Cite as 2014 Ark. 66
SUPREME COURT OF ARKANSAS No. CR-12-207
CHARLES ALVIN BOATRIGHT Opinion Delivered February 13, 2014 APPELLANT PRO SE APPEAL FROM THE V. MADISON COUNTY CIRCUIT COURT [NO. 44CR-09-77]
STATE OF ARKANSAS HONORABLE WILLIAM A. STOREY, APPELLEE JUDGE
AFFIRMED.
PER CURIAM
In 2010, appellant Charles Alvin Boatright was found guilty by a jury of one count of
rape and ten counts of possessing matter depicting sexually explicit conduct involving a child.
He was sentenced to 480 months’ imprisonment for the rape conviction and 60 months’
imprisonment for each count of possessing child pornography. The trial court ordered the
sentence for the rape conviction to be served consecutively with two of the child-pornography
convictions and concurrently with the remaining convictions, resulting in an aggregate sentence
of 600 months’ imprisonment. The Arkansas Court of Appeals affirmed. Boatright v. State, 2011
Ark. App. 326, 384 S.W.3d 12.
At trial, Officer Russell Alberts of the Madison County Sheriff’s Office testified that,
after receiving a report involving the molestation of a child by appellant and interviewing the
victim, he obtained a search warrant to search the house where appellant lived with his sister
based on information that the rape may have been recorded. He stated that, during the search,
CDs containing child pornography were discovered in appellant’s bedroom. The rape victim, Cite as 2014 Ark. 66
who was eleven years old at the time of the trial, testified that appellant put his tongue in her
vagina when she was five or six years old. Appellant, who had previously given a statement
confessing that he had “rubbed [the victim], maybe a little, with my finger” and that he owned
the CDs with child pornography, denied committing any act against the victim or owning the
CDs. Boatright, 2011 Ark. App. 326, 384 S.W.3d 12. Appellant’s sole argument for reversal on
direct appeal was that the trial court improperly denied him the right to fully develop his defense
that someone planted the offending CDs in his room. He contended that he was prevented on
a number of occasions from developing evidence that his family had a financially motivated
vendetta against him. Id. Affirming the trial court’s finding that the evidence was not relevant,
the court of appeals held that the issue of whether the CDs had been planted was too removed
from the issue of appellant’s guilt to be relevant and that there was nothing to substantiate
appellant’s theory that the CDs had been planted. The court further held that any error would
have been harmless because the evidence that appellant knowingly possessed the CDs containing
child pornography was overwhelming. Id.
After the court of appeals affirmed the judgment-and-commitment order, appellant filed
in the trial court a timely pro se petition for postconviction relief pursuant to Arkansas Rule of
Criminal Procedure 37.1 (2010). Following a hearing, the trial court denied and dismissed the
petition, addressing each of appellant’s claims of ineffective assistance of counsel. As to
appellant’s claim that he was entitled to relief based on the deputy prosecuting attorney’s failure
to disqualify himself from the case, the trial court found that the deputy prosecuting attorney’s
representation of appellant’s mother’s estate was unrelated to the case and did not constitute a
2 Cite as 2014 Ark. 66
conflict of interest or prejudice to appellant.1
The grounds advanced by appellant for reversal consist of a series of allegations that he
was not afforded effective assistance of counsel.2 This court has held that it will reverse the
circuit court’s decision granting or denying postconviction relief only when that decision is
clearly erroneous. Pankau v. State, 2013 Ark. 162; Banks v. State, 2013 Ark. 147. A finding is
clearly erroneous when, although there is evidence to support it, the appellate court, after
reviewing the entire evidence, is left with the definite and firm conviction that a mistake has
been committed. Sartin v. State, 2012 Ark. 155, ___ S.W.3d ___.
When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on
ineffective assistance of counsel, the sole question presented is whether, based on a totality of
the evidence under the standard set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), the trial court clearly erred in holding that counsel’s
performance was not ineffective. Taylor v. State, 2013 Ark. 146, ___ S.W.3d ___.
