Scott Severance v. State of Arkansas

Cite as 2024 Ark. App. 87
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-23-188

Opinion Delivered February 7, 2024

SCOTT SEVERANCE
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. SEVENTH DIVISION
[NO. 60CR-21-634]

STATE OF ARKANSAS HONORABLE KAREN D. WHATLEY,
APPELLEE JUDGE

AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Scott Severance appeals after he was convicted by a Pulaski County Circuit

Court jury of second-degree murder and employing a firearm during the commission of the

offense. He was sentenced as a habitual offender to serve an aggregate of six hundred

months’ incarceration. On appeal, appellant challenges (1) the sufficiency of the evidence

supporting his conviction; (2) the circuit court’s refusal to admit Lindsey Krasovic’s out-of-

court statements made to law enforcement; and (3) the circuit court’s sustaining the State’s

Batson challenge as to one juror. We affirm.
I. Relevant Facts

Appellant, a Caucasian man,1 was charged by felony information with murder in the

first degree in violation of Arkansas Code Annotated section 5-10-102 (Supp. 2019), a Class

Y felony.2 The State alleged that appellant’s sentence should be enhanced pursuant to

Arkansas Code Annotated section 16-90-120 (Repl. 2016) for having employed a firearm as

a means of committing the felony offense. The State further sought an enhanced sentence

under the habitual-offender statute, Arkansas Code Annotated section 5-4-501(a) (Supp.

2019). The information alleged that appellant purposely caused the death of Brandon

Simpson, an African American male.3 Appellant claimed the defense of justification and

specifically argued that he acted in self-defense. Although a jury trial was first held on March

8, 2022, that trial resulted in a mistrial. As such, appellant’s second jury trial was held on

August 16–17, 2022, wherein appellant was convicted as set forth above.

The State called nine witnesses. The victim’s wife, Shada Simpson, testified that on

December 26, 2020, she and her husband, the victim Brandon Simpson, were on the way to

a store. Before arriving at the store, they stopped at appellant’s residence. Ms. Simpson did

not know why they were stopping and waited in the vehicle while the victim, Brandon, went

1
The opinion notes that the appellant was a “Caucasian man” due to the subsequent
discussion of appellant’s Batson challenge.
2
Although appellant was additionally charged with possession of a firearm by certain
persons, the State subsequently nolle prossed that charge.
3
The opinion notes that the victim was an “African American” due to the subsequent
discussion of appellant’s Batson challenge.

2
into appellant’s residence. Ms. Simpson explained that she did not know appellant very well

and that she had met appellant and his girlfriend, Lindsey Krasovic, only once. When they

arrived at the residence, there were a man and woman “hanging outside.” Brandon left the

vehicle running and went inside. Brandon was in the appellant’s residence for approximately

five minutes. Ms. Simpson testified she looked up and saw a window in the house vibrate;

and the man and woman, who were still outside, ran away down the street. Ms. Simpson

stated that she got out of the truck and saw her husband come out of the front door. Her

husband slumped over the railing and said “he shot me. I’m dying.” When Ms. Simpson

approached the porch, Brandon stopped her and said “he had a gun” and told her to “run

and go get help[.]” Ms. Simpson had her phone in her hand and ran up the hill toward their

apartment and called 911. A police officer responded to the call and met Ms. Simpson at

the top of the hill at her apartment. Ms. Simpson got into the officer’s car, and they drove

down to appellant’s residence. Ms. Simpson estimated that approximately five minutes had

elapsed since the shooting.

When they arrived at appellant’s residence, Brandon was no longer lying on the

porch. The police knocked on door several times but there was no answer. Ms. Simpson

stated there were around ten officers at the scene. She called Brandon’s phone, but there

was no answer. The police searched all around the exterior of the house and eventually

removed Ms. Simpson from the scene and took her to a position up the hill and across from

a school. Several minutes elapsed and the police officers subsequently returned to Ms.

Simpson and advised her that Brandon was deceased.

3
Officer Coleman Dillon testified that he received a dispatch advising that a woman

had called 911 and reported that her husband had been shot on Mara Lynn Drive in a red

Tahoe. Officer Dillon was only two and a half blocks from the scene when he received the

dispatch. He arrived on Mara Lynn Drive and located a red Tahoe. The Tahoe was not

running. Officer Dillon searched the area, but he did not see anybody in the Tahoe or any

indication of a shooting. Officer Dillon called dispatch and had them call back the woman

who had reported the shooting. Dispatch then called Officer Dillon back and told him that

the woman was located at 1141 Mason Drive, about one block away. Officer Dillon testified

that he left the scene and found Ms. Simpson at her apartment. They got into his squad car

and returned to the scene of the shooting. Officer Dillon stated that he knocked and banged

on the door fairly loudly, but no one would answer the door. There were lights on; the

shades were pulled down; and he heard music coming from inside the residence.

