Cite as 2017 Ark. App. 234 

ARKANSAS COURT OF APPEALS

DIVISION IV 

No. CR-16-713

JOHN DAVID ROSS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

OPINION DELIVERED: APRIL 19, 2017 

APPEAL FROM THE GARLAND

COUNTY CIRCUIT COURT 

[NO. 26CR-13-512] 

HONORABLE MARCIA R. 

HEARNSBERGER, JUDGE 

AFFIRMED; MOTION DENIED 

ROBERT J. GLADWIN, Judge

Appellant John David Ross filed a petition for postconviction relief pursuant to Rule 

37.1 of the Arkansas Rules of Criminal Procedure (2016). The Garland County Circuit 

Court denied the petition. Ross appeals, arguing that the circuit court erred in denying his 

amended petition under Arkansas Rule of Criminal Procedure 37 without holding an 

evidentiary hearing. We assumed this appeal pursuant to Barnes v. State, 2017 Ark. 76 n.1,

___ S.W.3d ___ n.1 (per curiam). For the reasons stated below, we affirm the trial court’s 

denial of postconviction relief.

A Garland County jury convicted Ross of sixteen counts of possessing or viewing 

matter depicting sexually explicit conduct involving a child, one count of permitting abuse 

of a minor, and one count of bestiality. At the jury’s recommendation, the circuit court 

ordered that Ross’s sentences be served consecutively, and he received a cumulative 

maximum sentence of 180 years in the Arkansas Department of Correction pursuant to a 
Cite as 2017 Ark. App. 234 

2 

sentencing order filed on October 7, 2014. This court affirmed Ross’s convictions in an 

opinion issued on October 28, 2015. See Ross v. State, 2015 Ark. App. 613, 474 S.W.3d 

539. The mandate from that appeal was filed on November 19, 2015.

With the assistance of counsel Ross filed a timely petition for relief under Rule 37 

on January 15, 2016, with the Garland County Circuit Court, which alleged numerous 

errors by trial counsel and contained a proper verification. He also filed a motion for leave 

to file an amended and enlarged Rule 37 petition on the same date, and that motion was 

granted by an order filed by the circuit court on January 19, 2016. Ross filed an amended 

petition on February 25, 2016, and the State filed a response on March 24, 2016. The circuit 

court did not hold a hearing on the matter, but instead, following the parties’ submissions, 

entered a ten-page written order that denied relief on May 10, 2016. The trial court relied 

on the parties’ pleadings, as well as an extensive review of the trial record, and concluded 

that the mistakes Ross alleged trial counsel had made would have been meritless and 

otherwise would not have changed the outcome of his trial. On appeal, Ross repeats some, 

but not all, of the claims raised below and argues that the trial 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).

This court will not reverse the trial 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 to support it, the 

appellate court, after reviewing the entire evidence, is left with the definite and firm 
Cite as 2017 Ark. App. 234 

3 

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 trial 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 trial court clearly erred in holding that 

counsel’s performance was not ineffective. ld. 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 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.
Cite as 2017 Ark. App. 234 

4 

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 in order to demonstrate the prejudice required under the 

Strickland test. 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).

Rule 37.3(c) provides that an evidentiary hearing should be held in a postconviction 

proceeding unless the files and record of the case conclusively show that the prisoner is 

entitled to no relief. See Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). The circuit court, 

in its discretion, can deny postconviction relief without a hearing if it concludes that the 

petitioner is entitled to no relief. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. Rule 

37.3(a) states that 

[i]f the petition and the files and records of the case conclusively show that the 

petitioner is entitled to no relief, the trial court shall make written findings to that 

effect, specifying any parts of the files, or records that are relied upon to sustain the 

court’s findings.

Without the specific findings, there can be no meaningful review in this court, 

because this court determines whether the findings are supported by a preponderance of the 

evidence. Rackley v. State, 2010 Ark. 469 (per curiam). We are not required to scour the 

record in a Rule 37.1 appeal to determine if the petition is wholly without merit when 

there are no written findings. Id. When a hearing is not held, it is the function of the circuit 

court to make written findings. Id.

