Mario Clark v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
MARIO CLARK,
CR06-1397
Opinion Delivered
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
April 10, 2008
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT,
NO. CR-2001-1085-5,
HON. ROBERT HOLDEN WYATT
JR., JUDGE,
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
Appellant Mario Clark appeals from the circuit court’s denial of his petition pursuant
to Ark. R. Crim. P. 37. He asserts two points on appeal: (1) that the circuit court erred in
denying his Rule 37 petition because he was improperly convicted and sentenced for
attempted capital murder, first-degree battery, and aggravated robbery, and (2) that his counsel
was ineffective because counsel failed to make an objection as to whether the circuit court
could enter convictions and sentences for all the charges. We hold that the circuit court did
not clearly err and affirm the circuit court’s order.
The record reveals that on June 3, 2003, Clark was tried by a jury for the robbery of
Cherry Street Liquor Store, which occurred October 16, 2001. In the process of the robbery,
Clark used a .38 caliber revolver and fired two shots at the store clerk, Mr. John Grider, for
not cooperating. While Grider was not fatally injured, he was injured by the second shot,
which struck him in the leg. The jury found Clark guilty of aggravated robbery, first-degree
battery, and attempted capital murder and sentenced him to 72 months’ imprisonment for
attempted capital murder, 60 months’ imprisonment for first-degree battery, and 120 months’
imprisonment for aggravated robbery. The court of appeals affirmed in Clark v. State, 94 Ark.
App. 5, 223 S.W.3d 66 (2006).
On March 22, 2006, Clark filed a Rule 37 petition with the circuit court, which
alleged four grounds for relief: (1) ineffective assistance of counsel; (2) double jeopardy; (3)
denial of a fair and impartial trial; and (4) denial of due process of law. The circuit court
denied Clark’s petition on August 31, 2006, and Clark filed his notice of appeal on September
18, 2006.
Clark’s robbery of Cherry Street Liquor Store violated several statutes; however, the
issue in the instant appeal is whether his convictions on all three charges of aggravated
robbery, first-degree battery, and attempted capital murder violated double jeopardy. While
the circuit court found that Clark could not raise a double-jeopardy violation because he had
not raised it at trial or on appeal, such a claim may be raised for the first time in a Rule 37
petition. See Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000).
Under the standard of review for a proceeding on a Rule 37.1 petition, the denial of
postconviction relief is not reversed unless the circuit court's findings are clearly erroneous or
clearly against the preponderance of the evidence. See O'Connor v. State, 367 Ark. 173, 238
S.W.3d 104 (2006). A finding is clearly erroneous when, although there is evidence to
support it, the appellate court after reviewing the entire evidence is left with the definite and
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firm conviction that a mistake has been committed. See Flores v. State, 350 Ark. 198, 85
S.W.3d 896 (2002).
Arkansas law provides three distinct ways in which an offense qualifies as a lesserincluded offense. See McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002). Under Ark.
Code Ann. § 5-1-110(b) (Supp. 2007), if any of the three criteria are met, an offense is a
lesser-included offense of another:
(1) Is established by proof of the same or less than all of the elements required
to establish the commission of the offense charged;
(2) Consists of an attempt to commit the offense charged or to commit an
offense otherwise included within the offense charged; or
(3) Differs from the offense charged only in the respect that a less serious injury
or risk of injury to the same person, property, or public interest or a lesser kind
of culpable mental state suffices to establish the offense's commission.
Ark. Code Ann. § 5-1-110(b).
Therefore, the relevant statutes must be reviewed to determine whether aggravated
robbery is a lesser-included offense of attempted capital murder, and whether first-degree
battery is a lesser included offense of aggravated robbery.
A. Attempted Capital Murder & Aggravated Robbery
Clark cites Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982), and Barnum v. State, 276
S.W.3d 477, 637 S.W.2d 534 (1982), as authority for the proposition that a defendant may
not be sentenced on both a charged felony and an underlying felony, as the underlying felony
is a lesser-included offense. Indeed, this was once the law; however, Ark. Code Ann. § 5-1110(d)(1) changed that law. See Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003).
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Section 5-1-110(d)(1) (Repl. 1997)1 states, in pertinent part, as follows: “Notwithstanding any
provision of law to the contrary, separate convictions and sentences are authorized for: (A)
Capital murder, § 5-10-101, and any felonies utilized as underlying felonies for the murder[.]"
Circuit courts now have specific authority to sentence a defendant for the underlying felony
of the capital murder, as well as the murder itself. See Walker v. State, supra.
Clark was charged with attempted capital murder under Ark. Code Ann. § 5-3-201.
An individual may be convicted of attempting to commit an offense if:
(a) A person attempts to commit an offense if he or she purposely engages in
conduct that:
(1) Would constitute an offense if the attendant circumstances were as the
person believes them to be; or
(2) Constitutes a substantial step in a course of conduct intended to culminate
in the commission of an offense whether or not the attendant circumstances are
as the person believes them to be.
(b) When causing a particular result is an element of the offense, a person
commits the offense of criminal attempt if, acting with the kind of culpable
mental state otherwise required for the commission of the offense, the person
purposely engages in conduct that constitutes a substantial step in a course of
conduct intended or known to cause the particular result.
