Thomas Ellis v. State of Arkansas

Cite as 2025 Ark. App. 521
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-24-181

THOMAS ELLIS Opinion Delivered October 29, 2025

APPELLANT APPEAL FROM THE DREW COUNTY
CIRCUIT COURT
V. [NO. 22CR-22-210]

STATE OF ARKANSAS HONORABLE CREWS PURYEAR,
JUDGE
APPELLEE
AFFIRMED; MOTION TO
WITHDRAW GRANTED

MIKE MURPHY, Judge

This case returns to us after we remanded to settle and supplement the record in Ellis

v. State, 2025 Ark. App. 90. The defect has been resolved and we now address counsel’s no-

merit brief and motion to be relieved pursuant to Anders v. California, 386 U.S. 738 (1967),

and Arkansas Supreme Court Rule 4-3(b). A jury convicted appellant Thomas Ellis of one

count of second-degree sexual assault and sentenced him to sixty months’ probation. His

counsel contends there are no meritorious grounds to support an appeal. Ellis has filed pro

se points for reversal, and the State has filed a brief in response. We affirm and grant

counsel’s motion to be relieved.

The victim, an eleven-year-old female child (MC), testified that sometime in 2022, she

and other members of her family were spending the night at the home of her grandmother,
Angie Henry. MC testified that she was lying on the air mattress in the living room when

Ellis lay down next to her. According to MC, Ellis then started touching her and putting his

arms around her; a little later, he pulled his shorts down and then pulled her shorts down,

including her underwear. According to MC, Ellis then touched her bare buttocks with his

penis and rubbed it against her.

Henry testified that she recalled one incident when Ellis and MC were both at her

house. Ellis and Henry’s husband were grilling outside while Henry was inside with the

children. Henry told MC to lie down on the air mattress in the living room. Shortly after,

Henry’s husband and Ellis came inside. Henry’s husband sat in the recliner in the living

room, and Ellis lay down on the air mattress with MC. Henry said that Ellis had his arm

around MC, and the covers were pulled up over them. Henry testified that she told Ellis to

“get up.” Henry momentarily left the room, and when she returned, Ellis had not complied.

She then forcefully told Ellis again to get up. At that point, MC got up from the floor and

went to the bathroom. Henry said that MC was upset and did not want to leave the

bathroom. Henry convinced her to go sleep in another bedroom where Henry’s daughter

was and to lock the door.

The State also introduced a segment of a videotaped interview of Ellis by an

investigator with the Drew County Sheriff’s Department. In the interview, Ellis admitted

lying down on the air mattress with MC. However, he denied touching MC on “her private”

and said that he only “cuddled” her.

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At the close of the State’s case, Ellis moved for a directed verdict, arguing that the

State had failed to prove the element of sexual gratification. Citing the testimony and trial

exhibits, the circuit court ruled that the element of sexual gratification was inferred by the

circumstances of the case and denied the motion.

Ellis testified in his own defense and denied that he had done anything of a sexual

nature to M.C. On cross-examination, Ellis admitted that MC’s testimony had gotten the

details right about the circumstances surrounding the incident that occurred at Henry’s

house; however, he denied that he molested MC. When Ellis stated that he only “bear

hugged” her and did not tell the investigator that he had “cuddled” with MC, the tape of the

interview was played again, confirming that Ellis had used the word “cuddled.”

Ellis’s wife testified that she did not see anything inappropriate happen between Ellis

and MC and that she was not made aware of the allegations until several months later. Three

additional witnesses testified to Ellis’s reputation for truthfulness and honesty. At the close

of all the evidence, Ellis renewed his motion for a directed verdict, again claiming that the

State had failed to adduce substantial evidence of the element of sexual gratification. It was

again denied.

After being instructed by the circuit court and hearing arguments of counsel, the jury

retired to deliberate and returned a verdict of guilty on one count of second-degree sexual

assault. The State called one additional witness in the sentencing phase of the trial, and after

arguments of counsel, the jury again retired to deliberate and returned a sentence

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recommendation of five years’ probation. The circuit court imposed the sentence

accordingly. This no-merit appeal followed.

A request to withdraw on the ground that the appeal is wholly without merit must be

accompanied by a brief containing 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. Ark. Sup. Ct. R. 4-3(b)(1). A no-merit brief in a criminal case that fails

to address an adverse ruling does not satisfy the requirements of Rule 4-3(b)(1), and

rebriefing will be required. Moore v. State, 2022 Ark. App. 5. 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. Stephenson v. State, 2023 Ark. App. 453.

