Temporal Reference Point for “Violent Felony” Status Under Arkansas’s Habitual-Offender Statute: Prior Convictions Count If Enumerated at the Time of the Current Offense

Introduction

In Bryant Smith v. State of Arkansas, 2025 Ark. 26, the Arkansas Supreme Court affirmed multiple convictions—including two counts of capital murder—and an aggregate sentence of life imprisonment without parole. The decision addresses a host of trial and sentencing issues: sufficiency of the evidence under accomplice liability, admissibility of firearm-related evidence under the res gestae doctrine, preservation and structural-error arguments tied to witness credibility and judicial admonitions, the propriety of a nonmodel “flight” instruction, and a request to correct an alleged clerical error in the sentencing order.

The most consequential holding concerns Arkansas’s habitual-offender statute, Ark. Code Ann. § 5-4-501(d). The Court clarified that a defendant’s prior conviction for residential burglary from 2006 qualified as a “felony involving violence” for mandatory life sentencing on noncapital Class Y felonies because, at the time of Smith’s 2020 offenses, residential burglary was enumerated as a violent felony in § 5-4-501(d)(2). The Court rejected the argument that only residential burglaries committed after the 2015 amendment (which added residential burglary to the list of violent felonies) could count, emphasizing the statute’s plain language and the general rule that sentencing is governed by the law in effect at the time of the current offense.

Parties and posture: Appellant Bryant Smith challenged convictions arising from coordinated drive-by shootings on September 3, 2020, in Pine Bluff that killed a minor (MC1) and Kavon Mitchell, and injured Cedric LaPoole. After a jury convicted Smith on all counts, the circuit court imposed life without parole for the capital murders, and life terms on multiple noncapital Class Y felonies. Smith appealed on seven grounds; the Supreme Court affirmed across the board.

Summary of the Opinion

Sufficiency of the evidence: Affirmed. Smith’s own recorded confession placed him as the driver in a two-vehicle retaliatory shooting, and independent evidence (vehicle damage, shell casings, surveillance video, and physical matching of taillight pieces) sufficiently corroborated the confession. Accomplice liability attached.
Admission of firearm evidence: Affirmed. Smith’s statements that he possessed a firearm when arrested (and during the shootings) were admissible as res gestae and not unfairly prejudicial, particularly where the jury was told the gun did not match the casings and was unaware of any felon-in-possession status.
Judicial admonition to witness (Holman): Not preserved. The court’s reminder that the witness was under oath and must tell the truth was not objected to; thus, no appellate review.
Failure to strike witness testimony sua sponte: Affirmed. The Wicks exceptions did not apply; any credibility issues were for the jury, and the court had no sua sponte duty to strike testimony.
Habitual-offender sentencing under § 5-4-501(d): Affirmed. Smith’s 2006 residential burglary conviction counted as a prior violent felony because residential burglary was listed as violent in § 5-4-501(d)(2) at the time of the 2020 offenses.
Nonmodel “flight” instruction: Affirmed. The instruction correctly stated the law (flight may be considered as consciousness of guilt), and evidence supported giving it. Any complaint about the inclusion of a case citation was not preserved.
Sentencing order correction: Denied. No error; the order already indicated “Attempted” for the relevant count.
Rule 4-3(a) review: No additional prejudicial error found.

Analysis

Precedents Cited and Their Influence

Sufficiency framework: The Court applied the standard from Bush v. State, 2024 Ark. 77, and Brooks v. State, 2016 Ark. 305—view evidence in the light most favorable to the State and affirm if supported by substantial evidence. Circumstantial evidence and the jury’s credibility determinations are respected (Armstrong v. State, 2020 Ark. 309; Smith v. State, 2024 Ark. 1). The Court also observed the double jeopardy sequencing rule (address sufficiency first), citing Taffner v. State, 2018 Ark. 99.
Accomplice liability: The Court relied on Ark. Code Ann. § 5-2-403(a) and reaffirmed that accomplices share equal criminal liability with principal actors (Bradley v. State, 2013 Ark. 58; Clark v. State, 358 Ark. 469; Conway v. State, 2016 Ark. 7). Even if Smith did not fire, driving shooters to and from the scene supported accomplice liability.
Confession corroboration: The Court cited Ark. Code Ann. § 16-89-111(d). Considering all evidence admitted (even if erroneously, per Wallace v. State, 2023 Ark. 7), the Court found sufficient corroboration: Holman’s testimony about the Impala, the surveillance video, physical evidence linking the Impala’s headlight/taillight to the crime scene, and shell casings in the car.
Res gestae and Rule 404(b): The Court relied on the “complete the story” doctrine from Adams v. State, 2021 Ark. 34, and Reid v. State, 2019 Ark. 363, to admit firearm-possession statements, noting res gestae evidence is “presumptively admissible.” The Court also referenced Rule 403 and the limited risk of unfair prejudice (Lane v. State, 2019 Ark. 5) and observed the evidence was cumulative to other properly admitted evidence (Lard v. State, 2014 Ark. 1).
Preservation and Wicks exceptions: The Court enforced preservation requirements (Schnarr v. State, 2017 Ark. 10) and held that neither the third nor fourth Wicks v. State, 270 Ark. 781 (1980), exceptions applied. It reiterated that the third exception (sua sponte intervention for structural error) is “a mere possibility” and has not been applied (Lard, 2014 Ark. 1).
Statutory interpretation and sentencing: The Court applied de novo review of statutes (Rodgers v. Ark. Parole Bd., 2024 Ark. 176) and the plain language rule (Ark. Parole Bd. v. Johnson, 2022 Ark. 209), reaffirming that sentencing is governed by the statute in effect when the offense is committed (Willingham v. State, 2021 Ark. 177; Walden v. State, 2014 Ark. 193). Applying this to § 5-4-501(d), the Court emphasized the absence of any temporal limitation on prior convictions in the statute’s text.
Flight instruction: Drawing on Flowers v. State, 342 Ark. 45 (2000), Cooper v. State, 317 Ark. 485 (1994), and Hunt v. State, 2015 Ark. App. 53, the Court upheld a nonmodel instruction because it accurately stated law and was supported by the evidence, which showed attic concealment and out-of-state flight.

