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                 ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                       No. CR-15-817



                                               Opinion Delivered May   17, 2017

TROY LAURENCE MCCULLEY                         APPEAL FROM THE POINSETT
                  APPELLANT                    COUNTY CIRCUIT COURT
                                               [NO. 56CR-12-50]
V.
                                               HONORABLE BRENT DAVIS,
STATE OF ARKANSAS                              JUDGE
                                 APPELLEE
                                               AFFIRMED; MOTION DENIED


                          BRANDON J. HARRISON, Judge

       Appellant Troy Laurence McCulley filed a petition for postconviction relief pursuant

 to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2015), which was denied by the

 circuit court. McCulley was represented by counsel in the proceedings below, and after

 lodging an appeal, his postconviction counsel filed a motion to be relieved, which was

 granted by the Arkansas Supreme Court on December 10, 2015. McCulley v. State, No.

 CR-817 (Ark. Dec. 10, 2015) (order granting motion to be relieved).              McCulley

 subsequently filed a pro se appellant’s brief, appellee responded, and McCulley filed a pro

 se reply brief. After the issues on appeal were thoroughly briefed, McCulley filed a motion

 for appointment of counsel. For the reasons stated below, we affirm the circuit court’s

 denial of postconviction relief, and McCulley’s motion for appointment of counsel is

 therefore denied.
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       A jury convicted McCulley of one count of rape, three counts of felony possession

of drug paraphernalia, and one count of misdemeanor possession of drug paraphernalia. He

was sentenced to thirty years’ imprisonment for rape, and a $1000 fine was imposed for each

of the drug offenses. This court affirmed his convictions on direct appeal. McCulley v. State,

2014 Ark. App. 330.

       McCulley filed a timely petition for postconviction relief and made numerous

allegations of ineffective assistance of counsel, contending that his trial counsel failed to gain

suppression of certain physical evidence, failed to object to the admission of a drug-screen

analysis, and failed to object to the admission of irrelevant evidence and testimony. A

hearing was conducted by the circuit court. The circuit court relied on the arguments

presented at the hearing as well as an extensive review of the trial record and concluded that

the arguments and objections that McCulley alleged trial counsel had erroneously failed to

raise would have been meritless and otherwise would not have changed the outcome of his

trial. On appeal, McCulley repeats some, but not all, of the claims raised below and argues

that the circuit court erred by denying these claims for relief. The arguments that were

made below but not raised on appeal are considered abandoned. State v. Grisby, 370 Ark.

66, 69, 257 S.W.3d 104, 107 (2007).

       Our jurisdiction is pursuant to footnote 1 in Barnes v. State, 2017 Ark. 76, 511

S.W.3d 845 (per curiam). The appellate court will not reverse the circuit court’s decision

granting or denying postconviction relief unless it is clearly erroneous. Walden v. State, 2016

Ark. 306, at 2–3, 498 S.W.3d 725, 728–29 (per curiam); Kemp v. State, 347 Ark. 52, 55, 60

S.W.3d 404, 406 (2001). A finding is clearly erroneous when, although there is evidence

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to support it, the appellate court, after reviewing the entire evidence, is left with the definite

and firm conviction that a mistake has been committed. Walden, 2016 Ark. 306, at 2–3,

498 S.W.3d at 728–29.

       When considering an appeal from a circuit court’s denial of a Rule 37.1 petition

based on ineffective assistance of counsel, the sole question presented is whether, based on

the totality of the evidence under the standard set forth by the United States Supreme Court

in Strickland v. Washington, 466 U.S. 668 (1984), the circuit court clearly erred in holding

that counsel’s performance was not ineffective. Id. Under the two-prong standard outlined

in Strickland, to prevail on a claim of ineffective assistance of counsel, the petitioner must

show that (1) counsel’s performance was deficient and (2) the deficient performance

prejudiced his defense. Id. The reviewing court must indulge in a strong presumption that

trial counsel’s conduct falls within the wide range of reasonable professional assistance. Id.

The petitioner claiming ineffective assistance of counsel has the burden of overcoming this

presumption by identifying specific acts or omissions of trial counsel, which, when viewed

from counsel’s perspective at the time of the trial, could not have been the result of

reasonable professional judgment. Id. The second prong requires a petitioner to show that

counsel’s deficient performance so prejudiced his defense that he was deprived of a fair trial.

