                                      Cite as 2014 Ark. App. 312

                      ARKANSAS COURT OF APPEALS
                                            DIVISION I
                                             CR-13-840
                                           No.


                                                     Opinion Delivered   May 14, 2014

BRIAN ELAM SIMS                                      APPEAL FROM THE PULASKI
                                   APPELLANT         COUNTY CIRCUIT COURT,
                                                     FOURTH DIVISION
V.                                                   [NO. 60CR-12-263]

STATE OF ARKANSAS                                    HONORABLE HERBERT WRIGHT,
                                  APPELLEE           JUDGE


                                                     AFFIRMED



                                WAYMOND M. BROWN, Judge


          Appellant Brian Sims appeals from an order of the Pulaski County Circuit Court

convicting him of first-degree murder, aggravated assault, and second-degree battery. Sims

was sentenced to an aggregate term of thirty-three years’ imprisonment.1 Sims’s sole

argument on appeal is that the trial court erred in delegating the Fincham issue to counsel,

instead of properly instructing the jury on extreme-emotional-disturbance manslaughter.2 We

affirm.


          1
        Sims received thirty years for first-degree murder and three years for both aggravated
assault and second-degree battery. Sims’s aggravated assault and second-degree battery
convictions were concurrent to each other, but they were consecutive to his first-degree
murder conviction.
          2
              Sims does not challenge his convictions for aggravated assault and second-degree
battery.
                                    Cite as 2014 Ark. App. 312

       Sims was charged with killing Robert Cauley outside of the Rock City Lounge on

September 25, 2011. His jury trial took place June 25–26, 2013. Prior to instructing the

jury, there was a jury-instruction conference held. During this conference, the parties agreed

that Fincham v. State3 required eliminating the second paragraph of the standard AMI Crim.2d

301 (hereinafter referred to as “AMCI 301”).4 The court stated that it was counsel’s burden

to explain to the jury that it must first find Sims guilty of either first- or second-degree

murder before considering extreme-emotional-disturbance manslaughter.5 The jury received

AMCI 301, minus the second paragraph, as agreed to by the parties. The court also changed

the transitional instruction, AMI Crim.2d 302 (hereinafter referred to as “AMCI 302”),

between murder in the second degree and manslaughter to read: “If you find Brian Sims




       3
         2013 Ark. 204, ___ S.W.3d ___. The Fincham court found that as a result of the
standard AMCI 301, the jury was placed in an impossible scenario, because it was instructed
not to consider the lesser-included offense of extreme-emotional-disturbance-manslaughter
unless it first found reasonable doubt as to first-degree murder, but it was also instructed not
to find guilt on manslaughter unless Fincham had committed a murder.
       4
           AMCI 301, the standard instruction on lesser-included offenses, states:

       [Defendant] is charged with Murder in the First Degree. This charge includes the
lesser offenses of Murder in the Second Degree and Manslaughter. You may find the
defendant guilty of one of these offenses or you may acquit him outright.

      If you have reasonable doubt of the guilt of the defendant on the greater offense, you
may find him guilty only of the lesser offense. If you have a reasonable doubt as to the
defendant’s guilt of all offenses, you must find him not guilty.
       5
        A person commits extreme-emotional-disturbance manslaughter if that person causes
the death of another person under circumstances that would be murder, except that he or she
causes the death under the influence of extreme emotional disturbance for which there is a
reasonable excuse. Ark. Code Ann. § 5-10-104 (a)(1)(A) (Repl. 2013).
                                  Cite as 2014 Ark. App. 312

guilty of first degree murder or second degree murder, you will then consider the charge of

manslaughter.”

       During closing argument, the State stated:

       Now, we talked a little bit about the step-downs, and it gets a little bit confusing when
       we talk about manslaughter. You’ve been given an instruction on manslaughter,
       which the Defendant wants you to consider. Okay?

       To sustain this charge, it must be proven that Brian Sims caused the death under
       circumstances that would be murder. That’s why you got this instruction. That you
       do not consider this at all until you believe he committed murder, either murder in the
       first degree or murder in the second degree. And at this point they want you to make
       the choice that this is the instruction, [sic] is what you should find him guilty of.

       Now, it says circumstances that would be murder, except that he caused the death
       under the influence of extreme emotional disturbance. This manslaughter definition,
       it’s kind of strange getting there, but it’s an old doctrine in our law. It’s the heat of
       passion. Okay? And that’s what it’s borne out of. And the heat of passion scenarios
       are typically . . . something along the lines of a man walks in on his wife cheating on
       him, and in this extreme emotional situation he kills his wife and the man that was
       cheating [with her]. Okay?

       You have been given no evidence whatsoever that he was under any kind of extreme
       emotional disturbance here. You need to toss this out. This is not what happened.
       What happened was, this man murdered Robert Cauley.

The jury subsequently found Sims guilty of first-degree murder. They recommended that he

be sentenced to thirty years’ imprisonment for Cauley’s death. The sentencing order filed

on July 2, 2013, reflected that Sims received a thirty-year sentence for killing Cauley. Sims

filed a timely notice of appeal on July 12, 2013.

       Sims contends that it was reversible error for the court to delegate the Fincham issue

to counsel. The State argues, and Sims concedes, that Sims did not object below to the

instructions. However, citing the third Wicks exception, Sims maintains that his argument
                                   Cite as 2014 Ark. App. 312

should be addressed because the error was so flagrant and highly prejudicial in character that

the trial court should have intervened on its own motion to correct the error.6 Sims argues

that it was the court’s duty to instruct the jury on the applicable law, and that argument of

counsel cannot substitute for proper instructions by the judge. Sims is correct. However, in

this case, it was the court that instructed the jury on the applicable law. The court also

instructed the jury that closing arguments were not evidence but were made only to help

them understand the evidence and applicable law.

       In Lard v. State,7 the supreme court explained that it is clear that the Wicks exceptions

are to be rarely applied and that “the third exception is limited to only those errors affecting

the very structure of the criminal trial, such as the fundamental right to a trial by jury, the

presumption of innocence, and the State’s burden of proof.”8 The court did not delegate its

duty to instruct the jury to counsel as Sims alleges on appeal. It was the court, not counsel,

that gave the jury the agreed upon instructions. Sims’s alleged error is not covered under

Wicks. Therefore, it was Sims’s responsibility to object to any perceived error below.

Because Sims failed to object below, his argument is not preserved for appeal. It is well settled

that our appellate court will not consider arguments raised for the first time on appeal.9

Accordingly, we affirm.



       6
           Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
       7
           2014 Ark. 1, ___ S.W.3d ___.
       8
           Id.
       9
           Dowty v. State, 363 Ark. 1, 210 S.W.3d 850 (2005).
                           Cite as 2014 Ark. App. 312

Affirmed.

WALMSLEY and WOOD, JJ., agree.

Jeff Rosenzweig, for appellant.

Dustin McDaniel, Att’y Gen., by: Rachel H. Kemp, Ass’t Att’y Gen., for appellee.
