Cite as 2022 Ark. 95

SUPREME COURT OF ARKANSAS

No. CR-21-195

ROBERT SMITH III

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered: May 5, 2022

APPEAL FROM THE FAULKNER 

COUNTY CIRCUIT COURT [NO. 23CR18-929]

HONORABLE TROY BRASWELL, JUDGE

AFFIRMED; REMANDED TO CORRECT 

SENTENCING ORDER.

JOHN DAN KEMP, Chief Justice

Appellant Robert Smith III appeals a Faulkner County Circuit Court order convicting him 

of capital murder, kidnapping, aggravated robbery, and theft of property and sentencing him to 

consecutive terms of life, fortyyears, forty years, and ten years, respectively. For reversal, Smith argues 

that (1) substantial evidence does not support his capital-murder, kidnapping, and aggravatedrobbery convictions; (2) the circuit court erred in denying his motion to suppress evidence; (3) his 

sentence of life without parole is illegal; (4) the circuit court abused its discretion by admitting text 

messages between Smith’s codefendant, Tacori Mackrell, and Mackrell’s girlfriend; (5) the circuit 

court erred by allowing the State to inquire about three of Smith’s prior bad acts; (6) the State 

impermissibly shifted the burden of proof to the defense while cross-examining Smith; (7) the circuit 

court abused its discretion during closing arguments by preventing Smith from commenting on the 

State’s failure to call Mackrell as a witness; and (8) the circuit court abused its discretion during

sentencing by allowing the State to introduce a music video in which Smith appeared. We affirm

but remand for the circuit court to correct the sentencing order.
2

I. Facts 

On July 7, 2018, around noon, seventy-two-year-old Elvia Fragstein left her home in her 2018 

silver Honda CR-V to go shopping in Conway. When she did not return home that evening, her 

husband, Helmut, became worried. Fragstein did not have a cell phone with her so Helmut checked 

her credit-card purchases in an attempt to locate her. She had made purchases that day at Kroger, a 

liquor store, and TJ Maxx. He called 911 and reported Fragstein missing. 

Arkansas State Police Trooper Kevin Helm worked Highway Patrol that day. At 5:00 p.m., 

Trooper Helm ran the license plate for a silver Honda CR-V that passed him on the southbound 

side of Interstate 530 a few miles north of Pine Bluff. It was registered to Fragstein, but there was no 

indication then that the vehicle had been stolen. 

Investigators with the Faulkner County Sheriff’s Office reviewed surveillance footage from

the Conway stores where Fragstein had shopped on July 7. A surveillance video from Kroger on 

Salem Road showed that after Fragstein finished shopping there, she walked outside to her CR-V,

cautiously backed out, and exited the parking lot. Video footage from TJ Maxx in the Conway 

Commons shopping center revealed that she then shopped there and exited the store at 

approximately 3:43 p.m. 

Exterior cameras from a nearby Target store showed other activity in the Conway Commons 

parking lot. Videos showed two males arrive at the shopping center a few minutes before 3:00 p.m.

They walked around for almost an hour and moved their Chrysler PT Cruiser to several different 

parking spots during that time. One individual was wearing a white shirt, and the other was wearing

a t-shirt with a graphic design on the front and a solid white back. At 3:42 p.m., the individuals 

walked in front of TJ Maxx. At 3:43 p.m., Fragstein exited TJ Maxx and walked in the same direction. 
3

Minutes later, the cameras showed Fragstein’s CR-V being driven erratically at a high rate of speed. 

Video recovered from a nearby UPS store also showed multiple occupants inside the CR-V, and 

someone other than Fragstein appeared to be the driver. Investigators were able to get a still-shot 

photograph of the two males seen in the surveillance footage, and they were later identified as Smith 

and Mackrell. 

On the morning of July 11, a farmer discovered a female body at a Jefferson County farm 

outside Pine Bluff. The body, which had deteriorated and was infested with maggot and insect 

activity, was identified through dental records as Fragstein. On July 17, Fragstein’s burned CR-V was 

found in a secluded area of Pine Bluff. 

Dr. Stephen Erickson, the deputy chief medical examiner for the Arkansas State Crime 

Laboratory, performed the autopsy. He testified that Fragstein’s body had undergone extensive 

decomposition, and there was significant tissue loss in her face, neck, and chest areas. Dr. Erickson 

discovered crushing neck trauma that he classified as strangulation. He found a fractured second 

cervical vertebra indicating that a high degree of force had been applied to the left side of the neck, 

crushing the side of that vertebra where an important vessel supplies blood to the brain. He also 

found six right-rib fractures and two left-rib fractures. Dr. Erickson stated that the right-rib injuries 

were probably caused by a significant amount of force. He agreed that a person “could get that [type 

of an injury] if the ribs are stomped or crushed.” Dr. Erickson concluded that there was “a severe 

prolonged multi-factorial assault[;] her cause of death was a combination of the injuries that [he] 

found—strangulation, blunt force trauma of the chest[,] and blunt force trauma of the cervical spine.” 

