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                 SUPREME COURT OF ARKANSAS
                                        No.   CR-13-914

KENDRICK HAMPTON                                    Opinion Delivered   June 26, 2014
                                APPELLANT
                                                    APPEAL FROM THE JEFFERSON
V.                                                  COUNTY CIRCUIT COURT
                                                    [NO. CR-2011-396-1]

STATE OF ARKANSAS                                   HONORABLE BERLIN C. JONES,
                                   APPELLEE         JUDGE

                                                    AFFIRMED.


                       PAUL E. DANIELSON, Associate Justice


       Appellant Kendrick Hampton appeals from the sentencing order of the Jefferson

County Circuit Court reflecting his conviction for second-degree murder and his sentence

to 600 months’ imprisonment, with a 180-month enhancement to be served consecutively,

plus a $15,000 fine. His sole assertion on appeal is that the circuit court erred when it used

a modified version of then AMI Crim. 2d 301 and 302 to instruct the jury on lesser-included

offenses after this court’s decision in Fincham v. State, 2013 Ark. 204, 427 S.W.3d 643. We

affirm Hampton’s conviction and sentence.

       Because Hampton does not challenge the sufficiency of the evidence against him, only

a brief recitation of the facts is necessary. See, e.g., Fritts v. State, 2013 Ark. 505, ___ S.W.3d

___. The record reflects that on August 13, 2011, officers of the Pine Bluff Police

Department were called to 3605 S. Missouri Street, where they discovered a large amount of

what appeared to be blood in the street. Officers learned from those at the residence that
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Hampton and Reshelle Smith were missing. Latonya Gonder, Hampton’s mother, who was

not initially present, arrived at the residence and told officers that her son had called her and

told her that he had shot Smith in the chest and side. In a subsequent phone call to Gonder,

Hampton told her where Smith could be found. Gonder led police to 426 Bohannon Road,

where officers did not find Hampton, but discovered Smith lying face down, dead from an

apparent gunshot wound, in the back seat of a red Toyota Camry. A history of domestic

violence between Hampton and Smith came to light, and Hampton was subsequently arrested

and charged with capital murder.

       At trial, the jury was instructed on capital murder, first-degree murder, second-degree

murder, and manslaughter. After its deliberations, the jury found Hampton guilty of the

lesser-included offense of second-degree murder and sentenced him to a total of 780 months’

imprisonment, as already noted. He now appeals.

       As his sole point on appeal, Hampton argues that the circuit court erred in its

instruction of the jury on manslaughter when it modified the instructions to comport with

this court’s decision in Fincham, in which we held that AMI Crim. 2d 301 did not accurately

state the law as to the offense of extreme-emotional-disturbance manslaughter. He avers that

the instructions given to the jury in his case were erroneous because this court’s decision in

Fincham created “a new burden for the State, that is, to produce and prove that the murder

was not manslaughter” and the instructions that were given failed to properly instruct the jury

on the State’s burden. (Emphasis in original.) He further contends that the circuit court’s

instructions failed to address a situation in which the jury might be divided on the question


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of manslaughter. He maintains that to comply with due process and the required unanimity

of a verdict, a jury must be instructed to unanimously find that there was no extreme

emotional disturbance or to return a verdict of manslaughter. Because such an instruction was

not given to the jury in this case, he argues, the State was relieved of its responsibility to prove

that he did not commit the crime of second-degree murder under the influence of extreme

emotional disturbance.

       The State responds, initially, that Hampton’s argument regarding the State’s burden

is not preserved for this court’s review because he did not specifically argue to the circuit

court that the State had the burden of disproving the existence of an extreme emotional

disturbance, much less that Fincham so held; it contends that Hampton merely argued that

Fincham created a conflict as to who had the burden regarding an extreme emotional

disturbance. It further contends that Hampton has not cited any authority to this court for

his claims. As to Hampton’s argument that the instructions were defective because they failed

to address a situation in which the jury might be divided as to manslaughter, the State

contends that Hampton’s argument is not adequately developed. Alternatively, the State

asserts, neither of Hampton’s contentions has merit.

