ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

JAMES GREG TILLERY and PATSY TILLERY

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-879

JULY 3, 2002

APPEAL FROM THE POPE COUNTY CIRCUIT COURT, [NO. CR2000-437]

HONORABLE JOHN PATTERSON, JUDGE

REBRIEFING ORDERED

Appellants James Greg Tillery and Patsy Tillery were each convicted by a jury of possession of methamphetamine with intent to deliver. Mr. Tillery was sentenced to twenty years in prison, and Mrs. Tillery was sentenced to twelve years in prison.

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, counsel for appellants has filed a motion to withdraw on the grounds that the appeal has no merit. His motion was accompanied by a brief wherein he states that there is no issue in this case that has been preserved for review.

Both Mr. Tillery and Mrs. Tillery were provided with a copy of their counsel's brief and notified of their right to raise pro se points for reversal. Mr. Tillery has filed a list of thirteen points on his behalf, while Mrs. Tillery has filed nothing.

At the trial, the State produced evidence that the appellants' house was searched pursuant to a warrant. The police found several small packets containing methamphetamine, as well as four sets of scales. One of the State's witnesses testified that he had been providing Mr. Tillery quantities of methamphetamine, which Mr. Tillery would sell and then share the profits.

Many of the points raised by Mr. Tillery on appeal amount to challenges to the credibility of the witnesses. However, the jury has the sole authority to evaluate the credibility of witnesses, and it may choose to believe the State's version of the facts over the defendants. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). Some of Mr. Tillery's points are directed to the sufficiency of the evidence to support his conviction. However, since he failed to move for directed verdict at his trial, any question pertaining to the sufficiency of the evidence has been waived on appeal pursuant to Ark. R. Crim. P. 33.1 (a) and (c).

Mr. Tillery also argues that there should have been a change in venue, that there was a conflict of interest and he and Mrs. Tillery should have had separate trials, and that his counsel was ineffective. However, we cannot address these arguments because they were not made to the trial court. Even constitutional arguments are waived when they are not argued below. Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997).

Finally, Mr. Tillery makes arguments that are completely irrelevant to his conviction, such as, "I had no knowledge of what I was being arrested for," and "guns were drawn with no consideration for the safety and welfare of my children." We have reviewed each ofMr. Tillery's points and have concluded that none were addressed to the trial court and none can be the basis for reversal.

We now turn to the no-merit brief filed by appellants' counsel. In his brief, he asserts that there can be no arguments raised on appeal because nothing has been preserved. However, our review of the record reveals otherwise. During direct examination of Mrs. Tillery, she was asked whether her children were the subject of a DHS investigation and whether she had had a recent drug test. The State objected to each question on relevancy grounds, and the trial court sustained the objections. Rule 4-3(j) of the Arkansas Supreme Court Rules provides that a no-merit brief shall contain an argument section consisting of all rulings adverse to the defendant, with an explanation as to why each adverse ruling is not a meritorious ground for reversal. There were two adverse rulings, and appellant's counsel's failure to address these rulings in his brief requires this court to order rebriefing. See Skiver v. State, 330 Ark. 432, 954 S.W.2d 913 (1997).

Rebriefing ordered.

Pittman and Baker, JJ., agree.