FROM THE FRANKLIN COUNTY CIRCUIT COURT, NORTHERN DISTRICT
[NO. CR-2014-16] HONORABLE WILLIAM M. PEARSON, JUDGE
C. Burnett, for appellant.
Rutledge, Att'y Gen., by: Rebecca Bailey Kane, Ass't
Att'y Gen., for appellee.
and Gruber, JJ., agree.
RAYMOND R. ABRAMSON, Judge.
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.
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 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.
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.
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 McCormick brought the firearm to her house, and Smith
had been playing with it when the gun went off.
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
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.
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.
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 ...