                                  Cite as 2015 Ark. App. 697

                 ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                        No. CR-15-113


STANLEY NELSON                                     Opinion Delivered   December 9, 2015
                                APPELLANT
                                                   APPEAL FROM THE PULASKI
V.                                                 COUNTY CIRCUIT COURT,
                                                   FIFTH DIVISION
                                                   [NO. CR2013-3271]
STATE OF ARKANSAS
                                   APPELLEE        HONORABLE WENDELL GRIFFEN,
                                                   JUDGE

                                                   AFFIRMED



                          RAYMOND R. ABRAMSON, Judge

       A Pulaski County jury convicted Stanley Nelson of first-degree battery and second-

degree murder and sentenced him to thirty-five years’ imprisonment for second-degree

murder and eleven years’ imprisonment for first-degree battery. Nelson appeals his conviction

and argues that the circuit court erred when it (1) rejected his ineffective-assistance-of-counsel

claim; (2) failed to correct the jury instructions; and (3) admitted into evidence the

prosecutor’s report of his prior conviction at the sentencing stage. We affirm.

       On October 7, 2013, the State charged Nelson with first-degree murder of Latravis

Morant and first-degree battery of Sedrick Green, along with a firearm enhancement and an

in-the-presence-of-children enhancement. The court held a jury trial from October 21

through October 24, 2014.1

       1
       The State also charged Nelson with possession of a firearm by certain persons, but that
charge was severed.
                                 Cite as 2015 Ark. App. 697

       The testimony at trial showed that, on August 14, 2013, Nelson, Green, and Morant

were drinking alcohol and playing a dice game with Nelson’s cousin, Courtney Marshall,

when a physical fight developed between Green and Marshall. The testimony reflected that

the fight began when Marshall poked Green in the face and Green punched him in response.

Nelson then grabbed a gun from Marshall’s waistband and began shooting. Morant was shot

in the abdomen while trying to intervene in the fight. He later died at the hospital. Nelson

shot Green while Green was on the ground fighting Marshall. Green survived his injuries.

       During the trial, the court held two jury-instruction conferences on October 22 and

October 23, 2014. At the October 23, 2014 conference, the parties agreed to instruct the jury

on the defense of justification for the battery charge. Nelson’s counsel prepared the

instruction:

               Stanley Nelson asserts a defense to the charge of battery in the first degree, that
       deadly physical force was necessary to defend himself or Courtney Marshall. This is a
       defense only if:
               First: Stanley Nelson reasonably believed that Sedrick Green was committing
       or about to commit battery in the second degree, with force or violence; or Stanley
       Nelson reasonably believed that Sedrick Green was using or about to use unlawful
       deadly physical force; and
               Second: Stanley Nelson only used such force which he reasonably believed to
       be necessary.
               A person is not justified in using deadly physical force if he knows that the use
       of deadly physical force can be avoided with complete safety by retreating. However,
       he is not required to retreat if he is in his dwelling or on the curtilage surrounding the
       person’s dwelling and was not the original aggressor.
               Stanley Nelson, in asserting this defense, is required only to raise a reasonable
       doubt in your minds. Consequently, if you believe that this defense has been shown
       to exist, or if the evidence leaves you with a reasonable doubt to the guilt of Stanley
       Nelson, then you must find him not guilty.
       ....



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                                            DEFINITIONS
       ....
       “Battery in the second degree” means Sedrick Green with the purpose of causing
       serious physical injury to Courtney Marshall causes serious physical injury to Courtney
       Marshall.

(Emphasis added.)

       Following the conclusion of the testimony, the court instructed the jury with the

stipulated justification-defense instruction for the battery charge. The jury deliberated and

convicted Nelson of second-degree murder and first-degree battery. 2

       The court then held a sentencing hearing. At the hearing, the State proffered the

prosecutor’s report from Nelson’s prior conviction of unlawful discharge of a firearm from a

vehicle. Nelson objected to the entry of the report and argued that the report was duplicative

because the victim testified about the nature of the crime at the hearing. Nelson further

asserted that the report was hearsay. The court overruled the objection and admitted the

report into evidence. The jury then sentenced Nelson to thirty-five years’ imprisonment for

second-degree murder and eleven years’ imprisonment for first-degree battery. The court

entered a sentencing order on October 31, 2014, and an amended sentencing order on

November 5, 2014.

       On November 11, 2014, Nelson filed a motion for a new trial and asserted a claim for

ineffective assistance of counsel. He pointed out that the justification-defense instruction that

his counsel proffered and that the court provided to the jury incorrectly stated that second-

degree battery requires a purpose to cause serious physical injury. He noted that second-degree

       2
      The jury was also instructed on a justification defense for the murder charge;
however, that instruction is not at issue on appeal.

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battery requires the mental state of purpose to cause only physical injury. Nelson argued that

such error amounted to an ineffective-assistance-of-counsel claim and asked the court to set

aside the jury verdict. On November 19, 2014, the court held a hearing on the motion, and

on November 25, 2014, the court denied it. The court found that Nelson had failed to

establish that the flawed instruction prejudiced him and thus he could not prevail on an

ineffective-assistance-of-counsel claim. Following the entry of the court’s order, Nelson then

filed this appeal.

