Ludwick v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: RITA W. GRUBER, Judge
• Citation: Ludwick v. State, 2021 Ark. App. 347, 635 S.W.3d 330 (Ark. App. 2021)
• Decision Date: 22 September 2021
• Docket Number: No. CR-20-119,CR-20-119
• Parties: Vincent N. LUDWICK, Appellant v. STATE of Arkansas, Appellee

2021 Ark. App. 347

635 S.W.3d 330

Vincent N. LUDWICK, Appellant

v.STATE of Arkansas, Appellee

No. CR-20-119

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered September 22, 2021

King Law Group, PLLC, Fort Smith, by: W. Whitfield Hyman, for appellant.

One brief only.

RITA W. GRUBER, Judge

A Madison County jury convicted Vincent Ludwick of kidnapping and aggravated assault of a family member and sentenced him to serve ten years’ imprisonment and to pay a $7000 fine. Pursuant to Arkansas Supreme Court Rule 4-3(k) and Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellant's counsel has filed a motion to withdraw stating that there is no merit to an appeal.¹ The motion is accompanied by a brief in which counsel explains why there is nothing in the record that would support an appeal. The clerk of this court served appellant with a copy of counsel's brief and notified him of his right to file a pro se statement of points for reversal within thirty days, but he has not done so. We affirm appellant's convictions and grant counsel's motion to withdraw. In addition, we remand with instructions to correct two clerical errors in the sentencing order.

The testimony at trial indicated that appellant was arrested in the early evening on June 9, 2018, after an incident involving his wife, Rhonda Ludwick. Earlier in the day when appellant was coming off being high, he asked his wife for money, but she responded that she did not have any. He became angry when she returned later in the day with groceries because he thought she had lied to him. Rhonda left their home and went to appellant's grandmother's house after he began cussing, screaming, and calling her names. Appellant followed her to his grandmother's house and "caught" Rhonda in the yard, grabbed her by the hair, and yanked her around. He pushed her down onto the ground and held her by the throat. Appellant's grandmother came outside after she heard the commotion, but appellant told her to go inside or he would "put" her inside. She went inside and called the sheriff's department.

Appellant grabbed Rhonda by the arm, yanked her off the ground, dragged her to the car, and put her inside the car. He told her, "[D]on't get out." When appellant was driving, he continued to scream and cuss, punched the dashboard, yanked off the rearview mirror, and broke the windshield. When Rhonda told him she wanted to go home, he put his hands over her nose and mouth, which made her unable to breathe. At one point, he was driving down the road really fast and told Rhonda that he was going to kill them both. She begged him not to and was able to convince him to turn around. As he headed back toward his trailer, he indicated to her that he could not let her leave and that he was going to have to take her to the field and "do away with her." Rhonda thought he was going to kill her. The sheriff's deputies arrived at the home just after appellant had pulled into the driveway. The officers observed that Rhonda was scared, upset, crying, and had redness around the side of her face and on her throat. Appellant was arrested and charged with aggravated assault of a family member, a Class D felony. An amended information was later filed adding the charges of terroristic threatening, a Class D felony, and kidnapping, a Class Y felony. The amended information also included a habitual-offender enhancement.

A jury trial took place on July 31, 2019. The jury found appellant guilty of kidnapping and aggravated assault of a family member but acquitted him of terroristic threatening. He was sentenced as a habitual offender for the kidnapping conviction to serve ten years’ imprisonment but only fined $7000 for the aggravated-assault-of-a-family-member conviction. A timely notice of appeal followed the July 31, 2019 sentencing order.

Rule 4-3(k) requires the argument section of a no-merit brief to contain "a list of all rulings adverse to the defendant made by the circuit court on all objections, motions and requests ... with an explanation as to why each ... is not a meritorious ground for reversal." The requirement for briefing every adverse ruling ensures that the due-process concerns in Anders are met and prevents the unnecessary risk of a deficient Anders brief resulting in an incorrect decision on counsel's motion to withdraw. Vail v. State , 2019 Ark. App. 8, at 2, 2019 WL 209522. Pursuant to Anders , we are required to determine whether the case is wholly frivolous after a full examination of all the proceedings. T.S. v. State , 2017 Ark. App. 578, 534 S.W.3d 160.

The first adverse ruling occurred when the court granted a no-contact order prior to trial prohibiting appellant from contact with the victim. Counsel states that the grant of this order would not provide a meritorious ground for reversal. We agree. Under Arkansas Code Annotated section 16-85-714(b) (Supp. 2021), a court may grant a no-contact order if it appears that there exists a danger that a defendant will commit a serious crime, seek to intimidate a witness, or otherwise unlawfully interfere with the orderly administration of justice. Here, the motion for the no-contact order was requested and entered because appellant had "frequently" contacted the victim against her wishes in an attempt to convince her to change her testimony to be favorable to him.

Counsel next addresses two adverse rulings that occurred during trial, both of which pertained to the admissibility of evidence.² The first one involved appellant's hearsay and confrontation-clause objections when the State asked Officer Roddy about what the victim said when they made contact with her. The court overruled appellant's objections, stating that there was no violation of the confrontation clause because the victim would be testifying and that appellant would have the opportunity to confront her then. Further, the court ruled that the statement was either an excited utterance or a present-sense impression.

Matters pertaining to the admissibility of evidence are left to the sound discretion of the circuit court, and this court will not reverse absent an abuse of discretion. Bates v. State , 2017 Ark. App. 123, at 6–7, 516 S.W.3d 275, 279. Abuse of discretion is a high threshold that does not simply require error in the circuit court's decision but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Wheaton v. State , 2021 Ark. App. 281, 2021 WL 2232088.

Although hearsay is generally not admissible pursuant to Rule 802 of the Arkansas Rules of Evidence, Rule 803 provides exceptions for both a present-sense impression and an excited utterance even though the declarant is available as a witness. A present-sense impression is "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Ark. R. Evid. 803(1). An excited utterance is a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Ark. R. Evid. 803(2).

Whether a declarant makes statements in response to questions is not dispositive of whether they are the product of the exciting event. Bates , 2017 Ark. App. 123, at 7 (citing Lewis v. State , 74 Ark. App. 61, 66, 48 S.W.3d 535, 539 (2001) ). The relevant inquiry is whether the statement was made under the stress of excitement or was made after the declarant calmed down and had an opportunity to reflect, which is a matter within the circuit court's sound discretion. Id. (citing Fudge v. State , 341 Ark. 759, 769, 20 S.W.3d 315, 320 (2000) ). Admissibility is not to be measured by any precise number of minutes, hours, or days but requires that the declarant is still under the stress and excitement caused by the event. Id. (citing Pennington v. State , 24 Ark. App. 70, 74, 749 S.W.2d 680, 682 (1988) ).

We agree with counsel that the admission of Officer Roddy's testimony would not be a meritorious issue on appeal. Here, the victim's statements to Officer Roddy about what appellant said to her came immediately after the event leading to a...