Jimmy Shane Cantrell v. State of Arkansas

ar03-881

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR03-881

January 26, 2005

JIMMY SHANE CANTRELL AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

SIXTH DIVISION [CR01-2790]

V. HON. TIMOTHY FOX, JUDGE

STATE OF ARKANSAS AFFIRMED

APPELLEE

Wendell L. Griffen, Judge

In a no-merit appeal, Jimmy Shane Cantrell challenges his convictions for attempted first-degree sexual abuse and residential burglary. This is the second time appellant's case has been before this court. In a previous unpublished opinion, Cantrell v. State, No. CACR 03-881 (June 30, 2004), we remanded for rebriefing because appellant's counsel failed to address all the adverse rulings against appellant at trial. His counsel has now rebriefed the case and filed another motion to withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j)(1), alleging that an appeal would be wholly frivolous. Counsel's motion is accompanied by a brief that refers to everything in the record that might arguably support an appeal and explains why each adverse ruling is not a meritorious ground for reversal. Appellant has filed pro se points of appeal and the State has filed a brief in response. We affirm appellant's conviction and grant counsel's motion to be relieved.

The State alleged that on June 22, 2001, appellant forced his way into the home of Kelly Floyd and attempted to rape her. A jury found appellant guilty of residential burglary and attempted first-degree sexual abuse, a lesser-included offense of attempted rape. The trial court accepted the jury's recommendation that appellant serve an enhanced sentence of twelve years in prison for sexual abuse and thirty years for residential burglary and ordered the sentences to run concurrently.

I. Adverse Rulings

The brief accompanying an attorney's request to withdraw from appellate representation on the ground that an appeal is wholly without merit must contain an argument section that addresses all rulings adverse to the defendant made by the trial court on all objections, motions, and requests made by either party with an explanation concerning why each adverse ruling is not a meritorious ground for reversal. Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). In deciding whether to allow counsel to withdraw from appellate representation of a defendant, the test is not whether counsel thinks the trial court committed no reversible error, but rather whether the points to be raised on appeal would be wholly frivolous. Id. Additionally, we are bound to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001). We have examined the adverse rulings addressed by counsel and appellant's pro se arguments. We hold that an appeal from any of the adverse rulings or the points raised by appellant would be wholly frivolous.

The following rulings adverse to appellant were made below: 1) denial of appellant's motions for a directed verdict on each charge; 2) a finding that Floyd was competent to testify; 3) admission of certain photographic evidence; 4) admission of certain testimony over appellant's hearsay or relevancy objections; 5) limitations imposed on cross-examination of two witnesses; 6) a finding that the habitual offender legislation did not constitute cruel and unusual punishment or ex post facto legislation; 7) denial of appellant's request for an instruction on the lesser-included offense of breaking or entering; and 8) sentencing of appellant as a habitual offender.

A. Sufficiency of the Evidence

Appellant challenged the sufficiency of the evidence supporting his convictions by moving for a directed verdict at the close of the State's evidence and by renewing that motion at the close of all of the evidence. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). On appeal, we review the evidence in a light most favorable to the appellee, and affirm if substantial evidence supports the jury verdict; only evidence supporting the guilty verdict need be considered. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other with reasonable certainty beyond mere suspicion or conjecture. Id.

There is no dispute that appellant and Floyd had a physical altercation. Floyd testified that the fight occurred because appellant forced his way into her home and attempted to rape her. Appellant maintains that he went to Floyd's home to collect $50 she owed him for a ring he had given her and that she invited him inside.

According to Floyd, who was eight months pregnant when the incident occurred, she and her seven-year old son, Michael, were watching a movie, when a man she did not know came to the door of her home.1 Floyd identified the man as appellant and stated he was wearing a company shirt with the name "Shane" on it. After he asked whether she needed any odd jobs performed around the house, the man asked if he could perform oral sex upon her. She told him to leave and attempted to close the door. She testified that he forced his way into her home, held a knife to her throat, and that she fought back. During the struggle, which Floyd characterized as "intense," she received bruises, scratches, and abrasions. She also testified that appellant said, "Do what I say, give me thirty minutes, and I'll be gone." Floyd said that appellant dragged her down the hallway and asked her if it was necessary to bring her children in there. Unbeknownst to appellant and Floyd, her sons had fled to her mother's home, approximately one block away.

