Cite as 2019 Ark. App. 502 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-06-17 12:45:11 Foxit PhantomPDF Version: 9.7.5 DIVISION I No. CR-18-680
Opinion Delivered October 30, 2019
KERRIE LOUISE DAVIS APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT APPELLANT [NO. 15CR-17-110]
HONORABLE JERRY RAMEY, V. JUDGE
AFFIRMED; REMANDED TO STATE OF ARKANSAS CORRECT SENTENCING ORDER; MOTION TO WITHDRAW GRANTED APPELLEE
LARRY D. VAUGHT, Judge
This is a no-merit appeal on behalf of Kerrie Davis following her conviction by a
Conway County Circuit Court jury of possession of methamphetamine with purpose to
deliver. We affirm the conviction and grant counsel’s motion to withdraw.
On May 19, 2017, Davis was charged with possession of methamphetamine with
purpose to deliver. When she appeared for a jury trial on May 23, 2018, Davis advised her
counsel that she needed a continuance to hire a private attorney. Counsel moved for a
continuance of the jury trial. The circuit court denied the motion, finding the case was a year
old, that private counsel had not appeared with Davis in court, and Davis could not show that
she had retained private counsel. In fact, she stated that she had spoken to an attorney but
could not remember the attorney’s full name. The trial proceeded, and the State elicited testimony from Sergeant Andy Force of the
Morrilton Police Department. Force testified he came into contact with Davis on March 7,
2017, during a traffic stop in Morrilton. Force testified that he stopped a Plymouth Breeze
operated by Crystal Chambers and that Davis was a passenger in the vehicle. Force discovered
that Davis had outstanding warrants for her arrest and took her into custody. A female
employee of the police department, Christy Rooney, searched Davis when they arrived at the
police station. Force testified that Rooney returned from searching Davis and handed him a
package containing a crystal-white substance and two different pills. These items were entered
into evidence as exhibits.
Christy Rooney testified that she is employed by the Morrilton Police Department, and
while at work on March 7, Sergeant Force asked her to search Davis. During the search,
Rooney found four plastic baggies inside Davis’s bra. Rooney identified the State’s exhibits as
the items she had discovered on Davis.
Reece Borchers testified that he is employed by the Arkansas State Crime Laboratory
as a chemist and that he had analyzed the evidence seized from Davis during the search.
Borchers testified that he tested these items and found that the substance was
methamphetamine. On cross-examination, Borchers testified that the substance he tested and
measured in this case was determined to be 1.0088 grams of methamphetamine.
The jury found Davis guilty of possession of methamphetamine with purpose to
deliver. During the sentencing phase, Davis testified she agreed to work for the Drug Task
Force (DTF) to make three controlled buys. Davis stated that she made one buy for DTF but
that they did not drop the charges. Counsel then asked Davis if DTF had said why it would
2 not drop the charges. The State objected to the question as eliciting hearsay, and the court
sustained the objection.
In response to her counsel’s next question, Davis began to testify about what a third
party, Nathan Watkins, had told her. Again the State’s hearsay objection was sustained by the
circuit court.
The jury sentenced Davis to fifteen years in the Arkansas Department of Correction.
Davis filed a timely appeal. We previously ordered rebriefing of counsel’s no-merit appeal due
to briefing deficiencies, which have now been cured.
In keeping with the requirements of Anders v. California, 386 U.S. 738 (1967), counsel
has listed all adverse rulings and has adequately briefed the court as to why each ruling would
not present a nonfrivolous basis for appeal. The first adverse ruling was the court’s denial of
Davis’s motion for a continuance made on the morning that the jury trial was set to begin.
The denial of a motion for a continuance is reviewed for abuse of discretion. Davis v. State,
2014 Ark. App. 589; Mahomes v. State, 2013 Ark. App. 215, 427 S.W.3d 123. In order to warrant
reversal, an appellant must demonstrate both that the circuit court abused its discretion in
denying the continuance and also show prejudice from the denial of the continuance that
amounts to a denial of justice. Id.
