Full Opinion

Cite as 2026 Ark. App. 514 ARKANSAS COURT OF APPEALS DIVISION I No. CR-25-546 Opinion Delivered: October 28, 2026 GLEN A. GILLETTE, JR. APPEAL FROM THE CRAIGHEAD APPELLANT COUNTY CIRCUIT COURT, WESTERN DISTRICT [NOS. 16JCR-23-1299 & 16JCR-22-1108] V. HONORABLE CHRIS THYER, JUDGE STATE OF ARKANSAS AFFIRMED APPELLEE WENDY SCHOLTENS WOOD, Judge Glen Gillette appeals related orders of the Craighead County Circuit Court convicting him of four felonies and two misdemeanors in one case and revoking his suspended sentence in another case.1 Gillette contends that the circuit court abused its discretion by denying his motion for mistrial and continuance; abused its discretion in denying his request to discharge his trial counsel; and erred by refusing to apply the statutory defense in Arkansas Code Annotated section 5-74-106(d) (Repl. 2024). We affirm. In October 2023, the Jonesboro Police Department received a tip that Gillette was selling “pills and crack” out of his truck in the parking lot of a Wendy’s, where he was employed as a manager. On November 2, Officers Nate Crews and Tanner Huff went to Gillette’s home to investigate. When they arrived at his house, Gillette was holding his five- 1 The circuit court held one trial on the criminal charges and the revocation petition. year-old son and standing next to the driver’s side of his truck, which was parked in his driveway. Gillette began to “act irate,” so the officers separated him from his son and placed him in handcuffs. The officers searched Gillette’s truck and discovered two bags of fentanyl pills and a large amount of cash. After arresting him, officers searched Gillette’s house and discovered a loaded handgun under his mattress, more bags of fentanyl, a bag of marijuana, and drug paraphernalia.2 The State charged Gillette as a habitual offender with simultaneous possession of drugs and firearms, possession of fentanyl with purpose to deliver, possession of drug paraphernalia, possession of firearms by certain persons, second-degree battery, endangering the welfare of a minor, and resisting arrest. The possession-of-firearms-by-certain-persons charge was severed and is not a part of this appeal. At a motions hearing on September 30, 2024, the circuit court and counsel discussed the trial schedule for these charges and on a petition to revoke Gillette’s suspended sentence, which was set for October 22. Gillette was represented at the hearing by his retained counsel, Justin Downum. They also discussed a pending trial in a new criminal case against Gillette for which Gillette did not have counsel. The State understood that Gillette was attempting to hire different counsel for the new case. The court told Gillette that hiring new counsel for the new case was not going to affect the October 22 jury trial set in the present case: “You can hire every lawyer in town, and . . . we’ll make chairs for them all here, but it’s not going 2 The parties stipulated that the searches of Gillette’s vehicle and his home were lawful. 2 to bump your case.” Gillette told the court that he wanted counsel in the new case and planned to hire Downum. Downum told the court that he did not want to represent Gillette on the new case, and he thought Gillette’s family had helped hire Downum on this case; he stated that Gillette could probably qualify for a public defender in the new case. Gillette agreed to fill out the necessary paperwork to have a public defender appointed in the new case. At a pretrial hearing on October 21—the day before trial—Downum told the court that Gillette had just informed him he wanted to fire Downum. Downum requested a continuance so that Gillette could hire new counsel. Gillette explained to the court that he and Downum had little communication until the recent plea offer; he had not been satisfied with Downum; and he could have a new, unnamed attorney in the next forty-eight hours “to accurately represent” him. Downum asserted that he had done “everything he could” to represent Gillette but recognized that Gillette had the right to hire new counsel if he was unsatisfied. The State noted that Downum had gone “above and beyond” in the case to communicate with the State, Gillette had known for over a month that the trial date had been set for the next day, and he had made no effort to contact the court or the clerk’s office to request different counsel during that time. The court recognized Gillette’s Sixth Amendment right to counsel of his choice but, citing Arroyo v. State, 2013 Ark. 244, 428 S.W.3d 464, explained that the right was to be weighed against other factors. The court then evaluated the Arroyo factors on the record. The court first found that Gillette had adequate opportunity to employ counsel, noting that 3 Gillette had initially been appointed a public defender and had subsequently hired Downum. The court found that the second factor, whether other continuances had been granted, weighed in favor of denying the motion since there had been four continuances, all on defense motions. The court weighed the fourth factor, length of delay, as neutral because it had no information on the requested delay but did state that should the court grant a continuance, the earliest available