Cite as
2015 Ark. 405
SUPREME COURT OF ARKANSAS
No. CR-14-580
KOU HER Opinion Delivered November 5, 2015
APPELLANT
APPEAL FROM THE JOHNSON
V. COUNTY CIRCUIT COURT
[NO. CR-2013-77]
STATE OF ARKANSAS HONORABLE WILLIAM M.
APPELLEE PEARSON, JUDGE
AFFIRMED; MOTION TO
WITHDRAW GRANTED.
KAREN R. BAKER, Associate Justice
On December 12, 2013, a Johnson County jury found appellant, Kou Her, guilty of
first-degree murder, aggravated residential burglary, attempted kidnapping, first-degree
battery, and aggravated assault. Her was sentenced to two terms of life imprisonment; thirty
years of imprisonment; fifteen years’ imprisonment; and two years’ imprisonment to run
consecutively. Her timely appealed. Because Her received a sentence of life imprisonment,
our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2015).
After the parties had filed their respective briefs, including Her’s pro se points on
appeal, we ordered rebriefing on March 5, 2015, and again on June 18, 2015. On July 6,
2015, Her’s counsel filed his supplemental no-merit brief and his third motion to withdraw
Cite as 2015 Ark. 405
as counsel.1 Anders v. California,
386 U.S. 738 (1967). In accordance with Ark. Sup. Ct. Rule
4–3(k)(2), the clerk of this court furnished Her with a copy of the no-merit briefs. Her and
the State each elected to stand on the briefs previously filed in this matter. Having reviewed
the record, briefs, and pro se points, we affirm the convictions and grant counsel’s motion to
withdraw.
I. Facts
The facts related to this appeal are as follows. The Xiong family, originally from
Taiwan, resided in Hartman, Arkansas, in Johnson County. The family included Jee Xiong,
his wife, Chue Xiong; their son, Alex Xiong; their daughter, Susan Xiong; their fourteen-
year-old daughter L.X., and their six-year old granddaughter, A.V. Her is Jee and Chue
Xiong’s nephew; he lived with the Xiongs for several months until his family moved to
Arkansas from Philadelphia. According to testimony at trial, Her would often return to the
Xiongs’ home to visit and use their computer after he had moved out of the Xiong home.
The testimony at trial indicated that on the evening of May 9, 2013, without
permission, Her entered the Xiong home with the plan to kidnap L.X., and trade her for sex.
During Her’s attempt to kidnap L.X., A.V. was sleeping in a bed with L.X. A.V. was stabbed
in the head and died as a result of her injuries. L.X. also sustained injuries from the attack.
Finally, in an effort to defend L.X. and A.V., Jee and Alex were also attacked and sustained
injuries.
1
On July 23, 2015, we passed on Her’s counsel’s motion to withdraw until resolution
of this matter.
2
Cite as 2015 Ark. 405
Law enforcement testified that upon their arrival, they used a taser gun to prevent Her
from escaping when Her tried to do so and took Her into custody. Further, law enforcement
testified that, upon securing the scene, the window of A.V.’s playroom was open, and a
bucket was underneath the window outside the home. Law enforcement testified about the
bloody crime scene and locating scissors, gloves, duct tape, a towel with a chemical smell, and
a cell phone. Law enforcement also testified that Her’s vehicle was towed and searched. The
search revealed that the vehicle had black trash bags dropped over the back seats, and officers
located a backpack with trash bags, duct tape, a knife, Fast Orange hand cleaner, a clear, jellied
fluid in a Ziploc bag, bottled water, isopropyl alcohol, gloves, paper towels, a camera,
electrical tape, and nylon rope.
At trial, over defense counsel’s objection, Her testified that he owed a man named
Stitch $6,000 from a drug deal several years before in Philadelphia. Her testified that, to
satisfy the debt, he offered the man a 14-year-old virgin in exchange for forgiveness of the
debt. The jury convicted Her as set forth above, and this appeal followed.
Her’s counsel has outlined each adverse ruling and adequately explained why none
presents a ground for reversal. Additionally, counsel has pointed out that in light of Her’s
testimony, which amounted to a confession of all charges, the eye-witness testimony, and the
testimony of law enforcement regarding collection of evidence, the jury came to a conclusion
without resorting to speculation or conjecture. Accordingly, counsel has outlined each
adverse ruling and adequately explained why none presents a ground for reversal. Having
carefully reviewed the record, we agree with counsel that none of the rulings adverse to Her
3
Cite as 2015 Ark. 405
present grounds for reversal.
Her’s Pro Se Points on Appeal
Finally, Her’s pro se points offer no ground for reversal. In his pro se brief, Her
submitted a pro se response, setting forth six issues he believed warranted a reversal of his
conviction: (1) Her’s counsel did not fully represent Her to the best of his ability before the
jury; (2) Her’s counsel failed to request a change of venue; (3) Her’s counsel failed to bring
all relevant material “that has an overall” bearing on the case and things were hidden from
Her; (4) evidence, such as fingerprints, were not found at the crime scene and no ACIC or
NCIC checks were made; (5) the circuit court did not give the jury clear instructions
regarding sentencing, resulting in a harsh sentence; and (6) Her moves the court to grant his
Notice of Appeal in that Justice may be served.
Her’s first three claims involve ineffective assistance of counsel. A claim of ineffective
assistance of counsel is appropriate on direct appeal only when it is raised before the circuit
court, and the facts and circumstances surrounding the claim have been fully developed at
the trial level. Guevara v. State, 2012 Ark. 351. Here, Her did not make these claims below;
therefore, we cannot address them here on direct appeal.
For his fourth claim, Her contends that fingerprints were not found at the crime
scene. However, the record demonstrates that Wes Sossaman, an analyst with the Arkansas
State Crime Lab, testified that a plastic bag found in Her’s car and a known fingerprint of
Her’s were compared, and the fingerprint on the bag matched Her’s. Her did not object at
trial and did not object to the introduction of this evidence. A party who does not object
4
Cite as 2015 Ark. 405
to the introduction of evidence at the first opportunity waives such argument on appeal. See
Perry v. State,
2014 Ark. 406, at 1. Thus, Her’s failure to object to this testimony and
evidence bars this court from considering this argument on appeal.
For his fifth point on appeal, Her claims that the sentencing instructions were not
clear and that his sentence is too harsh. However, Her did not object to his sentence or
present this argument at trial. We will not consider an argument contesting the sentence if
the appellant, even though present during the sentencing phase, failed to voice to the trial
court his objection to the sentence. Barnett v. State, 328 Ark. 246,
943 S.W.2d 571 (1997).
We do not consider an argument challenging a sentence if the appellant fails to object to it.
Her’s sixth and final claim moves this court to “grant his Notice of Appeal in that
Justice may be served.” Having carefully reviewed the record, we find no merit in Her’s sixth
pro se claim.
As required under Ark. Sup. Ct. R. 4-3(i), the record has been examined for all
objections, motions, and requests made by either party that were decided adversely to
appellant, and no prejudicial error has been found.
Affirmed; motion to withdraw granted.
John C. Burnett, for appellant.
Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
5
