McCormick v. State , 2016 Ark. App. 330 ( 2016 )

Cite as 2016 Ark. App. 330
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-15-403
Opinion Delivered: June 22, 2016
JOSHUA HUGH MCCORMICK
APPELLANT APPEAL FROM THE FRANKLIN
COUNTY CIRCUIT COURT,
V. NORTHERN DISTRICT
[NO. CR-2014-16]
STATE OF ARKANSAS HONORABLE WILLIAM M.
PEARSON, JUDGE
APPELLEE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
RAYMOND R. ABRAMSON, Judge
Appellant Joshua Hugh McCormick was found guilty by a Franklin County jury of
violating Arkansas Code Annotated section 5-73-103, possession of firearms by certain
persons. He was sentenced to fifteen years’ imprisonment and a fine of $5,000. Pursuant to
Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k)(1) of the Rules of the Arkansas
Supreme Court and Court of Appeals, McCormick’s attorney has filed a no-merit brief and
a motion to withdraw as counsel. McCormick was notified of his right to file pro se points
for reversal and has done so, and the State has filed a brief in response to those points.
McCormick’s counsel argues that there are no meritorious grounds for appeal and
asks to withdraw as counsel. A request to withdraw on the ground that the appeal is wholly
without merit must be accompanied by a brief that contains a list of all rulings adverse to
Cite as 2016 Ark. App. 330
appellant and an explanation as to why each ruling is not a meritorious ground for reversal.
Ark. Sup. Ct. R. 4-3(k)(1) (2015). The brief must contain an argument section that consists
of a list of all rulings adverse to the defendant made by the circuit court on all objections,
motions, and requests made by either party with an explanation as to why each adverse
ruling is not a meritorious ground for reversal. Id.
In deciding whether to allow counsel to withdraw from appellate representation, the
test is not whether counsel thinks the circuit court committed no reversible error, but
whether the points to be raised on appeal would be wholly frivolous. Williams v. State, 2013
Ark. App. 323. Here, we find compliance with Rule 4-3(k)(1) and Anders, and hold that
there is no merit to this appeal.
I. Facts
The following facts are adduced from the testimony and evidence presented at trial.
On the night of November 11, 2013, Officer Grant Nicely, a patrol sergeant for the Franklin
County Sheriff’s Office, received a call from dispatch about a possible shooting on Roseville
Street in Altus. As he was nearing the address, he was flagged down by Andrea Newman
and Jimmy Smith who were standing on the side of the street. Newman was hysterical and
yelled “[M]y friend has been shot and needs an ambulance.” Smith was standing next to her
with a shirt wrapped around his throat; when Officer Nicely asked him what happened, he
replied that he had accidentally shot himself. Officer Nicely questioned Newman who told
him that she had some friends over to her house including Smith, Joshua McCormick, and
McCormick’s then girlfriend (now wife) Tiffany Kreger. Newman told the officer that
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McCormick brought the firearm to her house, and Smith had been playing with it when
the gun went off.
Smith was transported to the hospital by ambulance while Officer Nicely and
Newman went to Newman’s house. Newman consented to a search of her home. Kreger
and McCormick were no longer there. After a thorough search of the home, no firearm or
shell casings were located. Officer Travis Ball, a criminal investigator, testified that he had
taken photographs of several blood drops on the floor that led from the bedroom toward
the front door of the home. He stated that McCormick could not be located at that time.
The State introduced a judgment and disposition order reflecting McCormick had been
convicted of first-degree terroristic threatening.
Newman testified that she did not own a gun and that she does not keep guns in her
home. She explained that she does not carry a gun and does not like them. She testified that
she told McCormick to put away the gun when he brought it to her house. She recalled
that Smith was very depressed, and in response to Smith’s comments, McCormick unloaded
the gun and threw the bullet in his mouth like he was getting rid of it. Newman is a
convicted felon and confessed that everyone had been drinking and using methamphetamine
that night. Smith testified that he was also a convicted felon and admitted that he had
intentionally shot himself in the neck. After he shot himself, he stood back up and walked
outside. Newman called 911 and followed Smith outside, staying with him until she flagged
down Officer Nicely.