       In Fincham, the appellant argued that the “‘acquit first’ jury instructions for lesser-

included offenses prohibited the jury from considering whether he was guilty of manslaughter

if they found him guilty of having committed either first-degree or second-degree murder.”

2013 Ark. 204, at 3, 427 S.W.3d at 646. The jury in Fincham’s trial had been instructed that

if they had reasonable doubt of Fincham’s guilt on the greater offense, it could find him guilty


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only of the lesser offense. See id.; AMI Crim. 2d 301. It was further given the transitional

instruction that if it had reasonable doubt as to Fincham’s guilt on first-degree murder, it

should then consider the charge of second-degree murder; likewise, if it had reasonable doubt

of Fincham’s guilt on second-degree murder, it was to then consider the charge of

manslaughter. See Fincham, 2013 Ark. 204, 427 S.W.3d 643; AMI Crim. 2d 302. Fincham

argued that these instructions were erroneous “because extreme-emotional-disturbance

manslaughter is not a true lesser-included offense of murder—rather, the jury must find guilt

as to murder to find a defendant guilty of manslaughter.” Fincham, 2013 Ark. 204, at 3, 427

S.W.3d at 646. He contended that giving the two instructions prevented the jury from

properly considering the offense of manslaughter. This court agreed with Fincham and

concluded that AMI Crim. 2d 301 foreclosed the jury from considering extreme-emotional-

disturbance manslaughter unless the jury had reasonable doubt on first-degree murder.1 See

id.

       We explained that the use of the AMI Crim. 2d 301 instruction required the Fincham

jury to “consider the greater offense first and move on to a lesser offense if the jury had

reasonable doubt as to the greater offense.” Id. at 7, 427 S.W.3d at 648. In other words, the

jury had been instructed not to consider extreme-emotional-disturbance manslaughter unless

it first found reasonable doubt on first-degree murder. See id. At the same time, Fincham

could be found guilty of manslaughter only if the jury first found him guilty of murder. See


       1
       A majority of this court acknowledged that Fincham had failed to specifically object
to AMI Crim. 2d 302, but was satisfied that he had properly preserved his argument on AMI
Crim. 2d 301. See Fincham, 2013 Ark. 204, 427 S.W.3d 643.

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id. We observed that the Fincham jury had been placed in “an impossible scenario—it was

instructed not to consider the offense of manslaughter unless it had reasonable doubt as to

murder, but it was also instructed not to find guilt on manslaughter unless Fincham had

committed a murder.” Id. at 7, 427 S.W.3d at 648. Accordingly, this court held that AMI

Crim. 2d 301 did not “accurately state the law” and that the Fincham jury “should have been

instructed to consider manslaughter after it found Fincham guilty of murder.” Id. at 8, 427

S.W.3d at 648.

       Our decision in Fincham was delivered on May 16, 2013, and Hampton was tried on

June 24–26, 2013. While we had urged the Committee on Criminal Jury Instructions to

consider revising the instructions relating to lesser-included offenses so that juries could be

properly instructed when considering the offense of extreme-emotional-disturbance

manslaughter, those instructions were understandably not yet in place at the time of

Hampton’s trial. As we have previously observed, a circuit court should not use a nonmodel

instruction unless it finds that the model instruction does not accurately reflect the law. See,

e.g., Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006). Because we determined in Fincham

that the instructions at issue did not accurately state the law with regard to the jury’s

consideration of extreme-emotional-disturbance manslaughter, the parties and the circuit

court aptly engaged in the modification of the instructions in the instant case.2

       This court will not reverse a circuit court’s decision to give or reject an instruction



       2
       We note that AMI Crim. 2d 301 and 302 have since been amended. See Release 9,
Arkansas Model Jury Instructions–Criminal (2d ed. Apr. 2014).