Mackrell’s girlfriend, Eriya Evans, testified that Mackrell and Smith are cousins. During the 

summer of 2018, she lived in an apartment across the street from Smith and his family. She 
4

remembered the day that Mackrell went to Conway. She had communicated with Mackrell that day 

via text message, and he had used a cell phone that she had given him. Evans identified a series of 

text messages between Mackrell and her from July 7. One text message from him stated, “I just got 

the texts and when we was up there cuz snatched the purse and shidd, it had $60 in it he got 30 I 

got 30 I put 20 in the tank and he bought ah 20.” Evans explained that before Mackrell’s trip to 

Conway, he never had his own vehicle, but soon afterward, he “popped up with one.” At trial, when

Evans was shown a photo of Fragstein’s CR-V, she responded that it looked like the same car. Evans 

testified that when she asked Mackrell where he got the vehicle, he became agitated and responded, 

“We can get around now.” Evans testified that Mackrell had driven her to the Dollar Store in the

CR-V and had given her a brown purse after returning from Conway. 

Another witness, Tashemia Bullard, testified that on July 9 or 10, Mackrell’s sister picked 

her up from her house in a silver CR-V. A day or two later, Mackrell picked Tashemia up in the 

same CR-V and took her and her son to run an errand. When she retrieved her bags from the car, 

she opened the trunk and saw a bottle of fingernail polish in a white bag. The CR-V was then parked 

behind Tashemia’s house for about two days. She later told the police about her concern that the 

vehicle was stolen. Three men eventually came to Tashemia’s house in a PT Cruiser and picked up 

the CR-V. Tashemia’s sister, Marquita Bullard, also recalled that three or four men arrived in a blue 

PT Cruiser to pick up the CR-V. Although Marquita did not actually see any of the men drive off in 

the CR-V, she identified two of the men as Smith and Mackrell. 

Police obtained a search warrant for Smith’s residence, and during the search officers 

recovered several items of clothing, including jeans, a white t-shirt that was air-brushed on one side, 

and a pair of Nike shoes that appeared to be the ones worn by one of the individuals in the 
5

surveillance video. Blood was identified on four different areas of the shoes—the outer side of the 

left shoe, the outer bottom of the left shoe, the outer bottom of the right shoe, and two spots on the 

outer bottom of the right shoe. All four of the swabs taken from the Nike shoes matched Fragstein’s

DNA.

Smith testified in his own defense. He stated that on July 7, 2018, when he was sixteen years 

old, he and Mackrell went to Conway with his mother in her PT Cruiser. They arrived at a bingo 

hall in Conway, and his mother went inside to play bingo. Smith and Mackrell remained in the car 

smoking marijuana and listening to music. He claimed that Mackrell also smoked PCP. They left 

the bingo hall, drove the PT Cruiser to Conway Commons, and walked around. They returned to 

the car to smoke marijuana, and Mackrell left the car several times. The second time Mackrell left, 

he came back with a truck and said, “[F]ollow me.” Smith drove the PT Cruiser back to the bingo 

hall and, at Mackrell’s request, took the keys to his mother. Smith returned to the truck, and 

Mackrell yelled at him to get in the driver’s seat and drive back to Pine Bluff. Smith looked back and 

noticed a lot of blood on Mackrell and that he appeared to be “crouching over something.” Smith 

claimed that he could tell it was a person, but he did not hear her make a sound or move. Smith 

said that he drove all the way back to Pine Bluff and went inside his house. Mackrell then left with 

the truck. Smith claimed he never caused injury to Fragstein and was not with Mackrell when 

Mackrell injured her. Smith admitted having gone to the Bullards’ house with Mackrell at a later 

date because someone told Mackrell to move the truck. 

Smith admitted on cross-examination that he had talked to the police two different times 

and told them several lies, including that he was not in Conway on July 7, had never been to Conway, 

did not know if he had ever ridden in his family’s PT Cruiser, and had never seen Fragstein’s Honda 
6

CR-V. The second time he spoke with police, he admitted that he was in a picture taken from the 

surveillance footage at Target, but still said that “[he] had nothing to do with it” and that “[he didn’t]

know anything about it.” At trial, Smith admitted that his statement was also a lie. 

Smith acknowledged that if Mackrell sent Evans a text saying that “cuz” snatched a purse, 

Smith was the “cuz” about whom Mackrell was referring. But Smith claimed at trial that Mackrell 

lied because he did not take the purse. Smith also acknowledged that the shoes found in his house 

with Fragstein’s blood on them belonged to him but claimed that he did not know how the blood 

got there. Smith also admitted that he had previously been suspended from school for fighting with 

a teacher and disciplined for chasing a female student down the hall and kicking her. He further

admitted that his music name is “MG Glo,” and that “MG” stands for “Murder Gang.” He claimed 

that “Murder Gang” was a music group in Pine Bluff and acknowledged that he was in one of its rap 

videos. He also admitted that its songs are about killing people and that the lyrics of one song are 

about stomping someone to death.