trial date would be January 2025. In lengthy remarks from the bench, the court continued its analysis of the relevant factors: Whether the delay is for legitimate reasons. Here the Court is convinced that, and timeliness of the motion, which is factor five and factor six, whether the defendant contributed to the circumstances giving rise to the request for a continuance. Factor seven, whether the reason to discharge current counsel was solely for the purposes of obtaining a continuance. All of those factors. There’s not an enormous amount of proof before the Court or argument before the Court on any of those factors. But what the Court would say that it really goes to all of those factors, is that this matter was set for trial by scheduling order in July. That was specifically, that trial date was specifically confirmed on the record at that September 30, 2024, hearing. And I want to talk a little bit more about that September hearing because when I asked my court reporter to pull the transcript for me or to pull the audio for me, I remember something that you said to me that day, Mr. Gillette, and it stuck with me. .... All of those factors, the Court finds that this last-minute motion . . . where everybody is ready for trial . . . enure to the benefit of the State[.] .... A motion for your counsel to be relieved at this, literally this 11th hour, the day before the jury trial is scheduled to start, that factor was heavily in favor of the State and heavily in favor of the Court denying your motion for continuance. 4 The Court would also note for the record two other factors not mentioned in Arroyo, but factors which were set forth in Mitchell vs State, which is 668 S.W.3d 483. That’s a June 2023 case. Those two additional Mitchell factors are potential ineffective- assistance-of-counsel claim, which the Court finds there’s no proof of that either way. .... The second additional Mitchell factor is whether the defendant had, in fact, hired counsel or was merely contemplating it. Here again, that factor weighs in favor of not granting the continuance and weighs in favor of denying your motion. Because the best I have before me is an expressed attempt to hire counsel. I do not have a situation, as in the Mitchell case, where there was actually counsel standing in court saying, Judge, I’m here, I’ve been retained, I’m ready to go and I want this. So again, all of those factors, in weighing those factors weigh in favor of not granting you the continuance in this matter, Mr. Gillette. .... Mr. Gillette, we specifically had the conversation on 9/30 that even if you hire another attorney, that attorney needs to know that it’s not going to affect the trial date and you told me on 9/30 that you understood that, that you were fine with that and that was, that was good with you. Now we had that conversation not in terms of this particular case, but we had that conversation in terms of the related cases, 24-690 and then the PTR. What you said though, Mr. Gillette and what, the reason all of, not the reason, but the reason the Court feels is convinced, frankly, Mr. Gillette, that this 11th hour motion of yours is nothing more than a ploy to get out of going to trial tomorrow is because of something you told me on September 30th. .... So on September 30, 2024, despite what you’re telling me today, on September 30th of 2024, you told me specifically that you wanted Mr. Downum to represent you even in that other case. .... What I do know and what the important part for purposes of this, Mr. Gillette, is that despite you telling me how your Counsel wouldn’t talk to you and how he 5 wouldn’t take your phone calls, how he wouldn’t do this and how he wouldn’t do that less than one month ago on September 30, 2024, your exact words to me were exactly the opposite. Your exact words to me were, I want to hire Mr. Downum on this unrelated case. So, Mr. Gillette, I find as factually that your motion for continuance, or motion, and again, the way this works, this is a, you do have a Sixth Amendment right to counsel of your choice, but that Sixth Amendment right must be also weighed against the fact that trial is scheduled for tomorrow. And so, the Court is going to treat that as a motion for continuance. The Court is denying that motion for continuance. Trial will start tomorrow morning. The jury trial began the following morning on October 22. The State presented the testimony of three witnesses: Detective Madison Dobbs, Officer Crews, and Officer Huff. Following Officer Huff’s testimony, the court concluded the trial for the day at 5:19 p.m., stating it would be in recess until 9:00 a.m. the next morning. That morning around 3:00 a.m., Gillette cut off his ankle monitor, which was discovered on the side of the road by the monitoring company at 7:21 a.m. Gillette did not appear at trial the next morning. 3 When Gillette did not appear for trial, Downum moved for a mistrial and then a continuance. The court denied both motions on the basis of Arkansas Code Annotated section 16-89-103(a)(2)(A) (Repl. 2005), which allows a court to try a noncapital felony case to verdict in a defendant’s absence if the defendant “escapes from custody after the trial has commenced or is present at the beginning of the trial and then causes himself or herself to 3 Gillette was apprehended outside Chicago several months later by the United States Marshals Service Fugitive Task Force. 