(c) Conduct is not a substantial step under this section unless the conduct is
strongly corroborative of the person's criminal purpose.
Ark. Code Ann. § 5-3-201 (Repl. 2006).
In the instant case, robbery was used as the underlying felony for the attempted capital
murder charge. Therefore, the elements required for Clark to be convicted of attempted
capital murder were that he committed or attempted to commit robbery, and, in the course
of or in flight from such robbery, caused the death of a person under circumstances
While there are more current versions of this statute, they have been amended since the
time of Clark’s convictions.
1
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manifesting extreme indifference to the value of human life. See Ark. Code Ann. § 5-10101(a)(1) (Supp. 2006). We have held that the required intent when a person is killed in the
course of committing a felony, here robbery, is the intent to commit the felony, and not the
intent to commit murder. See Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004); Isom v.
State, 356 Ark. 156, 148 S.W.3d 257 (2004); Jones v. State, 336 Ark. 191, 984 S.W.2d 432
(1999).
For an aggravated robbery charge, the first required element is the commission of the
robbery itself. See Ark. Code Ann. § 5-12-103 (Repl. 2006). In addition, that person must
have also either: (1) been armed with a deadly weapon, (2) represented by words or conduct
that they were armed with a deadly weapon, or (3) inflicted or attempted to inflict death or
serious physical injury upon another. See id.
Here, the circuit court instructed the jury as to all the elements possible for aggravated
robbery, and the jury returned a general verdict, failing to specify the ground upon which the
verdict rested. Therefore, if any one of the elements for aggravated robbery renders Clark’s
conviction for both aggravated robbery and attempted capital murder in violation of double
jeopardy, the circuit court erred in denying his Rule 37 petition.
However, aggravated robbery is not a lesser-included offense of attempted capital
murder. While an aggravated-robbery charge shares the intent to rob with attempted capital
murder, aggravated robbery also requires one of three other elements. Two of those
elements, being armed with a deadly weapon, or representing as such, are unique to
aggravated robbery. The third possible element of aggravated robbery is having inflicted or
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attempted to inflict death or serious physical injury upon another. This element is not
equivalent to the element in attempted capital murder that the defendant, in the course of or
in flight from such robbery, caused the death of a person under circumstances manifesting
extreme indifference to the value of human life. For the offense of attempted capital murder,
the focus of the intent remains on the actual robbery, whereas in aggravated robbery the focus
is on the intent to inflict death or serious physical injury.
Thus, we conclude that aggravated robbery is not a lesser-included offense under
section 5-1-110(b) and, accordingly, that the circuit court did not err in denying Clark’s Rule
37 petition on that point.
B. Aggravated Robbery & First-Degree Battery
The remaining issue is whether first-degree battery is a lesser-included offense of
aggravated robbery. The charging instrument and the jury instructions were both limited to
the second definition of battery listed in Ark. Code Ann. § 5-13-201(a)(1)(Repl. 1997).
Therefore, the State had to prove that Clark, with the purpose of causing physical injury to
another person, caused physical injury by means of a firearm, to convict him of first-degree
battery.
As previously noted, the elements of aggravated robbery include the robbery itself, plus
one of the following elements: (1) the defendant was armed with a deadly weapon, (2) the
defendant represented by words or conduct that they were armed with a deadly weapon, or
(3) the defendant inflicted or attempted to inflict death or serious physical injury upon
another. See Ark. Code Ann. 5-12-103 (Repl. 2006).
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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, as defined by the instructions in this case, requires proof of a
purpose of causing any physical injury to another person. Such a requirement is not needed
for aggravated robbery, unless the aggravated robbery is shown by proof that the defendant
inflicted or attempted to inflict death or serious physical injury. However, even if the
aggravated robbery is established with proof that the defendant inflicted or attempted to inflict
death or serious physical injury, only first-degree battery contains the unique proof of the use
of a firearm to cause injury.
Furthermore, first-degree battery simply requires proof of a purpose of causing some
kind of physical injury. Aggravated robbery requires proof of a robbery, either with a deadly
weapon, a representation that the defendant is armed with a deadly weapon, or the
infliction/attempted infliction of death or serious physical injury on another. As previously
noted, the risk of injury is not the only difference between the two crimes. 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. Thus, we
conclude that first-degree battery is not a lesser-included offense of aggravated robbery under
section 5-1-110(b).
Clark’s final point on appeal is that his attorney was ineffective for failing to move the
circuit court to limit the judgment of conviction to one charge. However, as the State avers,
this argument was not preserved for appellate review. Clark failed to raise this issue at the
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circuit court level and, as a result, the circuit court did not provide a ruling. Therefore, Clark
is procedurally barred from raising this issue on appeal. See Howard v. State, 367 Ark. 18, 238
S.W.3d 24 (2006).
Because aggravated robbery is not a lesser-included offense of attempted capital
murder, and first-degree battery is not a lesser-included offense of aggravated robbery, the
circuit court did not err in denying Clark’s Rule 37 petition.
Affirmed.
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