(Judge confers with Juror 12.)
THE COURT : Okay, that was easy. That's it. Thanks. Okay, see you-all tomorrow.
In one of our rebriefing orders, see Thompson v. State , 2014 Ark. 79, 2014 WL 689049 (per curiam), we directed appellate counsel to address this issue of a possible ex parte communication, which then prompted counsel to seek a hearing in the circuit court regarding this issue. Thereafter, on May 20, 2014, counsel filed in this court a supplemental record from that hearing. The supplemental record reflects that a juror asked the circuit judge whether jurors could ask witnesses questions, to which the circuit judge responded, "No."
As previously pointed out, Thompson now argues that he is entitled to a reversal of his conviction because of the circuit court's failure to hold a posttrial hearing. As the State points out, however, a posttrial hearing was held and the nature of the exchange between the circuit judge and the jury was stated on the record. It is now clear that the exchange was in no way prejudicial to Thompson. This court noted in Barritt v. State , 372 Ark. 395, 400-01, 277 S.W.3d 211, 215 (2008), as follows:
Both this court and the United States Supreme Court have noted that a "conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores [the] day-to-day realities of courtroom life and undermines society's interest in the administration of justice." Howard v. State , 367 Ark. 18, 35, 238 S.W.3d 24, 38 (2006) (quoting Rushen v. Spain , 464 U.S. 114, 119 [104 S.Ct. 453, 78 L.Ed.2d 267] (1983) ).
In this case, not only was the exchange between the circuit judge and the juror inconsequential, but also Thompson never objected when the circuit judge allowed the juror to approach and ask the question or anytime thereafter. Thompson now argues, however, that this court should consider his argument pursuant to the second Wicks exception and cites to this court's decision in Bell v. State , 223 Ark. 304, 265 S.W.2d 709 (1954), which was the basis for the second exception announced in Wicks , 270 Ark. 781, 606 S.W.2d 366. In Bell , the State argued that the appellant had not timely objected after learning that the circuit judge had engaged in such a communication. This court rejected the State's argument and explained as follows:
It is true that we have said many times in appeals in criminal cases that error assigned in the Motion for New Trial must be predicated on an objection or exception made at the time the error was committed. This is the rule: but we have recognized an exception to it, particularly in the matter of improper argument.
*134In Wilson v. State , 126 Ark. 354, [359,] 190 S.W. 441, 443 [1916], in discussing the absence of any objection to an improper argument, we said:
'Appellant cannot predicate error upon failure of the court to make a ruling that he did not at the time ask the court to make, unless the remarks were so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same.'
In the case at bar, we hold that the conversation between the Trial Judge and the juror falls within the purview of the quoted language above: the Judge, having committed the error, should have corrected it on his own motion, and the accused was not obligated to make a formal objection because the error had already been committed, and an objection could not have erased the damage that had been done. The remarks that the Trial Judge made to the jury were the same as ink upon snow, and no amount of admonitions or cautions could have erased from the minds of the jury what the Trial Judge had said.
Id. at 310, 265 S.W.2d at 712 (footnotes omitted). The court in Bell ultimately concluded that the error was prejudicial and warranted a reversal of the appellant's conviction.
The instant case is simply not controlled by this court's decision in Bell . In the Bell case, the circuit judge entered the jury room during deliberations to ask the jury if they were going to reach a verdict before a certain time and then answered juror questions about possible sentencing implications. The communication in this case in no way rises to the level of the exchange in Bell . We simply do not have a record before us that demonstrates prejudice or warrants reversal of Thompson's conviction.
Arkansas Supreme Court Rule 4-3(i) (2014) requires this court to review the record for all errors prejudicial to an appellant in all cases when the sentence is death or life imprisonment. Pursuant to that review, we have discovered an error that occurred during sentencing. The record reflects that at the close of the case, the circuit court instructed the jury, in relevant part, as follows:
REQUESTED INSTRUCTION NO. 13, AMCI 2d 1001
Edward Lee Thompson III is charged with the offense of capital murder. To sustain this charge, the State must prove beyond a reasonable doubt:
First: That Edward Lee Thompson III, acting alone or with one or more other persons, committed the crime of aggravated robbery; and
Second: That in the course and in furtherance of that crime, or in immediate flight therefrom, Edward Lee Thompson III, or a person acting with him, caused the death of Keye Richard Ratley under circumstances manifesting extreme indifference to the value of human life.
REQUESTED INSTRUCTION NO. 14, AMCI 2d 1001-A
As part of the charge of capital murder, the State contends that the death of Keye Richard Ratley occurred during the commission or attempted commission of the crime of aggravated robbery. To prove aggravated robbery, the State must prove beyond a reasonable doubt:
First: That with the purpose of committing a theft, Edward Lee Thompson III, or an accomplice, employed or threatened to immediately employ physical force upon another; and
Second: That Edward Lee Thompson III, or an accomplice, was armed with a deadly weapon or represented by words *135or conduct that he was armed with a deadly weapon.
If the crime of aggravated robbery is not proved to have been committed or attempted by Edward Lee Thompson III, he is not guilty of capital murder.
REQUESTED INSTRUCTION NO. 15, AMCI 2d 301
Edward Lee Thompson III is charged with capital murder. This charge includes the lesser offense of murder in the first degree. You may find the defendant guilty of one of these offenses or you may acquit him outright.
If you have a reasonable doubt of the guilt of the defendant on the greater offense, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the defendant's guilt of both offenses, you must find him not guilty.
REQUESTED INSTRUCTION NO. 16, AMCI 2d 302
If you have a reasonable doubt of the defendant's guilt on the charge of capital murder, you will then consider the charge of murder in the first degree.