6 be unable to appear at trial or if on bail shall absent himself or herself during the trial[.]” 4 The court also denied Downum’s argument that continuing the trial violated Gillette’s Sixth Amendment right to confront the witnesses against him, finding that he had waived the right by voluntarily absenting himself. The court then proceeded with the trial without Gillette present. The jury found Gillette guilty on all counts and recommended the maximum term of imprisonment for each offense. The circuit court found that Gillette had violated the terms and conditions of his suspended sentence and revoked it. However, the court did not impose sentences at that time. When Gillette was later apprehended, he was returned to Craighead County to appear before the circuit court for a sentencing hearing on May 23, 2025. On that same date, the court entered an order sentencing him to an aggregate term of 158 years’ imprisonment, which included terms of imprisonment for the felony convictions and the revocation of his suspended sentence, with the felony and revocation sentences running consecutively. Gillette appealed. I. Motions for Mistrial and for a Continuance After Gillette Absconded Gillette’s first point on appeal is that the circuit court abused its discretion by denying his counsel’s motions for mistrial and for a continuance when Gillette failed to show up for the second day of trial. He recognizes that under section 16-89-103(a)(2)(A), the circuit court had discretion to proceed with the trial but argues that the record does not demonstrate that 4 Judgment may not be rendered, however, until the defendant is present. Ark. Code Ann. § 16-89-103(a)(2)(B). 7 the circuit court “balanced” Gillette’s right to be present against the “countervailing interest” in proceeding with the trial. Gillette argues that his Sixth Amendment right to confront witnesses against him encompasses the basic right to be present at every stage of the trial. He claims that the circuit court “summarily denied” the motion without any on-the-record analysis. A mistrial is an extreme and drastic remedy that is appropriate only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. Thompson v. State, 2019 Ark. 290, at 4, 586 S.W.3d 163, 165. The judge presiding at trial is in a better position than anyone else to evaluate the impact of any alleged errors. McClinton v. State, 2015 Ark. 245, at 3, 464 S.W.3d 913, 914. Declaring a mistrial is proper only when the error is beyond repair and cannot be corrected by any curative relief. Franklin v. State, 2024 Ark. 9, at 4, 682 S.W.3d 1, 4. Therefore, the circuit court has wide discretion in granting or denying a motion for mistrial, and the decision of the circuit court will not be reversed except for abuse of that discretion or manifest prejudice to the complaining party. Id. at 4–5, 682 S.W.3d at 4. We also review alleged error resulting from the denial of a motion for continuance for abuse of discretion. Scarbrough v. State, 2024 Ark. 71, at 9, 687 S.W.3d 557, 564. The statute is clear. If the defendant is present at the beginning of trial and then absconds, the circuit court may stop the trial or “progress to a verdict at the discretion of the court.” Ark. Code Ann. § 16-89-103(a)(2)(A)(i). The statute does not require a particular balancing test in the exercise of this discretion, and Gillette cites no caselaw setting forth 8 such a test. Were such a balancing test required, however, Gillette presented no justifiable excuse for the court to weigh against the court’s interest in concluding the trial. Gillette’s absence was not involuntary. He removed his ankle monitor and fled. The court explained its decision to deny the motions to Gillette’s counsel: “The fact that your client has absented himself from these proceedings [is] something that he has done, and it is not fair to the State of Arkansas or to these jurors or to any of the court personnel or anybody else to grant a continuance in this matter.” Our supreme court and this court have affirmed the denial of similar motions under similar circumstances. See Reece v. State, 325 Ark. 465, 467–68, 928 S.W.2d 334, 335–36 (1996); Wilson v. State, 2021 Ark. App. 333, at 3–5. Regarding Gillette’s Sixth Amendment right to confront witnesses against him, Gillette had notice of his trial and was present with counsel on the first day. He chose to be absent thereafter. The court found that Gillette waived his right to confront the witnesses against him, noting in any case that his counsel was present to exercise that right for him. We hold that the circuit court did not abuse its discretion in denying the motions for mistrial or for continuance. See Gore v. State, 52 Ark. 285, 287, 12 S.W. 564, 565 (1889) (stating that “[t]he constitution guaranties [a defendant] the right to be present [to confront witnesses] but this guaranty was never intended to include the right to abscond, and then complain of his own absence.” (emphasis in original)). II. Motion to Substitute Trial Counsel Gillette also argues that