Abernathy v. State

Anthony Lamar ABERNATHY v. STATE of Arkansas

CR 95-966                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 17, 1996


1.   Evidence -- introduction of testimony of other criminal
     activity -- when admissible. -- Arkansas Rule of Evidence
     404(b) permits the introduction of testimony of other criminal
     activity if it is independently relevant -- in the sense of
     tending to prove some material point rather than merely to
     prove that the defendant is a criminal -- to the main issue;
     evidence of that conduct may be admissible with a proper
     cautionary instruction by the court; on appeal, the trial
     court's decision on this issue, like other evidentiary
     determinations, is reviewed under an abuse-of-discretion
     standard. 

2.   Evidence -- prior misconduct offered to prove intent or
     absence of mistake -- similarity of circumstances required. --
     There must be a high degree of similarity in circumstances
     between the charged crime and the prior uncharged act when the
     State offers the evidence to prove intent or the absence of
     mistake; there are restrictions on the introduction of 
     evidence for uncharged misconduct offered to disprove
     accident; the uncharged act must be similar to the charged
     act, and the judge has wide discretion to exclude the
     evidence; the ideal case for exclusion is one in which (1) the
     defendant has not affirmatively claimed accident and (2) the
     nature of the crime is such that accident would not be a
     plausible defense. 

3.   Evidence -- uncharged act not sufficiently similar to charged
     offense -- trial court abused its discretion in admitting
     evidence at trial. -- Where the appellate court found no
     logical connection between the uncharged acts perpetrated
     against appellant's stepbrother and the killing of his
     girlfriend, the uncharged act perpetrated against appellant's
     stepbrother was not sufficiently similar to the charged
     offense; the trial court abused its discretion in admitting
     the stepbrother's testimony at trial.  

4.   Evidence -- error in admission of uncharged misconduct is not
     error per se -- harmless error test applied to uncharged
     misconduct errors. -- An error in the admission of uncharged
     misconduct evidence is not error per se; the same harmless
     error test is applied to uncharged misconduct errors as is
     applied to other trial mistakes.

5.   Evidence -- when error will be found harmless and court will
     affirm. -- When the evidence of guilt is overwhelming and the
     error is slight, the court can declare that the error was
     harmless and affirm; even where a trial court errs in
     admitting evidence, where it is remote in time and unconnected
     to the events surrounding the crime at issue and is admitted
     only for a limited purpose, the error may be found to be
     harmless.

6.   Evidence -- evidence erroneously admitted -- admission
     constituted harmless error. -- Although the stepbrother's
     testimony should not have been admitted into evidence, in
     light of the entire record, its admission constituted harmless
     error; it was significant that the testimony was admitted with
     a cautionary instruction for limited purposes; the State had
     very strong evidence against appellant, and the jury could
     have inferred purposeful murder from the act itself; the trial
     court erred in admitting the testimony of the stepbrother
     because it was not sufficiently similar to the circumstances
     surrounding the victim's murder, but the admission of this
     evidence was harmless. 


     Appeal from Pulaski Circuit Court, First Division; Marion
Humphrey, Judge; affirmed.
     William R. Simpson, Jr., Public Defender, by:  Julia B.
Jackson, Deputy Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Bradley D. Jesson, Chief Justice.       June 17, 1996   *ADVREP*SC1*







ANTHONY LAMAR ABERNATHY,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,





CR95-966


APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT, FIRST DIVISION
(CR94-608)


