Jeran Kyler Sorum v. State of Arkansas

Cite as 2019 Ark. App. 354
Digitally signed by Elizabeth
Perry ARKANSAS COURT OF APPEALS
Date: 2022.07.22 10:25:20 DIVISION II
-05'00'
No. CR-18-891
Adobe Acrobat version:
2022.001.20169
Opinion Delivered: September 4, 2019

JERAN KYLER SORUM
APPELLANT APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
V. [NO. 04CR-14-415]

STATE OF ARKANSAS
APPELLEE HONORABLE BRAD KARREN,
JUDGE

AFFIRMED

BART F. VIRDEN, Judge

A Benton County Circuit Court jury convicted appellant Jeran Kyler Sorum of rape,

second-degree sexual assault, and first-degree computer exploitation of a child. He was

sentenced to an aggregate term of twelve years in prison, and his conviction was affirmed

on appeal. See Sorum v. State, 2017 Ark. App. 384, 526 S.W.3d 50. This appeal stems from

the trial court’s denial of Sorum’s subsequent Rule 37 petition and related motions and the

trial court’s decision to strike the subsequent petition. We affirm.

I. Relevant Facts

On September 28, 2017, Sorum filed a ten-page petition for postconviction relief in

which he raised three claims: (1) trial counsel was ineffective for failing to file a motion to

dismiss on double-jeopardy grounds; (2) trial counsel was ineffective for failing to make a

meritorious directed-verdict motion regarding the offense of computer exploitation of a
child; and (3) trial counsel was ineffective for failing to argue that rape required the State to

prove sexual gratification in addition to penetration. The same day, Sorum filed a motion

for leave to file an enlarged Rule 37 petition arguing that the ten-page limit was insufficient

for the additional issues he wished to raise. The trial court did not rule on the motion.

On December 28 Sorum filed an amended, twenty-two-page Rule 37 petition that

included two additional issues. On January 30, 2018, the trial court entered an order striking

Sorum’s enlarged petition and finding that Sorum filed the overlength petition without leave

of the court. The court concluded that the strict requirements on the form of a Rule 37.1

petition are reasonable and proper. The court also found that Rule 37’s procedural

requirements do not violate due process, and the petition failed to comply with those

requirements.

On February 7, Sorum filed a motion for reconsideration of the motion for leave to

file an amended and enlarged petition stating that

[t]he Petitioner has two issues to present in good-faith in his Rule 37 Petition that
were unable to fit within the ten-page original petition. Those issues regarding
accomplice corroboration and the rape shield hearing are legitimate and unable to be
presented. Those issues can best be seen by looking at the amended and enlarged
Rule 37 Petition and comparing it with the initial Rule 37 Petition.

The trial court denied the motion, reiterating the previous conclusion that “it is not

a violation of petitioner’s due process rights nor is it fundamentally unfair for this court to

adhere to strict requirements on the form of a Rule 37.1 petition.”

On April 2, Sorum filed a motion for leave to file an amended ten-page petition,

stating that he had “culled” his original three arguments and the two additional points he

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wished to make. He attached the amended petition to the motion. The next day, the trial

court struck the amended petition stating that “this court finds no change of circumstances

from the previous ruling of this court as stated in its order, January 30, 2018, and that the

hearing in this matter on April 27, 2018, will not be continued in order to allow the State

additional time to respond to an amended petition.” The same day, Sorum filed a motion

for reconsideration, asserting that the State “has been well aware of these additional

arguments for months based on prior pleadings,” and he contended that the allotted response

time was only twenty days and that it was twenty-four days until the hearing.

On April 4, the trial court entered an order denying the motion to reconsider, finding

no change of circumstances from the previous rulings. Additionally, the court prohibited

Sorum from filing any further motions concerning an amended Rule 37 petition. After a

hearing the court denied the petition. Sorum timely filed a notice of appeal.

II. Standard of Review and Applicable Law

When reviewing a trial court’s ruling on a Rule 37.1 petition, we will not reverse

the trial court’s decision granting or denying postconviction relief unless it is clearly

erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A finding is clearly

erroneous when, although there is evidence to support it, the appellate court after reviewing

the entire evidence is left with the definite and firm conviction that a mistake has been

committed. Id.

