Vera W. Willhite v. State of Arkansas
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DIVISION IV
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
LARRY D. VAUGHT , Judge
CACR05-448
June 28, 2006
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT
[CR-04-133]
VERA W. WILLHITE
APPELLANT
HON. JAMES R. MARSCHEWSKI,
CIRCUIT JUDGE
V.
STATE OF ARKANSAS
APPELLEE
MOTION TO WITHDRAW
GRANTED; AFFIRMED
This no-merit appeal comes to us from a conviction for second-degree battery
following a jury trial in Sebastian County Circuit Court. After examining the adverse rulings
addressed by counsel and appellant Vera Willhite’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.
Therefore, we affirm the jury’s verdict and grant counsel’s motion to withdraw.
Aaron Borge testified that appellant, after drinking copious amounts of alcohol,
attacked him with a knife during an argument. Borge reported the incident and went to the
hospital, where he received treatment for a five-to-six-inch long cut on one arm that was oneinch deep with a superficial wound to his other arm. Steven Asher was present during the
altercation and confirmed Borge’s account. Sheriff’s Deputy Chandler Garrett testified that
he investigated the incident; found appellant’s home to be in disarray; retrieved a knife from
the kitchen sink of appellant’s home that had been washed; and discovered appellant
barricaded in a bedroom, naked from the waist down, drinking a can of beer. Garrett stated
that appellant was “heavily intoxicated” at the time and had a one-inch laceration on the palm
of her hand. Appellant’s son, T.J., who was also present during the attack, testified that
Borge and his mother got into an argument and that his mother “just reacted” by stabbing
Borge in the arm. T.J. admitted that his mother could get “rowdy” and “uncontrollable” when
she was intoxicated.
After the jury found appellant guilty, she objected during the sentencing phase to the
introduction of several prior convictions on the basis of relevancy and because she did not
have counsel at the time of the convictions. The court excluded any drinking-related
convictions on the grounds that they were more prejudicial than probative, but it allowed
three convictions for disorderly conduct, a conviction for third-degree battery, and a
conviction for second-degree terroristic threatening. The jury recommended a sentence of
four and a half years in the Arkansas Department of Correction, anger management
counseling, and restitution in the amount of $1,878.20.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules
of the Arkansas Supreme Court and Court of Appeals, appellant’s counsel has filed a motion
to withdraw on the grounds that this appeal is without merit. Counsel’s motion was
accompanied by a brief purportedly referring to everything in the record that might arguably
support an appeal, a record of all motions and requests made by the appellant and denied by
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the court, and a statement of the reasons why counsel considers there to be nothing in the
record which will support the appeal. The clerk of this court furnished the appellant with a
copy of his counsel’s brief and notified her of her right to file a pro se brief. Appellant filed
pro se points, attacking the credibility of the State’s witnesses and arguing that her trial
counsel was ineffective. She attached “affidavits” of additional witnesses in her favor that
she believes her attorney should have called. The State responded detailing why neither of
appellant’s points were meritorious.
Appellant’s counsel first submits that although appellant made proper motions for
directed verdict, those motions were properly denied because there was sufficient evidence
to sustain her conviction. On appeal, a motion for directed verdict is treated as a challenge
to the sufficiency of the evidence. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004).
We view the evidence in the light most favorable to the State, consider only evidence that
supports the verdict, and affirm if substantial evidence supports the conviction. Id.
Substantial evidence is that which is of sufficient force and character that it will, with a
reasonable certainty, compel conclusion one way or the other, without resorting to
speculation or conjecture. Id. To prove second-degree battery, the State had to show that
appellant (1) purposefully caused serious physical injury to another person, (2) purposefully
caused physical injury to another person by means of a deadly weapon other than a firearm,
or (3) recklessly caused serious physical injury to another person by means of a deadly
weapon. Ark. Code Ann. § 5-13-202(a)(1)–(3) (Repl. 2006). In this case, the testimony of
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Borge, Asher, Officer Garrett, and even appellant’s son all supports a conviction for seconddegree battery.
Appellant’s counsel also notes that appellant objected to her prior convictions being
introduced during the sentencing phase. In reviewing a trial court’s decision to admit
evidence of prior convictions, we recognize that the trial court has wide discretion in
allowing such evidence to be presented, and we will not reverse such a decision absent an
abuse of discretion. Jiles v. State, 78 Ark. App. 43, 82 S.W.3d 173 (2002). Evidence relevant
to sentencing may include, but is not limited to, prior convictions. Ark. Code Ann. § 16-97103(2) (Repl. 2006). Our supreme court has held that un-counseled misdemeanor convictions
can be introduced as “evidence relevant to sentencing,” simply allowing the jury or the court
to consider all relevant evidence when making a sentencing decision. In the present case, the
trial court showed restraint by allowing some convictions but not all, specifically limiting the
convictions that could be introduced. Therefore, we agree with counsel that the trial judge
did not abuse his discretion in admitting the convictions.
In her pro se points, appellant maintains her counsel was ineffective because he should
have called other witnesses in her defense; however, her argument is barred because she did
not raise it below. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). Appellant also
challenges the credibility of the State’s witnesses. Issues of credibility are for the jury to
determine and are not appropriate for our review on appeal. Arnett v. State, 342 Ark. 66, 27
S.W.3d 721 (2000).
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Affirmed.
Motion to Withdraw as Counsel granted.
C RABTREE and B AKER, JJ., agree.
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