Cite as 2024 Ark. App. 388 ARKANSAS COURT OF APPEALS DIVISION I No. CR-23-647
Opinion Delivered June 5, 2024 SETHPHROM HENDERSON APPELLANT APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NOS. 43CR-21-173; 43CR-22-461] V. HONORABLE BARBARA ELMORE, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED; MOTION TO WITHDRAW GRANTED
WENDY SCHOLTENS WOOD, Judge
Sethphrom Henderson appeals two Lonoke County sentencing orders— one finding
him guilty of fleeing and sentencing him to seventy-two months in prison (case No. 43CR-
22-461) and one revoking his probation for criminal mischief and sentencing him to twelve
months in the county jail (case No. 43CR-21-173). Pursuant to Arkansas Supreme Court
Rule 4-3(b) (2023) and Anders v. California, 386 U.S. 738 (1967), Henderson’s counsel has
filed a motion to withdraw, stating that there is no merit to an appeal. The motion is
accompanied by a brief in which counsel explains why there is nothing in the record that
would support an appeal. The clerk of this court served Henderson with a copy of counsel’s
brief and notified him of his right to file a pro se statement of points for reversal within
thirty days, but he has not done so. We affirm the conviction for fleeing and the revocation
and grant counsel’s motion to withdraw. On August 2, 2021, Henderson pled guilty to first-degree criminal mischief, a Class
A misdemeanor, and was sentenced to twelve months’ probation and ordered to pay $500
in restitution along with court costs, fines, and fees. The conditions of his probation
included that he report to his probation officer as directed; obey all state, federal, and local
laws; not use, sell, or possess any controlled substances; and pay his restitution, fines, costs,
and fees as ordered.
On March 30, 2022, the State filed a petition to revoke Henderson’s probation,
alleging that he had failed to report on December 23, 2021, and February 9, 2022, and that
his whereabouts were unknown; failed to receive approval from his probation officer prior
to moving residences; tested positive for marijuana on January 6, 2022; and failed to make
payments toward his fines, fees, and costs. An amended petition to revoke was filed on July
8, adding that Henderson was arrested for fleeing in a vehicle, creating a substantial danger
of death, in Lonoke, Arkansas, on July 1, 2022. On August 24, the State charged Henderson
with fleeing, a Class C felony, in 43CR-22-461. The State filed amended revocation petitions
on January 5, January 31, and February 6, 2023, adding that Henderson tested positive for
marijuana five more times and had not made any payments toward his fines, fees, and costs.
On June 13, the circuit court held a bench trial in the fleeing case followed by a
revocation hearing. Lieutenant Dustin Morgan of the Arkansas State Police testified that on
July 1, 2022, he was working federal speed enforcement on Highway 67 at the exit 25
southbound on ramp. He initiated contact with Henderson after he saw a silver vehicle pass
by him without any visible tags. Morgan attempted to catch up to the vehicle and execute a
2 traffic stop, but the vehicle failed to stop after Morgan activated his lights and siren. Morgan
followed the vehicle for about three miles, during which the vehicle sped up from eighty to
ninety-five miles an hour in a seventy-five-mile-an-hour zone. The dash-camera footage was
introduced into evidence that showed vehicles moving out of Henderson’s way when he left
his lane of traffic. The footage also showed Morgan’s speed as he pursued Henderson. The
silver vehicle eventually stopped, and the driver, who was identified as Henderson, fled the
scene.
Morgan said that during the chase, he reached speeds in excess of one hundred miles
an hour. Morgan was afraid Henderson’s vehicle would hit other motorists whose travel was
impeded by Henderson’s driving. Morgan testified that when the vehicle stopped,
Henderson fled on foot, jumped a fence, and “took off” across a field. Morgan said he stayed
with the vehicle to deal with Henderson’s two passengers, who appeared scared and shaken.
Henderson was apprehended by another officer about a quarter mile away.
At the close of the State’s case, defense counsel moved to dismiss, arguing that the
State failed to prove there was a risk of serious injury or death. The circuit court denied the
motion. The defense rested without calling any witnesses, and the circuit court found
Henderson guilty of fleeing. A hearing followed on the State’s petition to revoke.
Officer Milly Norris testified that she was Henderson’s probation officer in January
2022. Norris said that Henderson violated the conditions of his probation by testing positive
for marijuana on three occasions and failing to report between February and July 2022,
before he was arrested on the fleeing charge.
3 Officer Johnathon Mertens testified that he began supervising Henderson in
November 2022. Mertens said that Henderson tested positive twice for marijuana but had
negative tests in the months of March, April, and May 2023.
The State rested, and Henderson testified in his defense. He said that he had recently
stopped smoking marijuana because he was about to have his first son and that he was
working with his father on “scrap metal or anything we can get our hands on.” He also
acknowledged his failure to report, explaining that he tried to call the probation office but
had issues with his phone and trouble reaching the right person. He said he had been
“catching up” on his fines.