The benchmark question to be resolved in judging a claim of ineffective assistance

of counsel is whether counsel’s conduct so undermined the proper functioning of the

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adversarial process that the trial cannot be relied on as having produced a just result. Norris

v. State, 2013 Ark. 205, 427 S.W.3d 626 (per curiam). A Rule 37 petitioner’s ineffective-

assistance-of-counsel claims are analyzed under the two-prong standard set forth in Strickland

v. Washington, 466 U.S. 668, 687 (1984), which requires a petitioner to show that his

counsel’s representation was deficient, and he suffered prejudice as a result. “Unless a

petitioner makes both showings, it cannot be said that the conviction resulted from a

breakdown in the adversarial process that renders the result unreliable.” State v. Barrett, 371

Ark. 91, 96, 263 S.W.3d 542, 546 (2007).

Pursuant to Strickland and its two-prong standard, first a petitioner raising a claim of

ineffective assistance must show that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the

United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). A

petitioner making an ineffective-assistance-of-counsel claim must show that counsel’s

performance fell below an objective standard of reasonableness, such that counsel committed

errors so serious as to not be functioning as counsel at all. Flores v. State, 350 Ark. 198, 205–

06, 85 S.W.3d 896, 901 (2002). A court must indulge in a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance. Springs v. State,

2012 Ark. 87, 387 S.W.3d 143. The burden is on the petitioner to overcome this

presumption by identifying specific acts or omissions by counsel that could not have been

the result of reasoned professional judgment. Bond v. State, 2013 Ark. 298, 429 S.W.3d 185.

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Second, the petitioner must show that, considering the totality of the evidence before

the fact-finder, counsel’s deficient performance so prejudiced petitioner’s defense that he or

she was deprived of a fair trial. Springs, supra. The petitioner must show there is a reasonable

probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt

respecting guilt, i.e., the decision reached would have been different absent the errors.

Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability

sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes

both showings, it cannot be said that the conviction resulted from a breakdown in the

adversarial process that renders the result unreliable. Id.

III. Discussion

First, we address the three claims of ineffective assistance of counsel Sorum raised in

his original petition. For his first argument on appeal, Sorum contends that trial counsel was

ineffective for not moving for dismissal of the charge of second-degree sexual assault. He

asserts that his conviction for rape and second-degree sexual assault constitutes a double-

jeopardy violation because sexual assault is a lesser-included offense of rape. Sorum is correct

that second-degree sexual assault is a lesser-included offense of rape; however, in Small v.

State, 371 Ark. 244, 254, 264 S.W.3d 512, 518 (2007), our supreme court held that “where

the acts were of a different nature, a separate impulse was necessary and there were separate

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offenses.” 1 At trial, the State argued that the sexual assault and the rape were distinctly

separate acts, were separate in time, and required separate impulses.

At the Rule 37 hearing, counsel testified that

[o]nce we knew we weren’t talking about a penis in a vagina type of rape, the foreign
object, the broomstick in this case, then it cleared up for everyone the path the case
would be taking. It solved the problem of the question of hey, this could be a double-
jeopardy issue because in some circumstances sexual assault two is a lesser included
of rape. I had argued several times in meeting how they are going to get past a
double-jeopardy situation because you can’t have both. Our argument all along was

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Arkansas Code Annotated section 5-1-110 (Repl. 2013) provides the criteria for
determining whether an offense is a lesser included offense of another, and it provides that

(a) When the same conduct of a defendant may establish the commission of
more than one (1) offense, the defendant may be prosecuted for each such offense.
He may not, however, be convicted of more than one (1) offense if:

(1) One offense is included in the other, as defined in subsection (b) of this
section

....

(b) A defendant may be convicted of one offense included in another offense
with which he is charged. An offense is so included if:

(1) It is established by proof of the same or less than all of the elements required
to establish the commission of the offense charged.

Arkansas Code Annotated section 5-14-103 (Supp. 2017) provides in pertinent part
that a person commits rape if he or she engages in sexual intercourse or deviate sexual
activity with another person by forcible compulsion who is incapable of consent because he
or she is physically helpless or mentally incapacitated. Arkansas Code Annotated section 5-
14-125 provides that a person has committed second-degree sexual assault when he or she
engages in sexual contact with another person by forcible compulsion; or engages in sexual
contact with another person who is incapable of consent because he or she is physically
helpless or mentally incapacitated.

