Allen v. State , 2013 Ark. 396 ( 2013 )

Cite as 2013 Ark. 396SUPREME COURT OF ARKANSAS
No. CR-13-106
JOSHUA R. ALLEN Opinion Delivered October 10, 2013
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
FOURTH DIVISION
[NO. 60CR-09-3411]
STATE OF ARKANSAS
APPELLEE HONORABLE HERBERT WRIGHT,
JR., JUDGE
AFFIRMED.
CLIFF HOOFMAN, Associate Justice
Appellant Joshua R. Allen appeals from his conviction for capital murder, for which
he received a life sentence, and his convictions for four counts of committing a terroristic act,
for which he received concurrent sentences of five years’ imprisonment on each count, to run
consecutively to the life sentence. He was also found guilty of using a firearm during the
commission of the felony and received a sentence enhancement of five years, with this
sentence also to run consecutively to the capital-murder sentence, for a total of life plus ten
years. For his sole point on appeal, Allen argues that the circuit court erred in excluding Ark.
R. Evid. 404(b) testimony. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2) (2013).
We affirm.
Allen was charged with capital murder and four counts of committing a terroristic act
in connection with the death of Latonio Quince on August 4, 2009, after Allen fired five
Cite as 2013 Ark. 396shots at a vehicle in which Quince was a passenger. Antonio Johnson, who was the driver
of the vehicle, was uninjured. Allen’s first jury trial in March 2011 ended in a mistrial. His
second trial took place in October 2012. Although Allen does not challenge the sufficiency
of the evidence supporting his convictions, a review of relevant testimony is necessary to
understand the issue presented on appeal.
In Allen’s statement to police, as well as his testimony at the second trial, he claimed
that Johnson, who was an acquaintance, had called him on August 4, 2009, in order to buy
marijuana. According to Allen, he told Johnson to meet him at a Valero gas station on
Stagecoach Road and to come alone. When Allen drove into the parking lot and saw that
Johnson had a passenger in his vehicle, Allen left the gas station and turned onto the
Mabelvale West access road near Interstate 30. Allen stated that, as he was driving on the
overpass, he noticed Johnson’s vehicle pull up beside him in the left lane and saw the
passenger pull a gun and point it at him. Allen stated that he was scared that he was going to
get shot in the face and that he grabbed his 9mm handgun and started shooting at Johnson’s
vehicle. He claimed that he could not speed up and outrun Johnson because there was a
truck in front of him and that he could not swerve to the right because there was a curb.
Allen stated that Johnson’s vehicle eventually stopped and that he kept on going to a friend’s
house, who told Allen that he needed to get rid of the car. After he left his friend’s home,
Allen phoned the police and reported his car stolen, although he did not wait for a police
officer to come and speak with him as he was instructed to do. Later that evening, Allen
poured gasoline inside the vehicle and set it on fire. Allen then turned himself in to police
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Cite as 2013 Ark. 396on August 6, 2009, after learning that there was a warrant for his arrest. Allen claimed that
he was scared and “freaking out” after the shooting and that he was not thinking when he
destroyed his car. He further claimed that there had been no previous disputes between him
and Johnson, that he had not intended to hurt anyone when he had shot at the vehicle, and
that he had only done so in self-defense.
Johnson also gave a statement to police and testified at both trials. Johnson stated that
he had picked up his friend, Quince, at the Valero station on August 4, 2009, and that they
were going to Johnson’s cousin’s house to visit. As they were driving on Mabelvale West,
Johnson noticed in his rearview mirror that a white Crown Victoria was speeding up behind
him. As the vehicle pulled alongside him, Johnson stated that he recognized Allen, who
began shooting at them. When he realized that Quince had been shot, Johnson pulled off the
road briefly to check on him, then took off for what he believed was the nearest hospital.
Two nurses leaving the building assisted Quince after Johnson pulled up in his vehicle and
yelled that he needed help; however, Quince died almost immediately from the gunshot
wound to his flank. In his initial statement to police, Johnson claimed that he and Allen were
acquaintances and that he had no idea why Allen would have pulled a gun on him, other than
a conflict over a female several years earlier. At Allen’s first trial, however, Johnson admitted
that he had stolen marijuana from Allen several years prior to the August 2009 incident.
Although Johnson also initially claimed that he did not have a gun when he robbed Allen, he
testified at the second trial that he had lied and admitted that he had in fact robbed Allen at
gunpoint. Allen denied that this prior incident had ever happened.
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Cite as 2013 Ark. 396Prior to the second trial, the circuit court held an evidentiary hearing on whether the
testimony of Demetrius Thompson would be admissible at trial regarding certain alleged bad
acts by Johnson, who was the State’s primary eyewitness. In his proffered testimony,
Thompson would have stated that in May 2010, Johnson approached him about “a lick,” and
persuaded him to rob a person named Jason Carter at gunpoint in order to steal Carter’s drugs
and wheel rims. Thompson would have further testified that Johnson, who was supposed to
wait for him at a certain location, left him, forcing him to steal the victim’s car. Thompson
stated that he was currently serving a prison sentence for that robbery. For the second bad
act alleged by Thompson, Johnson allegedly gave Thompson a handgun and counterfeit bills
to buy drugs from Andre Farrell in April 2010. Thompson would have testified that Johnson
again drove off and left him during that incident.