Floyd testified that appellant ripped her underwear off, pinned her legs against her chest, and then licked her thigh. The attack ended when Pamela Smith, Floyd's mother, burst through the front door, startling appellant. Floyd stated that appellant dropped the knife he was holding, but retrieved it and left through the front door. Appellant left behind several articles of clothing and some items that fell from his shirt, including a pay stub from Capital Equipment, his employer.

Appellant fled into the woods behind Floyd's home and Smith pursued him. She shot him in the back with "rat shot" or small pellets because she feared he was going to her home, where her grandchildren remained, on the other side of the woods. Appellant hid in the woods until Sunday, when he went to his mother's house, where he was arrested.

Evidence of Floyd's injuries was provided by photographic evidence, as well as testimony from Floyd, the investigating officer, and the examining nurse. Appellant objected to the photographs depicting Floyd's injuries. Over appellant's objection, the investigating officer, Stephanie Cloos, testified that Floyd told her that the man attacked her with a knife, asked to perform oral sex on her, ripped off her underwear, and told her it would only take thirty minutes if she would give up her "p***y." Cloos also stated that Floyd told her that appellant asked her, "Do I have to get your kids to watch this?" A forensic biologist from the Arkansas State Crime Laboratory testified that a blood sample taken from Floyd's thigh matched a blood sample taken from appellant.

Appellant testified that he met Floyd on a prior occasion and had given her a ring that he had found, for which she promised to pay him $50. He stated that he had made arrangements to spend the night with a friend, who was going to pick him up after he collected his money. According to appellant, Floyd invited him into her home and the altercation began because he called Floyd a "bitch" after she told him she did not have the money or the ring. He said that she slapped him and they began fighting. He said that Floyd offered him cocaine and oral sex in exchange for payment for the ring, which he declined.

Appellant denied making any sexual statements to Floyd; he maintained that he was not interested in her sexually because she was pregnant and was not attractive to him and that the only reason he was there was to collect the money she owed him. Appellant denied that he had a knife and maintained that the blood came from a cut on his fist that "kept getting busted open at work."

Jade DeGarmo, appellant's friend, testified that appellant told her he was going to pick up some money and would meet her on the street on Mary Lane (one block from where Floyd lives). However, because DeGarmo was having car problems, she never saw him that evening. Appellant's mother also testified that appellant told her he was going to collect some money and that he had a friend who was going to pick him up.

We hold that an appeal based on the sufficiency of this evidence would be wholly frivolous. A person commits residential burglary when he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark. Code Ann. § 5-39-102 (Repl. 1997). The first issue, which may be disposed of readily, is whether appellant unlawfully entered Floyd's home. He testified that she invited him in; she testified that he forced his entry. The resolution of conflicting testimony and inconsistent evidence was for the jury, sitting as trier of fact, to decide. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000). The jury was entitled to believe Floyd's testimony that appellant forced his way into her home.

The next issues are whether the State proved by substantial evidence that appellant entered Floyd's home with the intent to commit an offense punishable by imprisonment, and specifically, with the intent to commit sexual abuse. A person commits first-degree sexual abuse if he engages in sexual contact with another person by forcible compulsion. Ark. Code Ann. § 5-14-108(a) (Repl. 1997).2 Sexual contact includes any act of sexual gratification involving the touching of the sex organ, buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-14-101(8) (Supp. 2003). Conduct constitutes an attempted crime when a person purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of that crime. Ark. Code Ann. § 5-3-201(a)(2) (Repl. 1997); Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988). Conduct is a "substantial step" under § 5-3-201 only if it is strongly corroborative of the person's criminal purpose. Ark. Code Ann. § 5-3-201(c).

Appellant argues that he entered Floyd's home to collect on a debt that she owed him and there was no evidence that his conduct was sexual in nature. However, the jury was not required to believe his testimony. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002). To the contrary, the evidence supports the conclusion that appellant forced his way into Floyd's home, "asked" if he could perform oral sex on her, forcibly removed her underwear, forced her to lie with her legs against her chest, licked her thigh, and told her the encounter would only take thirty minutes if she gave in to him. When viewed in the light most favorable to the State, we hold that appellant's conduct and statements were strongly corroborative of his intent to commit an offense punishable by imprisonment, specifically, first-degree sexual abuse.