Additional police officers had arrived on the scene. Officer Dillon was still

attempting to locate the victim. He called dispatch and requested that they contact local

hospitals to see if anyone had been admitted with gunshot wounds. They also were

attempting to ping Brandon’s phone to locate him. The pinging indicated that the phone

was in the vicinity of the scene, but it did not produce a precise location.

While on scene, Officer Dillon was put in touch with Ashona Givens. He testified

that Ms. Givens relayed that she had seen a male outside yelling that he had been shot and

saw a Caucasian male come out and pull him back inside the residence.

4
Approximately two hours elapsed from the time of Ms. Simpson’s call, and it was at

that point law enforcement decided to breach appellant’s residence. While clearing the

residence, officers located Brandon dead in the southeast room of the house. He had “a

single wound on the front.” Lindsey Krasovic was found in the upstairs bathroom taking a

shower. Appellant was not located.

Miranda Dollar, a crime-scene specialist with the Little Rock Police Department

crime-scene search unit, testified that the keys to the red Tahoe were found inside the

residence on the coffee table. She also testified that there was a package in the living room

addressed to appellant’s daughter, Bailey Severance, in Pueblo, Colorado. The return

address said “Dad” and listed an address in Pueblo, Colorado. A .380-caliber pistol was

found underneath the sink of the bathroom inside a box of OxyClean. A .380 shell casing

was located in the living room near the front door.

Ashona Givens testified that she lived with her mother on Mara Lynn Road. On the

night of the shooting, as she was leaving her apartment, she saw a man yelling for help across

the street from her residence. The man stumbled out of the door and fell. After the man

collapsed, she saw a woman open the door, look out, and shut the door. Later, she opened

it again, but this time there was a guy with her. Ms. Givens explained that she saw the guy

pick up the collapsed man “by his underarms and [drag] him in the house like he was trash.”

They closed the door and then the woman opened the door again, looked out, and then

closed the door. Ms. Givens admitted that she left and did not call law enforcement.

However, she explained that she did call her mother who had lived with her. Later, Ms.

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Givens received a phone call from her aunt with law enforcement on the other line. It was

at that point that she told law enforcement what she had seen.

The police were unable to locate the appellant, so they set up surveillance of the

appellant’s residence. Detective Jason Harris testified that he arrested appellant three days

later at the residence on December 29, 2020, and transported him to the 12th Street station

for an interview with Detective Temple.

Detective Eric Temple testified that after he advised appellant of his Miranda rights,

appellant chose to waive those rights and gave a statement. Detective Temple and Detective

Jackman were present and asked appellant questions during the interview. The recorded

interview was played for the jury. During the interview, appellant said he had lived at his

apartment for about a month and that he had lived in Arkansas for a total of two months.

He stated that he knew Brandon for about a month, that Brandon “stop[ped] by all the

time,” and that he had agreed to buy a speaker from Brandon. Appellant claimed he called

Brandon “Perp,” and Brandon called him “Sergio.” Appellant said that he had loaned

Brandon money that Brandon still owed him.

Appellant stated that on the day Brandon was killed, he was away from home when

he got a call from his fiancée, Ms. Krasovic.4 She told him that while she was taking out the

trash, “a Black man just tried to break in the house.” Appellant returned home, and soon

after, Brandon knocked on the door, saying he had stopped by a little earlier. Appellant and

4
We note that Ms. Krasovic is referred to at various times as appellant’s girlfriend,
fiancée, or wife in the record.

6
Brandon went to Brandon’s home to get the speaker, and Brandon said he would stop by

again in about fifteen minutes to pick up the money for it.

When Brandon later approached appellant’s apartment, Ms. Krasovic told appellant

that Brandon was wearing the same clothes as the man who had tried to break into the

house. Appellant said that he and Ms. Krasovic were in the kitchen, and he had friends (a

Caucasian couple whose names he did not know, except that the man was named Dustin)

outside on the porch at the time. Appellant said that Brandon opened the door without

knocking and entered the apartment. Appellant told him to stop and ordered him to leave.

Appellant said Brandon started walking toward them and pulled a gun from the

“front side-ish” part of his waist. Appellant said Brandon never pointed the gun at him but

that he grabbed Brandon as Brandon raised the gun. Appellant said that the two of them

struggled, and the gun went off, striking Brandon. Brandon dropped and began to flail

around, and appellant told him to go to the hospital. Appellant said that when he opened

the door, Brandon “flop[ped]” out and “just lay there.” He explained that it was at that point

he and Ms. Krasovic pulled Brandon back inside the apartment “and ma[d]e sure he’s all

right.” He said Brandon was not bleeding.