The State argued that this proffered testimony was not relevant to the charges against
Allen or to his defense of justification and that it was not admissible under Ark. R. Evid.
404(b) or 608(a). The defense contended that this evidence was admissible because the
alleged bad acts involved circumstances similar to the ones in the present case, in that the
defense would contend at trial that the victim in this case, Quince, was in the same position
as Thompson had been in the other incidents. After reviewing briefs submitted by the parties
on the issue, the circuit court entered an order denying Allen’s motion to admit Thompson’s
proffered testimony.
At the conclusion of the trial, Allen was convicted of all charges. He waived jury
sentencing, and the circuit court sentenced him to a total of life plus ten years’ imprisonment.
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Cite as 2013 Ark. 396Allen filed a timely notice of appeal, and his sole argument on appeal is whether the circuit
court erred in excluding Demetrius Thompson’s testimony.
Circuit courts have broad discretion in deciding evidentiary issues, and their rulings on
the admissibility of evidence are not reversed on appeal absent an abuse of discretion. Laswell
v. State, 2012 Ark. 201, 404 S.W.3d 818.
Allen contends that Thompson’s testimony was relevant and admissible under Ark. R.
Evid. 404(b) (2013) because the evidence goes to show the modus operandi of Antonio
Johnson, as well as motive, opportunity, intent, plan, and knowledge. According to Ark. R.
Evid. 401 (2013), relevant evidence means “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” All relevant evidence is admissible,
except as otherwise provided by the rules. Ark. R. Evid. 402 (2013). Under Rule 404(b),
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; however, it may be admissible for
other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. Thus, evidence admitted under Rule 404(b) must
be independently relevant to a material issue in the case. Cook v. State, 345 Ark. 264, 45
S.W.3d 820 (2001). We have further held that modus operandi evidence is only admissible
where two requirements are met: (1) both acts must be committed with the same or strikingly
similar methodology, and (2) the methodology must be so unique that both acts can be
attributed to one individual. Id.5
Cite as 2013 Ark. 396In the present case, there is no question as to the identity of the accused, the victim,
or any of the key witnesses in the case, and Allen has failed to demonstrate how Johnson’s
modus operandi in other alleged bad acts, which purportedly occurred after the August 2009
shooting incident, is relevant to any material issue in this case. Nor has Allen shown how the
proffered evidence is admissible for any of the other purposes set forth in Ark. R. Evid.
404(b). While Allen asserted justification as a defense to the charges, Quince, not Johnson,
was the person who Allen claims pointed a gun at him and forced him to fire at the vehicle
in self-defense. Furthermore, even assuming, as Allen asserts, that evidence of Johnson’s
violent character was relevant to the issue of who was the aggressor and whether Allen
reasonably believed he was in danger of suffering unlawful deadly physical force on August
4, 2009, this would only give Allen the right to introduce specific instances of Johnson’s
violent character that were directed at him or were within his knowledge. Thompson v. State,
306 Ark. 193, 813 S.W.2d 249 (1991); Halfacre v. State, 277 Ark. 168, 639 S.W.2d 734(1982). Neither of the bad acts alleged against Johnson in Thompson’s proffered testimony
was directed at Allen, nor were they within his knowledge, as they both occurred after the
shooting incident at issue in this case.
Allen also contends that Johnson “opened the door” to evidence of his other recent
bad acts by testifying that he had previously robbed Allen at gunpoint but claiming that he
had since changed and did not “live that life” anymore. However, this is essentially
impeachment of Johnson’s credibility as a witness, and as the State argued at the evidentiary
hearing, specific instances of a witness’s conduct for the purpose of attacking or supporting
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Cite as 2013 Ark. 396his credibility, other than a conviction as provided in Ark. R. Evid. 609, may not be proved
by extrinsic evidence. Ark. R. Evid. 608(b) (2013). Because Allen has failed to show that
Thompson’s proffered testimony regarding Johnson’s bad acts is relevant to any material issue
in this case, the circuit court did not abuse its discretion in excluding this evidence, and we
therefore affirm.
Rule 4-3(i) Review
In compliance with Ark. Sup. Ct. R. 4-3(i), the record has been examined for all
objections, motions, and requests made by either party that were decided adversely to Allen,
and no prejudicial error has been found.
Affirmed.
CORBIN and DANIELSON, JJ., concur.
DONALD L. CORBIN, concurring. While I agree with the majority opinion that
the circuit court did not abuse its discretion in excluding the proffered testimony of Demetrius
Thompson, I must write separately because I do not agree with the majority’s analysis of
Appellant’s argument that Antonio Johnson opened the door to evidence of his other bad acts.
In reviewing Appellant’s argument on this point, it is apparent that he fails to provide any
convincing argument or citation to authority in support of his contention that Thompson’s
testimony was admissible “to show the modus operandi of Antonio Johnson, as well as
motive, opportunity, intent, plan and knowledge.” It is a well-settled principle of appellate
jurisprudence that this court will not consider an argument, even a constitutional one, when
the appellant presents no citation to authority or convincing argument in its support, and it
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Cite as 2013 Ark. 396is not apparent without further research that the argument is well taken. E.g., Green v. State,
2012 Ark. 347, ___ S.W.3d ___. Accordingly, I would decline to address the merits of
Appellant’s alternative argument.
DANIELSON, J., joins in this concurrence.
Montgomery, Adams & Wyatt, PLC, by: James W. Wyatt, for appellant.
Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.
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