In separate orders entered on June 14, 2023, Henderson was sentenced to concurrent
sentences of seventy-two months in prison for the fleeing conviction in 43CR-22-461 and
one year in the county jail for the revocation of his probation for first-degree criminal
mischief in 43CR-21-173. This appeal followed.
Rule 4-3(b)(1) provides that a no-merit 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. The brief’s statement of the case and
the facts shall contain, in addition to the other material parts of the record, all rulings adverse
to the defendant made by the circuit court and the page number where each adverse ruling
is located in the appellate record. Ark. Sup. Ct. R. 4-3(b)(1).
4 Henderson’s counsel has briefed the two adverse rulings in this case. The first is the
fleeing conviction. A motion to dismiss at a bench trial is identical to a motion for directed
verdict at a jury trial in that it is a challenge to the sufficiency of the evidence. Ark. R. Crim.
P. 33.1; Warren v. State, 2019 Ark. App. 33, at 2, 567 S.W.3d 105, 107. This court will affirm
a circuit court’s denial of the motion if there is substantial evidence, either direct or
circumstantial, to support the verdict. Id. Substantial evidence is defined as evidence forceful
enough to compel a conclusion beyond suspicion and conjecture. Id. The evidence is viewed
in the light most favorable to the verdict, and only evidence supporting the verdict is
considered. Id.
Arkansas Code Annotated section 5-54-125(a) provides that “[i]f a person knows that
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Cite as 2024 Ark. App. 388 ARKANSAS COURT OF APPEALS DIVISION I No. CR-23-647
Opinion Delivered June 5, 2024 SETHPHROM HENDERSON APPELLANT APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NOS. 43CR-21-173; 43CR-22-461] V. HONORABLE BARBARA ELMORE, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED; MOTION TO WITHDRAW GRANTED
WENDY SCHOLTENS WOOD, Judge
Sethphrom Henderson appeals two Lonoke County sentencing orders— one finding
him guilty of fleeing and sentencing him to seventy-two months in prison (case No. 43CR-
22-461) and one revoking his probation for criminal mischief and sentencing him to twelve
months in the county jail (case No. 43CR-21-173). Pursuant to Arkansas Supreme Court
Rule 4-3(b) (2023) and Anders v. California, 386 U.S. 738 (1967), Henderson’s counsel has
filed a motion to withdraw, stating that there is no merit to an appeal. The motion is
accompanied by a brief in which counsel explains why there is nothing in the record that
would support an appeal. The clerk of this court served Henderson with a copy of counsel’s
brief and notified him of his right to file a pro se statement of points for reversal within
thirty days, but he has not done so. We affirm the conviction for fleeing and the revocation
and grant counsel’s motion to withdraw. On August 2, 2021, Henderson pled guilty to first-degree criminal mischief, a Class
A misdemeanor, and was sentenced to twelve months’ probation and ordered to pay $500
in restitution along with court costs, fines, and fees. The conditions of his probation
included that he report to his probation officer as directed; obey all state, federal, and local
laws; not use, sell, or possess any controlled substances; and pay his restitution, fines, costs,
and fees as ordered.
On March 30, 2022, the State filed a petition to revoke Henderson’s probation,
alleging that he had failed to report on December 23, 2021, and February 9, 2022, and that
his whereabouts were unknown; failed to receive approval from his probation officer prior
to moving residences; tested positive for marijuana on January 6, 2022; and failed to make
payments toward his fines, fees, and costs. An amended petition to revoke was filed on July
8, adding that Henderson was arrested for fleeing in a vehicle, creating a substantial danger
of death, in Lonoke, Arkansas, on July 1, 2022. On August 24, the State charged Henderson
with fleeing, a Class C felony, in 43CR-22-461. The State filed amended revocation petitions
on January 5, January 31, and February 6, 2023, adding that Henderson tested positive for
marijuana five more times and had not made any payments toward his fines, fees, and costs.
On June 13, the circuit court held a bench trial in the fleeing case followed by a
revocation hearing. Lieutenant Dustin Morgan of the Arkansas State Police testified that on
July 1, 2022, he was working federal speed enforcement on Highway 67 at the exit 25
southbound on ramp. He initiated contact with Henderson after he saw a silver vehicle pass
by him without any visible tags. Morgan attempted to catch up to the vehicle and execute a
2 traffic stop, but the vehicle failed to stop after Morgan activated his lights and siren. Morgan
followed the vehicle for about three miles, during which the vehicle sped up from eighty to
ninety-five miles an hour in a seventy-five-mile-an-hour zone. The dash-camera footage was
introduced into evidence that showed vehicles moving out of Henderson’s way when he left
his lane of traffic. The footage also showed Morgan’s speed as he pursued Henderson. The
silver vehicle eventually stopped, and the driver, who was identified as Henderson, fled the
scene.
Morgan said that during the chase, he reached speeds in excess of one hundred miles
an hour. Morgan was afraid Henderson’s vehicle would hit other motorists whose travel was
impeded by Henderson’s driving. Morgan testified that when the vehicle stopped,
Henderson fled on foot, jumped a fence, and “took off” across a field. Morgan said he stayed
with the vehicle to deal with Henderson’s two passengers, who appeared scared and shaken.