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

adduced at his trial. The trial record demonstrates that at trial, the State presented evidence 
Cite as 2017 Ark. App. 234 

5 

from Agent Chris Cone of the Attorney General’s Cyber Crimes Unit that Ross confessed 

to viewing child pornography and that he knew that his codefendant, Amanda Hartle, had 

sexual relations with Ross’s minor son. The State also presented evidence from Agent Jeff 

Shackleford, a forensic analyst in the Cyber Crimes Unit, about the contents of a computer 

and phone found at Ross’s residence. Ross’s minor son, M.S., also testified about having 

oral sex with Hartle. The evidence included pornographic images of children contained on 

Ross’s laptop computer and cell phone; Ross’s allowing his girlfriend to sexually abuse his 

fourteen-year-old son; and Ross’s participating with his girlfriend in her acts of bestiality 

with his son’s dog.

I. Was a Hearing Required on Counsel’s Failure to Subpoena Hartle at Trial?

Ross initially notes that his trial counsel erroneously failed to subpoena Hartle to 

testify at trial. His Rule 37 petition alleged that Hartle would testify at the Rule 37 hearing 

that she had written a letter accepting responsibility for at least some of the child 

pornography Ross was convicted of possessing or viewing and would have so testified at his 

trial if trial counsel had subpoenaed her. Hartle allegedly also would have testified that Ross 

told her not to download illegal pictures on his computer.

The circuit court found that trial counsel was not ineffective because Hartle had 

previously indicated her desire to invoke her Fifth Amendment privilege, and the issue had 

been decided on direct appeal.1 Ross argues that the circuit court was wrong on both 

accounts.

 1

In the direct appeal of Ross’s case, our court explained that, with respect to the 

court’s affirming the circuit court’s determination to not allow Hartle’s notarized letter, 

“Hartle was not available to appear as a witness. She was facing a separate trial on criminal 
Cite as 2017 Ark. App. 234 

6 

Ross’s claim for counsel’s failure to subpoena Hartle is conclusory and insufficient 

for Rule 37 relief. See Jones v. State, 2009 Ark. 308 (per curiam). Ross claims that “a witness’s 

desire to invoke her Fifth Amendment privilege in advance of trial does not demonstrate 

conclusively that she would have done so at trial,” but he fails to support this claim with 

any logical argument or citation to authority. Ortega v. State, 2016 Ark. 372, at 6, 501 

S.W.3d 824, 828. Conclusory statements, without more, cannot form the basis for

postconviction relief. Hooks v. State, 2015 Ark. 258, at 7, 465 S.W.3d 416, 421 (per curiam). 

Alternatively, the circuit court did not err in denying relief based on Hartle indicating 

at a pretrial hearing that, on the advice of counsel, she would invoke her Fifth Amendment 

privilege against self-incrimination and refuse to testify. Hartle had expressed her intention 

in separate proceedings before the circuit court to invoke her Fifth Amendment privilege 

against self-incrimination and not testify in Ross’s trial. The circuit court’s written findings 

were sufficient to satisfy the requirements of Rule 37.3(c) and Mancia, supra.

II. Was a Hearing Required Regarding Counsel’s Failure to File Meritorious Pretrial Motions?

A. Motion to Exclude Rule 404(b) Evidence

Ross next argues that his trial counsel erroneously failed to file a motion to exclude 

evidence that Ross claims was substantially more prejudicial than probative and not 

admissible for any purpose under Arkansas Rule of Evidence 404(b). Ross was charged with 

possession of child pornography, bestiality, and permitting the abuse of a minor. Trial 

 

charges similar to [Ross’s], and she invoked her Fifth Amendment right against selfincrimination.” See Ross, 2015 Ark. App. 613, at 4, 474 S.W.3d at 542. This court’s previous 

opinion operates as law of the case with respect to this particular issue.

 
Cite as 2017 Ark. App. 234 

7 

counsel allowed the admission of evidence of bestiality websites and evidence of consensual 

sexual encounters between Hartle and other people, which were recorded by Ross. 

Included was evidence that Ross enjoyed having Hartle urinate on him, that he allowed 

Hartle to have sex with other people, that the two of them would have sex together with 

other people, and that Ross would record these sexual encounters. Regarding the bestiality 

charge, the State introduced testimony that there were videos of sex with dogs that did not 

involve Ross and an online user profile of Ross on a website for animal-sex lovers. 