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II. Adverse Rulings
Counsel contends that the circuit court did not err in denying McCormick’s motions
for directed verdict. On appeal, we treat a motion for directed verdict as a challenge to the
sufficiency of the evidence. E.g., Anderson v. State, 2011 Ark. 461, at 3, 385 S.W.3d 214,
217. We determine whether the verdict is supported by substantial evidence, direct or
circumstantial. Id., 385 S.W.3d at 218. Substantial evidence is evidence that is forceful
enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id.,
385 S.W.3d at 218. The evidence is viewed in the light most favorable to the verdict, and
only evidence supporting the verdict will be considered. Id., 385 S.W.3d at 218.
As it applies in this case, Arkansas Code Annotated section 5-73-103 (Repl. 2016)
has two requirements that must be met in order to satisfy the requirements of the statute.
The first is that one must possess a firearm. Ark. Code Ann. § 5-73-103(a). The second
requirement is that the person in possession must have been convicted of a felony. Ark.
Code Ann. § 5-73-103(a)(1). Here, both requirements have been met.
McCormick does not contest that he was a convicted felon. The testimony of two
witnesses indicated that McCormick brought the gun to Newman’s residence where Smith
used it to shoot himself. Although the firearm was never found, this direct evidence is not
required. McCormick left the location of the shooting prior to the arrival of the investigating
officers. This is incriminating evidence. Viewing the evidence in the light most favorable to
the verdict and considering the testimony of the State’s two eyewitnesses and law
enforcement officers, along with the additional incriminating fact that McCormick left the
scene, we conclude that there is sufficient evidence to find that McCormick possessed the
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firearm. We hold that the circuit court did not err in denying McCormick’s motions for
directed verdict.
There were also three evidentiary rulings that were adverse to McCormick, and
McCormick’s counsel has provided an explanation as to why none of these rulings could
support a meritorious appeal. It is well settled that evidentiary matters regarding the
admissibility of evidence are left to the sound discretion of the trial court, and rulings in this
regard will not be reversed absent an abuse of discretion. Ellison v. State, 354 Ark. 340, 123
S.W.3d 874 (2003). Abuse of discretion is a high threshold that does not simply require
error in the trial court’s decision, but requires that the trial court act improvidently,
thoughtlessly, or without due consideration. Nazarenko v. CTI Trucking Co., 313 Ark. 570.
856 S.W.2d 869 (1993). Based on our review of the record, we conclude that none of these
evidentiary rulings constituted reversible error and that none could form the basis for a merit
appeal.
In McCormick’s pro se points, he raises eight points for reversal. None of these points
have merit, and can be summarized this way: (1) ineffective assistance of counsel; (2) counsel
did not allow him to take the stand; (3) insufficient evidence to support his conviction; (4)
witnesses’ statements were inconsistent; (5) witnesses were coerced into testifying against
him; (6) Smith and Newman are also both convicted felons; (7) the State used the testimony
of “two convicted felons that was [sic] scared into testifying” to convict him; and (8) Smith
had written him a letter apologizing for falsely accusing him of the crime. 1
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This alleged letter is not attached to McCormick’s pro se points and is found
nowhere in the record.
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The State contends that the pro se points raised by McCormick were not raised
below and are not supported by convincing argument or citation to authority, and therefore
they should not be considered by this court. The State also discusses each pro se point and
explains why it is without merit.
We agree that many of McCormick’s arguments in his pro se points, including his
ineffective-assistance-of-counsel claims, were not raised below or were not otherwise
preserved for our review. Issues raised for the first time on appeal, even constitutional issues,
will not be considered because the circuit court never had an opportunity to make a ruling.
Johnson v. State, 2009 Ark. 460 (per curiam) (citing Green v. State, 362 Ark. 459, 209 S.W.3d
339 (2005)). The remaining points challenge the sufficiency of the evidence supporting his
conviction. From the testimony presented, however, there was substantial evidence to
support the jury’s finding of guilt.
Based on our review of the record and the briefs presented, we conclude that there
has been compliance with Rule 4-3(k)(1) and that this appeal is without merit.
Consequently, McCormick’s counsel’s motion to be relieved is granted, and the judgment
is affirmed.
Affirmed; motion to withdraw granted.
VIRDEN and GRUBER, JJ., agree.
John C. Burnett, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Bailey Kane, Ass’t Att’y Gen., for appellee.
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