The benchmark for judging a claim of ineffective assistance of counsel must be “whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. Pursuant to
1 The reference in the trial court’s order to the deputy prosecuting attorney representing appellant’s mother’s estate appears to be a misstatement. In both appellant’s Rule 37.1 petition and at the hearing, appellant’s claim was that the deputy prosecuting attorney had a conflict of interest because he had represented appellant’s father, specifically that he had prepared a will for appellant’s father, who died in 2004. 2 All arguments made below but not raised on appeal are abandoned. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam); Shipman v. State, 2010 Ark. 499 (per curiam) (citing State v. Grisby, 370 Ark. 66, 257 S.W.3d 104 (2007)). 3 Cite as 2014 Ark. 66
Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner
raising a claim of ineffective assistance must show that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment
to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There
is a strong presumption that trial counsel’s conduct falls within the wide range of professional
assistance, and an appellant has the burden of overcoming this presumption by identifying
specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the
time of the trial, could not have been the result of reasonable professional judgment. Henington
v. State, 2012 Ark. 181, ___ S.W.3d ___; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per
curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced
petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, ___
S.W.3d ___. A petitioner making an ineffective-assistance-of-counsel claim must show that his
counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State,
2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable
probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt
respecting guilt, i.e., the decision reached would have been different absent the errors. Howard
v. State, 367 Ark. 18,
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Cite as 2014 Ark. 66
SUPREME COURT OF ARKANSAS No. CR-12-207
CHARLES ALVIN BOATRIGHT Opinion Delivered February 13, 2014 APPELLANT PRO SE APPEAL FROM THE V. MADISON COUNTY CIRCUIT COURT [NO. 44CR-09-77]
STATE OF ARKANSAS HONORABLE WILLIAM A. STOREY, APPELLEE JUDGE
AFFIRMED.
PER CURIAM
In 2010, appellant Charles Alvin Boatright was found guilty by a jury of one count of
rape and ten counts of possessing matter depicting sexually explicit conduct involving a child.
He was sentenced to 480 months’ imprisonment for the rape conviction and 60 months’
imprisonment for each count of possessing child pornography. The trial court ordered the
sentence for the rape conviction to be served consecutively with two of the child-pornography
convictions and concurrently with the remaining convictions, resulting in an aggregate sentence
of 600 months’ imprisonment. The Arkansas Court of Appeals affirmed. Boatright v. State, 2011
Ark. App. 326, 384 S.W.3d 12.
At trial, Officer Russell Alberts of the Madison County Sheriff’s Office testified that,
after receiving a report involving the molestation of a child by appellant and interviewing the
victim, he obtained a search warrant to search the house where appellant lived with his sister
based on information that the rape may have been recorded. He stated that, during the search,
CDs containing child pornography were discovered in appellant’s bedroom. The rape victim, Cite as 2014 Ark. 66
who was eleven years old at the time of the trial, testified that appellant put his tongue in her
vagina when she was five or six years old. Appellant, who had previously given a statement
confessing that he had “rubbed [the victim], maybe a little, with my finger” and that he owned
the CDs with child pornography, denied committing any act against the victim or owning the
CDs. Boatright, 2011 Ark. App. 326, 384 S.W.3d 12. Appellant’s sole argument for reversal on
direct appeal was that the trial court improperly denied him the right to fully develop his defense
that someone planted the offending CDs in his room. He contended that he was prevented on
a number of occasions from developing evidence that his family had a financially motivated
vendetta against him. Id. Affirming the trial court’s finding that the evidence was not relevant,
the court of appeals held that the issue of whether the CDs had been planted was too removed
from the issue of appellant’s guilt to be relevant and that there was nothing to substantiate
appellant’s theory that the CDs had been planted. The court further held that any error would
have been harmless because the evidence that appellant knowingly possessed the CDs containing
child pornography was overwhelming. Id.
After the court of appeals affirmed the judgment-and-commitment order, appellant filed
in the trial court a timely pro se petition for postconviction relief pursuant to Arkansas Rule of
Criminal Procedure 37.1 (2010). Following a hearing, the trial court denied and dismissed the
petition, addressing each of appellant’s claims of ineffective assistance of counsel. As to
appellant’s claim that he was entitled to relief based on the deputy prosecuting attorney’s failure
to disqualify himself from the case, the trial court found that the deputy prosecuting attorney’s
representation of appellant’s mother’s estate was unrelated to the case and did not constitute a
2 Cite as 2014 Ark. 66
conflict of interest or prejudice to appellant.1
The grounds advanced by appellant for reversal consist of a series of allegations that he
was not afforded effective assistance of counsel.2 This court has held that it will reverse the
circuit court’s decision granting or denying postconviction relief only when that decision is
clearly erroneous. Pankau v. State, 2013 Ark. 162; Banks v. State, 2013 Ark. 147. A finding is
clearly erroneous when, although there is evidence to support it, the appellate court, after
reviewing the entire evidence, is left with the definite and firm conviction that a mistake has
been committed. Sartin v. State, 2012 Ark. 155, ___ S.W.3d ___.
