Cite as 2022 Ark. App. 457

ARKANSAS COURT OF APPEALS

DIVISION III

No. CR-22-178

CHARLES EDWARD SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered November 9, 2022

APPEAL FROM THE HOT SPRING 

COUNTY CIRCUIT COURT

[NO. 30CR-19-6]

HONORABLE CHRIS E WILLIAMS, 

JUDGE

AFFIRMED

MIKE MURPHY, Judge

On September 10, 2021, a Hot Spring County jury convicted appellant Charles Smith 

of residential burglary. He was sentenced to thirty years’ imprisonment. Smith does not 

challenge the sufficiency of the evidence but rather claims that the court made the following 

errors: providing the incorrect jury instruction for residential burglary, refusing to give the 

proffered instruction for criminal trespass; denying Smith’s motion for mistrial; and 

admitting Smith’s past convictions into evidence. We affirm.

At trial, the evidence established that Smith committed residential burglary when he 

entered the home of Terry Baker without permission while Baker was away and attempted

to steal a scope from a rifle. Baker testified that when he got home, as he was walking through 

his living room, Smith came out of his bedroom holding up the scope and accusing Baker 
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of stealing it from him. Baker reached for his shotgun and retrieved the scope from Smith’s 

hand as Smith left the house. 

Baker immediately reported the incident and relayed Smith’s license-plate number

that he wrote down as Smith drove away. The police went to the address associated with the

license-plate number. After detaining Smith, Baker identified him as the burglar. 

First, Smith argues that the circuit court erred by giving the residential-burglary 

instruction to the jury without specifying an underlying offense.1 Rather than using the 

model jury instruction, the circuit court provided the jury with an instruction that tracked

the language of the residential-burglary statute.2Smith correctly argues that a specific offense 

must be included in the jury instruction for burglary because the offense intended is an 

element of the charge. See Oliver v. State, 286 Ark. 198, 691 S.W.2d 842 (1985).

However, the omission of an element from a jury instruction in a criminal trial is 

subject to harmless-error analysis. Neder v. United States, 527 U.S. 1 (1999). The test for 

determining whether a constitutional error is harmless is whether it appears “beyond a 

reasonable doubt that the error complained of did not contribute to the verdict obtained.”

Id. at 15 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Further, Reynolds v. State, 

 

1We disagree with the State’s argument that this point is not preserved, and we find 

Douglas v. State, 2017 Ark. 70, 511 S.W.3d 852, distinguishable. 

2Arkansas Code Annotated section 5-39-201(a)(1) (Repl. 2013) provides that “[a] 

person commits residential burglary if [he] enters or remains unlawfully in a residential 

occupiable structure of another person with the purpose of committing in the residential 

occupiable structure any offense punishable by imprisonment.”
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341 Ark. 387, 393, 18 S.W.3d 331, 334 (2000) (citing United States v. West, 28 F.3d 748 (8th 

Cir. 1994)), notes “the importance of reviewing an allegedly faulty jury instruction in context 

with the entire jury charge and the entire trial.” 

Here, any error was harmless beyond a reasonable doubt because it did not contribute 

to the verdict. Prior to voir dire, the court read the criminal information to the jury, which 

included the language “with the purpose of committing in a residential occupiable structure 

the theft of a rifle scope.” Further, Baker’s testimony reflected that the underlying issue of 

the offense was the theft of the rifle scope. In reviewing the entire trial, we hold that the jury 

verdict would have been the same absent the error, and reversal is not warranted.

Next, Smith argues the court erred when it failed to give the jury his requested 

instruction for the lesser included offense of criminal trespass.3

We will not reverse a circuit court’s ruling on whether to give a jury instruction absent 

an abuse of discretion. Marshall v. State, 2021 Ark. 158, 627 S.W.3d 810. It is not erroneous

for a circuit court to decline to give a proffered instruction on a lesser offense when the 

evidence clearly shows that the defendant is either guilty of the greater offense charged or 

innocent. Crift v. State, 2018 Ark. App. 15, at 5–6, 539 S.W.3d 599, 602. Put another way, 

when a defendant makes a claim of innocence, no rational basis exists to instruct the jury on 

a lesser included offense because the jury need only determine whether the defendant is 

guilty of the crime charged. Id. 

 

3A person commits criminal trespass if he purposely enters or remains unlawfully in 

the premises of another person. Ark. Code Ann. § 5-39-203 (Supp. 2021).
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Here, while Smith did not testify in his own defense, he did not present evidence to 

warrant the criminal-trespass jury instruction. Smith’s defense was one of general denial as 

evidenced by him posing multiple theories to undermine the State’s case—one theory being 

that the scope was his all along. At one point, Smith claimed that Baker had stolen it, so 

Smith was in Baker’s house getting his property back. Additionally, Smith questioned the 

failure of police to take fingerprints or any other forensic evidence, implying that the police 

set him up for the charge. The jury was free to believe that testimony and could have found 

the requisite criminal intent lacking for residential burglary. Because the jury needed to 

determine only whether Smith was guilty or innocent of residential burglary, no rational 

basis existed to instruct the jury on the lesser included offense. Under these circumstances,

we cannot say that the circuit court erred, and we affirm this point.