Here, Davis advised her appointed counsel that she had spoken to a private attorney
and needed a continuance to hire that attorney as private counsel. Her appointed attorney
moved for a continuance, but Davis could not show the court that she had retained private
counsel. In fact, she could not remember the last name of the attorney with whom she had
spoken. The court noted that the case had been pending for a year, meaning that Davis had
3 already had plenty of time to hire private counsel if she desired to do so. We agree that the
denial of Davis’s motion for a continuance was not an abuse of discretion.
The second adverse ruling was the court’s finding that the State had carried its burden
of proving that Davis was guilty of possession of methamphetamine with intent to deliver. On
appellate review of the sufficiency of the evidence, the court seeks to determine whether the
verdict is supported by substantial evidence. Ashe v. State, 57 Ark. App. 99, 942 S.W.2nd 267
(1997). In Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980), the court held that substantial
evidence, whether direct or circumstantial, must be of “sufficient force and character that it
will, with reasonable and material certainty and precision, compel a conclusion one way or the
other.” Id. at 120, 598 S.W.2d at 749 (citing Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 330,
584 S.W.2d 21, 25 (1979)).
Sergeant Force testified that he initiated a traffic stop on March 7, 2017, and that Davis
was a passenger in the vehicle. Due to outstanding warrants, Force arrested Davis. Davis was
searched, and she was discovered to have a package of a crystal-white substance and two pills.
The officer who conducted the search also testified to finding the items on Davis. A detective
with the Morrilton Police Department testified to the chain of custody, explaining that he had
received the package from Sergeant Force and had delivered it to the state crime lab. An
employee of the state crime lab testified that he had tested the substance and that it was 1.0088
grams of methamphetamine. The evidence introduced at trial was sufficient to support Davis’s
conviction for possession of methamphetamine with intent to deliver. We affirm on this point.
There were also two adverse evidentiary rulings, neither of which present a meritorious
argument for appeal. The court then sustained two hearsay objections during the sentencing
4 phase of the trial. Davis testified that she agreed to work for DTF to make three buys but that
they did not drop the charges against her as promised. When counsel asked Davis if anyone
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Cite as 2019 Ark. App. 502 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-06-17 12:45:11 Foxit PhantomPDF Version: 9.7.5 DIVISION I No. CR-18-680
Opinion Delivered October 30, 2019
KERRIE LOUISE DAVIS APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT APPELLANT [NO. 15CR-17-110]
HONORABLE JERRY RAMEY, V. JUDGE
AFFIRMED; REMANDED TO STATE OF ARKANSAS CORRECT SENTENCING ORDER; MOTION TO WITHDRAW GRANTED APPELLEE
LARRY D. VAUGHT, Judge
This is a no-merit appeal on behalf of Kerrie Davis following her conviction by a
Conway County Circuit Court jury of possession of methamphetamine with purpose to
deliver. We affirm the conviction and grant counsel’s motion to withdraw.
On May 19, 2017, Davis was charged with possession of methamphetamine with
purpose to deliver. When she appeared for a jury trial on May 23, 2018, Davis advised her
counsel that she needed a continuance to hire a private attorney. Counsel moved for a
continuance of the jury trial. The circuit court denied the motion, finding the case was a year
old, that private counsel had not appeared with Davis in court, and Davis could not show that
she had retained private counsel. In fact, she stated that she had spoken to an attorney but
could not remember the attorney’s full name. The trial proceeded, and the State elicited testimony from Sergeant Andy Force of the
Morrilton Police Department. Force testified he came into contact with Davis on March 7,
2017, during a traffic stop in Morrilton. Force testified that he stopped a Plymouth Breeze
operated by Crystal Chambers and that Davis was a passenger in the vehicle. Force discovered
that Davis had outstanding warrants for her arrest and took her into custody. A female
employee of the police department, Christy Rooney, searched Davis when they arrived at the
police station. Force testified that Rooney returned from searching Davis and handed him a
package containing a crystal-white substance and two different pills. These items were entered
into evidence as exhibits.
Christy Rooney testified that she is employed by the Morrilton Police Department, and
while at work on March 7, Sergeant Force asked her to search Davis. During the search,
Rooney found four plastic baggies inside Davis’s bra. Rooney identified the State’s exhibits as
the items she had discovered on Davis.
Reece Borchers testified that he is employed by the Arkansas State Crime Laboratory
as a chemist and that he had analyzed the evidence seized from Davis during the search.