After deliberations, the jury convicted Smith of capital murder, kidnapping, aggravated 

robbery, and theft of property. He was sentenced to a cumulative term of life imprisonment plus 

ninety years. He filed a timely notice of appeal, and this appeal followed. 

II. Points on Appeal

A. Sufficiency of the Evidence 

Smith first argues that the circuit court erred in denying his motion for directed verdict on 

the capital-murder, kidnapping, and aggravated-robbery charges.1 Although Smith admits that he 

 

1Although Smith asserts that none of his convictions are supported by substantial evidence, 

he fails to develop any argument challenging his theft conviction. We do not address arguments that 

are not supported by authority or convincing argument. See Sweet v. State, 2011 Ark. 20, at 18, 370 
7

drove to and from the crime scene with Mackrell, he contends that there was no evidence he “did 

anything with the purpose of promoting or facilitating the crimes.”

We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. 

McClendon v. State, 2019 Ark. 88, at 3, 570 S.W.3d 450, 452. In reviewing this challenge, we view 

the evidence in a light most favorable to the State, considering only the evidence that supports the 

verdict. Id., 570 S.W.3d at 452. We will affirm the verdict if substantial evidence supports it. Id., 570 

S.W.3d at 452. Substantial evidence is evidence of sufficient force and character that it will, with 

reasonable certainty, compel a conclusion one way or the other without resorting to speculation or 

conjecture. Id., 570 S.W.3d at 452. Circumstantial evidence may constitute substantial evidence 

to support a conviction. Finley v. State, 2019 Ark. 336, at 2, 587 S.W.3d 223, 226. For circumstantial 

evidence to be substantial, the evidence must exclude every other reasonable hypothesis than that of 

the guilt of the accused. Id. at 3, 587 S.W.3d at 226. Upon review, this court must determine whether 

the jury resorted to speculation and conjecture in reaching its verdict. Id., 587 S.W.3d at 226.

Smith committed capital-felony murder if, acting alone or with another person, he 

committed or attempted to commit the offense of robbery or kidnapping, and, in the course of and 

in furtherance of the felony or in immediate flight therefrom, he or a person acting with him, caused 

the death of a person under circumstances manifesting extreme indifference to the value of human 

life. Ark. Code Ann. § 5-10-101(a)(1)(A)(iii), (v) & (B) (Supp. 2017 reprint). Smith committed 

aggravated robbery if, with the purpose of committing a felony or misdemeanor theft, he employed 

or threatened to employ physical force upon another person and was “armed with a deadly weapon” 

 

S.W.3d 510, 523. 
8

or inflicted death upon another person. Ark. Code Ann. § 5-12-103 (Repl. 2013). Finally, Smith 

committed kidnapping if, without consent, he restrained another person so as to interfere 

substantially with the other person’s liberty with the purpose of facilitating the commission of any 

felony or flight after the felony, inflicting physical injury upon the other person, or terrorizing the 

other person. Ark. Code Ann. § 5-11-102(a)(3), (4) & (6) (Repl. 2013). 

In cases implicating a theory of accomplice liability, we will affirm if substantial evidence 

exists that the defendant acted as an accomplice in the commission of the alleged offense. Finley, 

2019 Ark. 336, at 2, 587 S.W.3d at 226. A person acts as an accomplice of another person if, with 

the purpose of promoting or facilitating the commission of the offense, the person aids, agrees to 

aid, or attempts to aid in planning or committing the offense. See Ark. Code Ann. § 5-2-403(a)(2)

(Repl. 2013). When causing a particular result is an element of an offense, a person is an accomplice 

of another in the commission of an offense if “acting with respect to that particular result with the 

kind of culpable mental state sufficient for the commission of the offense, the person . . . [a]ids, 

agrees to aid, or attempts to aid the other person in committing it.” Ark. Code Ann. § 5-2-403(b)(2)

(Repl. 2013). Relevant factors in determining the connection of an accomplice to a crime are the 

presence of the accused in proximity to a crime, the opportunity to commit the crime, and an 

association with a person involved in a manner suggestive of joint participation. Gilcrease v. State, 

2009 Ark. 298, at 12, 318 S.W.3d 70, 79. A defendant is an accomplice if he or she renders the 

requisite aid or encouragement to the principal with regard to the offense at issue, irrespective of

the fact that the defendant was not present at the murder scene and did not directly commit the 

murder. Id., 318 S.W.3d at 79. 
9

Here, with regard to his aggravated-robbery conviction, Smith contends that the State failed 

to present substantial evidence that he had the purpose to commit a theft or that he employed 

physical force against Fragstein. On his kidnapping conviction, Smith contends that Fragstein was 

already dead while he got into her CR-V, so the State failed to prove that he restrained her at any 

point when she was alive. Finally, on the capital-felony-murder conviction, Smith again argues that 

Fragstein was already dead when he got into her vehicle and that the State presented insufficient 

evidence of the underlying felonies of either kidnapping or robbery. 