Counsel contends that there are no issues of merit to support an appeal and has

adequately explained why an appeal would be wholly frivolous. We first address whether the

conviction was supported by sufficient evidence. When reviewing a challenge to the

sufficiency of the evidence, we must assess the evidence in the light most favorable to the

State and consider only the evidence that supports the verdict. Collins v. State, 2021 Ark. 35,

at 4, 617 S.W.3d 701, 704. We affirm a conviction if substantial evidence exists to support

it. Price v. State, 2019 Ark. 323, at 4, 588 S.W.3d 1, 4. Substantial evidence is that which is

of sufficient force and character that it will, with reasonable certainty, compel a conclusion

without resorting to speculation or conjecture. Id., 588 S.W.3d at 4. Witness credibility is an

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issue for the fact-finder, which may believe all or part of any witness’s testimony and may

resolve questions of conflicting testimony and inconsistent evidence. McKisick v. State, 2022

Ark. App. 426, at 4, 653 S.W.3d 839, 843.

Arkansas Code Annotated section 5-14-125 (Supp. 2023) states that a person commits

second-degree sexual assault if the person, being eighteen years of age or older, engages in

sexual contact with another person who is less than fourteen years of age. “Sexual contact”

means an act of sexual gratification involving the touching, directly or through clothing, of

the sex organs, buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-

14-101 (Supp. 2023). “Sexual gratification” is not defined in the statute, but the Arkansas

Supreme Court has construed the words in accordance with their reasonable and commonly

accepted meanings. DeJohn v. State, 2021 Ark. App. 495, at 3–4, 638 S.W.3d 32, 34. The

State is not required to provide direct proof that an act is done for sexual gratification if it

can be assumed that the desire for sexual gratification is a plausible reason for the act because

sexual gratification is rarely capable of proof by direct evidence and must usually be inferred

from the circumstances. Compton v. State, 2023 Ark. App. 587, at 8, 682 S.W.3d 348, 354.

The jury is free to believe the State’s version of the facts over the defendant’s account, is not

required to abandon common sense, and may draw reasonable inferences from the evidence.

Id.

Here, MC testified that Ellis engaged in conduct, when she was under the age of

fourteen, that would satisfy the definition of “sexual contact,” and it could be assumed that

the desire for “sexual gratification” was a plausible reason for his conduct. Viewed in the

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light most favorable to the State, this testimony alone constitutes substantial evidence to

support Ellis’s conviction for second-degree sexual assault. Therefore, we hold that there

would be no merit to an appeal of the sufficiency of the evidence.

The brief abstracts and discusses one other evidentiary ruling that was adverse to Ellis,

and counsel argues that this adverse ruling is not a meritorious ground for reversal. We agree.

During direct examination, Ellis began a response to a question regarding what he

thought when he discovered that he had been charged and referenced that he had worked

for the state penitentiary. Before he could complete the statement, the State objected on the

basis of relevance. The court assumed that Ellis was about to state that he saw sexual

predators at the penitentiary and did not think he was one of them. Defense counsel agreed

with this assumption, and the court sustained the objection on the basis of relevance.

The circuit court did not abuse its discretion in granting the State’s evidentiary

objection.

Ellis makes three pro se points for reversal. First, he contends that his “whole defense”

involved the use of a videotaped interview instead of the excerpt relied on by the State. Ellis’s

argument is not preserved because he did not object to the playing of the excerpt of his

statement, nor did he make a proffer of the exhibit he sought to admit. It is well settled that

an appellant bears the burden of producing a record that demonstrates error. Banks v. State,

2024 Ark. App. 357, at 2. Moreover, it is the obligation of an appellant to obtain a ruling

from the circuit court to preserve an issue for appellate review. Lester v. State, 2024 Ark. App.

206, at 17, 687 S.W.3d 344, 357.

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Next, Ellis asserts that his counsel failed to “do his homework on the case and was

not really prepared.” It is well settled that we will not consider ineffective-assistance-of-

counsel claims on direct appeal unless that issue has first been considered by the circuit

court. Chandler v. State, 2024 Ark. App. 260, at 9, 688 S.W.3d 170, 175. Here, Ellis’s

ineffective-assistance-of-counsel claim was not raised below and, thus, cannot be raised here

for the first time.

Last, Ellis contends that it is “unconstitutional that a man can be convicted on no

evidence. Just a person saying something happened with no witnesses or evidence to

support.” Ellis concedes that a victim’s testimony alone is sufficient but questions whether

this accounts for someone “that lied under oath.” The contention that MC lied under oath

was not raised at trial and is not preserved for our review.

From our review of the record and the brief presented to us, we find compliance with

Anders and Rule 4-3 and hold that the appeal is wholly without merit. Accordingly, we grant

counsel’s motion to withdraw and affirm Ellis’s conviction.

Affirmed; motion to withdraw granted.

GLADWIN and HIXSON, JJ., agree.

John Wesley Hall and Samantha J. Carpenter, for appellant.

One brief only.

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