                                  Cite as 2016 Ark. App. 330


                  ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                        No. CR-15-403



                                                  Opinion Delivered: June   22, 2016
JOSHUA HUGH MCCORMICK

                                 APPELLANT APPEAL FROM THE FRANKLIN
                                           COUNTY CIRCUIT COURT,
V.                                         NORTHERN DISTRICT
                                           [NO. CR-2014-16]


STATE OF ARKANSAS                                 HONORABLE WILLIAM M.
                                                  PEARSON, JUDGE
                                    APPELLEE
                                                  AFFIRMED; MOTION TO
                                                  WITHDRAW GRANTED


                           RAYMOND R. ABRAMSON, Judge

        Appellant 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.

        McCormick’s 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
                                    Cite as 2016 Ark. App. 330

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.

       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. Here, we find compliance with Rule 4-3(k)(1) and Anders, and hold that

there is no merit to this appeal.

                                              I.       Facts

       The 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




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McCormick brought the firearm to her house, and Smith had been playing with it when

the gun went off.

       Smith 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 threatening.

       Newman 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.




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                                       II.     Adverse Rulings

       Counsel 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.

       As it 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 convicted of a felony. Ark.

Code Ann. § 5-73-103(a)(1). Here, both requirements have been met.

       McCormick does not contest that he was a convicted felon. The testimony of two

witnesses indicated that McCormick brought the gun to Newman’s residence where Smith

used it to shoot himself. Although the firearm was never found, this direct evidence is not

required. McCormick left the location of the shooting prior to the arrival of the investigating

officers. This is incriminating evidence. Viewing the evidence in the light most favorable to

the verdict and considering the testimony of the State’s two eyewitnesses and law

enforcement officers, along with the additional incriminating fact that McCormick left the

scene, we conclude that there is sufficient evidence to find that McCormick possessed the


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firearm. We hold that the circuit court did not err in denying McCormick’s motions for

directed verdict.

          There were also three evidentiary rulings that were adverse to McCormick, and

McCormick’s counsel has provided an explanation as to why none of these rulings could

support a meritorious appeal. It is well settled that evidentiary matters regarding the

admissibility of evidence are left to the sound discretion of the trial court, and rulings in this

regard will not be reversed absent an abuse of discretion. Ellison v. State, 354 Ark. 340, 123

S.W.3d 874 (2003). Abuse of discretion is a high threshold that does not simply require

error in the trial court’s decision, but requires that the trial court act improvidently,

thoughtlessly, or without due consideration. Nazarenko v. CTI Trucking Co., 313 Ark. 570.

856 S.W.2d 869 (1993). Based on our review of the record, we conclude that none of these

evidentiary rulings constituted reversible error and that none could form the basis for a merit

appeal.

          In McCormick’s pro se points, he raises eight points for reversal. None of these points

have merit, and can be summarized this way: (1) ineffective assistance of counsel; (2) counsel

did not allow him to take the stand; (3) insufficient evidence to support his conviction; (4)

witnesses’ statements were inconsistent; (5) witnesses were coerced into testifying against

him; (6) Smith and Newman are also both convicted felons; (7) the State used the testimony

of “two convicted felons that was [sic] scared into testifying” to convict him; and (8) Smith

had written him a letter apologizing for falsely accusing him of the crime. 1



          1
       This alleged letter is not attached to McCormick’s pro se points and is found
nowhere in the record.

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       The State contends that the pro se points raised by McCormick were not raised

below and are not supported by convincing argument or citation to authority, and therefore

they should not be considered by this court. The State also discusses each pro se point and

explains why it is without merit.

       We agree that many of McCormick’s arguments in his pro se points, including his

ineffective-assistance-of-counsel claims, were not raised below or were not otherwise

preserved for our review. Issues raised for the first time on appeal, even constitutional issues,

will not be considered because the circuit court never had an opportunity to make a ruling.

Johnson v. State, 2009 Ark. 460 (per curiam) (citing Green v. State, 362 Ark. 459, 209 S.W.3d

339 (2005)). The remaining points challenge the sufficiency of the evidence supporting his

conviction. From the testimony presented, however, there was substantial evidence to

support the jury’s finding of guilt.

       Based on our review of the record and the briefs presented, we conclude that there

has been compliance with Rule 4-3(k)(1) and that this appeal is without merit.

Consequently, McCormick’s counsel’s motion to be relieved is granted, and the judgment

is affirmed.

       Affirmed; motion to withdraw granted.

       VIRDEN and GRUBER, JJ., agree.

       John C. Burnett, for appellant.

       Leslie Rutledge, Att’y Gen., by: Rebecca Bailey Kane, Ass’t Att’y Gen., for appellee.




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