Id. Consequently, the petitioner must show there is a reasonable probability that, but for

counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the

decision reached would have been different absent the errors. Id. A reasonable probability

is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless




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a petitioner makes both showings, it cannot be said that the conviction resulted from a

breakdown in the adversarial process that renders the result unreliable. Id.

       In order to demonstrate the prejudice required under the Strickland test, a person

seeking postconviction relief on a claim of ineffective assistance that is based on the failure

of counsel to make a motion or objection must show that counsel could have made a

successful argument. Breeden v. State, 2014 Ark. 159, at 6–7, 432 S.W.3d 618, 624 (per

curiam). Failure to make a meritless objection or motion does not constitute ineffective

assistance of counsel. Id.; Greene v. State, 356 Ark. 59, 70, 146 S.W.3d 871, 880 (2004).

       Before addressing McCulley’s arguments on appeal, it is necessary to review the

evidence adduced at his trial. The trial record demonstrates that McCulley’s girlfriend,

Loretta Collette, lured her sixteen-year-old niece, A.R., to McCulley’s residence.

According to the testimony of A.R., after arriving at McCulley’s residence, she was drugged

and taken to an outbuilding behind the main house, stripped naked, bound by her hands

and feet, and raped by Collette and McCulley. A.R. was returned to her mother hours

after she had been due home. Because of her unusual behavior, a drug test was administered

by a local physician, and the test was positive for amphetamines. Eventually, A.R. reported

to investigators that not only had she been drugged by McCulley and Collette, but that she

had also been sexually assaulted by them. Subsequently, Collette admitted to police that she

had participated in the assault, and based on Collette’s admissions, a search warrant for

McCulley’s residence was obtained and executed. The search included the outbuilding

described by A.R. The police seized numerous items as a result of the search, including,

among other things, drug paraphernalia and pornographic videotapes.

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       In his first point on appeal, McCulley argues that the circuit court erred by rejecting

his ineffective-assistance-of-counsel claim that counsel had erroneously failed to gain the

suppression of all evidence seized in the search of his residence and the outbuilding.

According to McCulley, trial counsel failed to move to suppress this evidence on the basis

that the warrant was deficient because the warrant was signed by the presiding judge before

the affidavit establishing probable cause had been presented. McCulley maintains that all

evidence seized would have been suppressed but for the failure of his counsel to challenge

the manner in which the search warrant had been issued. 1

       The record of the suppression hearing demonstrates that the affiant, Officer Erik

Willbanks, testified that he had appeared before Judge Ron Hunter at 6:12 p.m. on January

16, 2012, and swore to the facts contained in the affidavit. The affidavit itself shows that it

was signed by Willbanks at 6:12 p.m.; the affidavit originally reflected that it was signed and

sworn before Judge Hunter at 6:00 p.m., but the number six was crossed out and replaced

with the number seven. On the other hand, the related warrant signed and issued by Judge

Hunter bears a typewritten time of 6:15 p.m.

       Based on the time discrepancy on the affidavit, McCulley argues that the search

warrant was invalid, and all items seized as a result of its issuance should have been

suppressed. The Arkansas Supreme Court rejected a similar argument that a search warrant

was invalid based on a discrepancy between the date that appeared on the affidavit and the



       1McCulley’s trial counsel filed a motion to suppress alleging that certain photographs
and videotapes seized by police exceeded the scope of the warrant and, in the alternative,
requesting that the photos and videos be excluded as prejudicial under Arkansas Rule of
Evidence 403 (2015). Trial counsel did not challenge the sufficiency of the warrant itself.
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date the warrant was issued in Nance v. State, 323 Ark. 583, 597, 918 S.W.2d 114, 120–21

(1996). In that case, the supreme court affirmed the lower court’s conclusion that the

warrant was valid despite an “apparent misprision” in the documents because the affiant had

testified that he had appeared before the judge and sworn to the facts contained in the

affidavit on the same date that the warrant had been issued. Id. Likewise, Willbanks testified

at the suppression hearing that the affidavit was signed in the presence of the judge. When

an affidavit states sufficient facts to establish probable cause for a search, discrepancies in the

date or time the affidavit was executed will not invalidate a search warrant if the affiant

appeared and provided sworn testimony that cures such errors. Nance, 323 Ark. at 597, 918

S.W.2d at 120–21; Johnson v. State, 2015 Ark. 387, at 4–5, 472 S.W.3d 486, 488–89. The

circuit court did not clearly err when it found that, based on the testimony of Willbanks,

the search warrant had been properly issued on a showing of probable cause in accordance

with procedural rules. McCulley’s trial counsel was not ineffective for failing to make a

motion that would not have been successful. Breeden, 2014 Ark. 159, at 6–7, 432 S.W.3d

at 624.