The State presented evidence that Smith participated in the kidnapping and aggravated 

robbery. On July 7, Smith and Mackrell walked the same direction as Fragstein about a minute 

before she exited TJ Maxx, and just before her Honda CR-V was seen being driven erratically at a 

high rate of speed. Mackrell sent his girlfriend a text message telling her that Smith “snatched the 

purse,” after which he and Mackrell divided up the $60 that was in the purse. Smith drove Fragstein’s 

stolen CR-V from Conway to Pine Bluff with Fragstein inside. She was found murdered four days 

later. Smith also went with Mackrell to the Bullards’ house to move Fragstein’s stolen CR-V after 

someone requested that Mackrell move it. 

The State also presented evidence that Smith participated in the capital-felony murder. Dr. 

Erickson testified that Fragstein suffered a “severe, prolonged and multi-factorial” assault and that 

her injuries were consistent with someone “stomping” on her. Smith admitted that he is in a music 

group that has songs about killing people and stomping someone to death. And Fragstein’s blood 

was found at multiple locations on Smith’s shoes. Although Smith testified that he did not injure 

Fragstein and that she appeared to be dead when he got into her CR-V, the jury was not required to 

believe Smith’s testimony. See Price v. State, 2019 Ark. 323, at 6, 588 S.W.3d 1, 5. Finally, he lied to 
10

police multiple times about his involvement in the crimes, which could be considered by the jury as 

circumstances tending to establish guilt. See Hyatt v. State, 2018 Ark. 85, at 12–13, 540 S.W.3d 673, 

680.

We hold that the evidence above, viewed in the light most favorable to the State, constitutes 

substantial evidence of Smith’s participation as an accomplice in the capital-felony murder, 

kidnapping, and aggravated robbery of Fragstein. See Ark. Code Ann. § 5-10-101(a)(1)(A)(iii), (v) & 

(B) (capital-felony murder); Ark. Code Ann. § 5-11-102(a)(3), (4), and (6) (kidnapping); Ark. Code 

Ann. § 5-12-103 (aggravated robbery). Thus, we affirm on this point. 

B. Motion to Suppress Evidence 

Smith next argues that the circuit court’s denial of his motion to suppress evidence found in 

the search of his residence was clearly against the preponderance of the evidence. He claims that the 

search-warrant affidavit did not describe any circumstances showing that evidence of the crimes 

against Fragstein would be discovered at Smith’s residence.

Arkansas Rule of Criminal Procedure 13.1(b) states that an “application for a search warrant 

shall describe with particularity the persons or places to be searched and the persons or things to be 

seized[.]” Ark. R. Crim. P. 13.1(b). It must be supported by affidavit or testimony before a judicial 

officer “particularly setting forth the facts and circumstances tending to show that such persons or 

things are in the places, or the things are in possession of the person, to be searched.” Id. “An 

affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to 

believe that things subject to seizure will be found in a particular place.” Id. The task of the judge 

issuing a search warrant is to make a “practical, common-sense decision whether, given all of the 

circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or 
11

evidence of a crime will be found in a particular place.” King v. State, 2019 Ark. 114, at 5, 571 S.W.3d 

476, 479 (omission in original). In reviewing a denial of a suppression motion, this court makes an 

independent examination based on the totality of the circumstances, viewing the evidence in the 

light most favorable to the State, and we reverse only if the circuit court’s ruling was clearly against 

the preponderance of the evidence. Id. at 5–6, 571 S.W.3d at 479.

Here, the affidavit supporting the search warrant stated that the affiant, Jefferson County 

Investigator Johnathan Powell, had reason to believe that on the premises or inside Smith’s residence

there is now being concealed certain property or persons, namely: Any property believed to 

belong to Elvia Fragstein, property or documents identifying Elvia Fragstein or her 2013 

Honda CRV, any electronic communications devices believed to belong to Robert Smith, 

and any property believed to be related to the crimes of kidnapping, theft of a vehicle, and 

capital murder[.]

A “continuation for affidavit,” which was attached to the affidavit, contained a sworn statement by 

Investigator Powell detailing the following facts in support of his request: the finding of a female 

body on July 11; the discovery the next day that the victim was Fragstein, who had gone missing 

from a Conway shopping center on July 7; his review of video surveillance from Conway Commons 

showing two black males in a blue Chrysler PT Cruiser moving to different parking spots several 

times, and eventually parking near Fragstein’s vehicle; the identification of the two males as Smith 

and Mackrell; a description of their clothing, including that one had a “distinctive graphics t-shirt 

with multiple people printed on it and jeans”; Mackrell’s cell-phone records showing that he was in 

Conway around the time of Fragstein’s disappearance and discussing getting rid of the truck; 

Mackrell’s text message to Evans on July 10, “I’m sorry for getting loud it’s just Tasha say on the 

news on Conway ah truck got stolen I’m finna get off of it today or tomorrow”; Mackrell’s July 15 
12

statement to police officers that Smith’s mother, LaTasha, identified in Mackrell’s texts as “Tasha,”

had driven Smith and Mackrell to Conway on July 7; and Smith’s arrest at the residence in question. 