Ross claims that the circuit court erred in ruling that Ross was not entitled to relief 

on this issue because trial counsel could have directly appealed the ruling permitting the 

evidence and because the evidence was admissible regardless. At a minimum, Ross asks this 

court to remand for a hearing at which trial counsel could explain his failure to object.

We disagree, noting that trial counsel cannot be ineffective for failing to make a 

meritless objection. See Greene, supra. Ross claims that evidence of bestiality websites and 

Ross’s user profile connected with a website devoted to animal-sex lovers, as well as videos 

of sexual encounters between Ross’s girlfriend and other individuals other than his fourteenyear-old son, was not relevant to the charges against him; his claim is misplaced. See Steele 

v. State, 2014 Ark. App. 257, 434 S.W.3d 424 (evidence of pornographic images depicting 

minors engaged in sexually explicit acts was relevant to show knowledge, intent, and absence 

of mistake or accident and was thus properly admitted under Rule 404(b)). The fact that 

both Ross’s laptop computer and cell phone contained multiple images, websites, and videos 

connected to his alternative lifestyle was highly probative of the issue of whether he 

knowingly possessed and viewed the materials contained there, and the circuit court so 
Cite as 2017 Ark. App. 234 

8 

found. Because the circuit court’s written findings were sufficient to satisfy the requirements 

of Rule 37.3(c) and Mancia, supra, we hold that the circuit court did not err in denying a 

hearing on this claim. 

B. Motion to Suppress Ross’s “Second Statement”

Ross next argues that trial counsel erroneously failed to move to suppress his “second 

statement” to police during which he made additional incriminating statements. He claims 

that there were two statements taken during his arrest and acknowledges that he was 

Mirandized before the first statement; however, he was not re-Mirandized prior to the 

“second statement.” Ross maintains that it was not he, but Agent Cone who reinitiated the 

conversation. Accordingly, he claims that the incriminating statements made by him at that 

time should have been suppressed. Our supreme court has repeatedly held that an accused’s 

statement made while in custody is presumed involuntary and that the State must prove by 

a preponderance of the evidence that any statement was made voluntarily, knowingly, and 

intelligently. See Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001). The State was never 

forced to meet this burden because trial counsel never filed a motion to suppress. At a 

minimum, Ross asks this court to remand for a hearing to determine whether the statements 

would have been suppressed after developing the facts of the encounter. The statements 

elicited in the second interrogation were that (1) Ross knew Hartle had sexual relations with 

his son; (2) Ross has video of Hartle performing oral sex on his son; (3) Ross did not 

confront Hartle about the video; and (4) Ross admitted he was aware that the child 

pornography aroused Hartle, which aroused him. Ross urges that, without question, the 

exclusion of these extremely incriminating statements would have benefited him.
Cite as 2017 Ark. App. 234 

9 

We find no merit in Ross’s argument. As the circuit court noted in its order, Ross 

failed to plead any evidence in his petition to support his contention that the statement he 

gave to investigators should have been suppressed. Ross does not challenge the fact that he 

was properly Mirandized when investigators first interviewed him. He also concedes that, 

in his statement to investigators, he admitted he knew Hartle had sexual relations with his 

fourteen-year-old son, that he had a video of Hartle performing oral sex on his son, and 

that he was aware that child pornography aroused Hartle, which aroused him. While Ross 

claims that these admissions came in a separate second statement to investigators, prior to 

which he was not re-Mirandized, our review of the testimony in the record included Agent 

Cone’s testimony regarding the encounter with Ross and his recorded statement where 

Ross reinitiated the conversation with him. Thus the conflicting testimony was a matter of 

credibility between Ross and Agent Cone. Absent any pleaded facts as to why a motion to 

suppress would have been warranted, this allegation fails because it is conclusory. 

Additionally, the circuit court properly found, based on the record, that the claim was 

meritless. We agree and affirm. 