When asked the color of the gun Brandon carried, appellant said, “Do I know what

color that gun that was at the scene was?” The detective replied, “No, the one that Perp

carr[ied.]” Appellant responded, “I didn’t even know he carried a gun” and “from what I

understood he said he got his gun stolen.” After further questioning about the gun,

7
appellant said Brandon “would say anything” and that another “dude” had a gun stolen the

week before and that they thought Brandon had something to do with it.

Appellant said that he did not call the police to report the incident, but he admitted

that he probably should have called it in after he pulled Brandon back into the apartment.

When appellant was asked, “At any time did police come knock on the door from your

knowledge,” appellant replied that was all he had to say at that time. After further

questioning, appellant said that after pulling Brandon back into the house, he looked at the

.380 silver and black gun on the floor of the living room. Appellant said that he thought

Brandon had a flesh wound. When asked if they left Brandon in the living room after

pulling him back inside, appellant said that Brandon was up and walking around, they gave

him some water, and then Brandon wanted to go crawl into the bedroom by the carpet,

where appellant sat with him. Appellant told the detectives he thought that Brandon was

shot in his ribs and that Brandon was talking to him until he left. When asked where he

went, appellant refused to answer. He also refused to tell the detectives how long Brandon

was breathing or what happened to the gun.

Appellant admitted that he was sure his fingerprints would be on the gun because he

touched it. When asked at what point he touched the gun, appellant responded, “I told you

that I went to grab it and then I also picked it up to look at it” to see what caliber it was.

Appellant denied hiding the gun anywhere. The detectives asked appellant, “What’s the last

thing Brandon said to you? Do you remember?” Appellant laughed as he answered that

8
Brandon asked him, “Why’d you do me like this?” Appellant described the experience as

“traumatic” in the interview.

After the video of appellant’s statement to the police concluded, on cross-

examination, Detective Temple admitted that law enforcement had obtained a search

warrant for appellant’s residence and that it was “fully searched.” Temple admitted that no

additional ammunition for the gun or ownership documents were found in appellant’s

residence. Detective Temple testified that he did not search Brandon’s residence and

explained that he “didn’t have any reason to get in there and search it.”

Jennifer Floyd with the Arkansas State Crime Laboratory testified that in her opinion,

the spent shell casing that was found was fired by the pistol that had been located underneath

the sink. She further explained that she did not think that two people fighting over a gun

would cause a gun to fire. She explained that there was nothing wrong with the gun and

that it would “shoot . . . [a]s many times as you pull the trigger.”

First Cash and Pawn is located in Pueblo, Colorado. Mike Tedesco testified as the

keeper of the records for First Cash and Pawn. Mr. Tedesco explained that his records

showed that the recovered pistol had been purchased on August 18, 2016, by a person named

Annette Salazar.

Dr. Jennifer Forsyth, the medical examiner who examined Brandon’s body,

confirmed that he was killed by a gunshot wound to his torso and that the manner of death

was homicide. She recovered the bullet from inside his body cavity. She explained that the

trajectory of the bullet was from left to right, downward, and toward the back. The bullet

9
went through his eighth left rib, his liver, his stomach, the head of his pancreas, his right

renal artery, and his right kidney before coming to rest under the skin on the right side of

his body. Dr. Forsyth said that there was abundant internal bleeding. Finally, she testified

that Brandon sustained “significant injuries.” However, she explained that had he been

given appropriate immediate medical treatment, Brandon potentially could have survived

because it was “not an invariably fatal wound.”

Finally, the jury was read a stipulation that had been agreed upon by the parties. The

jury was told, “The parties agree that on February 8, 2019, the defendant, while in Missouri,

reported his address as 3 Villa Place in Pueblo, Colorado.”

After the State rested, appellant moved for a directed verdict, arguing in relevant part

that the State had failed to negate his justification defense. The circuit court denied the

motion, and appellant then rested without introducing any further evidence. Appellant

renewed his motion for directed verdict, which the circuit court also denied.

The jury found appellant guilty of the lesser included offense of second-degree murder

and found that he employed a firearm during the commission of the offense. He was

sentenced as a habitual offender to serve an aggregate of six hundred months’ incarceration.

This appeal followed.