          In his second argument on appeal, McCulley maintains that the circuit court erred

when it rejected his ineffective-assistance-of-counsel claim based on allegations that trial

counsel failed to object to the admission of photographs and items seized in the search as

outside the scope of the warrant and otherwise irrelevant to the facts of the case. McCulley’s

argument fails to specify the photographs and items of evidence to which he refers and cites

no authority in support of his claim that trial counsel ineffectively allowed irrelevant and

prejudicial evidence to be admitted. Moreover, trial counsel moved to suppress certain

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evidence on these same grounds, and McCulley does not identify the evidence that was not

challenged by his trial counsel in the motion to suppress.

       In any event, the record demonstrates that the photographs introduced at trial

consisted of photographs of the outbuilding where A.R. had been raped, depicting the bed

with handcuffs hanging from pipes above the bed. These photographs corroborated the

testimony of A.R. and Collette, who described this outbuilding as the room where the rape

had taken place. The items that were introduced into evidence consisted of containers of

lubricants and fur-lined handcuffs that A.R. stated had been used to restrain her, as well as

sex toys of a type described by A.R. and Collette as having been used in the assault.

       The circuit court did not clearly err when it found that the photographs and items

admitted during McCulley’s trial were relevant as having corroborated the testimony of

both A.R. and Collette. See Watson v. State, 308 Ark. 643, 647, 826 S.W.2d 281, 284

(1992) (Evidence corroborating rape victim’s testimony is relevant and admissible.). Again,

the failure to make a meritless objection does not constitute ineffective assistance of counsel.

Greene, 356 Ark. at 70, 146 S.W.3d at 880.

       McCulley argues in his third point on appeal that counsel was ineffective for failing

to object to the admission of a drug-test report demonstrating that A.R. tested positive for

amphetamines. The drug-test report was introduced into evidence to corroborate the

testimony of both A.R. and Collette that A.R. became impaired and incapacitated after

being given an orange drink on the night of the rape. Collette testified that she observed

McCulley place a substance in A.R.’s orange drink, which Collette believed to be an




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amphetamine. The contents of the drug-test results were admitted through the testimony

of the phlebotomist who collected the sample from A.R. and the medical-records custodian.

       According to McCulley, the report was inadmissible because the drug test had been

conducted for medical reasons, and the test was presumptive because it had not been

confirmed by a forensic laboratory. Medical records may be admissible under the business-

records exception to the hearsay rule. Terry v. State, 309 Ark. 64, 69, 826 S.W.2d 817, 820

(1992); see also McClellan v. State, 81 Ark. App. 361, 365, 101 S.W.3d 864, 866 (2003). The

alleged deficiencies of the drug-test results go to the weight of the evidence rather than its

admissibility. Isbell v. State, 326 Ark. 17, 23, 931 S.W.2d 74, 78 (1996). Furthermore, even

assuming that an objection from McCulley’s trial counsel would have succeeded in gaining

the exclusion of the drug-test results, McCulley failed to demonstrate that he had been

prejudiced by the alleged error. A petitioner asserting ineffective assistance of counsel must

demonstrate that he or she was prejudiced by counsel’s errors. Walden, 2016 Ark. 306, at

2–3, 498 S.W.3d at 728–29. Prejudice is established by facts that create a reasonable

probability that the finding of guilt was unreliable. Id. Here, based on the testimony of

A.R., who described her impaired state after ingesting the orange drink, combined with the

testimony of Collette, who observed McCulley putting a substance in A.R.’s drink and also

described A.R.’s incapacity during the sexual assault, as well as the testimony of A.R.’s

parents describing their daughter’s impaired behavior after she returned home, the exclusion

of a drug test demonstrating that A.R. tested positive for amphetamines would not have

rendered the guilty verdict unreliable. The circuit court did not clearly err when it rejected

this ineffective-assistance-of-counsel claim.

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       In a related argument, McCulley raises as his fourth point that trial counsel was

ineffective by failing to object to the above-described testimony regarding A.R.’s incapacity

due to ingesting amphetamines or another drug on the basis that it was hearsay and that the

witnesses were not competent to render an opinion that A.R. was under the influence of

drugs when she was raped. The record demonstrates that the testimony of A.R., Collette,

and A.R.’s parents was based on their personal observations during the relevant time frame.