III. Was a Hearing Required on Counsel’s Failure to Subject State’s Case to Adversarial Testing?

A. Failure to Know Relevant Law

The circuit court did not hold a hearing on the issue of trial counsel’s failure to know 

the relevant law on multiple occasions, which Ross claims all served to deprive him of a fair 

trial. Trial counsel, during a debate over the admission of Hartle’s letter that included 

exculpatory information, erroneously cited the Federal Criminal Rules as a basis to admit 

the evidence. Also, a few days prior to trial, trial counsel responded to a question from the 
Cite as 2017 Ark. App. 234 

10

circuit court that he was not sure what Ross had been charged with regarding the child

pornography charges. Ross submits that during trial, trial counsel demonstrated his lack of 

knowledge regarding how to make a record and the purpose of a bench conference. Finally, 

trial counsel was prepared to present a defense that was contrary to the law. Ross 

acknowledges that the law does not allow an ignorance-of-the-law defense, see Owens v. 

State, 354 Ark. 644, 665, 128 S.W.3d 445, 458 (2003), and Arkansas Code Annotated 

section 5-2-206(b) (Repl. 2013); however, Ross maintains that is precisely what trial counsel 

attempted to argue in voir dire and presumably had selected as a trial strategy. Because the 

court made it clear that ignorance of the law is not a defense, Ross’s trial counsel was 

presumably forced to change his trial strategy during the trial. Ross maintains that had he 

had capable and learned counsel in the law there is a reasonable probability that a juror 

would have found him not guilty, or, at a minimum, given him a lesser prison sentence.

There is a strong presumption that trial counsel’s conduct falls within the wide range 

of reasonable professional assistance. Wertz v. State, 2014 Ark. 240, at 3, 434 S.W.3d 895, 

900. Although Ross’s counsel on appeal cites instances in which trial counsel purportedly 

did not know the “relevant law,” trial counsel’s strategy of blaming Hartle is endorsed in 

Ross’s amended Rule 37 petition, but with the added benefit of hindsight. Matters of trial 

tactics and strategy are not grounds for postconviction relief. Hartman v. State, 2017 Ark. 7, 

at 4, 508 S.W.3d 28, 32. The circuit court also found that Ross’s vague claim was not 

cognizable in a Rule 37 proceeding; consequently, Ross’s argument is unavailing and the 

circuit court’s decision to deny a hearing on this claim is affirmed. Despite Ross’s multiple 

citations to federal cases in which courts have found that decisions based on 
Cite as 2017 Ark. App. 234 

11

misunderstandings of law are not strategic decisions and are bases for ineffective-assistanceof-counsel holdings, we hold that he has failed to demonstrate reversible error on this point.

B. Failure to Make a Proper Directed-Verdict Motion

Ross next argues that trial counsel erroneously failed to make a proper directedverdict motion pursuant to the requirements of Arkansas Rule of Criminal Procedure 33.1. 

At the close of the State’s case, trial counsel stated,

MR. RHODES: My understanding was to preserve prior objections and things like 

that that we need to make a motion for directed verdict, that the State has not met 

their burden of proof for any of these charges, specifically, the bestiality charge. I’m 

not sure how that relates to the Defendant. I don’t see any proof that he’s in that 

photo—I know it’s a misdemeanor count—but that seems to be not sufficient 

evidence to go to the jury with what they’ve got.

THE COURT: Denied. 

Ross argues that this was “woefully insufficient” to preserve any aspect of the motion 

for directed verdict because trial counsel did not mention the majority of charges against 

him by name. Regardless, he notes that this court ruled on direct appeal that trial counsel 

failed to renew his motion. See Ross, supra. 

Ross maintains that prejudice exists because a proper motion for directed verdict 

would have been meritorious. In a case of constructive possession, the State must establish 

that (1) the accused exercised care, control, and management over the contraband, and (2) 

the accused knew the matter possessed was contraband. Stanton v. State, 344 Ark. 589, 599, 

42 S.W.3d 474, 481 (2001). Additionally, in a joint-occupancy situation, there must be an 

additional link between the accused and the contraband. Osborne v. State, 278 Ark. 45, 50, 

643 S.W.2d 251, 253 (1982). He claims that these facts are similar to those in Kastl v. State,

303 Ark. 358, 361, 796 S.W.2d 848, 850 (1990), where our supreme court held that even 
Cite as 2017 Ark. App. 234 

12

though there were beer cans beside the vehicle Kastl was in, that beer was found in the 

immediate proximity to the appellant, and that the appellant’s breath smelled of alcohol, 

there was not sufficient evidence that the beer in the vehicle was in his possession. Id. Here, 

even though Ross admitted viewing child pornography, he claims that there was insufficient 

evidence that he was connected to the particular photographs at issue. He urges that it was 

a joint-occupancy situation and that there was no proof of the required additional link 

between the pornography and him. Thus, Ross submits that the circuit court would have 

granted a directed verdict on the child-pornography charge.