Henderson was apprehended by another officer about a quarter mile away.
At the close of the State’s case, defense counsel moved to dismiss, arguing that the
State failed to prove there was a risk of serious injury or death. The circuit court denied the
motion. The defense rested without calling any witnesses, and the circuit court found
Henderson guilty of fleeing. A hearing followed on the State’s petition to revoke.
Officer Milly Norris testified that she was Henderson’s probation officer in January
2022. Norris said that Henderson violated the conditions of his probation by testing positive
for marijuana on three occasions and failing to report between February and July 2022,
before he was arrested on the fleeing charge.
3 Officer Johnathon Mertens testified that he began supervising Henderson in
November 2022. Mertens said that Henderson tested positive twice for marijuana but had
negative tests in the months of March, April, and May 2023.
The State rested, and Henderson testified in his defense. He said that he had recently
stopped smoking marijuana because he was about to have his first son and that he was
working with his father on “scrap metal or anything we can get our hands on.” He also
acknowledged his failure to report, explaining that he tried to call the probation office but
had issues with his phone and trouble reaching the right person. He said he had been
“catching up” on his fines.
In separate orders entered on June 14, 2023, Henderson was sentenced to concurrent
sentences of seventy-two months in prison for the fleeing conviction in 43CR-22-461 and
one year in the county jail for the revocation of his probation for first-degree criminal
mischief in 43CR-21-173. This appeal followed.
Rule 4-3(b)(1) provides that a no-merit 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. The brief’s statement of the case and
the facts shall contain, in addition to the other material parts of the record, all rulings adverse
to the defendant made by the circuit court and the page number where each adverse ruling
is located in the appellate record. Ark. Sup. Ct. R. 4-3(b)(1).
4 Henderson’s counsel has briefed the two adverse rulings in this case. The first is the
fleeing conviction. A motion to dismiss at a bench trial is identical to a motion for directed
verdict at a jury trial in that it is a challenge to the sufficiency of the evidence. Ark. R. Crim.
P. 33.1; Warren v. State, 2019 Ark. App. 33, at 2, 567 S.W.3d 105, 107. This court will affirm
a circuit court’s denial of the motion if there is substantial evidence, either direct or
circumstantial, to support the verdict. Id. Substantial evidence is defined as evidence forceful
enough to compel a conclusion beyond suspicion and conjecture. Id. The evidence is viewed
in the light most favorable to the verdict, and only evidence supporting the verdict is
considered. Id.
Arkansas Code Annotated section 5-54-125(a) provides that “[i]f a person knows that
his or her immediate arrest or detention is being attempted by a duly authorized law
enforcement officer, it is the lawful duty of the person to refrain from fleeing, either on foot
or by means of any vehicle or conveyance.” Fleeing by means of a vehicle is a Class C felony
“if under circumstances manifesting extreme indifference to the value of human life, a
person purposely operates the vehicle or conveyance in such a manner that creates a
substantial danger of death or serious physical injury to another person.” Ark. Code Ann. §
5-54-125(d)(3) (Supp. 2023).
We hold that there would be no merit to an appeal of the sufficiency of the evidence
supporting the fleeing conviction. The State presented the testimony of Lieutenant Morgan,
who said that he attempted to initiate a stop of Henderson’s vehicle for having no visible
tags. Morgan initiated his lights and siren and followed Henderson for about three miles.
5 Henderson did not stop and instead increased his speed from eighty to ninety-five miles an
hour in a seventy-five-mile-an-hour zone. Morgan’s dashcam footage showed that Henderson
left his lane of traffic and caused other drivers to run off the road. Morgan said that once
the vehicle stopped, Henderson fled on foot, and his two passengers appeared scared and
shaken.
The second adverse ruling is the revocation of probation. To revoke a defendant’s
probation, the circuit court must find by a preponderance of the evidence that the defendant
has inexcusably violated a condition of his or her probation. McDougal v. State, 2015 Ark.
App. 212, at 4, 465 S.W.3d 863, 866. The State bears the burden of proof but need only
prove one violation. Peals v. State, 2015 Ark. App. 1, at 4, 453 S.W.3d 151, 154.
We hold that there would be no merit to an appeal of the sufficiency of the evidence
supporting the revocation. Henderson admitted he had violated his probation by using
marijuana and failing to report. In addition, there was substantial evidence that Henderson
committed the new offense of fleeing. Moreover, Henderson’s counsel conceded that there
was sufficient evidence to establish a violation.
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, at 2–3. In this case, counsel has complied with Rule 4-3(b), and we hold that
the appeal is without merit. Accordingly, we affirm the fleeing conviction and the revocation
and grant counsel’s motion to withdraw.
6 Affirmed; motion to withdraw granted.
ABRAMSON and GRUBER, JJ., agree.
Robert M. “Robby” Golden, for appellant.
One brief only.