FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-14-618]
HONORABLE MARCIA HEARNSBERGER, JUDGE
Knutson Law Firm, by: Gregg A. Knutson, for appellant.
Rutledge, Att'y Gen., by: Valerie Glover Fortner,
Ass't Att'y Gen., for appellee.
JOSEPHINE LINKER HART, JUSTICE.
Lavell Jones pleaded guilty to rape and attempted murder, but
elected to be sentenced by a jury. He received consecutive
sentences in the Arkansas Department of Correction of life
and 720 months, respectively. In accordance with Anders
v. California, 386 U.S. 738 (1967), and Arkansas Supreme
Court. Rule 4-3(k) (2016), Jones's attorney on appeal has
filed a no-merit brief and a motion to withdraw as counsel.
The brief asserts that there are no nonfrivolous arguments to
be made on appeal. Additionally, Jones has not availed
himself of his right to file pro se points. We hold that the
brief complies with our rules and Anders,
supra. We affirm Jones's sentence and grant
appellate counsel's motion to withdraw.
September 22, 2014, Jones was fired from his job. He started
drinking, and traveled to Hot Springs. There, Jones saw the
victim, M.M., sitting in her car outside her place of
employment, the Dillard's department store at Hot Springs
Mall. Although he had never met the victim before that day,
Jones decided to attack her. He walked up to her and struck
her as she was getting into her car, stole her purse, and
continued to beat her. He raped her vaginally and anally. In
the attack, Jones broke multiple bones in the victim's
face, including her jaw. The victim required multiple
surgeries to repair her face, including wiring her jaw shut.
The victim eventually returned to work on a part-time basis,
after several months of recuperation. During the attack,
Jones told the victim that he intended to kill her and
confirmed this fact in his own testimony; he stated that if
someone had not intervened, he might have killed the victim.
He also admitted that he had raped the victim. Jones also
told the jury he didn't expect mercy and asked the jury
to sentence him to the maximum penalty, life in prison plus
sixty years. The jury sentenced Jones to a term of life in
the Arkansas Department of Correction for rape plus sixty
years on the charge of attempted first-degree murder. The
circuit court ordered the sentences to be served
first issue that was preserved for appeal is whether a
Dillard's employee, Marcie Acker, who observed Jones
attacking the victim, should have been allowed to testify how
she had been personally affected as a Dillard's employee
after the attack. Jones's trial counsel objected to the
line of questioning as not relevant because it was outside
the scope of permissible victim-impact evidence. We note that
the court limited the line of questioning to how the incident
affected the witness's work life. Subsequently, Acker
testified that it had not affected her at work very much but
that it had made her more aware of her surroundings and more
apprehensive when she was alone and going to her vehicle.
evidence" means evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence. Ark. R. Evid. 401
(2016). Evidence which is not relevant is not admissible.
Ark. R. Evid. 402. The decision to admit or exclude evidence
is within the sound discretion of the circuit court, and we
will not reverse that decision absent a manifest abuse of
discretion or absent a showing of prejudice. Starling v.
State, 2016 Ark. 20, 480 S.W.3d 158. An abuse of
discretion lies when the circuit court's decision is
rendered improvidently, thoughtlessly, or without due
consideration. Grant v. State, 357 Ark. 91, 161
S.W.3d 785 (2004). The circuit court carefully considered the
evidence that the State sought to introduce and carefully
limited its scope. The decision rendered by the circuit court
was well within the bounds of its discretion. Accordingly, an
appeal of this issue would be wholly frivolous.
next adverse ruling followed on an objection made by
Jones's trial counsel concerning the admission of
additional photos of the victim's injuries. Counsel
argued that the additional photos were cumulative and
prejudicial. The State countered that the photos were
different from each other, showing different injuries or the
same injuries more clearly. After a thorough review, the
circuit court overruled the objection. It found that the
pictures "all have some differences to them."
Furthermore, the court accommodated a request by Jones's
trial counsel that the sponsoring witness identify the
differences in the photos as a condition to having them being
introduced into evidence. No further objections were made.
the victim-impact testimony, the decision to admit evidence
lies within the sound discretion of the circuit court.
Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519
(2001). When photographs are helpful to explain testimony,
they are ordinarily admissible. Barnes v. State, 346
Ark. 91, 55 S.W.3d 271 (2001). Even the most gruesome
photographs may be admissible if they assist the trier of
fact by shedding light on some issue, by proving a necessary
element of the case, by enabling a witness to testify more
effectively, by corroborating testimony, or by enabling
jurors to better understand the testimony. Id. Other
acceptable purposes are to show the condition of the
victim's body, the probable type or location of the
injuries, and the position in which the body was discovered.
Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).
the careful review of the photographs by the circuit court
and the imposition of specific foundational limitations on
the admission of each photo with subject matter arguably
similar to a previously admitted photo, we agree that any
argument made concerning the circuit court's decision to
admit the photos in question would be wholly frivolous.
last adverse ruling that Jones received was the circuit
court's decision to order that his sentences be served
consecutively. Arkansas Code Annotated section 5-4-403(a)
(Repl. 2013) states,
When multiple sentences of imprisonment are imposed on a
defendant convicted of more than one (1) offense, including
an offense for which a previous suspension or probation has
been revoked, the sentences shall run concurrently unless,
upon recommendation of the jury or the court's own
motion, the court orders the sentences to run consecutively.
decision to run the sentences consecutively or concurrently
is discretionary with the circuit court, and is reviewed for
an abuse of discretion. See ...