HONORABLE MARION HUMPHREY
CIRCUIT JUDGE




AFFIRMED.
                BRADLEY D. JESSON, CHIEF JUSTICE


     Appellant Anthony Lamar Abernathy was convicted by jury of the
first-degree murder of his girlfriend, seventeen-year-old Kendra
Broadway, and sentenced to life imprisonment.  On appeal, he
asserts that the trial court abused its discretion in admitting 
testimony of prior bad acts.  We affirm.
     The State's evidence against the appellant included the
following.  On the evening of January 28, 1994, and into the early
morning hours of January 29, 1994, appellant was drinking at a
friend's house in Little Rock when he noticed he was missing
$80.00.  Angrily suspecting that his girlfriend Kendra had taken
the money, he took a cab to his duplex at 125 College Park Circle
in North Little Rock, where Kendra was staying.  According to
appellant's statement to police, he thought about shooting her
during the taxi ride home, but decided not to do so.  
     Upon arrival at the duplex at approximately 3:00 a.m.,
appellant confronted Kendra with the allegations of theft.  When
she refused to admit that she had stolen the $80.00, appellant beat
her with his fists and kicked her with his steel-toe boots.  
Sherrie Pitts, who lived on the other side of the duplex, was
watching television when she heard fighting, yelling, and what she
described as "licks" or continuous hitting lasting approximately
thirty minutes.  She further recalled hearing the appellant repeat,
"Bitch, don't you know I will kill you?" to which the victim, who
was crying, would reply, "I know.  I know."  Pitts did not call the
police because she did not have a telephone.           
     Shortly before 7:00 a.m., appellant called 911 from a pay
telephone at a nearby intersection.  Officer John Murphy of the
North Little Rock Police Department was dispatched to the
appellant's location.  When Murphy arrested him, appellant stated,
"I think I killed my girlfriend.  I beat her up."  Officers then
located the victim's body at the duplex.  Officer Tom Osborne
testified that he found evidence of the appellant's attempt to
clean up blood stains, including a water spot on the wall, a mop
bucket filled with dirty and bloody water, and bloody rags. 
According to appellant's statement to Detective Jerry Smith,
appellant told the victim he wanted her to die.  He told Smith that
he was mad at Kendra for stealing his money and admitted to hurting
other people with whom he had intimate relationships, stating "I
stay with a person until I end up hurting them."  
     Dr. Charles Kokes of the State Crime Lab performed the autopsy
on the victim and determined that her death was caused by "multiple
blunt force injuries to everywhere actually."  He estimated that
Kendra would have died within two hours of sustaining the injuries. 
These injuries included a severe wound to the internal nasal
structures, a laceration on the left frontal region near the
forehead, hemorrhages to the chest and abdominal wall, a large
laceration of the liver and right kidney, intestinal bruises, and
extensive defensive injuries.  According to Dr. Kokes, Kendra could
have bled to death from the injury to her internal nasal structures
alone.  The State introduced photographs depicting the extent of
these injuries.
     Despite this overwhelming evidence it had against appellant,
the State chose to introduce at trial the testimony of four
witnesses regarding alleged prior threats and acts of violence by
him.  The State's theory was that this evidence was necessary to
refute the theory that Kendra's killing was an accident.  We need
only discuss the most egregious of this prior bad act evidence,
which was offered in the form of testimony of Sam Abernathy,
appellant's stepbrother.  Sam testified that on January 9, 1993,
appellant kicked open the front door of his apartment in the middle
of the night and shot him in both thighs, causing a compound
fracture in one of his legs necessitating surgery.  After Sam, who
was unarmed, had fallen to the floor, appellant stood over him and
kicked him in the head.  
     The evidentiary rule at issue in this case is A.R.E. 404(b). 
It reads:
     Other Crimes, Wrongs, or Acts.  Evidence of other crimes,
     wrongs, or acts is not admissible to prove the character
     of a person in order to show that he acted in conformity
     therewith. It may, however, be admissible for other
     purposes, such as proof of motive, opportunity, intent,
     preparation, plan, knowledge, identity, or absence of
     mistake or accident.

We have interpreted this rule as permitting introduction of
testimony of other criminal activity if it is "independently
relevant to the main issue -- relevant in the sense of tending to
prove some material point rather than merely to prove that the
defendant is a criminal -- then evidence of that conduct may be
admissible with a proper cautionary instruction by the court."
White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); Price v.
State, 268 Ark. 535, 597 S.W.2d 598 (1980), quoting Alford v.
State, 223 Ark. 330, 266 S.W.2d 804 (1954).  On appeal, we review
the trial court's decision on this issue, like other evidentiary
determinations, under an abuse-of-discretion standard.  Larimore v.
State, 317 Ark. 111, 877 S.W.2d 570 (1994).       
     We stressed the requirement that there be a very high degree
of similarity between the charged crime and the prior uncharged act
in Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995).  While the
issue in that case was identity and the erroneously admitted
evidence was offered to show a method of operation, the requirement
of similarity in circumstances between the uncharged misconduct and
the charged crime also applies when the State offers the evidence
to prove intent or the absence of mistake.  Professor Imwinkelried
illustrates this point in his treatise:  
          Although the courts have been receptive to uncharged
     misconduct offered to disprove accident, there are
     restrictions on the introduction of evidence for this
     purpose.  As is generally true under Wigmore's theory,
     the uncharged act must be similar to the charged act. 
     Wigmore's theory rests on the doctrine of chances, and
     the evidence does not trigger the doctrine unless the
     charged and uncharged acts are similar.
          Furthermore, the judge has wide discretion to
     exclude the evidence under Rule 403.  The ideal case for
     exclusion is one in which (1) the defendant has not
     affirmatively claimed accident and (2) the nature of the
     crime is such that accident would not be a plausible
     defense. 