When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on
ineffective assistance of counsel, the sole question presented is whether, based on a totality of
the evidence under the standard set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), the trial court clearly erred in holding that counsel’s
performance was not ineffective. Taylor v. State, 2013 Ark. 146, ___ S.W.3d ___.
The benchmark for judging a claim of ineffective assistance of counsel must be “whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. Pursuant to
1 The reference in the trial court’s order to the deputy prosecuting attorney representing appellant’s mother’s estate appears to be a misstatement. In both appellant’s Rule 37.1 petition and at the hearing, appellant’s claim was that the deputy prosecuting attorney had a conflict of interest because he had represented appellant’s father, specifically that he had prepared a will for appellant’s father, who died in 2004. 2 All arguments made below but not raised on appeal are abandoned. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam); Shipman v. State, 2010 Ark. 499 (per curiam) (citing State v. Grisby, 370 Ark. 66, 257 S.W.3d 104 (2007)). 3 Cite as 2014 Ark. 66
Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner
raising a claim of ineffective assistance must show that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment
to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There
is a strong presumption that trial counsel’s conduct falls within the wide range of professional
assistance, and an appellant has the burden of overcoming this presumption by identifying
specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the
time of the trial, could not have been the result of reasonable professional judgment. Henington
v. State, 2012 Ark. 181, ___ S.W.3d ___; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per
curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced
petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, ___
S.W.3d ___. A petitioner making an ineffective-assistance-of-counsel claim must show that his
counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State,
2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable
probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt
respecting guilt, i.e., the decision reached would have been different absent the errors. Howard
v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient
to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the
trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in
sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction
resulted from a breakdown in the adversarial process that renders the result unreliable. Id.
4 Cite as 2014 Ark. 66
“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both
components of the inquiry if the defendant makes an insufficient showing on one.” Strickland,
466 U.S. at 697.
In his first point on appeal, appellant makes a number of conclusory claims, namely that
counsel did not conduct an adequate or thorough investigation of the facts surrounding the
charges filed against him; did not conduct an independent investigation of “the events before,
during or after the rape” or the search of his house and arrest; and did not obtain information
or investigate any mitigating facts. In support of these claims, appellant contends that counsel
was ineffective based on the failure to file a motion to suppress CDs and DVDs containing child
pornography found at his home. He argues that a motion to suppress this evidence would have
been meritorious based on his claim that the search warrant was defective because it did not
include his name.3 Appellant also attempts to support his claims with the contention that
counsel was deficient in failing to interview or call witnesses who had knowledge of the events
giving rise to the charges against him and information regarding his character and social history.
The majority of appellant’s claims are conclusory or lack any substantiating facts to show
prejudice, and he does not show that further investigation would have been fruitful. See Daniels
v. State, 2013 Ark. 208 (per curiam). Conclusory allegations unsupported by factual information
3 In an apparent attempt to further support his argument that counsel was ineffective for failing to file a motion to suppress, appellant also makes several other allegations for the first time on appeal that he contends would have supported the motion. Because arguments raised for the first time on appeal could not have been considered by the trial court, they will not be addressed by this court. Green v. State, 2013 Ark. 455 (per curiam). Issues raised for the first time on appeal are not grounds to reverse a trial court’s order. Williams v. State, 2013 Ark. 375 (per curiam). Accordingly, we do not consider any argument raised by appellant for the first time on appeal. 5 Cite as 2014 Ark. 66
of counsel’s ineffectiveness do not provide a basis for postconviction relief. Garcia v. State, 2013
Ark. 405 (per curiam); Bond v. State, 2013 Ark. 298, __ S.W.3d __ (per curiam).
Moreover, appellant’s claims are not supported by the evidence presented at the Rule
37.1 hearing. While appellant contends that counsel was ineffective for not filing a motion to
suppress based on the validity of the search warrant, he does not show that counsel could have
made any meritorious argument in support of such a motion. Failure to make a meritless
objection does not constitute ineffective assistance of counsel. Moten v. State, 2013 Ark. 503 (per
curiam). The warrant describes the place to be searched and the things to be seized, as required
by Arkansas Rule of Criminal Procedure 13.1(b) (2009). The Rule does not require that a
person’s name be included on the warrant, as claimed by appellant. See id.