Legal Reasoning

1) Sufficiency and Accomplice Liability

Smith’s confession established that he drove a blue Impala in a retaliatory shooting, while others in both the Impala and a Malibu fired at victims and occupied structures. Independent corroboration included:

Surveillance footage showing a blue Impala and a light-blue/green Malibu involved, with the Impala colliding into the Malibu during the shooting;
Physical evidence: 9mm and 7.62x39mm casings at both scenes (with taillight/vehicle damage matching between car and scene);
Holman’s testimony that she loaned Smith her Impala, that he returned with front bumper/headlight damage, and that taillight pieces matched the Impala later seized.

While no forensic evidence tied Smith to fired weapons, accomplice liability made that unnecessary. Aiding by driving shooters during coordinated attacks sufficed; the jury could credit the confession, corroborated by objective evidence. The Court also enforced specificity in directed-verdict motions: unraised forensic-video claims were unpreserved (Break v. State, 2022 Ark. 219).

2) Admissibility of Firearm Possession at Arrest: Res Gestae, Rule 404(b), and Rule 403

The Court upheld admission of Smith’s statements that he possessed a gun when arrested in Kansas and that he had the same gun during the shootings. Although the recovered gun did not match the casings, the statements were organically intertwined with the confession and the immediate post-offense flight and arrest—classic res gestae. The jury was not told of any felon status (mitigating Rule 404(b) concerns), and the evidence’s probative value was not substantially outweighed by unfair prejudice. Moreover, similar firearm-related facts were properly admitted elsewhere (Holman’s testimony that Smith owned a rifle; Smith’s admission he carried a weapon during the shootings), making any incremental prejudice minimal.

3) Judicial Admonitions and the Limits of Wicks

The defense did not object when the judge reminded Holman—outside the jury’s presence—that she was under oath and must testify truthfully. With no contemporaneous objection, appellate review was foreclosed. Smith’s effort to use Wicks to compel sua sponte striking of testimony also failed: the third Wicks exception (structural error) covers only fundamental trial-structure defects—jury trial right, presumption of innocence, burden of proof—and has not yet been applied by the Court. The credibility of Holman’s in-court testimony versus her prior statement remained a classic jury question.

4) Habitual-Offender Sentencing Under § 5-4-501(d)

The central sentencing issue turned on whether Smith’s 2006 residential burglary could count as a prior “felony involving violence” under § 5-4-501(d), even though residential burglary was not classified as “violent” until 2015. The Court held:

By its plain text, § 5-4-501(d)(1) applies to a defendant who “previously has been convicted” of two or more enumerated violent felonies; it imposes no timing limitation requiring those prior convictions to occur after the statute’s amendment adding the offense to the list.
The governing law for sentencing is the statute in effect at the time of the charged offense (here, September 3, 2020), not the date of the prior convictions. On that date, residential burglary was enumerated in § 5-4-501(d)(2).
The Court declined to import a parole statute’s later-added limitations (Ark. Code Ann. § 16-93-609(b)(2)(B)) into the habitual-offender sentencing statute; they serve different functions (sentencing vs. parole eligibility) and are not cross-applicable absent express legislative direction.

Accordingly, the circuit court correctly imposed mandatory life sentences on Smith’s noncapital Class Y felonies (e.g., terroristic acts and first-degree unlawful discharge), as prescribed by § 5-4-501(d)(1)(A), given two qualifying violent felony priors (including the 2006 residential burglary and aggravated robbery).

5) Nonmodel “Flight” Instruction

Though Arkansas has no model instruction on flight, the Court approved a nonmodel instruction stating that evidence of flight “may be considered” as circumstantial evidence of guilt. The instruction was a correct statement of law and was supported by evidence that Smith hid in an attic to avoid police contact and was later apprehended in Kansas. The instruction’s permissive phrasing avoided any improper judicial comment on the evidence. A separate challenge to the inclusion of a case citation in the instruction was not preserved.

