McCullough v. State
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Cite as 2009 Ark. 134
SUPREME COURT OF ARKANSAS
No.
CR08-590
Opinion Delivered 3-12-09
ALVIN TRAVIS MCCULLOUGH,
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT, NO. CR-071850-1, HON. WILLIAM A. STOREY,
JUDGE,
AFFIRMED.
ROBERT L. BROWN, Associate Justice
Appellant Alvin Travis McCullough appeals from his judgment of conviction for
rape, kidnapping, and residential burglary and his sentence to life imprisonment without
parole. McCullough asserts one point on appeal: whether the circuit judge erred by allowing
the admission of evidence of McCullough’s prior bad acts under Arkansas Rules of
Evidence 404(b) and 403. We affirm.
Testimony at trial revealed that on the morning of October 29, 2006, McCullough
unlawfully entered the home of a Springdale woman, A.B., and raped her. The victim
testified that on the night of the incident, she and a friend had been at a Fayetteville bar until
2:00 in the morning. After leaving the bar, A.B.’s friend drove her home. The two friends
had a brief conversation in the driveway, after which A.B. entered her home and prepared
Cite as 2009 Ark. 134
for bed. A short time after entering her house, A.B. heard her doorbell ring. Expecting that
it was her friend who had recently dropped her off, she opened the door. At this point,
McCullough forced his way into her home and raped her. McCullough was subsequently
arrested and charged with rape, kidnapping, and residential burglary.
Before trial, McCullough moved in limine to prevent the State from introducing
evidence that he had recently been convicted of two counts of residential burglary and one
count of attempted residential burglary and evidence that he had attempted to escape from
the county detention facility within days of his arrest for the charges involving A.B.
McCullough urged that the evidence was not probative of any of the purposes allowed by
Rule 404(b), and even if it were, such probative value was heavily outweighed by its
prejudicial effect under Rule 403. The State responded that the evidence of McCullough’s
prior convictions was relevant to show his plan and motive to attack the present victim, A.B.
The State also argued that evidence of McCullough’s escape was admissible as evidence of
his consciousness of guilt. The circuit judge granted McCullough’s motion in limine with
respect to his prior conviction for attempted residential burglary but allowed the State to
present witness testimony at trial concerning his two previous convictions for residential
burglary and his escape attempt.
At the trial, which was held on February 6, 2008, McCullough renewed his motion
to exclude the evidence, which the circuit judge denied. McCullough then asked for and
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received a Rule 404(b) admonishment to the jury before the prosecutor was allowed to
present the State’s case. The circuit judge gave the jury the following instruction:
Members of the jury, you are instructed that evidence of other alleged crimes,
wrongs, or acts of Alvin McCullough, may not be considered by you to prove
the character of Alvin McCullough in order to show that he acted in
conformity therewith. The evidence is not to be considered to establish a
particular 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 this alleged incident.
This evidence is merely offered as evidence of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
Whether any other alleged crimes, wrongs or acts have been committed is for
you to determine.
After the instruction was given, McCullough renewed his objection to the admission of the
evidence, and the prosecutor proceeded to present the testimony of K.M.
K.M. testified that on December 10, 2006, she was walking home from a bar on
Dickson Street at 2:00 in the morning, when a man pulled up beside her in a car and asked
if she wanted a ride home. K.M. declined, and the man drove away. Upon arriving at her
apartment complex, K.M. briefly conversed with some neighbors who were outside and who
asked if she wanted to come over to their apartment. She declined and went to her
apartment. K.M. testified that minutes later she heard a knock on her front door, and
thinking it was her neighbors, opened the door. A man wearing a camouflage mask burst
through the doorway and grabbed her. She screamed and fought back, at which point her
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attacker ran away. K.M. testified that despite the mask, she recognized her attacker as the
man who had offered her a ride home. She identified McCullough as that man.
The prosecutor then called D.H. as a witness. McCullough restated his objection, and
the circuit judge repeated the same admonishment to the jury. D.H. testified that on
December 14, 2006, at about 10:00 that night, she was in her apartment in Fayetteville
baking for her husband’s Christmas party the next day, when she heard someone on the
stairs outside her apartment. Thinking that it was someone visiting her neighbor, D.H. stated
that she did not become alarmed until she heard her doorknob turning. She testified that she
watched as her door opened and a man stepped inside holding a knife. D.H. called for her
husband, who was able to rush the intruder from behind. McCullough fled the scene and
was later arrested. D.H. identified McCullough as the intruder and testified that she believed
he came into her apartment because he thought she was alone.
In addition to these two witnesses, Melissa Myhand, a forensic DNA examiner with
the State Crime Lab, testified that the DNA taken from A.B.’s clothes matched
McCullough’s DNA with scientific certainty.
The prosecutor also presented the testimony of Fayetteville Police Officer Phillip
Crosby and Washington County Detention Center Guard Brandon Whitehouse, concerning
McCullough’s attempted escape from the Washington County Detention Center on July 17,
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2007. Prior to this testimony, McCullough renewed his objections, which the circuit judge
again denied with the same admonishment to the jury.
McCullough was convicted of the three offenses for which he was charged and
sentenced as previously set out in this opinion.