As to counsel’s alleged failure to interview or call witnesses, counsel testified at the Rule
37.1 hearing that he did contact potential defense witnesses and that they were all hostile toward
appellant. We have stated that the decision of trial counsel to call a witness is generally a matter
of trial strategy that is outside the purview of Rule 37.1. Banks, 2013 Ark. 147. Trial counsel
must use his or her best judgment to determine which witnesses will be beneficial to the client.
Id. Nonetheless, such strategic decisions must still be supported by reasonable professional
judgment. Id. Where a petitioner alleges ineffective assistance of counsel concerning the failure
to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of
the testimony, and establish that the testimony would have been admissible into evidence. Moten,
2013 Ark. 503; Stevenson v. State, 2013 Ark. 302 (per curiam) (citing Hogan v. State, 2013 Ark. 223
(per curiam)). Appellant fails to substantiate his claim that counsel was ineffective based on the
6 Cite as 2014 Ark. 66
failure to interview or call any witness. Moreover, he does not name any particular individual
that counsel should have interviewed or called as a witness or what information a particular
witness may have provided.
Appellant next contends that he received ineffective assistance because counsel did not
spend sufficient time discussing the case and developing trial strategy with him. Appellant does
not show that there was a different and more successful strategy that counsel could have
adopted.4 As stated herein, conclusory allegations not supported by factual information do not
provide a basis for relief. Garcia, 2013 Ark. 405; Bond, 2013 Ark. 298, __ S.W.3d __. Moreover,
counsel testified that he met with appellant on 15-20 occasions and that he investigated every
defense that appellant proposed. He further stated that appellant’s decisions to testify on his
own behalf and to refuse a plea offer were against his advice. Appellant conceded that counsel
met with him numerous times and put “a lot of time in on his case.”
Appellant’s final argument on appeal is unclear, but he appears to contend that counsel
was ineffective for failing to investigate an alleged conflict of interest of the deputy prosecuting
attorney based on the attorney’s representation of appellant’s family in probate matters and his
knowledge of the hostility between appellant and his sister.5 However, in his petition and at the
4 In an apparent attempt to argue that counsel was ineffective in failing to raise the issue, appellant states in his reply brief that, according to the lab report, there was no child pornography found on the CDs/DVDs. Appellant does not raise this argument in his brief-in- chief, and the report from the State Crime Lab clearly states that images consistent with child pornography were found on the CDs. See Tavron v. State, 2010 Ark. 295 (per curiam) (An issue may not be raised for the first time in a reply brief.). 5 Appellant also contends for the first time on appeal that counsel was ineffective for failing to investigate and introduce evidence of his troubled relationship with his family and their fabrication of the events giving rise to the charges filed against him. As stated herein, because 7 Cite as 2014 Ark. 66
Rule 37.1 hearing, appellant’s argument was that he was entitled to relief due to the deputy
prosecuting attorney’s failure to disqualify himself from the case based on the attorney’s
preparation of appellant’s father’s will several years ago. To the extent that appellant is arguing
on appeal that he received ineffective assistance based on the failure to investigate the alleged
conflict of interest, this conclusory allegation was not contained in appellant’s verified Rule 37.1
petition or supported by any evidence presented at the hearing, and it will not be considered for
the first time on appeal. See Green, 2013 Ark. 455. In fact, counsel testified that he was aware
that appellant claimed a conflict of interest of the prosecuting attorney and that, in his
professional judgment, he did not believe that there was any conflict. To the extent that
appellant is raising the argument on appeal that the deputy prosecuting attorney erred in failing
to disqualify himself from the case, this contention is not a claim that is cognizable in a Rule 37.1
proceeding. See Meek v. State, 2013 Ark. 314 (per curiam) (holding that claims of prosecutorial
misconduct are claims of trial error and are not cognizable in a Rule 37.1 petition).
Charles Alvin Boatwright, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
arguments raised for the first time on appeal could not have been considered by the trial court, they will not be addressed by this court. Green, 2013 Ark. 455. We also recognize that the court of appeals addressed a similar argument on direct appeal. On direct appeal, appellant argued that the trial court prevented him from developing evidence that his family had a financially motivated vendetta against him and that they planted the offending CDs in his bedroom. The court of appeals affirmed the trial court’s finding that the evidence was not relevant, and it further held that any error was harmless due to the overwhelming evidence that appellant knowingly possessed the CDs containing child pornography. Boatright, 2011 Ark. App. 326, 384 S.W.3d 12. 8 Cite as 2014 Ark. 66