Ross’s claim that trial counsel failed to make a proper directed-verdict motion was 

not raised in his amended Rule 37 petition, which contains a footnote at page 11 stating 

that “Petitioner asserts previously in this petition that [trial counsel] did not make an [sic] 

sufficient directed[-]verdict motion and that this argument assumes, for sake of argument, 

that this Court finds that the directed[-]verdict [sic] was sufficient.” An examination of 

Ross’s original Rule 37 petition and the amended Rule 37 petition does not reveal an 

ineffective-assistance-of-counsel claim regarding trial counsel’s directed-verdict motion; 

however, the circuit court considered, and rejected, the claim, apparently because we had 

noted in our opinion on Ross’s direct appeal that the sufficiency-of-the-evidence argument 

was barred from appellate review. See Ross, 2015 Ark. App. 613, at 2–3, 474 S.W.3d at 541. 

Notwithstanding the fact that Ross did not raise this allegation of ineffectiveness in 

his pleadings below, we hold that trial counsel’s failure to make an adequate directed-verdict 

motion did not result in prejudice because the evidence of his guilt was so overwhelming 

we cannot conclude that the outcome of the trial would have been any different if a proper 
Cite as 2017 Ark. App. 234 

13

motion for directed verdict had been made. See Dodge v. State, 2014 Ark. 116, at 4 (per

curiam). 

Ross’s argument ignores the facts adduced in the State’s case-in-chief. At trial, Agent 

Cone testified that he had extensive training and experience regarding crimes involving the 

sexual exploitation of children, including those areas involving the use of computer-file 

sharing over the internet. He described the process whereby different file-sharing networks 

are installed and used to receive, share, or disseminate child pornography. In this case, he 

located a secured network using a computer owned by Ross on which there were

downloaded images known by their file characteristics to be that of sexually exploited 

children. 

Agent Cone’s investigation led him to the physical address of Ross’s residence in Hot 

Springs, where, after further investigation, he sought and obtained a search warrant for the 

search and seizure of devices that were known to contain child-pornography files. Agent 

Cone, in conjunction with the Hot Springs Police Department, conducted a search of Ross’s 

residence where they located and seized a Compaq laptop computer located in Ross’s 

bedroom. Agent Cone conducted a forensic search of the computer at Ross’s residence and 

determined that it was the device that contained the images previously recognized as 

involving child exploitation.

After Agent Cone informed Ross of his Miranda rights, Ross acknowledged that he 

understood those rights, waived them, and agreed to speak with Agent Cone. In his 

statement to Agent Cone, Ross admitted establishing several different file-sharing network 

programs on his computer under his personal, password-encrypted account. He told Agent 
Cite as 2017 Ark. App. 234 

14

Cone that he did so to access different types of pornography, and during his “research” he 

came across images involving child pornography and downloaded those images for his own 

“edification.” Ross also admitted that both he and Hartle downloaded and watched the 

videos together. 

Agent Shackleford also testified for the State as to his extensive training and 

experience in conducting forensic searches of devices capable of downloading images, and, 

in this case, the images of sexually exploited children contained on the computer and cell 

phone owned by Ross. Agent Shackleford testified that his search of Ross’s computer and 

cell phone yielded numerous file images whose names alluded to different sexual acts that 

included sex with children, with animals, and between adults. In the pictures directory, 

Agent Shackleford located at least sixty-eight files that he believed were relevant to the case. 

Among those files were images or videos of Ross engaged in sexual acts with a dog, 

along with Hartle, who was also charged. Hartle was also identified in video files 

downloaded onto Ross’s computer and contained in a webcam folder that showed Hartle 

engaged in sexual acts with Ross’s minor son. Of the sixty-eight video files retrieved from 

Ross’s computer whose names included terms common to files containing the sexual 

exploitation of children, Agent Shackleford testified that there were sixteen files where he 

could clearly determine that prepubescent children were involved. 