B. Floyd's Competency to Testify

Before trial began, in an in camera proceeding and over appellant's objection, the trial court ruled that Floyd was competent to testify. Appellant apparently challenged her competency on the ground that she admitted herself into the Arkansas State Hospital the week before trial and had been placed on suicide watch. Floyd testified that she was treated for auditory hallucinations, but the medication she received reduced the hallucinations. Floyd, a diabetes nurse, testified that her medication calmed her, but did not affect her thinking. She stated that she understood the difference between a lie and the truth and understood that if she lied she could go to jail. She admitted some difficulty remembering the order of events, but had not forgotten who attacked her or what he said to her.

Dr. Joe Alford, a clinical psychologist who supervises the psychology department at the Arkansas State Hospital, opined that Floyd was competent to testify. He had diagnosed her with post-traumatic stress syndrome related to the attack, which worsened as she neared trial because she would be near the person who attacked her. Dr. Alford testified that Floyd was taking an antipsychotic drug and an antidepressant, but that she displayed no evidence of psychosis.

Dr. Alford further stated that Floyd was a bright woman and that he had seen no interference with the quality of her thinking, her ability to give accurate testimony, or her ability to provide information about the incident. In his professional opinion, Floyd understood the obligation of an oath, and her post-traumatic stress syndrome would not affect her ability to do so. He stated that Floyd was presently capable of transmitting a reasonable statement of what she saw, felt, or heard. The trial court found that Floyd was competent to testify, but noted that her inability to recall certain details might be "fertile ground for impeachment."

We hold that an appeal from this adverse ruling would be wholly frivolous. An individual is presumed competent to give testimony, and the burden of showing incompetency is upon the party making the challenge. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). The criteria for determining whether a witness is competent to testify are: 1) the witness's ability to understand the obligation of an oath; 2) an understanding of the consequences of false swearing; 3) the witness's ability to receive and retain accurate impressions; 4) the capacity to transmit a reasonable statement of what was seen, felt, or heard. Id. A trial court's determination of whether a witness is competent will not be reversed absent a clear abuse of discretion. Id.

Here, there was no abuse of discretion. Floyd's psychologist was qualified, without objection, as an expert witness. He testified that appellant was competent, that he had seen no evidence of psychosis, and that her post-traumatic stress syndrome would not affect her ability to provide information about the incident. Additionally, the trial court had the opportunity to witness Floyd's demeanor and assess her understanding regarding false swearing. From these facts, that the trial court could have properly found that Floyd had a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts, which is sufficient to support a finding of competency. Id.

C. Photographic Evidence

Appellant also objected to the admission of certain photographs. First, he objected to photographs admitted as State's Exhibits 1-9, which depicted injuries Floyd received in the fight. Second, appellant objected to admission of Exhibits 15 and 16 and Exhibits 20-22, which depicted items that appellant left in Floyd's home.

Floyd testified that Exhibits 1 through 9 provided a clear and accurate representation of her appearance after the fight. These pictures showed bruises or abrasions on Floyd's back, thigh, and arms. Appellant objected to the admission of Exhibits 1 through 9 on the ground that Floyd had not taken the photographs, that she was not the proper witness through whom to introduce them, and that there was a lack of proper foundation to admit the photos. The trial court overruled appellant's objection.

Exhibit 20 showed a photo of a black shirt; Exhibit 21 showed a pair of blue jeans; and Exhibit 22 showed two unopened Busch Lite beer cans. These items were found in a bag appellant left in Floyd's residence. The trial court admitted the photos over appellant's relevancy objection.

Appellant further objected to Exhibits 15 and 16 on the ground that the exhibits displayed "the same shirt" displayed in Exhibit 20. The trial court did not explicitly rule on this objection, but Exhibits 15 and 16 were admitted into evidence.

The admission of photographs is a matter left to the sound discretion of the trial court. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). Further, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Id. Photographs may be admissible if they assist the trier-of-fact, for example, by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, by enabling jurors to better understand the testimony, or by showing the probable type or location of the injuries. Id. We will not reverse a trial court's admission of photographs absent an abuse of discretion. Id.