After a hearing, the circuit court denied Smith’s motion and found that 

[t]he examination of the four-corners of the document, the affidavit, and the continuation 

for affidavit provides this Court with the information to conclude that probable cause 

existed. Further, the information establishes a nexus with the items located during the search 

under Johnson v. State, 2015 Ark. 387. Therefore, the motion to suppress is DENIED.

We agree with the circuit court that the affidavit and continuation for affidavit established 

a nexus between Smith’s residence and the items sought in the investigation of the crimes committed 

against Fragstein. See, e.g., Johnson v. State, 2015 Ark. 387, at 6, 472 S.W.3d 486, 489. The affidavit 

placed Smith with Mackrell at the time Fragstein disappeared, and it described in detail the clothing 

worn by Smith that day. It stated that Smith had been arrested at that residence. It established a 

close relationship between Mackrell, Smith, and Smith’s mother. It also indicated that Smith’s 

mother warned Mackrell that police were looking for the stolen CR-V.2 Given these facts, we hold 

that the circuit court’s conclusion that the affidavit established probable cause for a search of the 

home shared by Smith and his mother was not clearly against the preponderance of the evidence. 

Therefore, we affirm the circuit court’s denial of Smith’s motion to suppress. 

C. Smith’s Life-Without-Parole Sentence

Smith next argues that his sentence of life imprisonment without the possibility of parole 

for his capital-murder conviction was illegal because Arkansas law does not allow a juvenile to be 

sentenced to life without parole for any homicide offense. He argues that we should remand to the 

circuit court for his sentence to be modified.

 

2On July 16, when the search warrant was issued, the stolen CR-V had not yet been found. 

It was found the following day. 
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Arkansas Code Annotated section 5-10-101(c)(1)(B) (Supp. 2017 reprint) provides, 

Capital murder is punishable as follows:

. . . 

(B) If the defendant was younger than eighteen (18) years of age at the time he or she 

committed the capital murder, life imprisonment with the possibility of parole after serving 

a minimum of thirty (30) years’ imprisonment.

Here, it is undisputed that Smith was sixteen years old at the time of the capital murder. Thus, he 

was ineligible for a sentence of life without the possibility of parole. 

The State contends that the life-without-parole notation on Smith’s sentencing order appears 

to be a clerical error because all parties below agreed that Smith would be eligible for parole on his 

capital-murder conviction after thirty years. 

When there is a discrepancy between the sentencing order and the pronouncement of

sentence, the sentencing order controls. Martinez v. State, 2019 Ark. 85, at 2, 569 S.W.3d 333, 335. 

But clerical errors do not prevent enforcement of a judgment, and a circuit court can enter an order

nunc pro tunc at any time to correct clerical errors in a judgment. Id., 569 S.W.3d at 335. We 

therefore remand and instruct the circuit court to correct the sentencing order so that it accurately 

reflects that Smith was sentenced to “Life” for capital murder, which in his case means that he is 

eligible for parole after thirty years.

Additionally, Smith argues that he is “entitled to parole eligibility at thirty years across the 

board on all of his offenses” and asks that, on remand, his sentencing order “be corrected 

accordingly.” Smith does not argue that his sentences for kidnapping, aggravated robbery, and theft 

were illegal. His challenge is solely to parole eligibility. Parole eligibility falls clearly within the 

domain of the executive branch and specifically the Arkansas Division of Correction, as fixed by 
14

statute. Johnson v. State, 2012 Ark. 212, at 5. Thus, on the basis of this precedent, we lack jurisdiction 

to instruct the circuit court to apply specific parole statutes to Smith’s kidnapping, aggravatedrobbery, and capital-murder convictions. 

D. Text Messages3

Smith next argues that the circuit court abused its discretion in admitting three exhibits—

State’s exhibits 50, 110, and 111—over his hearsay objections. The circuit court admitted State’s 

exhibits 50 and 110 on two bases—as nonhearsay statements made by a co-conspirator in furtherance 

of the conspiracy under Rule 801(d)(2)(v) of the Arkansas Rules of Evidence and as statements of 

the declarant’s then existing state of mind, emotion, sensation, or physical condition under Rule 

803(3) of the Arkansas Rule of Evidence. The circuit court also admitted State’s exhibit 111––a 

series of five questions sent from Evans to Mackrell––because it was not offered for the truth of the 

matter asserted.

Circuit courts have broad discretion in deciding evidentiary issues, and we will not reverse a 

circuit court’s ruling on the admission of evidence absent an abuse of discretion. Collins v. State, 

2019 Ark. 110, at 5, 571 S.W.3d 469, 472. Abuse of discretion is a high threshold that does not 

simply require error in the circuit court’s decision, but requires that the circuit court act 

improvidently, thoughtlessly, or without due consideration. Id., 571 S.W.3d at 472. Furthermore, 

we will not reverse unless the appellant demonstrates that he was prejudiced by the evidentiary 

ruling. Id., 571 S.W.3d at 472.