REQUESTED INSTRUCTION NO. 17, AMCI 2d 1002
To sustain the charge of murder in the first degree, the State must prove beyond a reasonable doubt:
First: That Edward Lee Thompson III, acting alone or with one or more other persons, committed the crime of robbery; and
Second: That in the course and in furtherance of that crime or attempt or in immediate flight therefrom, Edward Lee Thompson or a person acting with him, caused the death of Keye Richard Ratley under circumstances manifesting extreme indifference to the value of human life.
REQUESTED INSTRUCTION NO. 18, AMCI 2d 1002-A
As part of the charge of murder in the first degree, the State contends that the death of Keye Richard Ratley occurred during the commission or attempted commission of the crime of robbery. To prove robbery, the State must prove beyond a reasonable doubt:
That with the purpose of committing a theft, Edward Lee Thompson III, or an accomplice, employed or threatened to immediately employ physical force upon another.
If the crime of robbery is not proved to have been committed or attempted by Edward Lee Thompson III, he is not guilty of murder in the first degree.
REQUESTED INSTRUCTION NO. 20, AMCI 2d 1201
Edward Lee Thompson III is charged with the offense of aggravated robbery of Tyler Ratley. To sustain this charge, the State must prove the following things beyond a reasonable doubt:
First: That with the purpose of committing a theft, Edward Lee Thompson III, or an accomplice, employed or threatened to immediately employ physical force upon Tyler Ratley, and
Second: That Edward Lee Thompson III, or an accomplice, was armed with a deadly weapon or represented by words or conduct that he was armed with a deadly weapon.
REQUESTED INSTRUCTION NO. 22, AMCI 2d 301
Edward Lee Thompson III is charged with aggravated robbery. This charge includes the lesser offense of robbery. You may find the defendant guilty of one of these offenses or you may acquit him outright.
If you have a reasonable doubt of the guilt of the defendant on the greater *136offense, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the defendant's guilt of both offenses, you must find him not guilty.
Thus, the jury was instructed that in order to convict on the charge of capital-felony murder, the State was required to prove that Thompson committed the underlying felony of aggravated robbery. But, the jury was also instructed on the lesser-included offense of first-degree murder, which required the State to prove that Thompson committed the underlying felony of robbery. The court also instructed the jury on the charge of aggravated robbery, its lesser-included offense of robbery, as well as on the two theft charges. Additionally, the State sought firearm enhancements on both the murder and the robbery, and the jury was so instructed.
Following jury deliberations, the circuit court read the jury verdicts aloud. The jury found Thompson not guilty of capital murder but guilty of first-degree murder. However, the jury found that the State had not proved that Appellant employed a firearm as a means of committing the murder. The circuit court then announced that the jury had found Thompson guilty of aggravated robbery but not guilty of using a firearm to commit the aggravated robbery. The following then occurred:
THE COURT : (Reading) We, the Jury, find Edward Lee Thompson III guilty of robbery. I don't actually need this one. This is a lesser of the aggravated robbery. So I'll just consider this moot. Is that okay with the attorneys?
[ DEFENSE COUNSEL ]: Your Honor, may I approach?
THE COURT : You-all approach.
[ DEFENSE COUNSEL ]: Your Honor, I guess I would argue that it should be robbery and not aggravated robbery since the lesser-since murder one says robbery is the underlying part of that charge is robbery, not aggravated robbery.
[ THE STATE ]: Guilty of aggravated robbery as to Tyler, but not guilty of the capital. So I am going to ask for the murder first and the aggravated robbery conviction.
THE COURT : Okay.... I'm going to find that they found him guilty of aggravated robbery and that this jury verdict on plain robbery is moot and unnecessary.
[ DEFENSE COUNSEL ]: Can I just make one more argument, Your Honor? Just for the record that I would argue that they found him guilty of robbery and that's the underlying felony and therefore he should not be found guilty of the aggravated robbery because of the fact that they-it corresponds with the murder charge.
THE COURT : Okay, thank you.
This colloquy demonstrates that what trial counsel actually argued was that the State could not convict Thompson on the charge of aggravated robbery, when it was the underlying felony for capital murder, the charge the jury acquitted on. Thompson's trial counsel further argued that the felony corresponded to the murder charge, and because the jury found Thompson guilty of first-degree murder, the underlying felony for which he could also be convicted was robbery.
We find this argument to be meritorious. It is well settled under our sentencing statutes that a person charged with felony murder, either capital or first degree, may be convicted of, and sentenced for, both the murder and the underlying felony. See Ark. Code Ann. § 5-1-110(d)(1)(A), (C) (Repl. 2013). Those provisions state as follows:
*137(d)(1) Notwithstanding any provision of law to the contrary, a separate conviction and sentence are authorized for:
(A) Capital murder, § 5-10-101, and any felony utilized as an underlying felony for the capital murder;
...
(C) Murder in the first degree, § 5-10-102, and any felony utilized as an underlying felony for the murder in the first degree.
This court has recognized that circuit courts have specific authority to sentence a defendant for the underlying felony supporting a capital-murder charge, as well as the felony of capital murder itself. Jackson v. State , 2013 Ark. 19, 2013 WL 298081 (per curiam); see also Clark v. State , 373 Ark. 161, 282 S.W.3d 801 (2008). The same would apply to a charge of first-degree-felony murder and its underlying felony. Here, the underlying felony for the first-degree murder charge was robbery. Thus, it is proper for the circuit court to sentence Thompson on the first-degree murder conviction and its underlying felony of robbery, and we reverse and remand for the circuit court to correct the sentence imposed for aggravated robbery.
No other reversible error has been found pursuant to our Rule 4-3(i) review.
Affirmed in part; reversed and remanded in part.
Baker and Goodson, JJ., concur.