Exhibits 1 through 9 were properly admitted because they helped prove a necessary element of the case, forcible compulsion. The fact that appellant admitted a fight happened did not render these photographs inadmissable as cumulative. Id. Floyd testified that the photographs clearly and accurately depicted her physical state immediately following the fight. Appellant expressly stated that he was not objecting to Floyd's testimony, only that she was not the proper person to introduce the testimony into evidence.

There appears to be no error, but any error in this regard would be harmless. Joe Garza, the police officer who took the photographs, testified that he saw bruises on appellants arms, back, and leg. Barbara West, the nurse who examined appellant, testified that the photographs accurately show what she saw when she examined Floyd. Therefore, this adverse ruling does not offer a meritorious basis for an appeal.

In addition, appellant waived any objections to the admission of Exhibits 15 and 16 when he failed to obtain a ruling on his objection. State v. Montague, 341 Ark. 144, 14 S.W.3d 867 (2000). Moreover, because appellant admitted that he was in Floyd's home, he was not prejudiced by the admission of these photos; thus, any error would be harmless.

D. Hearsay

Appellant's objections to certain hearsay testimony were also overruled. First, he objected when Pamela Smith attempted to testify regarding what Floyd's son, Michael, told her about the attack. Second, appellant objected when Officer Cloos attempted to testify regarding the statements Floyd made to her after the attack.

Smith testified that her grandchildren came into her house, running and yelling. She stated that they were shaking and were "freaked out." Because she could not understand what they were saying, she told the younger child, Jonathan, to be quiet and to allow Michael, the oldest, to talk. When Smith attempted to testify regarding what Michael told her, appellant objected on the ground that anything the grandchildren said would be hearsay. The State responded that the statements would be admissible as an excited utterance.

Appellant countered that the children, who were not present, were old enough to testify and that their statements should have been disclosed during discovery. He also objected on relevancy grounds. The trial court checked the discovery file and found that Michael's statement was in the file. Appellant maintained that the statement was prejudicial because it was being offered for the truth of the matter and that he was being denied the right to cross-examine the witness. The State responded that it was not offering the testimony for the truth of the matter. The trial court overruled the objection because the statement had been disclosed to the defense, but indicated that the testimony would be limited to what had been disclosed.

Smith then testified that she asked Michael what happened and Michael stated, "Somebody is trying to kill Momma." Appellant renewed his objection and the trial court again overruled it.

Officer Cloos investigated the disturbance at Floyd's home. She testified that when she arrived, Floyd was upset, crying and screaming, her hair was disheveled, her clothing was torn, and that it was obvious that there had been a physical disturbance because furniture had been moved and items had been knocked off the walls and counters. When the State attempted to question Cloos regarding what Floyd said, appellant objected that the statement would be hearsay. The court overruled the objection on the ground that Floyd was present and available to testify. The State responded that the statement was an excited utterance. The trial court overruled the objection on the ground that the statement was an excited utterance and because Floyd was available for cross-examination.3 Cloos then testified that Floyd relayed to her the events as indicated above.

Hearsay is a statement, other than one made by the witness who is testifying, offered to prove the truth of the matter asserted. Ark. R. Evid. 801(c). However, a statement relating to a startling event or condition, made when the person was still under the stress of excitement caused by the event or condition, is an exception to the hearsay rule. Ark. Rule. Evid. 803(2). Further, if the statement is an excited utterance, it may be admitted regardless of whether the person who made the statement is available as a witness. Ark. Rule. Evid. 803.

Factors considered in determining if a statement qualifies as an excited utterance include: (1) age of the declarant; (2) physical and mental condition of the declarant, (3) characteristics of the event, (4) subject matter of the statement. Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994). The lapse of time between the startling event and the out-of-court statement, although relevant to the determination, is not dispositive. Id. The issue is whether the declarant was still under the stress and excitement caused by the traumatic occurrence, and whether the statement was not the product of reflection and deliberation. Pennington v. State, 24 Ark. App. 70, 749 S.W.2d 680 (1988).

We hold that both Michael's statement to Smith and Floyd's statements to Cloos were admissible as excited utterances. Michael's statement to Smith was given after witnessing a traumatic event - he witnessed the altercation between appellant and Floyd and believed appellant was trying to kill his mother. Smith's testimony established that Michael ran into her home, yelling and shaking, and that he was "freaked out." Further, Michael's statement was given shortly after the attack began because his grandmother lived only one block away from his home. Indeed, the attack was still in progress when Smith arrived at Floyd's home. Moreover, the fact that Michael was unavailable to testify was irrelevant. Ark. R. Evid. 803. Finally, appellant cannot demonstrate that he was prejudiced by the admission of Michael's statement. It was disclosed during discovery and the trial court limited the inquiry to the degree that the statement was disclosed during discovery. In any event, appellant could have secured Michael as a witness if he wished to cross-examine him. His failure to do so does not render Michael's statement inadmissible.