Borchers testified that he tested these items and found that the substance was
methamphetamine. On cross-examination, Borchers testified that the substance he tested and
measured in this case was determined to be 1.0088 grams of methamphetamine.
The jury found Davis guilty of possession of methamphetamine with purpose to
deliver. During the sentencing phase, Davis testified she agreed to work for the Drug Task
Force (DTF) to make three controlled buys. Davis stated that she made one buy for DTF but
that they did not drop the charges. Counsel then asked Davis if DTF had said why it would
2 not drop the charges. The State objected to the question as eliciting hearsay, and the court
sustained the objection.
In response to her counsel’s next question, Davis began to testify about what a third
party, Nathan Watkins, had told her. Again the State’s hearsay objection was sustained by the
circuit court.
The jury sentenced Davis to fifteen years in the Arkansas Department of Correction.
Davis filed a timely appeal. We previously ordered rebriefing of counsel’s no-merit appeal due
to briefing deficiencies, which have now been cured.
In keeping with the requirements of Anders v. California, 386 U.S. 738 (1967), counsel
has listed all adverse rulings and has adequately briefed the court as to why each ruling would
not present a nonfrivolous basis for appeal. The first adverse ruling was the court’s denial of
Davis’s motion for a continuance made on the morning that the jury trial was set to begin.
The denial of a motion for a continuance is reviewed for abuse of discretion. Davis v. State,
2014 Ark. App. 589; Mahomes v. State, 2013 Ark. App. 215, 427 S.W.3d 123. In order to warrant
reversal, an appellant must demonstrate both that the circuit court abused its discretion in
denying the continuance and also show prejudice from the denial of the continuance that
amounts to a denial of justice. Id.
Here, Davis advised her appointed counsel that she had spoken to a private attorney
and needed a continuance to hire that attorney as private counsel. Her appointed attorney
moved for a continuance, but Davis could not show the court that she had retained private
counsel. In fact, she could not remember the last name of the attorney with whom she had
spoken. The court noted that the case had been pending for a year, meaning that Davis had
3 already had plenty of time to hire private counsel if she desired to do so. We agree that the
denial of Davis’s motion for a continuance was not an abuse of discretion.
The second adverse ruling was the court’s finding that the State had carried its burden
of proving that Davis was guilty of possession of methamphetamine with intent to deliver. On
appellate review of the sufficiency of the evidence, the court seeks to determine whether the
verdict is supported by substantial evidence. Ashe v. State, 57 Ark. App. 99, 942 S.W.2nd 267
(1997). In Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980), the court held that substantial
evidence, whether direct or circumstantial, must be of “sufficient force and character that it
will, with reasonable and material certainty and precision, compel a conclusion one way or the
other.” Id. at 120, 598 S.W.2d at 749 (citing Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 330,
584 S.W.2d 21, 25 (1979)).
Sergeant Force testified that he initiated a traffic stop on March 7, 2017, and that Davis
was a passenger in the vehicle. Due to outstanding warrants, Force arrested Davis. Davis was
searched, and she was discovered to have a package of a crystal-white substance and two pills.
The officer who conducted the search also testified to finding the items on Davis. A detective
with the Morrilton Police Department testified to the chain of custody, explaining that he had
received the package from Sergeant Force and had delivered it to the state crime lab. An
employee of the state crime lab testified that he had tested the substance and that it was 1.0088
grams of methamphetamine. The evidence introduced at trial was sufficient to support Davis’s
conviction for possession of methamphetamine with intent to deliver. We affirm on this point.
There were also two adverse evidentiary rulings, neither of which present a meritorious
argument for appeal. The court then sustained two hearsay objections during the sentencing
4 phase of the trial. Davis testified that she agreed to work for DTF to make three buys but that
they did not drop the charges against her as promised. When counsel asked Davis if anyone
from DTF had said why it would not drop the charges, the State objected on hearsay grounds,
and the court sustained the objection. Immediately thereafter, in response to another question,
Davis began to testify as to what Nathan Watkins had told her. Again, the State objected on
the basis of hearsay, and again the court sustained the objection. In both cases, the court did
not abuse its discretion in sustaining the objections.
Arkansas Rule of Evidence 801(c) defines hearsay as a statement, other than one made
by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of
the matter asserted. Both statements here were made out of court and were offered for the
truth of the matter asserted. Again, we agree with counsel’s contention that these rulings would
not present a nonfrivolous basis for appeal.