II. Sufficiency of the Evidence

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

evidence. Armstrong v. State, 2020 Ark. 309, 607 S.W.3d 491. In reviewing a sufficiency

challenge, we assess the evidence in the light most favorable to the State and consider only

10
the evidence that supports the verdict. Id. We will affirm a judgment of conviction if

substantial evidence exists to support it. Id. Substantial evidence is evidence that is 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. Circumstantial evidence

may provide a basis to support a conviction, but it must be consistent with the defendant’s

guilt and inconsistent with any other reasonable conclusion. Collins v. State, 2021 Ark. 35,

617 S.W.3d 701. Whether the evidence excludes every other hypothesis is left to the jury to

decide. Id. Further, the credibility of witnesses is an issue for the jury, not the court; the

trier of fact is free to believe all or part of any witness’s testimony and may resolve questions

of conflicting testimony and inconsistent evidence. Armstrong, supra.

This court has noted that a criminal defendant’s intent or state of mind is seldom

apparent. Benton v. State, 2020 Ark. App. 223, 599 S.W.3d 353. One’s intent or purpose,

being a state of mind, can seldom be positively known to others, so it ordinarily cannot be

shown by direct evidence but may be inferred from the facts and circumstances. Id. Because

intent cannot be proved by direct evidence, the fact-finder is allowed to draw on common

knowledge and experience to infer it from the circumstances. Id. Because of the difficulty

in ascertaining a defendant’s intent or state of mind, a presumption exists that a person

intends the natural and probable consequences of his or her acts. Id.

In relevant part, a person commits the crime of second-degree murder if he knowingly

causes the death of another person under circumstances manifesting extreme indifference to

the value of human life. Ark. Code Ann. § 5-10-103(a)(1) (Repl. 2013). A person acts

11
knowingly with respect to (1) “[t]he person’s conduct or the attendant circumstances when

he or she is aware that his or her conduct is of that nature or that the attendant circumstances

exist;” or (2) “[a] result of the person’s conduct when he or she is aware that it is practically

certain that his or her conduct will cause the result.” Ark. Code Ann. § 5-2-202(2) (Repl.

2013).

Because appellant claimed that he acted in self-defense, the jury here was also

instructed on justification pursuant to Arkansas Code Annotated section 5-2-607(a) (Supp.

2019). We also employ the substantial-evidence standard of review when reviewing the

sufficiency of the State’s negation of a justification defense. Gentry v. State, 2021 Ark. 26;

Gillard v. State, 2019 Ark. App. 438, 586 S.W.3d 703. Justification is not an affirmative

defense that must be pleaded but becomes a defense when any evidence tending to support

its existence is offered to support it. Schnarr v. State, 2018 Ark. 333, 561 S.W.3d 308. The

State has the burden of negating the defense once it is put in issue. Humphrey v. State, 332

Ark. 398, 966 S.W.2d 213 (1998). Justification is considered an element of the offense, and

once raised, it must be disproved by the prosecution beyond a reasonable doubt. Ark. Code

Ann. § 5-1-102(5)(C); Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). Justification

is a matter of intent and a question of fact for the jury. Humphrey, supra. The jury determines

not only the credibility of witnesses, but also the weight and value of their testimony. Gentry,

supra. Moreover, the jury is free to believe all or part of any witness’s testimony and may

resolve questions of conflicting testimony and inconsistent evidence. Id. The jury may also

choose to believe the State’s account of the facts rather than the defendant’s. Id.

12
A person is justified in using deadly physical force upon another person if the person

reasonably believes that the other person is committing or about to commit a felony

involving force or violence; using or about to use unlawful deadly physical force; or

imminently endangering the person’s life or imminently about to victimize the person from

the continuation of a pattern of domestic abuse. Ark. Code Ann. § 5-2-607(a) (Supp. 2019).

A person may not use deadly force in self-defense if the person knows he or she can avoid

the necessity of using deadly force by retreating or, with complete safety, by surrendering

possession of property to person claiming a lawful right to possession of the property. Ark.

Code Ann. § 5-2-607(b)(1)(A) & (2). However, a person is not required to retreat if the

person is unable to retreat with complete safety; if the person is in the person’s dwelling and

was not the original aggressor; or if the person is a law enforcement officer or a person

assisting at the direction of a law enforcement officer. Ark. Code Ann. § 5-2-607(b)(1)(B)(i)–

(iii); Bailey v. State, 2021 Ark. App. 38, 615 S.W.3d 763. A person is justified if he can show

the victim was the aggressor and the accused used all reasonable means within his power and

consistent with his safety to avoid the use of deadly force; critical to this inquiry is the

reasonableness of the accused’s apprehension that he was in danger of death or great bodily

harm. Id.

Appellant argues on appeal that the State failed to negate his justification defense.