Similarly, Floyd's statement was an excited utterance. Cloos did not testify regarding how long it took her to respond to the call, but when she arrived, Floyd was still upset; was crying and screaming; her hair was disheveled and her clothing was torn. Further, Cloos testified that it was obvious from the condition of the inside of the home that there had been a physical disturbance. Thus, there is no doubt that Floyd relayed the events to Cloos while still under the stress of the event.

E. Limitation of Cross-Examination

Appellant also received adverse rulings when the trial court sustained the State's objections during cross-examination of the State's witnesses: Pamela Smith and Officer Joe Garza. First, appellant asked Smith if she had ever been shot at with "rat shot" from a .22 gauge rifle. The State objected that the testimony was irrelevant, but appellant argued that it was relevant if she shot him and because she testified that it did not hurt to be shot with rat shot. The trial court properly sustained the objection. Smith admitted that she shot appellant in the back with rat shot and that she was not on trial for that conduct.

Only relevant evidence is admissible. Ark. R. Evid. 402. Evidence is relevant when it has any tendency to make the existence of any fact that is of consequence to the determination of the action or probable or less probable than it would be without the evidence. Ark. R. Evid. 401. In short, whether Smith had ever been shot with rat shot in no way tended to prove or disprove that appellant committed burglary or sexual assault; nor did it tend to prove or disprove appellant's version of the events. Therefore, the testimony was properly excluded because it was irrelevant.

Joe Garza, an officer with the Pulaski County Sheriff's Office, responded to the incident at Floyd's home. Appellant attempted to question him regarding why Smith was not prosecuted for shooting him. Garza stated that he talked to Smith. When appellant asked what Smith told Garza, the State objected that the testimony was outside the scope of direct examination and was also hearsay. Because the court previously allowed Officer Coos to testify regarding Floyd's statement, it originally stated that it would deny the objection.

The State then explained, and appellant's counsel corroborated, that the line of questioning would be elicited to show that the police never intended to prosecute Smith. After being reminded by the State that the decision to prosecute did not lie within the hands of the police, the trial court sustained the objection on relevancy grounds - that the elements of the offenses were not relevant to the fact that appellant was shot in the back.

The trial court's decision to admit evidence will not be reversed absent an abuse of discretion and a demonstration of prejudice. Clem v. State, supra. The trial court shall exercise reasonable control over the mode and order of interrogating witnesses to avoid needless consumption of time. Ark. R. Evid. 611(a). Further, the scope of cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. Ark. R. Evid. 611 (b). However, the trial court, in its discretion, may permit inquiry into additional matters that were not raised in the direct examination. Ark. R. Evid. 611 (b).

Here, the trial court did not abuse its discretion in determining that the testimony regarding what Smith told Garza when he was investigating the shooting of appellant was not relevant. As the trial court found, the fact that Smith shot appellant in the back did not tend to prove or disprove whether he committed burglary and attempted sexual abuse. Accordingly, any appeal from the trial court's limitation of the cross-examination of these witnesses would be wholly frivolous.

F. Habitual Offender Statute

After the jury retired to deliberate whether appellant was guilty, appellant offered a pro se objection to application of the habitual offender statute. He asserted that the statute constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution and that, because his last offense was committed in 1992, prior to enactment of the habitual offender statute, sentencing him as a habitual offender under that statute was anex post facto violation. The court indicated that it would treat appellant's objections as objections to the jury instructions regarding habitual offenders, and denied appellant's motion.

In arguing that the habitual offender statute, Arkansas Code Annotated § 5-4-501 (Supp. 2003) is unconstitutional, appellant stated:

In the event of my conviction, even the lesser-included, it's to my belief and knowledge, understanding of the law, that the habitual offender statute is violative of the cruel and unusual punishment clause of the Eighth Amendment.

