second element, that he entered the residence "having
the purpose to commit a felony in that residence." He
asserts that the State failed to prove this element by
substantial evidence. We need not address this argument
because it was not raised to the circuit court. On appeal, an
appellant is bound by the scope and nature of his
directed-verdict motion. See Conte v. State, 2015
Ark. 220, 463 S.W.3d 686. Furthermore, we have held that a
sufficiency-of-the-evidence argument that is not properly
preserved by a directed-verdict motion is not subject to our
review under Arkansas Supreme Court Rule 4-3(i). Foster
v. State, 2009 Ark. 454.
Holly's second point on appeal, it is necessary to
provide some additional facts and procedural history to give
his argument proper perspective. Prior to his trial, Holly
filed a document styled "Proffer of Guilty Plea" in
which he offered to change his plea of not guilty in exchange
for the State forgoing the death penalty. The State rejected
the offer, and moved in limine to preclude Holly from telling
the jury about it. Holly sought to use this plea proffer as
evidentiary support for the mitigating factor that he had
accepted responsibility for the crime prior to the beginning
of the trial. Relying on Howard v. State, 367 Ark.
18, 238 S.W.3d 24 (2006), and Rule 25.4 of the Arkansas Rules
of Criminal Procedure, the circuit court granted the
State's motion in limine. The circuit court specifically
found that the attempted guilty plea was "not
admissible" and, when pressed for a ruling by
Holly's trial counsel, found that the relevance of the
proffered plea proffer was "moot." Holly then
proffered a Form 2 verdict form listing the acceptance of
responsibility for his crime as a mitigating circumstance.
This mitigator was not submitted to the jury; however, a
similar mitigator, that Holly confessed to his crime, was
submitted and unanimously found by the jury to be a
to his argument, Holly asserts that the circuit court erred
by granting the State's motion in limine and finding that
his offer to plead guilty to capital murder in exchange for a
life sentence was not admissible as evidence of a mitigating
factor, i.e., acceptance of responsibility for his crimes.
Arguing further, Holly states that the circuit court
erroneously relied on Howard, and Arkansas Rule of
Criminal Procedure 25.4 in its decision to prohibit the jury
from "even being informed that there was evidence that
[he] was willing to accept responsibility for the crime prior
to the trial. Holly contends that the circuit court's
ruling violated the plain language of Arkansas Code Annotated
section 5-4-602(4)(B)(i), which states, "Evidence as to
any mitigating circumstance may be presented by either the
State or the defendant regardless of the evidence's
admissibility under the rules governing admission of evidence
in a trial of a criminal matter." Holly argues further
that McGehee v. State, 338 Ark. 152, 992 S.W.2d 110
(1999), and Hobbs v. State, 273 Ark. 125, 617 S.W.2d
347 (1981), demonstrate that the Arkansas Supreme Court has
consistently applied the plain language of section
5-4-602(4)(B)(i), that evidence offered for purposes of
mitigation in a capital case should not be refused simply
because it would not be admissible in trial. Further, citing
Lockett v. Ohio, 438 U.S. 586, 604 (1978), Holly
asserts that the Eighth and Fourteenth Amendments require
that in capital cases, a circuit court cannot preclude a jury
from considering, as a mitigating factor, "any aspect of
a defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a
basis for a sentence less than death."
the circuit court's reliance on Howard, Holly
argues that it is clearly distinguishable from the case at
bar. He asserts that the question in Howard was
whether defense counsel was ineffective for failing to submit
as mitigation evidence the fact that the State had twice
extended the offer of a life sentence to the defendant prior
to trial. 367 Ark. at 48, 238 S.W.3d at 47. The
Howard court cited Lockett for the
proposition that a death-penalty statute must not prohibit
the jury's consideration of relevant mitigating evidence,
and it noted that under Arkansas law "relevant
mitigating evidence" included the character or history
of the offender or the circumstances of the offense.
Id. Although the court also cited Rule 25.4(a) in
ultimately holding that Howard's counsel was not
ineffective, the decision does not hinge on that rule.
Furthermore, the Howard court did not consider the
plain language of section 5-4-602(4)(B)(i), and his reason
for proffering the plea-bargain evidence was much different.
Holly contends that "presumably, " Howard's
argument was that his trial counsel should have put forth the
evidence that he had twice rejected a life-over-death offer
from the State to establish that the State had reservations
regarding the prosecution of Howard or that he was unwilling
to plead guilty because he was innocent of the charges,
neither of which constitutes relevant mitigation evidence. In
further distinguishing Howard, Holly asserts that
the State's motivation in making a plea proffer has no
bearing on the character or history of the offender or the
circumstances of the offense. Likewise, a defendant's
claim of innocence is not relevant in the penalty phase of a
capital case as mitigation. In contrast, he proffered his
guilty plea to show that he was willing to accept
responsibility for his crime, which provides evidence of his
State argues that Holly's proffered guilty plea is
specifically excluded by Rule 25.4. Furthermore, it contends
that Arkansas Code Annotated section 5-4-602(4)(B)(i) does
not exclude the applicability of the Arkansas Rules of
Criminal Procedure in the sentencing phase of capital cases.
Further, it rejects Holly's efforts to distinguish
Howard, claiming that it shows that this court
correctly applied Arkansas Rule of Criminal Procedure 25.4 to
the penalty phase and denied Howard's
ineffective-assistance claim. Howard, 367 Ark. at
48, 238 S.W.3d at 47. The State argues further that
Holly's guilty-plea proffer was not an attempt to accept
responsibility but an endeavor to avoid a sentence of death.
circuit court has wide discretion in admitting evidence,
including that presented during the penalty phase of the
trial. McGehee, supra. On appeal, we will
not reverse the ...