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that it was neither, that Sorum didn’t commit any rapes. At the pretrial hearing where
it was stipulated that it would be about the broomstick, at that point we all agree
there’s not a double-jeopardy problem because two separate touchings if you will
with the broomstick.

At the trial, the State present evidence of two separate touchings—one constituting

rape and the other constituting second-degree sexual assault—including (1) a video showing

Sorum touching K.G. with a broomstick over her clothes; (2) Sorum’s testimony that he

prodded K.G. with a broomstick in her “thigh region”; (3) Detective Lira’s testimony that

the video shows that Sorum prodded K.G. in her anal and vaginal areas and that he could

be heard on the video saying, “‘should we really put a condom on it and fuck her with it?

You gotta hold her shorts,’”, “‘I want to fuck that again, Drew,’”, “‘Watch this. This is

redneck fucking, dude.’”; (4) Drew Wall’s testimony that Sorum removed K.G.’s clothes

and penetrated K.G. with a broomstick; and (5) testimony from three witnesses that Sorum

told them that he penetrated K.G. with a broomstick.

The State presented evidence of separate impulses comprising separate acts

conforming with the definitions of rape and second-degree sexual assault; thus, Sorum’s

assertion that a motion to dismiss on the charge of second-degree sexual assault based on a

double-jeopardy violation would have been successful is unpersuasive. When it is asserted

that counsel was ineffective for the failure to make a motion or an argument, the petitioner

must show that the motion or argument would have been meritorious because the failure

to make an argument that is meritless is not ineffective assistance of counsel. Sanders v. State,

2018 Ark. App. 604, at 4, 567 S.W.3d 76, 80.

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Sorum’s second argument on appeal is that counsel was ineffective for failing to move

for a directed verdict on the offense of computer exploitation of a child on the correct

grounds. Specifically, Sorum contends that counsel failed to argue that the State did not

offer sufficient evidence that he engaged K.G. in sexually explicit conduct in the video

recording, and counsel did not assert that the State failed to present evidence that Sorum

knew, had reason to know, or intended the conduct to be filmed. Sorum contends that if

counsel had made the directed-verdict motion on these grounds, the trial court would have

granted the motion. We disagree.

In our opinion affirming Sorum’s conviction, we found that appellant’s insufficiency-

of-the-evidence argument was not preserved. See Sorum, 2017 Ark. App. 384, at 11–12, 526

S.W.3d at 56–57 2. We held that

[b]elow, Sorum argued that “sexually explicit conduct” must refer to “deviate sexual
activity,” which requires the element of penetration and that evidence of penetration
was lacking. His argument on appeal has changed, and Sorum relies on the subchapter
definitions under Ark. Code Ann. § 5-27-302. He argues that K.G. was not engaged
in “sexually explicit conduct” as defined by section 5-7-302(4) in that (1) the State
alleged that actual conduct occurred—not simulated, and (2) the conduct alleged to

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A person commits computer exploitation of a child in the first degree if the person
causes or permits a child to engage in sexually explicit conduct and knows, has reason to
know, or intends that the prohibited conduct may be photographed, filmed, reproduced,
reconstructed in any manner, including on the Internet, or part of an exhibition or
performance. Ark. Code Ann. § 5-27-605(a)(1) (Repl. 2013). “Sexually explicit conduct”
means actual or simulated sexual intercourse or deviate sexual activity, and other acts not
relevant here. Ark. Code Ann. § 5-27-601(15). “Deviate sexual activity” means any act
involving the penetration, however slight, of the labia majora or anus of a person by any
body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5-
27-601(7)(B).

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have occurred did not make it appear to a reasonable viewer to be “(A) sexual
intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex, (B) bestiality, (C) masturbation, (D)
sadomasochistic abuse for the purpose of sexual stimulation, or (E) lewd exhibition
of the genitals or pubic area of any person or the breast of a female.” Ark. Code Ann.
§ 5-27-302(4).