Our appellate courts have held that sentencing under § 5-4-501 does not constitute cruel and unusual punishment. See Pridgeon v. State, 266 Ark. 651, 587 S.W.2d 225 (1979) (holding that doubling a sentence under the habitual offender statute for a person convicted twice for a drug-related offense does not constitute cruel and unusual punishment); and Dolphus v. State, 248 Ark. 799, 454 S.W.2d 88 (1970) (holding that defendant's sentence as a fourth offender at twenty-six years and three months confinement in the penitentiary did not constitute cruel and unusual punishment). Given the precedent that sentencing under the habitual offender statute does not constitute cruel and unusual punishment, an appeal based on appellant's objection would be wholly without merit.

Similarly, appellant's argument that the habitual offender statute violates the prohibition against ex post facto laws because his last offense was committed before the statute was enacted is without merit. An ex post facto law is one that makes an action done before the passing of the law, and which was innocent when done, criminal or one that aggravates a crime, or makes it greater than it was, when committed. U.S. Const. Art. 1, §10, cl. 1; Garrett v. State, 347 Ark. 860, 69 S.W.3d 844 (2002). For a law to be prohibited as an ex post facto law, it must either criminalize a previously innocent act or increase the punishment received for an already criminalized act. Jones v. State, 347 Ark. 455, 65 S.W.3d 402 (2002). Our courts have held that, regardless of the date of the prior conviction, it maybe used to increase punishment. Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001); Spivey v. State, 25 Ark. App. 269, 757 S.W.2d 186 (1988). Therefore, it was proper for the trial court to use appellant's 1992 conviction to sentence him as an habitual offender.

G. Jury Instruction

At the close of the evidence, appellant requested and proffered instructions for breaking or entering as a lesser-included offense of burglary. The trial court denied the request because it also denied appellant's motion for a directed verdict. The test for whether an instruction should be given is whether there is the slightest evidence to support the instruction and whether there is no rational basis for giving the instruction. Morris v. State, 351 Ark. 426, 94 S.W.3d 913 (2003). We will affirm a trial court's decision not to give an instruction on a lesser-included offense if there is no rational basis for acquitting a defendant of the offense charged and convicting him of the lesser-included offense. Id. Moreover, where a defendant relies on the defense of complete denial, there is no rational basis for giving instructions on lesser-included offense and the trial court is correct to refuse such instructions. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000); Cook v. State, 77 Ark. App. 20, 73 S.W.3d 1 (2002).

An appeal from the denial of instructions on the charge of breaking or entering would be wholly frivolous because the evidence showed that appellant was either guilty of burglary or was innocent. As noted previously, a person commits residential burglary when he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark. Code Ann § 5-39-102(a). A person commits the offense of breaking or entering if he, for the purpose of committing a theft or felony, enters or breaks into a building. Ark. Code Ann. 5-39-202(a) (Repl. 1997). Breaking or entering is a lesser-included offense of burglary. Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978).

Appellant testified that Floyd invited him into her home and that the fight erupted only after she told him that she did not have his money. Therefore, under the theory that he had permission to enter her home, appellant cannot be guilty of either burglary or breaking or entering. Appellant's theory that he did not unlawfully enter Floyd's home is inconsistent with any theory that the evidence supported an instruction for the lesser-included offense of breaking or entering. Accordingly, we hold that there was no rational basis for the court to give such an instruction and the trial court's denial of the same does not provide appellant a meritorious basis for an appeal.

II. Appellant's Pro Se Points

Appellant raises numerous points of appeal. These arguments may be logically grouped as follows: 1) those arguments that are not preserved for appellate review; 2) those arguments that have also been addressed by counsel that do not provide a meritorious basis for an appeal; 3) his remaining arguments, which provide no meritorious basis for an appeal.

It is well-settled that the we will not consider an argument raised for the first time on appeal. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). Specifically, we decline to consider the following arguments because they were not raised below: 1) appellant's trial counsel and appellate counsel were ineffective;4 2) the instructions and sentencing were "mulitplicious" (sic) or improper because the same conduct resulted in two convictions;5 3)the residential burglary statute is unconstitutionally vague;6 4) the speedy trial claim;7 5) the trial judge was biased or incompetent; 6) appellant's prosecution by information instead of a grand jury indictment was unconstitutional.8

The second group of pro se arguments, which counsel has already addressed and from which any appeal would be wholly frivolous, are as follows: 1) the adequacy of the evidence supporting appellant's convictions; 2) the determination that Floyd was competent to testify; 3) the admission of the statement by Floyd's son as an excited utterance; 4) appellant's arguments regarding application of the habitual-offender statute; 5) the denial of appellant's request for an instruction on the lesser-included offense of breaking or entering.

