FROM THE JEFFERSON COUNTY CIRCUIT COURT NO. 35CR-15-246]
HONORABLE BERLIN C. JONES, JUDGE
Law Office, by: Gary W. Potts, for appellant.
Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, Judge
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; Kelley v. State, 2018
Ark.App. 448. 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
(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.
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
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."
compliance with the directives of Anders and Rule
4-3(k)(1), Kelley's counsel has 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
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. 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.
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.
person commits aggravated assault if "under
circumstances manifesting extreme indifference to the value
of human life, he or she purposely: (1) engages in conduct
that creates a substantial danger of death or serious
physical injury to another person." Ark. Code Ann.
§ 5-13-204 (Repl. 2013). Again, we agree with counsel
that sufficient evidence supports this conviction. Both
Clifton Crompton and Lakeada Doolittle testified that Kelley
pulled out a gun and waved it at Clifton when Clifton tried
to stop Kelley from taking the child. Clifton testified that
Kelley threatened to shoot him. In Johnson v. State,
132 Ark. 128, 130, 200 S.W. 982, 982 (1918), the Arkansas
Supreme Court held that the act of drawing a pistol
accompanied by threats evidencing an intention to use it on
the person threatened constitutes assault.
agree that there would be no merit to an appeal regarding the
circuit court's adverse jury-selection rulings. Kelley
objected to a juror's being removed after she disclosed
medical issues and expressed an inability to judge others.
The court struck her for cause. Kelley also objected to the
court's decision to seat a potential juror who had a
commitment that would require him to leave by a certain time
that afternoon. Kelley worried that the jury would feel
rushed to make a decision. The court seated the juror but
also put alternates in place in case he had to leave before
the case was decided. In both cases, we see no abuse of
discretion and agree that the facts present no meritorious
ground for appeal. See Biggers v. State, 317 Ark.
414, 878 S.W.2d 717 (1994).
next adverse ruling was the court's decision to admit
into evidence audio recordings of three 911 calls related to
the incident. Kelley objected, arguing that the calls were
hearsay without the callers present to testify. The State
argued that they were admissible as business records or as
present-sense impressions. The court admitted the recordings,
and we agree that they were admissible as present-sense
impressions under Rule 803 of the Arkansas Rules of Evidence.
Under Rule 803, a present-sense impression is a statement
describing or explaining an event or condition made while the
declarant was perceiving it or immediately thereafter. Ark.
R. Evid. 803(1). The 911 calls in this case were made by a
female caller who had just witnessed an incident in which
Kelley had taken the baby by force using a gun and had driven
away in a vehicle that she was following. We agree that these
statements qualify as present-sense impressions, admissible
under Rule 803.
note that Arkansas courts have admitted 911 recordings as
excited utterances under Rule 803(2). An excited utterance is
a statement about a startling event or condition that is made
while the speaker is under the stress or excitement caused by
that event or condition. Ark. R. Evid. 803(2). We have
reviewed the 911 calls at issue in this case and agree that
they were admissible as either present-sense impressions or