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unless the court abused its discretion. See Clark v. State, 374 Ark. 292, 287 S.W.3d 567

(2008). At issue here are the following two instructions that were given to the jury in

Hampton’s case:

               Kendrick Hampton is charged with capital murder. This charge includes the
       lesser offenses of first-degree murder, second-degree murder and manslaughter.
               You may find Kendrick Hampton guilty of one of these offenses, or you may
       acquit him outright.
               If you have a reasonable doubt of the guilt of Kendrick Hampton on the greater
       offense, you may find him guilty only of the lesser offense. If you have a reasonable
       doubt as to his guilt of both offenses, you must find him not guilty.
               Manslaughter is contained in the charge of first-degree murder and second-
       degree murder. Should you find beyond a reasonable doubt that the State has proven
       either first-degree murder or second-degree murder, you should then consider
       whether that murder was committed under the influence of extreme emotional
       disturbance for which there is a reasonable excuse. If you find that the murder was
       committed under the influence of extreme emotional disturbance, then your verdict
       should be guilty of manslaughter.

             If you have a reasonable doubt of the defendant’s guilt on the charge of capital
       murder, you will then consider the charges of murder in the first degree, murder in the
       second degree and manslaughter.

       Hampton first argues that the instructions given by the circuit court inaccurately stated

the law because they failed to instruct the jury on the new burden for the State that was

established in Fincham—to produce and prove that the murder committed was not

manslaughter. We agree, however, with the State that Hampton did not specifically argue

to the circuit court that Fincham established a new burden for the State to prove that the

murder was not manslaughter. Instead, Hampton’s argument to the circuit court was that

“[this case] has created a conflict of whether or not [the existence of an extreme emotional

disturbance] is something that the defense has to prove or the State has to unprove or whether

or not just raising it is enough to create a reasonable doubt.” We have held that an appellant

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cannot change his grounds on appeal and is limited to the scope and nature of the objections

presented at trial. See Porter v. State, 358 Ark. 403, 191 S.W.3d 531 (2004). This court,

therefore, is precluded from addressing his argument.

       Nor can we address Hampton’s remaining contention that the instructions given failed

to address a situation in which the jury might be split on the offense of manslaughter. First,

our review of the instant record reveals nothing that would suggest that the jury in Hampton’s

case was divided on the offense of extreme-emotional-disturbance manslaughter. But in

addition, the verdict forms contained in the record demonstrate that the jury found Hampton

guilty of second-degree murder and not guilty of the other offenses of capital murder, first-

degree murder, and manslaughter. Here, the jury was instructed by the circuit court that

“[a]ll 12 of you must agree upon the verdict,” and this court presumes that jurors follow the

court’s instructions. See Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). Moreover, as

the State correctly points out, we do not answer academic questions or issue advisory

opinions. See Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (1993). Accordingly, we

decline to address what we consider to be a hypothetical question posed by Hampton.

       For the foregoing reasons, we affirm Hampton’s conviction and sentence.

       Affirmed.

       BAKER and HART, JJ., concur.

       KAREN R. BAKER, Justice, concurring. I write separately because I believe that

Hampton did not change his argument on appeal as the majority suggests. However, because

I would still affirm this case, I concur.


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       Hampton’s counsel stated at trial, “[this case] has created a conflict of whether or not

[the existence of an extreme emotional disturbance] is something that the defense has to prove

or the State has to unprove or whether or not raising it is enough to create a reasonable

doubt.” The majority holds that this objection was not the same as an argument under

Fincham v. State, 2013 Ark. 204, 427 S.W.3d 643. In Fincham, we held that it was the State’s

burden to prove that a murder was not manslaughter. I do not see a distinction between the

two arguments. Hampton’s argument fully apprised the circuit court of the argument he

makes on appeal.

       I would still affirm the case, however, because I believe that the jury instruction given

by the circuit court put the burden on the State to prove that the murder was not

manslaughter. Therefore, I concur.

       HART, J., joins in this concurrence.

       The Claiborne Ferguson Law Firm, P.A., by: Claiborne Hambrick Ferguson, for appellant.

       Dustin McDaniel, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.




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