Kelley v. State

2019 Ark. App. 71, 568 S.W.3d 801
CourtCourt of Appeals of Arkansas
DecidedFebruary 6, 2019
DocketNo. CR-17-934
StatusPublished

This text of 2019 Ark. App. 71 (Kelley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelley v. State, 2019 Ark. App. 71, 568 S.W.3d 801 (Ark. Ct. App. 2019).

Opinion

LARRY D. VAUGHT, Judge

Appellant Jarmall Kelley appeals his conviction by a Jefferson County Circuit Court jury of residential burglary, aggravated assault, theft by receiving, and interference with custody. We have twice previously ordered rebriefing. Kelley v. State , 2018 Ark. App. 299, 2018 WL 2123795 ; Kelley v. State , 2018 Ark. App. 448, 2018 WL 4609234. Kelley's appointed counsel has filed a no-merit brief and a motion to be relieved pursuant to Rule 4-3 of the Rules of the Arkansas Supreme Court and Court of Appeals and Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which complies with our rules. Kelley has again been notified of his right to file pro se points and has not done so. After reviewing counsel's brief and the record of proceedings before the circuit court, we affirm Kelley's conviction and grant counsel's motion to withdraw.

A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract and addendum. Ark. Sup. Ct. R. 4-3(k)(1). The brief shall 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. This framework ensures that indigents are afforded their constitutional rights. Leaks v. State , 2018 Ark. App. 361, 553 S.W.3d 768. In furtherance of the goal of protecting these constitutional rights, it is the duty of both counsel and this court to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. Id.

As we explained in Kelley , 2018 Ark. App. 299, this case stems from an altercation between Kelley and Ariel Crompton, the mother of his child, in which Kelley entered Ariel's apartment and forcefully took the child against Ariel's will. Ariel's father, Clifton Crompton, then approached Kelley outside the apartment, and he testified at trial that Kelley pulled out a gun, waved it around while holding the child, and told Clifton that he would shoot him if Clifton tried to stop Kelley from taking the child. Clifton testified that Kelley's threats caused Clifton to stop trying to retrieve the child because to do so would "put everybody else in danger."

In compliance with the directives of Anders and Rule 4-3(k)(1), Kelley's counsel *803has thoroughly reviewed the record in this case and has found no error that would support an appeal. As required by Rule 4-3(k), the reasons the adverse rulings provide no meritorious grounds for appeal are discussed in the brief. Counsel has abstracted and briefed all adverse rulings, which included adverse rulings during jury selection, adverse evidentiary rulings, the denial of the directed-verdict motion, and the order revoking Kelley's bond.

The test for filing a no-merit brief is not whether there is any reversible error but whether an appeal would be wholly frivolous. House v. State , 2015 Ark. App. 280, 2015 WL 1954057. Based on our independent review of the record and the brief presented, we hold that counsel has complied with Rule 4-3(k) and that there would be no merit to an appeal. A person commits residential burglary if "he or she enters or remains unlawfully in the residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment." Ark. Code Ann. § 5-39-201 (Repl. 2013). A person commits interference with custody if "without lawful authority he or she knowingly takes, entices, or keeps, or aids, abets, hires, or otherwise procures another person to take, entice, or keep any minor from the custody of (1) the parent of the minor including an unmarried woman having legal custody of an illegitimate child under 9-10-113." Ark. Code Ann. § 5-26-503(a)(1) (Repl. 2013). We agree with counsel that the trial testimony of both Lakeada Doolittle and Brittany Doolittle that Kelley forced open the door of Ariel's apartment and took Ariel's child against Ariel's will provides sufficient evidence to support Kelley's convictions for residential burglary and interference with custody.

A person commits theft by receiving if he or she receives, retains, or disposes of stolen property of another person. Ark. Code Ann. § 5-36-106 (Repl. 2013). Here, Paul Brown testified that he is a manager at Hunter's Refuge and that at least sixty firearms had been stolen in a recent burglary. He identified a pistol recovered from Kelley as being one of the guns stolen from his store, and he testified that it was valued at approximately $ 600. Officer Corquis Chism testified that he discovered the pistol under the passenger-side dashboard of a car in which Kelley was riding in the passenger seat. Officer John Zuber testified that Kelley admitted purchasing the pistol from an acquaintance. The officer also verified that the pistol was one of the firearms stolen from Hunter's Refuge. We therefore agree with counsel that there was sufficient evidence to support Kelley's conviction for theft by receiving of a firearm less than $ 2500.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Biggers v. State
878 S.W.2d 717 (Supreme Court of Arkansas, 1994)
Arthur v. Zearley
895 S.W.2d 928 (Supreme Court of Arkansas, 1995)
House v. State
2015 Ark. App. 280 (Court of Appeals of Arkansas, 2015)
Leaks v. State
553 S.W.3d 768 (Court of Appeals of Arkansas, 2018)
Johnson v. State
200 S.W. 982 (Supreme Court of Arkansas, 1918)

Cite This Page — Counsel Stack

Bluebook (online)
2019 Ark. App. 71, 568 S.W.3d 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-state-arkctapp-2019.