The only remaining arguments are that the trial judge and attorneys conspired against appellant to deprive him of a fair trial and that appellant was deprived of documents he needed in order to represent himself on appeal.9 Neither of these arguments is a meritorious basis for an appeal.

Appellant's "conspiracy" theory seems to be that an adequate investigation of the incident in this case would have revealed he was telling the truth and Smith was not justified in any manner in shooting him. In other words, he claims that the police never conducted an adequate investigation into Smith's shooting of him because they never intended to prosecute her for that act.

It is true that appellant alleged below that he contacted Officer Garza, but that Garza never returned his telephone calls. His testimony conflicted with that of Garza because Garza did not recall that appellant attempted to contact him. Appellant also pointed to what he maintains is other conflicting evidence in the record, which should have led the jury to conclude that he was innocent. However, the resolution of conflicting evidence was a matter for the jury to decide. Cobb v. State, supra.

Finally, appellant alleges that he was not able to obtain the documents he needed from the court reporter to represent himself. However, the fact that appellant, who is represented by an attorney, also chooses to file pro se points does not entitle him to an additional copy of the transcript, pleadings, etc., in this case. From our review of the proceedings as a whole, we do not see how appellant's appeal was hindered in any manner, where his attorney amply addressed all of the adverse rulings and appellant himself raised twenty-seven pro se points of appeal.

Counsel's motion to be relieved is granted and appellant's convictions are affirmed.

Bird and Neal, JJ., agree.

1 Floyd also has a younger son, Jonathan, who was apparently asleep or elsewhere in the home when appellant came to the door.

2 Section 5-14-108 was repealed by Section 10 of Act 1738 of 2001. The new statute, concerning first-degree sexual assault, is found at Arkansas Code Annotated § 5-14-125 (Supp. 2003), but did not take effect until August 13, 2001, after the conduct that led to the charges in this case. Therefore, § 5-14-108, not § 5-14-125, is the applicable statute in this case.

3 The State also argued that Floyd's statement was admissible under Arkansas Rule of Evidence 803(3), as a statement of the Floyd's then existing mental, emotional, or physical condition. However, the trial court ruled only that the statement was admissible as an excited utterance, so this did not constitute a ruling that was adverse to appellant.

4 Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000)(declining to consider an ineffective assistance of counsel argument raised for the first time on appeal). Appellant may request post-conviction relief on this issue pursuant to Arkansas Rule of Criminal Procedure 37.1.

5 The mere fact that several offenses are committed on one crime spree does not make them a single crime for purposes of sentence enhancement. It is true that where multiple convictions are entered, and one conviction contains a lesser-included offense for which another conviction is also entered, those convictions are considered one conviction for purposes of sentence enhancement. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993). However, that is clearly not the case here. First-degree sexual abuse is not a lesser-included offense of residential burglary or vice versa.

6 McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997) (declining to consider a constitutional argument raised for the first time on appeal).

7 Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993) (holding that speedy trial arguments not raised below will not be considered on appeal). In pro se point eleven, appellant asserts that he was released from jail because he was held "beyond the speedy trial period" and that the State retaliated by requesting that he be required to wear an electronic monitoring device. It appears that appellant removed the monitoring device in violation of the court's order. In a motion in limine, appellant challenged the order requiring him to wear the device. During the hearing, the State indicated that it did not intend to rely upon the evidence that appellant removed the device. The trial court granted appellant's motion, so this ruling was not adverse to appellant.

8 Section 1 of Amendment 21 to the Arkansas Constitution provides that "All offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney." In addition, the Arkansas Supreme Court has squarely rejected appellant's argument. Ellingburg v. State, 254 Ark. 199, 492 S.W.2d 904 ( 1973).

9 Appellant's pro se point nineteen concerned Cantrell v. State, CACR 03-823, a related appeal from appellant's conviction for failure to appear during the pendency of the instant proceedings. We do not address this point because that appeal was closed after a motion to dismiss was filed on October 1, 2003.