He claims that he gave a clear statement to law enforcement that he shot Brandon in self-

defense and that the State did not present any direct evidence to support any conclusion

other than that appellant acted in self-defense. Appellant further argues that any

13
circumstantial evidence of his guilt was not “of sufficient force to exclude the reasonable

explanation for [his] actions—that he was traumatized and scared.” As such, appellant argues

that the jury had to resort to speculation and conjecture in order to find him guilty. We

disagree.

The jury heard appellant’s version of events from the video recording of his custodial

statement. Appellant told law enforcement that Brandon had pulled a gun from his

waistband and that Brandon was shot in the chest after a struggle. Appellant explained that

he told Brandon to go to the hospital and that Brandon “flop[ped] out” on the porch and

just lay there. Appellant admitted that he later moved Brandon back in the home and said

that he did not see any blood. However, the State offered evidence that contradicted and

was inconsistent with appellant’s version of events. For example, the State offered evidence

to show that the gun was not owned by Brandon as appellant contended but rather had been

purchased years earlier in Pueblo, Colorado, where appellant resided at the time of the

purchase. Ms. Simpson testified that Brandon did not own a gun. She also explained that

when she had tried to approach Brandon, Brandon had warned her that appellant had a gun

and instructed her to run and get help. Additionally, the evidence also indicated that when

Brandon left the Tahoe to enter appellant’s residence, Ms. Simpson remained in the Tahoe

with the engine running. Ms. Simpson testified that when she left the Tahoe to aid her

husband after he had been shot, the Tahoe was running. She did not return to the Tahoe;

rather, she ran up the hill and called 911. However, several minutes later, when Officer

Dillon arrived on the scene, he inspected the Tahoe and testified that the Tahoe was not

14
running. Ashona Givens testified that after she saw a man (Brandon) collapse on the porch,

she saw a woman open the door, look out, and shut the door. Later, Ms. Givens saw the

woman open the door again, but this time there was a guy with her. Ms. Givens explained

that she saw the guy pick up the collapsed man “by his underarms and [drag] him in the

house like he was trash.” They closed the door and then the woman opened the door again,

looked out, and then closed the door. Miranda Dollar, a crime-scene specialist with the

Little Rock Police Department crime-scene search unit, testified that the keys to the red

Tahoe were found inside the residence on the coffee table, which supports the reasonable

inference that appellant or his fiancée removed the keys from the Tahoe after Ms. Simpson

left the scene and before police arrived. Additionally, after the shooting, no one answered

the door to the home, and law enforcement was not able to enter the home until

approximately two hours after Brandon had been shot. Even then, appellant could not be

found. Instead, law enforcement found Brandon dead in the bedroom, and Ms. Krasovic

was taking a shower in the bathroom. The gun had been hidden in a box of detergent under

the bathroom vanity. Instead of calling for help to get Brandon medical attention, appellant

had fled. Our appellate courts have consistently held that flight is probative evidence of

guilt. Gentry, supra; Gillard, supra. Appellant acknowledged to law enforcement that he had

left the apartment after the shooting, but he offered no explanation as to where he went.

On appeal, appellant claims his action of fleeing was not evidence of his guilt but, rather,

was reasonable because he was “traumatized and scared.” In conclusion, the jury was free to

believe all or part of appellant’s explanation or to believe the State’s version of the facts.

15
Gentry, supra. Thus, viewing the evidence in the light most favorable to the State, we hold

that substantial evidence supports the verdict and affirm.

III. Lindsey Krasovic’s Out-of-Court Statements

Next, appellant argues that the circuit court erred in refusing to admit the recording

of Lindsey Krasovic’s statements made to law enforcement during an interview regarding this

incident to be played for the jury. In a pretrial motion in limine and a supplemental motion

in limine, appellant sought to introduce the following statements made by Ms. Krasovic:

 The portion of Lindsey Krasovic’s interview in which she discussed telling the
appellant that someone was attempting to break into the residence.

 The portion of Lindsey Krasovic’s interview in which she discussed telling the
appellant that Brandon Simpson was the individual who had attempted to break
into the residence prior to the appellant’s arrival.

 The portion of Lindsey Krasovic’s interview in which she discussed the appellant’s
telling Brandon Simpson that he needed to leave the residence.

 The portion of Lindsey ’Krasovic’s statement in which she tells detectives that
Brandon Simpson was initially in possession of the firearm.

 The portion of Lindsey Krasovic’s interview in which she discussed Brandon
Simpson stating that “he was gonna kill us both and burn the place down.”

