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Childers v. State

Court of Appeals of Arkansas

January 15, 2020

ANDREW CHILDERS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT [NO. 36CR-18-278] HONORABLE WILLIAM M. PEARSON, JUDGE

          Samuel F. Eastman, for appellant.

          One brief only.

          BRANDON J. HARRISON, JUDGE

         Andrew Childers was convicted by a jury of possession of a controlled substance. On appeal, Childers's counsel has filed a no-merit brief, along with a motion to withdraw as counsel, asserting that there is no issue of arguable merit for an appeal. Childers was provided with a copy of counsel's motion and brief and was informed of his right to submit pro se points for reversal in accordance with Rule 4-3(k)(2) of the Arkansas Rules of the Supreme Court, but no pro se points have been filed. We affirm and grant the motion to withdraw.

         In August 2018, Childers was charged with possession of a controlled substance and possession of a firearm by certain persons.[1] In January 2019, Childers moved to exclude the recording of a phone call made to 911 by Childers prior to his arrest or, in the alternative, for a continuance.

         At a jury trial held on January 24, Stephanie Herring, a 911 coordinator, testified that she had been asked to retrieve the recording of a 911 call made by Childers on 26 July 2018. On that call, Childers reported that there "[s]eems to be a Mexican gang around my house lighting dynamite and threatening me."

         Officer Jonia Smith testified that on 26 July 2018, he responded to a report of a possible residential burglary in which the victim had shot at some subjects trying to break into his house. When he arrived at the reported address, he saw "three suspected bullet holes through the residence," which he believed resulted from the shots fired at the alleged intruders. A man, later identified as Childers, came to the door, and Smith observed that he was "extremely sweaty and his pupils were darting back and forth. He could not keep still." Smith also said that Childers "seemed confused" and "couldn't believe I didn't see them." Smith believed that Childers was under the influence of a narcotic, specifically a stimulant, and he was placed under arrest for communicating a false alarm. Smith testified that he considered Childers a danger to his neighbors at that point because he had fired shots, and he (Smith) thought Childers should be mentally evaluated.

         After Childers was transported to the detention center, Smith saw the jailer conduct a pat-down search of Childers. Smith said that as the jailer pulled the front of Childers's shirt to check for weapons, "a baggie fell down to the floor. And when that happened, Mr. Childers said, 'Well, that ain't mine but it sure fell out of my crotch.'" The state crime lab later determined that the baggie contained .7208 grams of methamphetamine.

         After the State rested, Childers moved for a directed verdict, arguing that due to Childers's state of mind, he had not knowingly possessed the methamphetamine. The motion was denied.

         Childers testified that he is seventy-six years old and that he had made several 911 calls on July 26. He denied saying anything about the "Mexican Mafia" but did admit that he had "hallucinated that day Muslins [sic] were invading Ozone." He also admitted shooting at these imagined invaders, causing the bullet holes. Childers said that he had been sweaty because it was July and that his pupils had been dilated probably due to the medication he had been taking. He testified that he had been taking prescription medication for anxiety and depression and that he had started hallucinating, specifically seeing "people in the trees around [his] house" after starting the medication. He also said he took medications for arthritis, blood pressure, and cholesterol. He denied ever using illegal drugs and said he had not used any methamphetamine on July 26. He acknowledged possibly drinking alcohol that night. According to Childers, when the baggie fell on the floor during intake, he said, "Whatever it is, that would be mine." But he denied ever having methamphetamine in his possession.

         At the close of the defense's case, Childers renewed his motion for directed verdict, which was denied. The jury found Childers guilty of possession of a controlled substance, and he was sentenced to thirty days' incarceration and three years' probation.

         Childers's attorney has filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(k) (2019), along with a motion to withdraw as counsel, asserting that there is no issue of arguable merit for an appeal. 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). 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.

         Counsel first addresses the motion to exclude the recorded phone call or, alternatively, a motion for continuance. It appears from the record that the motion was never ruled on, but according to counsel, "it was retracted by defense counsel prior to the commencement of the trial, although not on ...


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