APPEAL
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-17-601]
HONORABLE MARCIA R. HEARNSBERGER, JUDGE
King
Law Group PLLC, by: Natalie S. King, for appellant.
Leslie
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
WAYMOND M. BROWN, Judge
A
Garland County Circuit Court jury found appellant Andre
Flowers guilty of aggravated residential burglary and battery
in the first degree. He was sentenced as a habitual offender
to a total of ninety years' imprisonment and fined $15,
000. Appellant's counsel has filed a motion to withdraw
and a no-merit brief pursuant to Anders v.
California[1] and Arkansas Supreme Court Rule 4-3(k),
[2]
stating that there are no meritorious grounds to support an
appeal. The clerk of this court provided appellant with a
copy of counsel's brief and motion and notified appellant
of his right to file pro se points for reversal. Appellant
has filed pro se points for reversal, and the State has filed
a response. We affirm appellant's convictions and grant
counsel's motion to withdraw.
A
request to be relieved as counsel on the ground that the
appeal is wholly without merit shall be accompanied by a
brief including an abstract and addendum.[3] The brief shall
contain an argument section that consists of a list of all
rulings adverse to the defendant made by the trial court with
an explanation as to why each adverse ruling is not a
meritorious ground for reversal.[4] It is imperative that
counsel follow the appropriate procedure when filing a motion
to withdraw as counsel.[5] In furtherance of the goal of
protecting constitutional rights, it is both the duty of
counsel and of this court to perform a full examination of
the proceedings as a whole to decide if an appeal would be
wholly frivolous.[6]
The
main unfavorable ruling against appellant is the court's
denial of his directed-verdict motions. This court treats a
motion for a directed verdict as a challenge to the
sufficiency of the evidence.[7] The test for determining
sufficiency of the evidence is whether the verdict is
supported by substantial evidence, direct or circumstantial;
substantial evidence is evidence forceful enough to compel a
conclusion one way or the other beyond suspicion or
conjecture.[8] Evidence is viewed in the light most
favorable to the State; only evidence that supports a verdict
is considered.[9]
Appellant was found guilty of aggravated residential
burglary. He was tried under the theory of accomplice
liability-when two or more person assist one another in the
commission of a crime, each is an accomplice and criminally
liable for the conduct of both. Arkansas makes no distinction
between the criminal liability of a principal and an
accomplice.[10] Arkansas Code Annotated section
5-39-204[11] provides:
(a) A person commits aggravated residential burglary if he or
she commits residential burglary as defined in §
5-39-201 of a residential occupiable structure occupied by
any person, and he or she:
(1)Is armed with a deadly weapon or represents by word or
conduct that he or she is armed with a deadly weapon; or
(2) Inflicts or attempts to inflict death or serious physical
injury upon another person.
Arkansas
Code Annotated section 5-39-201(a)(1) provides that a person
commits residential burglary if he or she enters or remains
unlawfully in a residential occupiable structure of another
person with the purpose of committing in the residential
occupiable structure any offense punishable by imprisonment.
Serious physical injury is defined as a physical injury that
creates substantial risk of death or that causes protracted
disfigurement, protracted impairment of health, or loss or
protracted impairment of the function of any bodily member or
organ.[12]
The
evidence viewed in the light most favorable to the State
shows the following: On June 22, 2017, Jared Wortman was at
his home, #9 Maza Apartments in Hot Springs. He got into a
verbal altercation with appellant that eventually turned
violent. Testimony showed that Wortman chased appellant from
his apartment at least twice with a box cutter. Wortman
subsequently went into his apartment. Appellant and Jeremy
James, appellant's friend who had retrieved a hatchet
from a white van, followed Wortman into his
apartment.[13] A short time later, appellant and James
left the apartment and fled in the white van. Wortman was
subsequently found lying on the floor unresponsive. He had
labored breathing and there was bruising and swelling around
his neck. LifeNet was called to transport Wortman to CHI St.
Vincent Hospital. Dr. Spencer Wright evaluated Wortman and
noted that he was comatose upon arrival. A CT scan revealed
little injury to his brain, but he had suffered a skull and
scalp injury. Wortman also had nasal fractures and some
suspected fractures of his mid-face and bruising around his
throat. The bruising around his throat was consistent with
strangulation. The injury to the head and scalp was
consistent with a blow or kick. Wortman was seen by Dr. James
Arthur, a neurological surgeon, who found that Wortman did
not require surgical intervention. Wortman was able to
breathe on his own on June 26, but he was unable to swallow
for quite some time and had to be fed through an
esophagogastric tube. Wortman remained in the hospital until
July 18, when he was transferred to a rehabilitation center.
At the time of the trial, Wortman had to walk with a cane,
could no longer work, and had no memory of the altercation
that took place on June 22. This evidence is sufficient to
support appellant's aggravated-residential-burglary
conviction.
Appellant
was also found guilty of battery in the first degree. A
person commits battery in the first degree if he or she
causes serious physical injury to another person under
circumstances manifesting extreme indifference to the value
of human life.[14] After a physical altercation with
appellant and James, Wortman was left unresponsive and had to
be hospitalized for nearly a month. He suffered injuries
consistent with strangulation and being kicked or ...