 The portion of Lindsey Krasovic’s interview in which she discussed telling the
appellant that he needed to leave the residence and that she would take Brandon
Simpson to the hospital.
Ms. Krasovic had been charged with hindering apprehension or prosecution and

possession of a firearm by a felon, and it was therefore anticipated that she would invoke her

Fifth Amendment right and refuse to testify in appellant’s trial. In his original motion in

limine, appellant asserted that he wanted to introduce the partial statements to show their

effect on him as the listener and to show the basis for his actions as well as to show their

16
effect on law enforcement. In the supplemental motion in limine, appellant argued that the

statements were not hearsay because they were not being offered for the truth of the matter

asserted but were “independently relevant because [they tended] to show that the Little Rock

Police Department was biased against the Defendant and failed to take appropriate

investigatory action in light of information it or the police officers had received.” Appellant

asserted that because statements are admissible to show an officer’s action in a criminal case,

they should also be admissible in this case to show law enforcement’s inaction. Specifically,

appellant contended that law enforcement had reason to believe that Brandon was the initial

aggressor, but law enforcement failed to take any action to corroborate or refute his and Ms.

Krasovic’s version of events, such as by obtaining a search warrant to search Brandon’s

residence.

During oral argument regarding the motions, the State noted that some of the

information that Ms. Krasovic detailed in her statements would also be admitted through

statements that appellant made in his interview with law enforcement. Therefore, the State

argued, regardless of the court’s ruling, much of the information was cumulative. Appellant

argued that the evidence may be cumulative, but that should not preclude the evidence from

being admitted. Appellant explained that he ordinarily would be able to call Ms. Krasovic

as a witness to ask her about who was the initial aggressor and who brought the gun to the

residence as impeachment if law enforcement testified that the “only information that they

had that would suggest that that was how things unfolded came from the defendant.” The

17
State responded that this was not the basis alleged in the motion. Thereafter, appellant

clarified his argument and stated the following:

the whole point is that . . . Ms. Krasovic told them this information, yet they failed to
take any action upon that information. And that’s critically relevant because if it’s
characterized as the only information that they had that Mr. Simpson was the initial
aggressor came from the defendant, that’s simply not the case, Judge. And that’s the
basis for my motion.

The circuit court ultimately ruled that appellant could ask law enforcement whether

a search of the home was conducted; however, the circuit court stated the following in its

ruling:

[T]he out-of-court statements of Lindsey Krasovic are not admissible. I do believe that
we get into some hearsay on hearsay at some portions of time. And that in certain
instances I do believe that this is a backhanded way of trying to get in statements that
are truly being offered for the truth of the matter asserted, not for the purpose – not
for any other purpose. Because as [the State] has stated, many of these statements are
coming in from Mr. Severance’s statement. And you can question the police as to
whether or not they conducted the search warrants of the victim’s home to look for
the ammunition.

Hearsay evidence is generally inadmissible except as provided by law or by the rules

of evidence. Ark. R. Evid. 802; Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). 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). With

respect to an out-of-court statement, however, our appellate courts have held that it is not

hearsay under Rule 801(c), where the statement is offered to show the basis for the witness’s

actions. Dednam v. State, 360 Ark. 240, 200 S.W.3d 875 (2005). “[H]earsay included within

hearsay is not excluded . . . if each part of the combined statements conforms with an

18
exception . . . provided in th[e] rules.” Ark. R. Evid. 805. In other words, to be admissible,

each level of hearsay must conform to an exception of the hearsay rule. Cook v. State, 350

Ark. 398, 86 S.W.3d 916 (2002). The decision to admit or exclude evidence is within the

sound discretion of the circuit court, and we will not reverse that decision absent a manifest

abuse of discretion. Scamardo v. State, 2013 Ark. 163, 426 S.W.3d 900. An 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. Additionally, this court will not reverse an evidentiary ruling absent a

showing of prejudice. Id.

On appeal, appellant argues as he did below that Ms. Krasovic’s statements were

“admissible to show the action or inaction by law enforcement.”5 It is true that our appellate

courts have repeatedly held that out-of-court statements are not hearsay if offered to show

the basis of an officer’s action. Dednam, supra; Bragg, supra. However, that is not the case

here. Law enforcement did not act on Ms. Krasovic’s statements. Instead, appellant

attempted to have Ms. Krasovic’s out-of-court statements admitted to corroborate his version

of events so that he could argue to the jury that law enforcement should have used the

5
To the extent that appellant attempts to expand his argument on appeal to include
that the statements were also admissible to show the “basis of appellant’s actions or his state
of mind” or to “establish appellant’s motivations,” we do not consider these arguments. As
noted above, appellant clarified during oral argument that the basis for his motion was that
the statements were admissible to show law enforcement’s inaction despite Ms. Krasovic
corroborating appellant’s version of events. It is well settled that a party is bound by the
nature and scope of the objections and arguments made at trial and may not enlarge or
change those grounds on appeal. Fields v. State, 2023 Ark. App. 321, 669 S.W.3d 277.