Impact

Habitual-offender sentencing clarity: The decision squarely holds that, for § 5-4-501(d), the relevant temporal reference point is the law’s content at the time of the current offense, not at the time of the prior convictions. Thus, pre-2015 residential burglary convictions count as “violent” for offenses committed during the window when residential burglary was listed (2015 through December 31, 2023). Practitioners should note the 2023 amendment removing residential burglary from the violent list applies only to offenses on or after January 1, 2024; it does not retroactively alter sentencing for earlier offenses.
Separation of sentencing and parole frameworks: Defendants cannot leverage parole-eligibility statutes to narrow the scope of habitual-offender sentencing unless the legislature expressly provides cross-references. The Court’s refusal to read § 16-93-609’s limitations into § 5-4-501(d) reinforces textual boundaries between distinct statutory schemes.
Res gestae remains robust: Prosecutors may admit post-crime firearm-possession evidence as part of the continuous narrative when intertwined with a confession and flight. Defense counsel should proactively address the “inextricably intertwined” rationale when seeking Rule 403 exclusion or 404(b) redaction of confession segments mentioning firearms.
Flight instructions are permissible when evidence supports them: Courts may give a permissive, nonmodel instruction that flight may be considered as consciousness of guilt. Defense counsel should focus on undermining the inference (e.g., alternative reasons for travel/hiding) rather than expecting categorical exclusion where evidence of avoidance exists.
Preservation is pivotal: Unpreserved claims—including specificity in directed-verdict motions and objections to judicial comments or instruction language—will not be reached on appeal. This case underscores the need for contemporaneous, specific objections.

Complex Concepts Simplified

Accomplice liability: If you knowingly help commit a crime (e.g., serving as the driver during a shooting), you are legally treated the same as the person who directly commits it. Your liability extends to crimes your accomplices commit during the joint venture.
Confession corroboration (Ark. Code Ann. § 16-89-111(d)): A confession outside of court cannot, by itself, support a conviction. The State must provide other evidence either that the crime happened or that makes the confession trustworthy. Here, the car damage, video, and forensic links did that work.
Res gestae (“complete the story” evidence): Evidence that is part of the same sequence of events—before, during, or after the crime—may be admitted to help the jury understand the full context. It’s often considered “intrinsic” and not subject to the usual 404(b) limits on “other bad acts.”
Rule 404(b): Normally, the State can’t introduce evidence of other bad acts just to show the defendant is a bad person. But such evidence can sometimes be admitted for specific purposes (like motive or identity). Res gestae can also make such evidence admissible when it’s part of the same transaction.
Rule 403 balancing: Even relevant evidence can be excluded if its unfair prejudice substantially outweighs its value. Courts give leeway to the State, but defendants can argue for exclusion when the risk of improper jury use is high.
Wicks exceptions: These are rare exceptions allowing appellate review without a trial objection. They are strictly limited, especially the “sua sponte intervention” category, which the Court has never invoked.
Habitual-offender sentencing (§ 5-4-501(d)): If you commit a current violent felony and have two prior violent felony convictions (as defined by the statute at the time of the current offense), the court must impose an extended term—here, life—for Class Y felonies, with limited parole avenues. The timing of when your prior convictions occurred does not have to post-date the statutory change that labeled that offense “violent.”
Flight as consciousness of guilt: If the jury hears that a defendant hid or fled after a crime, they may consider that behavior as circumstantial evidence suggesting guilt—though they are not required to draw that inference.
Ex post facto (background concept): Habitual-offender laws don’t punish the past crimes again; they increase punishment for the new crime based on the fact of recidivism. Using old convictions to enhance the sentence for a new offense committed after the enhancement statute’s enactment typically does not violate ex post facto principles.

Conclusion

Bryant Smith’s appeal fails on evidentiary, instructional, preservation, and sufficiency grounds. Most notably, the Arkansas Supreme Court clarifies the temporal operation of Ark. Code Ann. § 5-4-501(d): a prior offense qualifies as a “felony involving violence” if it appears in the statute’s enumerated list at the time of the current offense, regardless of when the prior conviction occurred. This textual holding has immediate consequences for defendants whose old residential burglary convictions fall within the 2015–2023 period in which that offense was designated “violent.” The Court also underscores the vitality of res gestae to admit context-rich, post-crime facts, and approves a permissive nonmodel flight instruction where evidence supports an inference of avoidance.

The decision reinforces familiar but critical appellate principles: specificity and timeliness of trial objections; the jury’s primacy in credibility determinations; and the separation of sentencing statutes from parole-eligibility provisions. Practitioners should adjust charging, plea, and sentencing strategies accordingly, paying close attention to the violent-felony enumerations that were in force at the time of the charged conduct and to the careful development—and objection—to context evidence and jury instructions at trial.