Ross’s admission that he owned the computer and cell phone that contained the 

images and videos, that he set up file-sharing networks, searched for, and viewed video files 

containing children engaged in sexually explicit conduct all constituted substantial evidence 

that he violated Arkansas Code Annotated section 5-27-602 (Repl. 2013) by possessing or 
Cite as 2017 Ark. App. 234 

15

viewing matter depicting sexually explicit conduct involving a child. His claim that Hartle 

was responsible for the illicit files on his computer and cell phone was a matter of credibility, 

and therefore, an issue to be resolved by the jury. Steele, supra. Even without Ross’s 

admission, the State proved that the computer belonged to Ross and that he exercised 

ownership, dominion, and control over it. See id. The foregoing constituted not just 

substantial, but overwhelming, evidence of Ross’s guilt on the charges. Thus, the failure to 

properly raise a sufficiency-of-the-evidence challenge did not prejudice Ross, and we reject 

his ineffective-assistance-of-counsel argument on this issue.

C. Failure to Object to Expert Witness Testimony

Ross’s final argument is that trial counsel erroneously failed to object to the testimony 

of Agent Shackleford, a forensic-computer expert whose testimony referred to the cell 

phone located on top of a bathroom toilet in Ross’s residence as belonging to Ross. Ross 

submits that Agent Shackleford did not have any personal knowledge that the phone 

belonged to Ross, and that without personal knowledge of the phone’s owner, Agent 

Shackleford was not able to lay a sufficient foundation of the phone’s contents against Ross. 

He urges that the phone’s contents should not have been admitted pursuant to Arkansas 

Rule of Evidence 602 (2014). But because trial counsel failed to object to the introduction 

of the evidence, Agent Shackleford was permitted to testify in a manner that gave the 

impression that the phone belonged to Ross. Agent Shackleford testified the phone 

contained pictures of a woman engaging in bestiality, photographs of a woman urinating 

into a bowl, and pictures of young boys. Ross urges that the testimony is not only extremely 

prejudicial but that it also served to connect Ross with the computer images for which he 
Cite as 2017 Ark. App. 234 

16

was ultimately convicted. Ross argues that this evidence should never have been admitted 

and that the prejudice is clear from his conviction and resulting maximum sentence.

While our review of the circuit court’s order denying relief does indicate that the 

circuit court was skeptical as to whether such an objection would have even been sustained, 

we note that it ruled that Ross had failed to demonstrate Strickland–type prejudice regarding 

the admission of the evidence retrieved from the cell phone. We hold that the circuit court’s 

ruling was correct. 

Furthermore, our review indicates that Ross ignores that Agent Shackleford 

examined Ross’s laptop first and only then examined the cell phone, which he discovered 

contained similar sexually-explicit images as those contained on the laptop. They included 

sexually-explicit images of both Hartle and Ross’s minor son. Regarding Ross’s assertion 

that there was “no foundation” for the admission of evidence contained on the cell phone, 

and the lack of evidence that Ross acknowledged that the cell phone belonged to him, we 

hold that the lack of a specific reference in Agent Shackleford’s testimony as to the 

connection between Ross’s laptop computer and the cell phone discovered at his residence 

is not reversible because, at most, it constitutes cumulative evidence. Thus, any objection 

to Agent Shackleford’ s testimony regarding the cell phone and the images he recovered 

from it would have been overruled. Because counsel cannot be ineffective for failing to raise 

a meritless objection, see Greene, supra, the circuit court’s decision to deny a hearing on this 

claim should be affirmed. 

Here, although the circuit court did not hold a hearing, it did review the trial record 

and issued an order setting out each of Ross’s claims, applied the standard set forth in 
Cite as 2017 Ark. App. 234 

17

Strickland, and explained the reasoning for denying each claim in his amended petition. The 

trial court’s written findings as set out in its order complied with Rule 37.3(c).

Affirmed; motion denied. 

GRUBER, C.J., and VAUGHT, J., agree. 

James Law Firm, by: Bobby R. Digby II, for appellant. 

Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.