Cite as 2026 Ark. 119
SUPREME COURT OF ARKANSAS
No. CR-26-22
Opinion Delivered: October 1, 2026
BILLY NELSON
APPELLANT APPEAL FROM THE UNION COUNTY
CIRCUIT COURT
V. [NO. 70CR-23-140]
HONORABLE SPENCER G.
STATE OF ARKANSAS SINGLETON, JUDGE
APPELLEE
AFFIRMED.
RHONDA K. WOOD, Associate Justice
Billy Nelson appeals the circuit court’s denial of his Rule 37 petition for
postconviction relief. He was convicted of rape and now argues that his trial counsel was
ineffective. But on each claim for relief, trial counsel either made a reasonable strategic
decision or declined to make a meritless objection. Because neither constitutes ineffective
assistance of counsel, we affirm.
I. Facts and Procedural History
A jury convicted Nelson of raping a minor victim who was less than fourteen years of
age. Nelson received a life sentence as a habitual offender. We affirmed on direct appeal.
Nelson v. State, 2025 Ark. 22, 705 S.W.3d 876. As recounted in that opinion, the victim
reported that Nelson had given her “hickeys” on her chest. Id. at 2, 705 S.W.3d at 877.
Nelson subsequently admitted to the police that he had used his finger to penetrate the victim’s anus; that the victim had touched his penis; and that he had put his penis in her
mouth. Id. at 3, 705 S.W.3d at 878. The victim also testified at trial that Nelson had
penetrated her.
In his Rule 37 petition, Nelson raised the following issues pertinent to the appeal: (1)
trial counsel erred by failing to properly object to the testimony of the victim’s mother
describing the victim’s vaginal bleeding; (2) counsel erred by failing to object to the victim’s
hearsay statements recounting nightmares of being raped; and (3) counsel erred by failing to
introduce evidence that Nelson had an STD and that the victim had not contracted it. The
trial court conducted a hearing on these allegations of attorney error. The court entered a
detailed order denying Nelson’s claims. Nelson appeals it, and we affirm.
II. Law and Analysis
We review ineffective-assistance-of-counsel claims using the two-prong test from
Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires the petitioner to show both
that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced
the defense. McNeil-Lewis v. State, 2024 Ark. 127, at 4, 696 S.W.3d 300, 305. Our review of
counsel’s performance begins with the presumption that counsel was effective. Id., 696
S.W.3d at 305. To overcome this presumption and show deficiency, the petitioner must
identify specific acts and omissions that, when viewed from counsel’s perspective at the time
of trial, could not have been the result of reasonable professional judgment. Id. at 4–5, 696
S.W.3d at 305. The fact that other counsel might disagree with certain trial-strategy decisions
does not mean that counsel was ineffective if those decisions were based on reasonable
2
professional judgment. Id. We review the circuit court's grant or denial of postconviction
relief for clear error. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.
Further, even if counsel was deficient, the petitioner’s ineffective-assistance claim fails
unless petitioner shows a reasonable probability that the fact-finder’s decision would have
been different absent counsel’s errors. Harmon v. State, 2023 Ark. 179, at 5, 678 S.W.3d 390,
393. In other words, a petitioner must show that prejudice resulted from the ineffective
counsel. Once we determine that a petition fails on one prong, we need not address the
other. Id.
A. Failure to Object to the Testimony of the Victim’s Mother
Nelson’s first ineffective-assistance-of-counsel claim focuses on the testimony of the
victim’s mother, who testified at trial that the victim suffered from severe, unabated vaginal
bleeding that began about two months after the victim had last been in contact with Nelson.
According to Nelson’s allegations, trial counsel, Andrew Best, failed to properly object to the
mother’s testimony on the basis of its failure to establish a proper foundation that the vaginal
bleeding was connected to the victim’s rape. Nelson also contended that counsel should have
objected to the testimony because the State failed to provide adequate notice of the content
of the mother’s testimony.
The circuit court denied relief on this ground because counsel testified that, though
surprised at the content of the testimony, he did not object because he did not want the jury
to think there was something to hide. The court concluded this was reasonable trial strategy.
The court added that Nelson could not show prejudice—Nelson admitted digitally
3
penetrating the victim, fondling the victim’s breasts, and having the minor perform oral sex.
These admissions, along with the victim’s testimony, were enough for the court to conclude
that the jury would not have reached a different conclusion.