19
statements as a basis for action—specifically, that law enforcement should have searched

Brandon’s home. The State correctly notes that none of the cases cited by appellant permit

hearsay evidence to be admitted on this basis. Thus, on these facts, we cannot hold that the

circuit court abused its discretion in excluding these hearsay statements.

IV. Batson Challenge

Appellant’s final argument on appeal is that the circuit court erred in granting the

State’s Batson challenge to a potential juror that appellant had sought to strike. The Equal

Protection Clause of the Fourteenth Amendment to the Constitution of the United States

“prohibits all forms of purposeful racial discrimination in selection of jurors.” Batson v.

Kentucky, 476 U.S. 79, 88 (1986). In MacKintrush, the Arkansas Supreme Court set forth

the following three-step process to be followed in challenges under Batson:

Step One. Prima facie case.

The strike’s opponent must present facts, at this initial step, to raise an
inference of purposeful discrimination. According to the Batson decision, that is
done by showing (1) that the strike’s opponent is a member of an identifiable racial
group, (2) that the strike is part of a jury-selection process or pattern designed to
discriminate, and (3) that the strike was used to exclude jurors because of their race.
In deciding whether a prima facie case has been made, the trial court should consider
all relevant circumstances. Should the trial court determine that a prima facie case has
been made, the inquiry proceeds to Step Two. However, if the determination by the
trial court is to the contrary, that ends the inquiry.

Step Two. Racially neutral explanation.

Assuming the strike’s opponent has made a prima facie case, the burden of
producing a racially neutral explanation shifts to the proponent of the strike. (But,
again, the burden of persuading the trial court that a Batson violation of purposeful
discrimination has occurred never leaves the strike’s opponent.) This explanation,
according to Batson, must be more than a mere denial of discrimination or an

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assertion that a shared race would render the challenged juror partial to the one
opposing the challenge. Under Purkett, this explanation need not be persuasive or
even plausible. Indeed, it may be silly or superstitious. The reason will be deemed
race neutral “[u]nless a discriminatory intent is inherent in the prosecutor’s
explanation.” Purkett [v. Elem], 514 U.S. [765,] 768 [(1995)]. But, according to Purkett,
a trial court must not end the Batson inquiry at this stage, and, indeed, it is error to
do so.

Step Three. Trial court decision on purposeful discrimination.

If a race-neutral explanation is given, the trial court must then decide whether
the strike’s opponent has proven purposeful discrimination. Purkett v. Elem, supra.
Though the United States Supreme Court has not elucidated precisely what is
required at this step, clearly the strike’s opponent must persuade the trial court that
the expressed motive of the striking party is not genuine but, rather, is the product of
discriminatory intent. This may be in the form of mere argument or other proof that
is relevant to the inquiry. But it is crucial that the trial court weigh and assess what
has been presented to it to decide whether in light of all the circumstances, the
proponent’s explanation is or is not pretextual. If the strike’s opponent chooses to
present no additional argument or proof but simply to rely on the prima facie case
presented, then the trial court has no alternative but to make its decision based on
what has been presented to it, including an assessment of credibility. We emphasize
that following step two, it is incumbent upon the strike’s opponent to present
additional evidence or argument, if the matter is to proceed further.

MacKintrush v. State, 334 Ark. 390, 398–99, 978 S.W.2d 293, 296–97 (1998) (footnotes

omitted); see Turnbo v. State, 2021 Ark. 166, 629 S.W.3d 797; Taylor v. State, 2022 Ark. App.

296; cf. Davis v. State, 2019 Ark. App. 303, 577 S.W.3d 714.

On appeal, a circuit court’s ruling on a Batson challenge is reversed only when the

circuit court’s findings of fact are clearly against the preponderance of the evidence. Holder

v. State, 354 Ark. 364, 124 S.W.3d 439 (2003). In making Batson rulings, an appellate court

accords some measure of deference to the circuit court since the circuit court is in a superior

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position to make the determinations because it has the opportunity to observe the parties

and jurors and determine their credibility. Id.