Edward J. Imwinkelried, Uncharged Misconduct Evidence  5:10 at 26-
27 (1984)(footnotes omitted.)  
     We are mindful of the State's burden to prove that appellant
killed Kendra with the purpose of doing so.  See Russey v. State,
322 Ark. 786, 912 S.W.2d 420 (1995); Ark. Code Ann.  5-10-
112(a)(2)(Repl. 1994).  Nevertheless, we can find no logical
connection between the uncharged acts perpetrated against
appellant's stepbrother and the killing of his girlfriend in the
present case.  The trial court remarked that appellant's act of
kicking his stepbrother in the head is similar to what is alleged
in the present incident.  Yet to accept that this evidence was
relevant would require an inference that if appellant shot his
stepbrother in the legs and kicked him in the head afterwards, he
therefore had the purpose to kill his girlfriend when he hit and
kicked her one year later.  Because we conclude that the uncharged
act perpetrated against Sam was not sufficiently similar to the
charged offense, we hold that the trial court abused its discretion
in admitting Sam's testimony at trial.  
     We must now consider whether this evidence was sufficiently
prejudicial to mandate reversal.  The universal view is that an
error in the admission of uncharged misconduct evidence is not
error per se.  Edward J. Imwinkelried, Uncharged Misconduct
Evidence  9:73 at 124 (1984).  For the most part, other courts
purport to apply the same harmless error test to uncharged
misconduct errors as they apply to other trial mistakes. Id., 9:74
at 125.  As appellant did not raise any constitutional objection to
the admission of the prior-bad-acts evidence either at trial or on
appeal, we need not evaluate the admission of this evidence under
the constitutional standard of harmless beyond a reasonable doubt.
See Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995).
     We have said that when the evidence of guilt is overwhelming
and the error is slight, we can declare that the error was harmless
and affirm. Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994);
Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).  We find one
Eighth Circuit case particularly persuasive.  In U.S. v. Johnson,
879 F.2d 331 (8th Cir. 1989), the defendant was convicted of
second-degree murder arising from a stabbing.  The defendant
stabbed the victim in the chest and face following an argument and
claimed self-defense.  The trial court admitted evidence of an
incident six years earlier in which the defendant had allegedly
threatened his aunt with a knife, reasoning that this evidence was
relevant to defendant's state of mind or intent.  While concluding
that the trial court erred in admitting this evidence, as it was
remote in time and unconnected to the events surrounding the murder
at issue, the Johnson court held that the error was harmless in
light of the fact that the jury could have inferred from the act
itself that Johnson had the requisite mental state to commit the
crime charged.  The Johnson court also noted that the erroneously
admitted evidence was admitted for limited purposes only. 
     Although Sam's testimony should not have been admitted into
evidence, in light of the entire record, we determine that its
admission constituted harmless error.  As in Johnson, we think it
significant that Sam's testimony, like the testimony of the other
three witnesses at issue, was admitted with the following
cautionary instruction:
          Members of the jury, you are instructed that
     evidence of other alleged crimes, wrongs, or acts of
     Anthony Lamar Abernathy may not be considered by you to
     prove the character of Anthony Lamar Abernathy in order
     to show he acted in conformity therewith.  This evidence
     is not to be considered to establish a pertinent trait of
     character that he may have, nor is it to be considered to
     show that he acted similarly or accordingly on the day of
     the incident.  This evidence is merely offered as
     evidence of motive, opportunity, intent, preparation,
     plan, knowledge, absence of mistake or accident.  Whether
     any other alleged crimes or acts have been committed is
     for you to determine.  

Moreover, as appellant concedes in his brief, the State had very
strong evidence against him, which included: (1) the "earwitness"
testimony of Sherrie Pitts, who heard appellant repeatedly tell the
victim, "Bitch, don't you know I will kill you?"; (2) appellant's
confession, which included admissions that he thought about
shooting the victim during the cab ride to the duplex; that he told
the victim he wanted her to die; and that he was mad at her for
stealing his money and blamed her for their child's death; (3) the
lapse in time between the beating at approximately 3:00 a.m. and
appellant's call to police at approximately 7:00 a.m. in light of
Dr. Kokes testiimony that the victim would have died within two
hours after sustaining the injuries; and (4) the evidence
discovered at the duplex indicating that appellant tried to clean
up the murder scene.  Moreover, as in Johnson, the jury could have
inferred purposeful murder from the act itself, as they heard Dr.
Kokes's testimony regarding the nature and number of wounds to the
victim's body, and were able to view photographs of these injuries
as well.  In sum, while we conclude that the State erred in
admitting the testimony of Sam Abernathy because it was not
sufficiently similar to the circumstances surrounding Kendra's
murder, we hold that the admission of this evidence was harmless. 
     We have reviewed the record pursuant to Ark. Sup. Ct. R. 4-
3(h) and have determined that there are no errors with respect to
rulings on objections or motions prejudicial to the appellant not
discussed above.
     Affirmed.
     Dudley, J., not participating.
     Brown, J., concurs.