the circuit court erred by refusing his request to discharge his trial counsel. He claims that he had consistently sought to discharge his counsel before trial 9 and explained his dissatisfaction with his counsel, including counsel’s failure to provide documents he had requested. He admitted that the circuit court had weighed the factors set forth in Arroyo but argued that there was no indication that any prejudice would occur if he had been allowed time to secure new counsel. We review the denial of a motion to substitute counsel for an abuse of discretion. Mitchell v. State, 2023 Ark. 101, at 6, 668 S.W.3d 483, 488. An 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 acted improvidently, thoughtlessly, or without due consideration. Id., 668 S.W.3d at 488. Once a criminal defendant has obtained competent counsel, “any request for a change in counsel must be balanced against the public’s interest in the prompt dispensation of justice.” Arroyo, 2013 Ark. 244, at 6, 428 S.W.3d at 469. In Arroyo, the court set forth the following relevant factors for the circuit court to consider: [W]hether other continuances have been requested and granted; the length of the requested delay; whether the requested delay is for legitimate reasons; whether the motion for a continuance was timely filed; whether the defendant contributed to the circumstances giving rise to the request for a continuance; whether the reason for the discharge of existing counsel was solely for the purpose of obtaining a continuance; and whether the request was consistent with the fair, efficient and effective administration of justice. Id. at 7, 428 S.W.3d at 469. Gillette admits that the circuit court considered the relevant factors from Arroyo, as required in these cases. We have set forth the majority of the court’s on-the-record consideration of those factors above. The court went through each factor, finding that each one weighed in favor of denying Gillette’s motion. The court noted that the defense had 10 already requested and been granted four continuances. The court thought that his “11th hour motion” the day before trial was to begin was “nothing more than a ploy to get out of going to trial.” The court also referred specifically to Gillette’s statement in the September 30 hearing (less than one month before trial) that he wanted to hire Downum for his new criminal case along with the fact that Gillette did not have new counsel retained and present at the October 21 pretrial hearing but was merely contemplating new counsel. Our review of the record does not convince us that the circuit court’s denial of Gillette’s motion to substitute counsel was an abuse of discretion. III. Statutory Affirmative Defense Finally, Gillette argues that the circuit court erred by refusing to apply a statutory defense to the simultaneous-possession charge, which forbids a person from committing a felony drug offense while in possession of a firearm. Ark. Code Ann. § 5-74-106(a)(1). Arkansas Code Annotated section 5-74-106(d) provides a defense to the offense of simultaneous possession if “the defendant was in his or her home and the firearm or other implement or weapon was not readily accessible for use.” Ark. Code Ann. § 5-74-106(d). While we recognize that criminal statutes are strictly construed and any doubts are resolved in favor of the defendant, we are first and foremost concerned with ascertaining the intent of the General Assembly. Vergara-Soto v. State, 77 Ark. App. 280, 284, 74 S.W.3d 683, 685 (2002). In statutory-interpretation matters, we construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. at 284, 74 S.W.3d at 685. In adopting section 5-74-106(d), the General Assembly obviously intended 11 to create a very narrow exception to the crime of simultaneous possession of drugs and firearms when “the defendant was in his home and the firearm was not readily accessible for use.” Id. at 284, 74 S.W.3d at 685. By its express terms, the statute requires a defendant to be “in his or her home.” This language is plain and unambiguous. Because Gillette was in his driveway—not in his house—when police found the firearm in his house, the statutory defense does not apply. Moreover, as Gillette recognizes in his reply brief, we have consistently interpreted this statutory affirmative defense as one that applies only when the defendant was inside his residence when the firearm is discovered. See House v. State, 2020 Ark. App. 240, 600 S.W.3d 106 (holding that the affirmative defense was not applicable because House was in a detached garage and the firearms were found in a safe inside his residence); Dotson v. State, 2013 Ark. App. 550 (holding that the defense was not applicable because Dotson was removed from his home before the search; therefore, he was not in the home when firearms were discovered in a closet); Vergara-Soto, supra (holding that the defense was not applicable where Vergara- Soto was outside his trailer when a firearm was discovered inside the trailer). We decline Gillette’s invitation to revisit our precedent on this issue. Affirmed. KLAPPENBACH, C.J., and BROWN, J., agree. Tim Cullen, for appellant. Tim Griffin, Att’y Gen., by: Jacob Jones, Ass’t Att’y Gen., for appellee. 12