During jury selection, appellant sought to exercise six peremptory strikes, and the

State did not seek to exercise any. To repeat, the victim, Brandon Simpson, was African

American, and appellant, Scott Severance, is Caucasian. There were three African American

jurors on the jury panel. During voir dire, appellant attempted to strike all three of these

jurors. The State objected and argued that because defense counsel sought to strike all the

potential African American jurors in the first trial and again sought to do so in the second

trial, the circuit court should require defense counsel to provide a race-neutral reason for the

strikes. The circuit court agreed with the State and asked defense counsel to provide his

reasons for exercising those three peremptory strikes against the potential African American

jurors. Regarding one of the potential jurors, defense counsel’s reasons included that the

juror chose to wear a COVID-19 mask, had a close family friend in law enforcement, and

was not a gun owner. The circuit court overruled the State’s objection and allowed the

defense to strike this juror. The defense argued that the second juror also wore a COVID-

19 mask and seemed quiet and disengaged. The circuit court overruled the State’s objection,

and defense counsel was able to strike the second potential juror.

Regarding the third juror, the circuit court sustained the State’s Batson challenge, and

that objection is the subject of this third point on appeal. After a very lengthy discussion

between the parties and the court, defense counsel explained that he wanted to strike this

third potential juror because she was a non-gun owner. The defense explained that he would

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try to strike non-gun owners in cases in which a defendant was arguing self-defense because

he felt that non-gun owners are less “receptive to self-defense or using deadly force with a

gun.” Defense counsel did acknowledge that there were also six other potential jurors who

had raised their hands stating that they were non-gun owners. In response, the State

acknowledged that the circuit court was “in a difficult position in trying to determine the

veracity or . . . the truthfulness of whether or not that is the basis for the strike.” It argued

that there were other jurors who were not African-American and answered that they did not

own a gun; yet, defense counsel did not attempt to strike them despite, having a total of eight

peremptory strikes he could have used. The State further pointed out that this was the

second time defense counsel had attempted strike all potential African American jurors.

Thereafter, the circuit court provided the following oral ruling:

I do not believe that there are race neutral reasons for striking [third potential juror],
especially in light of the fact that there are other similarly situated non-African-
American jurors who answered questions identically to [third potential juror].
However, they were not struck. And so therefore, I’m going to uphold the Batson
challenge for [third potential juror] and not strike her.

Appellant argues on appeal that “the circuit court never arrived at step three” and

argues that the circuit court’s finding “was clearly against the preponderance of the evidence”

because defense counsel offered a race-neutral reason for striking the third potential juror.

He explains that defense counsel made it clear that “appellant sought to seat gun owners on

the jury, which is clearly a race-neutral reason.”6 Citing Weston v. State, 366 Ark. 265, 271,

6
We acknowledge that appellant at one point in his brief states, “Along with other
reasons, the primary basis of his strike as to the juror the court refused to excuse was that she

23
234 S.W.3d 848, 853 (2006), appellant notes that a race-neutral reason does not need to be

“persuasive or even plausible” and that it may even be considered “silly or superstitious.”7

Here, despite any assertion otherwise, the circuit court did in, fact, follow all three

steps in the analysis of the State’s Batson challenge. Once the party striking a juror offers a

race-neutral explanation and the court rules on the ultimate issue of intentional

discrimination, the preliminary issue of whether a prima facie case was shown becomes moot.

Johnson v. State, 2010 Ark. App. 700.; id. Although it is true that the reasons offered in the

second step do not necessarily need to be rational as long as they are race neutral, the third

step requires a circuit court to decide whether to credit the race-neutral reasons or to reject

them as pretextual. See Turnbo v. State, 2021 Ark. 166, 629 S.W.3d 797.

In Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009), we affirmed the circuit

court’s acceptance of the State’s race-neutral reason for using a peremptory strike when the

State struck every juror—not just the African American ones—who expressed their

reservations about the death penalty. In this case, however, it is undisputed that several

jurors stated that they did not own guns, and defense counsel did not attempt to strike these

was not a gun owner.” (Emphasis added.) However, appellant does not present or develop
any further argument regarding these alleged “other reasons” on appeal. Our appellate
courts have repeatedly held that we will not research or develop arguments for appellants.
Jenkins v. State, 2019 Ark. App. 419, at 12, 582 S.W.3d 32, 39.
7
The State suggests that our appellate record is insufficient to review this issue because
the juror names have been redacted. Therefore, the State asks us to summarily affirm since
it is appellant’s burden to bring up a sufficient record. We disagree. Even though the juror’s
name has been redacted, knowing her specific name is unnecessary to our analysis.

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jurors, despite having additional peremptory strikes remaining. For these reasons, and as

quoted above, the circuit court orally ruled that it was rejecting the race-neutral reason

offered by defense counsel. Thus, the circuit court followed the required steps in the Batson

analysis, and we cannot say that the circuit court’s determination was clearly against the

preponderance of the evidence. Accordingly, we must affirm.

Affirmed.

HARRISON, C.J., and ABRAMSON, J., agree.

Robert M. “Robby” Golden, for appellant.

Tim Griffin, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.

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