Testimony of personal observations is admissible under Rules 602 and 701 of the Arkansas

Rules of Evidence (2016) as long as the testimony is rationally based on the perception of

the witness and is helpful to a clear understanding of the testimony or the determination of

a fact in issue. Marks v. State, 375 Ark. 265, 269–70, 289 S.W.3d 923, 926–27 (2008);

Russell v. State, 306 Ark. 436, 441, 815 S.W.2d 929, 932 (1991); Miller v. State, 250 Ark.

199, 201–02, 464 S.W.2d 594, 596–97 (1971). The trial record clearly shows that the

testimony met the requirements of admissibility under the Arkansas Rules of Evidence and

that McCulley failed to allege sufficient facts demonstrating that an objection to the above-

described testimony would have been meritorious.

       McCulley’s fifth ineffective-assistance-of-counsel claim includes the assertion that

trial counsel failed to object to the description by the prosecutor and witnesses of the

outbuilding where A.R. was raped as a “sex room.” McCulley maintains that such a

reference was highly prejudicial in that it led the jury to conclude that the outbuilding was

intended for sex-related activities. A.R. testified that she was raped in the outbuilding,

where she had been handcuffed to bars hanging over the bed, where televisions continuously

played pornography, and where a sign that read “sex instructions, first lessons free” was

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hanging on the wall. Collette testified that the outbuilding was used for sex and drugs, that

straps were attached to the bars hanging over a queen-size bed, and that the televisions were

used exclusively for viewing pornographic movies. Willbanks testified that when he entered

the room pursuant to a search warrant, he observed pornography playing continuously and

discovered several pornographic videotapes as well as handcuffs, sex toys, rope, and

lubricants. In view of the above-described testimony, the description of the outbuilding as

a “sex room” was apropos, and there is no demonstration that trial counsel’s failure to object

to the term “sex room” was either deficient or prejudicial to the outcome of the trial.

Walden, 2016 Ark. 306, at 2–3, 498 S.W.3d at 728–29.

       McCulley’s final ineffective-assistance-of-counsel claim asserts that counsel

erroneously failed to object to testimony setting forth the titles of the various pornographic

videos seized in the search. Evidence of the existence of pornographic videos corroborated

the testimony of both the victim and Collette and was therefore relevant and admissible.

Watson, 308 Ark. at 647, 826 S.W.2d at 284; Martin v. State, 2013 Ark. App. 110, at 7, 426

S.W.3d 515, 519 (pornographic photographs admissible in rape trial to corroborate

testimony of victim).

       Again, in view of the evidence and testimony described above, McCulley fails to

explain how referring to the videos by name rather than as “pornographic” or “sexually

explicit” changed the outcome of his trial. Walden, 2016 Ark. 306, at 2–3, 498 S.W.3d at

728–29; see also Johnston v. State, 2014 Ark. 110, at 7, 431 S.W.3d 895, 899 (Even if evidence

is erroneously admitted, we may declare the error harmless and affirm if the evidence of

guilt is overwhelming.). The circuit court did not clearly err by rejecting these last two

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ineffective-assistance-of-counsel claims as insufficient to establish that the lack of an

objection was either deficient or prejudicial. Walden, 2016 Ark. 306, at 2–3, 498 S.W.3d

at 728–29.

       McCulley finally argues that the circuit court’s order contravened Rule 37.3(c) of

the Arkansas Rules of Criminal Procedure because the court’s findings were conclusory and

did not reflect how the court applied the ineffective-assistance-of-counsel standard. Rule

37.3(c) of the Arkansas Rules of Criminal Procedure states in pertinent part that after a

hearing, “[t]he court shall determine the issues and make written findings of fact and

conclusions of law with respect thereto.” See Scott v. State, 351 Ark. 619, 621, 96 S.W.3d

732, 732–33 (2003). Without exception, the Arkansas Supreme Court has held that this

rule is mandatory and requires written findings. Id.

       Here, the circuit court held a hearing, reviewed the trial record, issued a letter setting

out each of McCulley’s claims, applied the standard set forth in Strickland, and explained the

reasons for denying each claim. In conjunction with the letter, the circuit court entered its

order denying McCulley’s petition. The circuit court’s written findings as set out in its

letter complied with Rule 37.3(c).

       Affirmed; motion denied.

       VIRDEN and GLOVER, JJ., agree.

       Troy Laurence McCulley, pro se appellant.

       Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.




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