On appeal, McCullough asserts that the circuit judge erred by admitting testimony
concerning his two prior residential burglary convictions and his attempted escape from the
Washington County Detention Center. He claims that the testimony should have been
excluded under Rule 404(b) because it was not independently relevant and because his prior
residential burglaries were not sufficiently similar to the facts of the instant case to show a
common plan or motive. McCullough also challenges the admissibility of the evidence
under Rule 403 and argues that its prejudicial effect outweighed its probative value.
Arkansas Rule of Evidence 404(b) 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.
Ark. R. Evid. 404(b) (2008).
McCullough is correct that the test for admissibility under Rule 404(b) is whether the
evidence is independently relevant, which means that it has the tendency to make the
existence of any fact or consequence to the determination of the action more or less probable
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than it would be without the evidence. Williams v. State, 343 Ark. 591, 36 S.W.3d 324
(2001). Any circumstance that links the defendant to the crime or raises a possible motive
for the crime is independently relevant and admissible as evidence under Rule 404(b).
Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004). The degree of similarity between
the circumstances of prior crimes and the particular crime at hand required for the admission
of evidence under Rule 404(b) is a determination that affords considerable leeway to the
circuit judge and may vary with the purpose for which the evidence is admitted. Sasser v.
State, 321 Ark. 438, 447, 902 S.W.2d 773, 778 (1995) (citing 1 Christopher B. Mueller &
Laird C. Kirkpatrick, Federal Evidence § 112, n.4 and accompanying text (2d ed. 1994)).
In reviewing the admission of evidence under Rule 404(b), this court has noted that circuit
judges have broad discretion in deciding evidentiary issues, and their decisions are not
reversed absent an abuse of discretion. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351
(2000).
We first address the circuit judge’s decision to admit the testimony of K.M. and D.H.
concerning McCullough’s burglary convictions. McCullough was accused of breaking into
a woman’s apartment and raping her.
At trial, McCullough’s counsel argued that
McCullough’s encounter with the victim was consensual and that she had voluntarily
allowed him into her apartment. Because of this, the testimony showing that he unlawfully
entered the apartments of two other women in similar circumstances within two months of
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the instant crime was independently relevant to rebut his claim that his encounter with the
victim was consensual. See Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005) (evidence
of prior similar incident admissible under Rule 404(b) in trial for attempted rape because
independently relevant to rebut defendant’s claims that his encounter with the victim was
consensual). Moreover, the incidents were sufficiently similar to the crime before us.
Accordingly, we cannot say that the circuit judge abused his discretion by admitting the
testimony of K.M. and D.H. under Rule 404(b).
Nor can we say that the circuit judge erred in admitting the testimony under Rule 403.
This court reviews a circuit judge’s ruling under Rule 403 for an abuse of discretion.
Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005). This court has observed that
evidence offered by the State in a criminal trial is likely to be prejudicial to the defendant
to some degree, otherwise it would not be offered. Beed v. State, 271 Ark. 526, 609 S.W.2d
898 (1980). Nevertheless, the evidence should not be excluded under Rule 403 unless the
defendant can show that the evidence lacks probative value in view of the risk of unfair
prejudice. Id. Here, the evidence of McCullough’s burglaries was probative to rebut his
counsel’s claim that his encounter with the victim was consensual. Considering the broad
discretion of the circuit judge in weighing the probative value of challenged evidence
against its prejudicial effect, we hold that the circuit judge did not abuse his discretion in
allowing the testimony under Rule 403.
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The next issue concerns the circuit judge’s decision to admit the testimony of
Fayetteville Police Officer Crosby and Washington County Detention Center Guard
Whitehouse concerning McCullough’s attempted escape from the Washington County
Detention Center on July 17, 2007. McCullough contends that the circuit judge abused his
discretion by allowing this testimony because the escape attempt bore no similarity to the
charges for which he stood trial and because the State introduced the evidence “to show he
must be guilty if he tried to escape twelve days after his arrest.” This court has said,
however, that when evidence of a prior crime reflects a consciousness of guilt, it is
independently relevant and admissible under Rule 404(b). Eliott v. State, 342 Ark. 237, 27
S.W.3d 432 (2000). This court has further long recognized the proposition that the flight
of a person charged with commission of a crime has some evidentiary value on the question
of his probable guilt. Id. (citing Houston v. State, 215 Ark. 754, 223 S.W.2d 188 (1949);
Herren v. State, 169 Ark. 636, 276 S.W. 365 (1925); Stevens v. State, 143 Ark. 618, 221
S.W. 186 (1920)).
Although evidence of McCullough’s escape attempt is admissible under Rule 404(b)
to show consciousness of guilt, its probative value must outweigh the danger of unfair
prejudice in accordance with Rule 403. At the time of his escape attempt, McCullough was
in custody awaiting transport to the Department of Correction after receiving a forty-sevenyear term of imprisonment on his two previous burglary convictions. With the three charges
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associated with A.B., he was now facing a potential sentence of life without parole. We
cannot say under these circumstances that his attempted escape does not show consciousness
of guilt with respect to the charges at hand.
The record in this case has been reviewed in accordance with Arkansas Supreme
Court Rule 4-3(h), and no reversible error has been found.
Affirmed.
Ogles Law Firm, P.A., by: John Ogles, for appellant.
Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
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