Davis has also filed pro se points for reversal, and the State has responded to her points.
She raises eleven separate points, but they present only seven distinct issues.
First, she argues that the Morrilton Police Department failed to honor a deal it made
with her regarding her charges. This argument is not preserved for appeal because Davis filed
no motion to dismiss or sought other relief based on this argument. The requirement that a
defendant in a criminal case make a specific objection at trial in order to preserve the argument
on appeal is well established. Hewitt v. State, 317 Ark. 362, 365, 877 S.W.2d 926, 928 (1994). A
specific objection is one that apprises the court of the particular error to which the party
complains so that the circuit court can have the opportunity to correct the error. Id. It is also
well settled that a party cannot change the basis of an argument on appeal. Id. To the extent
5 that Davis is attempting to argue that the court should not have sustained the hearsay
objections to her testimony regarding the deal, we have addressed that issue above. If she is
attempting to raise a different challenge, it was not presented to the circuit court and is not
preserved for appeal.
In points two through six of her pro se points for reversal, Davis argues that she was
allegedly arrested multiple times during the pendency of this case on invalid warrants and had
to post bond multiple times. The State argues that Davis has failed to present a record on
appeal that would allow us to address these issues. These arguments present no basis for
reversing the conviction she now appeals.
Next, Davis argues that her failure-to-appear charge was incorrectly placed under a
separate case filing. This seems to be a complaint about how a separate charge—not at issue
in this appeal—was filed. This argument presents no basis for reversal of the conviction she
now appeals.
In points seven and eleven of her pro se points, Davis contends that the court should
have granted a mistrial or dismissed the charge because the State first erroneously filed the
charge as a B felony and later amended it to a C felony. The charge was amended after the
state crime lab determined that Davis possessed more than one gram, but less than two grams,
of methamphetamine. This argument is not preserved for appeal because she failed to move
for dismissal or seek other relief related to this argument. See Curl v. State, 2019 Ark. App. 200,
at 3, 575 S.W.3d 458, 460.
Davis next argues ineffective assistance of counsel. She contends that her attorney “did
not defend me at all.” This issue is not preserved for appeal. It is well settled that we will not
6 consider ineffective assistance as a point raised on direct appeal unless that issue has been
considered and ruled on by the circuit court. Ratchford v. State, 357 Ark. 27, 31, 159 S.W.3d 304,
306 (2004).
Davis also argues that the jury should have been informed of the drug-treatment
programs available in the Arkansas Department of Correction in response to its handwritten
note to the circuit court during deliberations that read, “Is there a drug program available in
the Dept of Corrections?” After conferring with counsel, the court responded to the jury with
a note saying, “You shall refer to the testimony, evidence, and instructions provided in relation
to your question.” Counsel for both parties agreed with this response. Because her counsel
did not object to the court’s response, this issue is not preserved for appeal. Hewitt, 317 Ark.
at 365, 877 S.W.2d at 928. Moreover, we see no error in the court’s response, and Davis’s
counsel waived any challenge to it by agreeing to its appropriateness.
Finally, Davis argues that the court should have granted her a continuance to hire
private counsel. This issue is addressed above; denial of the motion for a continuance was not
an abuse of discretion.
We therefore affirm and grant counsel’s motion to withdraw. Although not raised by
either party, we must also address an error in the court’s sentencing order. The court
erroneously checked a box stating that Davis was convicted by the court and sentenced by the
jury, when in fact she was both convicted and sentenced by the jury. In Sizemore v. State we
held:
A circuit court can enter an order nunc pro tunc at any time to correct clerical errors in a judgment or order. Accordingly, we affirm appellant’s conviction, but we remand in part for the circuit court to correct the sentencing order.
7 Sizemore, 2015 Ark. App. 728, at 8–9, 478 S.W.3d at 285–86 (internal citations omitted). We
remand for the circuit court to correct the clerical error contained in the sentencing order.
Affirmed; remanded to correct sentencing order; motion to withdraw granted.
GRUBER, C.J., and WHITEAKER, J., agree.
Robert N. Jeffrey, Attorney at Law, by: Robert N. Jeffrey, for appellant.
Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.