 

3We address Smith’s next two points on appeal in tandem because both involve challenges 

to the circuit court’s admission of text messages between Mackrell and Evans.
15

“‘Hearsay’” is a statement, other than one made by the declarant while testifying at the trial 

or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. 801(c). A 

statement is not hearsay if it is “offered against a party” and it is a “statement by a coconspirator of 

a party made during the course and in furtherance of the conspiracy.” Ark. R. Evid. 801(d)(2)(v).

Additionally, Arkansas Rule of Evidence 803(3) allows for hearsay statements, even if the declarant 

is available, as evidence of a “declarant’s then existing state of mind . . . such as intent, plan, motive, 

design . . . but not including a statement of memory or belief to prove the fact remembered or 

believed[.]”

1. State’s exhibit 50

State’s exhibit 50 was a text message from Mackrell to Evans at 11:31 p.m. on July 7, 2018, 

stating, “I just got the texts and when we was up there cuz snatched the purse and shidd it had 60 

dollars in it he got 30 I got 30 I put 20 in the tank and he bought ah 20.”4In addressing admissibility 

of the exhibit under Arkansas Rule of Evidence 801(d)(2)(v), the circuit court ruled from the bench

that a conspiracy existed between Smith and Mackrell—who sent the text message at issue. The court 

based its ruling on the photographs of them together at the scene where Fragstein went missing, 

Smith driving Fragstein’s CR-V to Pine Bluff, Mackrell and Smith arriving at the Bullard residence 

after someone called Mackrell to come get the CR-V, and Fragstein’s blood on Smith’s shoe. The 

circuit court also ruled that the statement was made in the course of and in furtherance of the 

conspiracy because it “discussed the disbursement of . . . some of the gains from the conspiracy[,]” 

and was “still in the course of the theft of property[.]” Thus, it found that State’s exhibit 50 was 

admissible as a nonhearsay statement of a co-conspirator.

 

4

Smith also challenges State’s exhibit 53, which is an enlarged copy of exhibit 50. 
16

We agree with the circuit court’s ruling. First, we see no error in the finding that there was 

conspiracy between Smith and Mackrell for the reasons articulated by the circuit court as well as 

Smith’s own testimony about his participation in the crimes. Second, the circuit court’s conclusion 

that the message was sent during the course of the conspiracy was not erroneous because it was sent 

the night that Fragstein went missing. Several days later, Smith and Mackrell went to the Bullards’ 

house after Mackrell was asked to move the CR-V. Additionally, Fragstein’s body was discovered on 

July 11, and her CR-V was found on July 17. The conspiracy between Smith and Mackrell had not 

concluded when Mackrell sent the text. Third, we agree that the statement was made in furtherance 

of the conspiracy. This court has previously addressed the “in furtherance of” requirement: 

Although this court has had few opportunities to discuss the “in furtherance of” element of 

Rule 801(d)(2)(v), it has held that statements designed to further the specific objective of the 

conspiracy are made in furtherance of the conspiracy. Federal cases interpreting the

corresponding federal rule of evidence hold that this requirement should be interpreted 

broadly. Thus, statements that have an overall effect of facilitating the conspiracy or that 

somehow advance the objectives of the conspiracy are said to be in furtherance of the 

conspiracy. 

Dyer v. State, 343 Ark. 422, 429, 36 S.W.3d 724, 728 (2001) (internal citations omitted).

In this case, the text message stating that “cuz snatched the purse” was admitted into evidence 

after Evans testified about her receipt of a brown purse following Mackrell’s trip to Conway. That

text message also stated that Mackrell “put 20 in the tank.” Evans testified that, a few days after his 

trip to Conway, Mackrell drove her to the Dollar Store in a vehicle that looked like Fragstein’s CRV. Evans further admitted that she had taken a photograph of herself inside the CR-V. Given Evans’s 

testimony about receiving a purse and riding in the CR-V, we conclude that Mackrell’s text message 
17

to her was made in the furtherance of the conspiracy. Thus, we hold that the circuit court did not 

abuse its discretion by admitting State’s exhibit 50 under Rule 801(d)(2)(v).

5

2. State’s exhibit 110

State’s exhibit 110 was a series of five text messages that Mackrell and Evans exchanged

between 8:04 p.m. and 8:10 p.m. on July 7. Although Smith challenges the entire exhibit, he alleges 

that he was prejudiced by only a single text message within that exhibit—a message from Mackrell to 

Evans stating, “[C]ause we not finna park this truck there and don’t you got eniya unless she 

coming.” The circuit court rejected Smith’s hearsay objection to this exhibit, ruling that it was 

admissible under Rule 803(3) of the Arkansas Rules of Evidence because it showed Mackrell’s state 

of mind—his “intent to not park the truck there.” 

We agree that this statement concerned Mackrell’s intent to do something in the future, 

which this court has said is admissible pursuant to Rule 803(3). See King, 2019 Ark. 114, at 8, 571 

S.W.3d at 480. Accordingly, we hold that the circuit court did not abuse its discretion in admitting 

State’s exhibit 110.