For his next point on appeal, Smith argues the court erred in denying his motion for 

mistrial because the prosecutor made a veiled reference toward Smith’s invoking his right 

not to testify. 

A mistrial is an extreme remedy that should not be declared unless there has been 

error so prejudicial that justice cannot be served by continuing the trial or when the 

fundamental fairness of the trial itself has been manifestly affected. Dean v. State, 2021 Ark. 

App. 182. The circuit court has wide discretion in granting or denying a motion for mistrial, 

and absent an abuse of that discretion, the circuit court’s decision will not be disturbed on 

appeal. Id. Among the factors we consider on appeal is whether the defendant requested a 

cautionary instruction or an admonition to the jury. Id. The supreme court has held that a 
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cautionary instruction or an admonition to the jury can make harmless any prejudice that 

might occur. Id. The bottom line on mistrials is that the incident must be so prejudicial that 

the trial cannot, in fairness, continue. Boyd v. State, 318 Ark. 799, 804, 889 S.W.2d 20, 22 

(1994).

When a prosecutor is alleged to have made an improper comment on a defendant’s

failure to testify, the statements are reviewed in a two-step process. Dean, supra. First, we 

determine whether the comment itself is an improper comment on the defendant’s failure

to testify. Id. Even a veiled reference to the defendant’s failure to testify is improper: the basic 

rule is that a prosecutor may not draw attention to, or comment upon, the defendant’s

failure to testify. This is to prevent the defendant from testifying against himself in violation 

of the Fifth Amendment. Id. Second, if we determine that the prosecution’s remark was not 

proper under this analysis, then we determine whether it can be shown beyond a reasonable 

doubt that the error did not influence the verdict. Id.

The comment Smith has issue with was made in closing argument: 

You remember in voir dire [defense counsel] asked you, or made the point there’s 

good and bad people in every profession. Which witness is the bad person he’s talking 

about? The defendant is the only person accused of doing anything wrong. He is the 

only person that we have proved did something wrong 

Smith argues that this implies that he did not testify despite being the only one accused of 

wrongdoing. We disagree and do not find this to be an improper comment. 

The prosecutor’s comments mirrored those made by defense counsel during voir dire 

in which defense counsel insinuated that some of the police witnesses might be “bad 
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people.”4 The prosecutor’s comment in closing highlights that the State’s witnesses were not 

proved to be “bad people” and that the only person proved to have done something wrong 

was Smith. Accordingly, the circuit court’s ruling was not an abuse of discretion.

Last, Smith argues for resentencing because the court abused its discretion in 

admitting evidence of Smith’s past convictions. Specifically, he contends that there was only 

one certification and one judge’s signature for multiple different cases.

Arkansas Code Annotated section 5-4-502 (Repl. 2013) provides that for habitualoffender sentencing under Arkansas Code Annotated section 5-4-501 (Supp. 2021), the 

circuit court shall hear evidence of a defendant’s prior felony convictions, determine the 

number of convictions, and instruct the jury as to the number of prior felony convictions 

along with the statutory sentencing range.

The State bears the burden of proving a defendant’s prior convictions for purposes 

of the habitual-offender statute. Kleier v. State, 2019 Ark. App. 340, 582 S.W.3d 856. A prior 

felony may be proved by any evidence that satisfies the circuit court beyond a reasonable 

doubt that the defendant was convicted or found guilty of the prior felony. Ark. Code Ann. 

 

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Specifically, defense counsel stated,

Can you listen and use your common sense--another instruction the Judge will give 

you -- when each witness testifies and apply that to the law and the facts of this case? Can you 

do that in spite of the fact that some of those witnesses might be wearing a uniform? Because 

I think we all understand, do we not, that there’s good and bad people in every single 

profession in the world. Every single profession in the world. We all see it every day.
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5-4-504(a) (Repl. 2013). A certified copy of the prior conviction is sufficient to support a 

finding of a prior conviction. Ark. Code. Ann. § 5-4-504(b)(1).

Here, the prosecution introduced a certified copy of one 11-page order filed on 

September 4, 2013, reflecting Smith’s negotiated pleas of guilty that same day to a total of 

sixteen criminal counts over four cases. The order reflects that Smith was represented by 

counsel, Clay Simpson. It is signed by Circuit Judge Robert Edwards and dated September 

4, 2013. Further, pursuant to Arkansas Code Annotated section 5-4-501(d)(1)(C) (Supp. 

2021), Smith was sentenced to thirty years’ imprisonment, the shortest sentence available in 

light of those prior convictions. Accordingly, we conclude that the challenged convictions 

were properly admitted.

Affirmed.

HARRISON, C.J., and BARRETT, J., agree.

Baxter Law Firm, PLLC, by: James R. Baxter, for appellant.

Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.