We find no clear error in the circuit court’s conclusion that counsel’s decision rested
on reasonable trial strategy. We have noted before that “avoiding unwanted attention to an
isolated incident of potentially objectionable testimony, particularly when it is not responsive
to the question asked, is a quintessential strategy decision that is beyond the purview of an
ineffective-assistance claim.” Hayes v. State, 2014 Ark. 104, at 15, 431 S.W.3d 882, 892–93.
Nelson insists that, had counsel objected, the testimony would have been excluded because
it was irrelevant and prejudicial. But the question is whether counsel exercised reasonable
professional judgment, not whether the evidence would have been excluded. Even if the
statements would have been excluded, defense counsel had a strategic reason for not
objecting. See, e.g. Green v. State, 2020 Ark. App. 130, at 17, 595 S.W.3d 423, 435 (finding
no deficient performance because “even if we were to assume that the statements would not
have been admissible” defense counsel “made strategic decisions throughout the trial to not
object to some unfavorable testimony because he did not want to draw attention to it”).
Nelson therefore failed to show that counsel was deficient in making this strategic call.
Nor was trial counsel deficient for failing to object to the mother’s testimony because
the State did not disclose its substance. Under Arkansas Rule of Criminal Procedure 17.1(a),
the State must provide the names and addresses of witnesses it intends to call at trial. But
the rule does not require the State to disclose the substance of the witnesses’ testimony.
4
Hathcock v. State, 357 Ark. 563, 574, 182 S.W.3d 152, 159 (2004). Thus, had trial counsel
sought to exclude the testimony on this ground, the circuit court would have denied the
motion. The failure to make a meritless objection does not constitute ineffective assistance
of counsel. Houghton v. State, 2015 Ark. 252, at 8–9, 464 S.W.3d 922, 929.
B. Failure to Object to Alleged Hearsay
Second, Nelson claims that trial counsel failed to object to testimony from the victim’s
mother that the victim, upon waking, recounted nightmares about being raped. Nelson
argues that the victim’s statements were hearsay and that trial counsel failed to lodge a proper
hearsay objection under Arkansas Rule of Evidence 801. At the hearing, trial counsel
testified that the victim’s statements would have been admissible under the excited-utterance
exception set forth in Rule 803(2). Nelson counters that the statements did not meet the
requirements of an excited-utterance exception to the hearsay rule.
In its order below, the circuit court found that trial counsel was not deficient for
failing to object because the testimony qualified as an excited utterance. We find no clear
error. We have said before that a nightmare could qualify as an exited-utterance exception
to hearsay. George v. State, 306 Ark. 360, 366, 813 S.W.2d 792, 796, op. supp. on denial of
reh’g, 306 Ark. 360, 818 S.W.2d 951 (1991). Nelson does not appear to address this
precedent but simply asserts the testimony would not fit this exception. And as discussed
above, trial counsel’s failure to make a meritless objection does not constitute ineffective
assistance of counsel. We hold the circuit court did not clearly err in denying relief on this
point.
5
C. Failure to Introduce Testimony about Genital Warts
Finally, Nelson argues that trial counsel was ineffective for failing to disclose that
Nelson had genital warts and by failing to introduce evidence that the victim had not
contracted genital warts, despite her allegations of rape. According to Nelson, this evidence
would have been exculpatory.
During the Rule 37 hearing, trial counsel testified that he made a strategic decision
to refrain from introducing evidence that Nelson had a sexually transmitted disease (STD).
According to counsel, introducing evidence that Nelson had, in addition to raping her,
exposed the victim to an STD would have been more prejudicial than exculpatory. Trial
counsel also pointed out that transmission of STDs is not assured, and Nelson offered no
evidence of the likelihood of transmission. The circuit court denied relief, in part, because
the decision to avoid inflaming the jury against Nelson was reasonable trial strategy.
We affirm on this point. Here, the strategic decision not to introduce evidence that
Nelson had an STD when he engaged in sexual acts with the victim was a reasonable strategic
decision given the nature of the charges, Nelson’s confession, and the victim’s testimony.
The circuit court did not clearly err when it denied Nelson’s Rule 37 petition.
Affirmed.
Special Justices CORY COX and TIFFANY MILLIGAN BROWN join.
WEBB and BRONNI, JJ., not participating.
Law Offices of John Wesley Hall, by: Samantha J. Carpenter, for appellant.
Tim Griffin, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.
6