3. State’s exhibit 111

State’s exhibit 111 was a series of five text messages from Evans to Mackrell between 4:35 

p.m. and 6:53 p.m. on July 7. Smith argues that two of the text messages within that exhibit were 

inadmissible because they were offered to prove the truth of the matter asserted. First, he asserts that 

Evans’s message to Mackrell ending in “cause you been from Conway,” was a statement offered to 

show that Mackrell had been in Conway for an extended period of time. Second, he contends that 

 

5We need not address the circuit court’s alternative ruling that exhibit 50 was admissible 

under Rule 803(3). 
18

a text stating, “So you at the crib an can text me back” was a written assertion that Mackrell was back 

home in Pine Bluff. 

We have stated that merely cumulative evidence is not prejudicial. Davis v. State, 368 Ark. 

401, 411, 246 S.W.3d 862, 871 (2007). We will not reverse unless an appellant demonstrates that 

he was prejudiced by an evidentiary ruling. Collins, 2019 Ark. 110, at 5, 571 S.W.3d at 472. State’s 

exhibit 111 is duplicative of surveillance footage of Smith and Mackrell at the Conway Commons 

shopping center as well as Smith’s own testimony that he was in Conway with Mackrell the afternoon 

of July 7. Because Smith has failed to show any prejudice in the admission of Exhibit 111, we hold 

that the circuit court did not abuse its discretion in admitting it. 

E. Prior Bad Acts

Smith next argues that the circuit court abused its discretion by allowing the State to question 

him about three prior bad acts in violation of Rules 403 and 404(b) of the Arkansas Rules of 

Evidence. 

On cross-examination at trial, Smith testified that he remembered the police telling him 

what had happened to Fragstein, and he told the police that he would not put himself in a situation 

like that. On redirect examination, Smith testified as follows:

[DEFENSE COUNSEL]: Do you remember [the prosecutor] asked you about putting 

yourself in this situation?

[SMITH]: Yes, sir.

[DEFENSE COUNSEL]: That’s not the kind of person you are, correct?

[SMITH]: No, sir. 

The prosecutor then argued to the circuit court in a bench conference that Smith’s responses had 

opened the door to questioning about Smith’s previous incidents related to his character. The circuit 
19

court ruled that Smith had opened the door to otherwise inadmissible character evidence, and it 

allowed the State to question Smith about three prior bad acts—a previous suspension from school 

for fighting with a teacher, being disciplined for chasing a female student down the hall and kicking 

her, and his participation as “MG Glo,” in the music group “Murder Gang.”

In admitting the evidence, the circuit court relied on Smallwood v. State, 326 Ark. 813, 935 

S.W.2d 530 (1996). There, Smallwood’s attorney asked him, “Did you threaten [the victim] with a 

knife or with anything?” Smallwood responded, “No, I didn’t threaten her with a knife. I’m not that 

type of person. I didn’t threaten her with a knife.” Id. at 819, 935 S.W.2d at 533 (emphasis in original). 

This court recognized that

otherwise inadmissible testimony may be offered when one party has opened the door for 

another party to offer it. This is most often permitted when a defendant has been untruthful 

about a former crime or has brought up otherwise inadmissible character evidence which the State 

may then rebut.

Id. at 819, 935 S.W.2d at 533. (emphasis in original) (quoting Larimore v. State, 317 Ark. 111, 120, 

877 S.W.2d 570, 574 (1994)). In Smallwood, by claiming that he was not the “type of person” to 

threaten someone with a knife, Smallwood placed his propensity toward violence in issue. Id., 935 

S.W.2d at 533. We held that the circuit court properly allowed the State to question Smallwood 

about other violent acts or threats. Id., 935 S.W.2d at 533.

Smallwood is dispositive of the issue here. Smith’s own testimony elicited by his trial counsel 

opened the door to questioning about his propensity toward violence. Smith claimed that he was 

“not the kind of person” to place himself in a kidnapping-robbery-murder scenario in which the 

victim suffered a “severe prolonged multi-factorial assault.” Thus, we hold that the circuit court did 

not abuse its discretion by finding that Smith opened the door to evidence of his past violent acts
20

and participation in a music group that has songs about killing people and stomping someone to 

death. We therefore affirm on this point. 

F. Shifting the Burden

Smith next argues that the circuit court abused its discretion by permitting the prosecutor to 

shift the burden of proof to him during the following line of questioning: 

[PROSECUTOR]: Okay. And you would agree that all the videos that were in 

evidence in this case and jury have seen, none of them show 

the PT Cruiser in this time frame before Trooper Helm clocks 

y’all on Interstate 530, that the PT Cruiser is never seen 

leaving the Conway Commons, is it?

[SMITH]: I guess you guys didn’t do enough backing up for the video

because it had to have—

[PROSECUTOR]: Okay.

[SMITH]: –left the Conway Commons to get back to the Bingo hall, 

right?

[PROSECUTOR]: But you would agree that all the videos that are in evidence in 

this case during this time period don’t ever show the PT 

Cruiser leaving, do they?

[SMITH]: No, ma’am. No, ma’am.

[PROSECUTOR]: Okay. All right. And you’ve chosen to testify willingly here 

today, haven’t you?