Subchapter 3’s title is the “Arkansas Protection of Children Against
Exploitation Act of 1979.” Ark. Code Ann. § 5-27-301. Subchapter 6 involves
computer crimes against minors. Each subchapter has its own definitions section.
Although there are similarities, we are dealing with subchapter 6 and not 3.
Therefore, we cannot address what amounts to a new argument for the first time on
appeal, and Sorum has abandoned his challenge regarding penetration under “deviate
sexual activity” as defined by Ark. Code Ann. § 5-27-601(7)(B).

Sorum also argues for the first time on appeal that there was no evidence that
he knew, had reason to know, or intended the conduct would be filmed. A directed-
verdict motion requires the movant to apprise the trial court of the specific basis on
which the motion is made. Patton v. State, 2013 Ark. App. 583. Arguments not raised
at trial will not be addressed for the first time on appeal, and parties cannot change
the grounds for an objection on appeal but are bound by the scope and nature of the
objections and arguments presented at trial. Id.

According to appellant, had counsel made a more specific motion for directed verdict

regarding “sexually explicit conduct” as defined by subchapter 6—that the video did not

depict conduct involving sexual intercourse, deviate sexual activity, bestiality, masturbation,

lewd exhibition of genitals, sadomasochistic abuse, or simulated sexually explicit conduct—

“the trial court would have been obligated to dismiss the charge and the outcome would

have been different.” Sorum’s argument fails.

To prevail on a claim of ineffective assistance of counsel based on counsel’s failure to

preserve an issue for appeal, a petitioner must show that had the issue been preserved, the

appellate court would have reached a different decision. Strain v. State, 2012 Ark. 42, 394

S.W.3d 294. In the instant case, therefore, Sorum must demonstrate that the appellate court

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would have found that the evidence adduced at trial was insufficient to support a conviction

and would have overturned his conviction for that reason. Id.

Here, the State presented evidence to support Sorum’s conviction of computer

exploitation of a child including video showing the broomstick touching K.G. and

Detective Lira’s testimony that the video showed the broomstick “going in the vaginal area,

as well as the anal area” over K.G.’s clothes. Moreover, Sorum testified that he prodded

K.G. with the broomstick around her thigh area. It was the duty of the jury to view the

video and determine if actual or simulated penetration of K.G.’s vagina or anus occurred.

Though Sorum asserts that the video does not show any penetration or simulated

penetration, it is the jury’s duty to weigh the evidence and resolve contradictions and

conflicts in testimony; in doing so, the jury may accept testimony it believes to be true and

disregard testimony it believes is false. Coleman v. State, 314 Ark. 143, 860 S.W.2d 747

(1993). Viewing the evidence in the light most favorable to the State, we hold that the

evidence is sufficient to support a conviction, and counsel was not ineffective for failing to

preserve the sufficiency-of-the-evidence issue for appeal.

Furthermore, the State presented evidence that Sorum had reason to know that the

cell phone may have been recording video of his actions against K.G. Sorum testified that

when he and Wall entered the room where K.G. was sleeping, “yes, we were recording, I

think. About the time we walked into the door we were probably recording.” Because the

State presented some evidence to support its contention that Sorum knew or had reason to

know the cell phone may have been recording, trial counsel was not ineffective for failing

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to move for a directed verdict on the offense of computer exploitation of a child on these

grounds.

For his third argument on appeal, Sorum contends that counsel was ineffective for

failing to inform the jury that rape includes the element of sexual gratification. See Ark.

Code Ann. § 5-14-101(1). During closing argument, counsel stated, “If you feel, after

watching that video, that her labia majora was penetrated, then you’re going to find Jeran

Sorum guilty of rape.” Sorum contends that counsel’s statement eliminates the element of

sexual gratification; thus, counsel conceded one of the key elements of the offense of rape.

We disagree.

At the hearing, counsel explained that because the transcript of the video was not

favorable to Sorum and tended to support a finding of Sorum’s sexual gratification, counsel

chose to avoid calling attention to the transcript. Counsel stated, “I did say our theory was

that it was a prank of getting drunk and messing with another kid like writing on the

forehead and that would go to sexual gratification not toward penetration.” Counsel also

stated that he did not want to give the jury a reason to refer back to the transcript of the

video because “it was 50/50 whether the jury would buy it. . . . If we can show [Detective]

Lira was the source of the transcript and then point out the error of the transcript, they’ll

disregard the transcript and focus on the video. The theory was the video doesn’t show

anything.”