       On appeal, Nelson first argues that the circuit court erred in rejecting his ineffective-

assistance-of-counsel claim as to the first-degree battery conviction. As Nelson notes in his

brief, the criteria for assessing the effectiveness of counsel were enunciated by the United

States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), which provides that

when a convicted defendant complains of ineffective assistance of counsel he must show that

counsel’s representation fell below an objective standard of reasonableness and that, but for

counsel’s errors, the result of the trial would have been different. Accordingly, a defendant

must demonstrate (1) that his counsel’s performance was deficient and (2) that the deficient

performance prejudiced his defense. Id.; Thomas v. State, 330 Ark. 442, 954 S.W.2d 255

(1997) (adopting Strickland).

        Despite this two-fold requirement from Strickland, Nelson argues that the circuit court

erred in requiring him to prove prejudice because the erroneous jury instruction here is

analogous to the flawed instruction in Reynolds v. State, 341 Ark. 387, 18 S.W.3d 331 (2000).3


       3
           The parties do not dispute that Nelson’s counsel’s performance was deficient.

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Nelson contends that Reynolds eliminated the prejudice requirement from Strickland in cases

where a flawed jury instruction constitutes a fundamental structural error of the trial

mechanism. The State denies that Reynolds eliminated the prejudice requirement from

Strickland and asserts that Nelson must prove prejudice to establish an ineffective-assistance-of-

counsel claim.

       We need not address whether Reynolds eliminated the prejudice requirement from

Strickland because we hold that the flawed jury instruction in this case is distinguishable from

the Reynolds instruction. In Reynolds, our supreme court found counsel ineffective and

reversed a first-degree murder conviction because counsel failed to object to an erroneous

instruction that allowed the jury to convict the defendant of first-degree murder based on the

elements of second-degree murder. Id. Our supreme court found that the erroneous

instruction relieved the State of its “responsibility to prove beyond a reasonable doubt every

element of the crime.” Id. at 295, 18 S.W.3d at 337.

       In this case, the court properly instructed the jury on the elements of first-degree

battery, the crime that the jury convicted Nelson of; the instruction was flawed only as to the

definition of second-degree battery within the justification-defense instruction. The United

States Supreme Court has held that misstatements and omissions on a single element of an

offense are not structural errors that preclude a jury from rendering a verdict of guilty-

beyond-a-reasonable-doubt. See Neder v. United States, 527 U.S. 1 (1999) (applying the

harmless-error analysis to an instruction that omitted the materiality element of a tax offense);

see also California v. Roy, 519 U.S. 2 (1996) (per curiam) (applying the harmless-error analysis


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to an instruction that failed to instruct the jury that it could convict the defendant as an aider

and abettor only if it found that the defendant had the “intent or purpose” of aiding the

confederate’s crime); Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999) (holding that the

omission of the actus reus element from the instructions for attempted rape and attempted

kidnapping was not a structural error); but see Sullivan v. Louisiana, 508 U.S. 275 (1993)

(holding that an erroneous reasonable-doubt instruction was a structural error and not subject

to the harmless-error analysis). Further, our supreme court has held that justification, such as

self-defense, is considered an element of the offense. See Anderson v. State, 353 Ark. 384, 108

S.W.3d 592 (2003). Accordingly, because the error in this case applied only to a single

element, we hold that Reynolds is distinguishable, and the requirements of Strickland must be

met.4

        Nelson next argues that the erroneous jury instruction violated his due-process rights.

He concedes that he made no contemporaneous objection below, and thus, his claim is

generally not preserved for appellate review; however, he asserts that the third Wicks

exception applies. The third Wicks exception provides a narrow exception to the

contemporaneous-objection rule when an error is so flagrant and highly prejudicial in

character that the trial court should have intervened on its own motion to correct the error.

Lopez-Deleon v. State, 2014 Ark. App. 274, 434 S.W.3d 914 (citing Wicks v. State, 270 Ark.

781, 606 S.W.2d 366 (1980)). In making his Wicks argument, Nelson relies on his contention

that the flawed instruction here is analogous to the instruction in Reynolds and amounted to


        4
            Nelson does not argue on appeal that he can establish prejudice.

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a fundamental structural error in the trial mechanism. However, as we have stated, the error

in the instruction in this case is distinguishable from the error in Reynolds; thus, we find that

the third Wicks exception does not apply.

       Nelson’s final argument is that the circuit court erred in admitting into evidence during

the sentencing phase the prosecutor’s report from his prior conviction of unlawful discharge

of a firearm from a vehicle. He asserts that the admission is hearsay and violated Arkansas

Code Annotated section 16-97-103(a) and his rights under the Confrontation Clause. Nelson

concedes that he received a sentence less than the maximum for both convictions and

recognizes that our supreme court has held that a defendant who is sentenced to less than the

maximum sentence cannot establish prejudicial error. Tate v. State, 367 Ark. 576, 242 S.W.3d

254 (2006). However, he asserts that he received a “de facto” life sentence because he is not

parole eligible and must serve one hundred percent of his sentence. Nelson’s argument is

unavailing. It remains true that he did not receive the maximum sentence. Accordingly, he

cannot establish prejudicial error.

       Affirmed.

       GLADWIN, C.J., and KINARD, J., agree.

       John Wesley Hall and Sarah M. Pourhosseini, for appellant.

       Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.




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