[SMITH]: Yes, ma’am.

[PROSECUTOR]: And if you thought you had a way to prove that with some 

video, you would show that, wouldn’t you?

[SMITH]: I don’t have access to videos. 

Smith’s trial counsel then objected on the basis that the prosecutor attempted to shift the burden of 

proof to Smith. The State responded that its questions were in response to Smith’s testimony that 
21

the State did not back up the surveillance video far enough to show the PT Cruiser leaving Conway 

Commons in the time period he claimed. The circuit court overruled Smith’s objection. 

For reversal, Smith relies on Cook v. State, 316 Ark. 384, 872 S.W.2d 72 (1994), in which 

this court held that a prosecutor’s comment in closing argument “[a]t most” constituted “an attempt 

to shift the burden of proof[.]” Id. at 387, 872 S.W.2d at 74. However, the court affirmed the denial 

of a mistrial motion because the circuit court’s limiting instruction had cured any error. Id., 872 

S.W.2d at 73–74.

Here, we agree that Smith opened the door to the State’s questions when he suggested that

the State had not shown the part of the video that would confirm his testimony. Moreover, Smith 

did not request a mistrial or a limiting instruction, as was given in Cook. Any possible prejudice 

could have been easily cured by an admonishment, which defense counsel did not request. See, e.g.,

Noel v. State, 331 Ark. 79, 89, 960 S.W.2d 439, 444 (1998). Thus, we conclude that the circuit court 

properly rejected Smith’s burden-shifting argument, and we affirm on this point.

G. Refusal to Allow Comment on Mackrell’s Absence as a Witness

Next, Smith argues that the circuit court abused its discretion by refusing to allow his trial 

counsel to comment on the State’s failure to call Mackrell as a witness at trial. 

During guilt-phase closing argument, Smith’s trial counsel stated,

They tell you about a text message. They said Tacori says that “cuz snatched the purse.” Now 

first of all, I’m amazed that all of a sudden they wanted to listen to the same man that we all 

know is a violent vicious killer. So, all of a sudden now his telling—[Mackrell’s] words should 

be credible. But we don’t have him here to ask him, okay, explain to us why you say that, 

how you come to say that, and whatever. We don’t have any of that stuff. 

The State objected on the basis that “the State cannot call a co-defendant so that’s an improper[,] 

misleading argument to the jury.” After some discussions, Smith’s trial counsel responded, “But I’m 
22

not saying anything else about this issue[.]” Thus, before the circuit court could rule on the objection, 

Smith’s trial counsel announced that he would refrain from further mentioning Mackrell’s not 

testifying at trial. We therefore hold that Smith’s argument is unpreserved for our review, and we 

affirm without addressing it. See Hamilton v. State, 348 Ark. 532, 537–38, 74 S.W.3d 615, 618 (2002). 

H. Introduction of Music Video at Sentencing

Finally, Smith argues that the circuit court abused its discretion in the sentencing phase of 

trial by permitting the State to introduce, over Smith’s objection, a “Murder Gang” music video 

featuring Smith. When the State announced its intent to introduce two “Murder Gang” music 

videos at sentencing, Smith’s attorney objected only to the video in which Smith did not appear. 

The circuit court agreed and excluded that video as evidence. Smith’s attorney did not object to the 

one in which Smith did appear. Before that video was played for the jury, Smith’s attorney stated, 

“Over the same objection that I had.” 

Smith now contends that the music video in which he appeared was not relevant and that 

its admission was incredibly prejudicial. Because that specific objection was not made below, we hold 

that Smith’s current argument is unpreserved. Friday v. State, 2018 Ark. 339, at 6, 561 S.W.3d 318, 

322. We therefore affirm on this point.

III. Rule 4-3(a)

Because Smith received a life sentence, this court, in compliance with Arkansas Supreme 

Court Rule 4-3(a), has examined the record for all objections, motions, and requests made by either 

party that were decided adversely to Smith. No prejudicial error has been found. 

Affirmed; remanded to correct sentencing order.

WOMACK, J., concurs. 
23

SHAWN A. WOMACK, Justice, concurring. I join the majority’s decision to affirm Robert 

Smith’s convictions for capital murder, kidnapping, and aggravated robbery. But I write separately 

to note it is preferable to affirm Smith’s sentence as modified rather than remand the matter to the 

circuit court. To efficiently administer justice, this court may correct an illegal sentence, particularly 

when the illegality stems from an apparent clerical error in the sentencing order. See Walden v. State, 

2014 Ark. 193, at 11, 433 S.W.3d 864, 871 (holding that “[b]ecause neither issue relates to [the 

defendant’s] guilt, we can correct the sentence in lieu of remanding”). Remanding is a needless waste 

of resources for both parties, the trial court, the clerks and other employees. The best disposition is 

to affirm Smith’s sentence as modified: life imprisonment.

Therefore, I respectfully concur.

Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Sr. Ass’t Att’y Gen.; and Karen Virginia Wallace, 

Ass’t Att’y Gen., for appellee.