The State presented testimony at the hearing that counsel did not do away with the

element of sexual gratification but instead chose to focus the jury’s attention on the element

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of penetration as a matter of trial strategy; thus, the trial court did not clearly err in rejecting

Sorum’s ineffective-assistance-of-counsel claim.

When a decision by counsel was a matter of trial tactics or strategy, and that decision

is supported by reasonable professional judgment, then counsel’s decision is not a basis for

relief under Rule 37.1. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477. Counsel wished

to avoid referring the jury to the transcript of the video containing Sorum’s statements that

support a finding of sexual gratification—“I want to get in that ass,” “I want to fuck that

again,” and “Give me the condom, you know we are going to fuck her with a broomstick.”

Moreover, during closing argument, counsel stated, “Let’s talk about here just a little bit the

first charge, rape. Now, I’m not going to rehash all the elements. You heard and saw them

on the Power Point. They’re on the jury instructions.” Counsel directed the jurors to the

complete jury instruction regarding the offense of rape, and jurors are presumed to

comprehend and follow court instructions. See Nalls v. State, 2014 Ark. 434, at 7, 445

S.W.3d 509, 515.

We now turn to Sorum’s arguments regarding the Rule 37 petitions themselves.

First, Sorum asserts that the trial court erred by denying his request to file an enlarged

petition; however, the trial court never ruled on his motion to amend and enlarge the

petition. The burden is on the movant to obtain a ruling from the trial court, and a ruling

cannot be presumed. Barton v. State, 366 Ark. 339, 341, 235 S.W.3d 511, 513 (2006). The

State correctly asserts that this issue is not preserved; thus, we do not address it on appeal.

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Second, Sorum contends that the trial court was required to accept the April 2 ten-

page amended petition after the trial court had struck the December 28 petition. To support

his argument, Sorum relies on Butler v. State, 367 Ark. 318, 324, 239 S.W.3d 514, 519

(2006), in which our supreme court held that

when seeking to file a petition in excess of the ten-page limit provided in Ark. R.
Crim. P. 37.1(b), a motion must set forth a legitimate ground or justification for an
enlarged petition. Here, appellant’s counsel did not seek to file an enlarged petition.
Rule 37.2(e) contains no such prerequisite and requires only that a petitioner file the
motion for leave to amend before the trial court acts on the original petition.
Furthermore, appellant’s attempt to amend his postconviction petition did not occur
on the day of the Rule 37 hearing.

Arkansas Rule of Criminal Procedure 37(e) provides that “before the court acts upon

a petition filed under this rule, the petition may be amended with leave of the court.”

Recently, in a footnote in Robinson v. State, 2018 Ark. 406, at 2 n. 1, this court held that

“Rule 37.2(e) provides that the petition may be amended before it is acted on if the court

grants permission to file an amended petition.” Butler neither overrides the requirement that

the court grant leave nor divests the court of discretion to grant leave. The trial court struck

the amended petition because it found “no change in circumstances from the previous

ruling” and additionally because “the hearing in this matter on April 27, 2018, will not be

continued in order to allow the State additional time to respond to an amended petition.”

In his motion to reconsider, Sorum asserted that the State was already aware of the additional

arguments he wished to raise. Sorum also claimed that the State had not shown that

additional time would be necessary because the State was allotted twenty days to respond to

the amended petition, and the hearing would take place in twenty-four days. The trial court

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denied the motion for reconsideration again stating that it found “no change in

circumstances” from its January 30 ruling and forbade Sorum from submitting any additional

motions regarding the matter.

As we previously stated, the standard for reviewing a trial court’s decision to strike

an amended motion is abuse of discretion. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151

(2004). Here, we cannot say that the court acted arbitrarily, thoughtlessly, groundlessly or

without due consideration, and we affirm. Because we hold that the trial court did not abuse

its discretion in striking Sorum’s amended petition, we need not reach the issues raised

therein.

Affirmed.

HARRISON and KLAPPENBACH, JJ., agree.

Short Law Firm, by: Lee D. Short, for appellant.

Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.

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