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                 SUPREME COURT OF ARKANSAS
                                         No.   CR-13-757

TOMMY BOWDEN                                         Opinion Delivered   April 17, 2014
                                 APPELLANT
                                                     APPEAL FROM THE JOHNSON
V.                                                   COUNTY CIRCUIT COURT
                                                     [NO. CR-2012-39]

STATE OF ARKANSAS                                    HONORABLE WILLIAM M.
                                    APPELLEE         PEARSON, JUDGE

                                                     AFFIRMED.


                        PAUL E. DANIELSON, Associate Justice


       Appellant Tommy Bowden appeals an order of the Johnson County Circuit Court

convicting him of murder in the first degree and sentencing him to life imprisonment

without parole. His sole argument on appeal is that the circuit court erred by granting the

State’s motion in limine and excluding the testimony of Dr. Bradley Diner, a psychiatrist.

We find no error and affirm.

       Because Bowden does not challenge the sufficiency of the evidence against him, a

brief recitation of the facts is all that is necessary. See, e.g., Fritts v. State, 2013 Ark. 505, ___

S.W.3d ___. The record reflects that on January 30, 2012, detectives responded to an

emergency call regarding an unresponsive person. When they arrived at the specified

location, they observed broken glass from an exterior door. Upon entering the residence,

they found Julie Richardson face down in a puddle of blood, unresponsive, and cold to the
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touch. It appeared to one detective at the scene, Detective Wood, that there had been a

struggle with an intruder. A broken shovel was also found at the scene, lying around and

under Richardson’s body. The shovel had been broken in three places. Although Detective

Wood observed that an unlocked gun safe, $740 in cash, a wallet, bank documents, and

jewelry were all easily accessible, nothing in the residence appeared to be missing.

       On February 2, 2012, Detective Wood and Detective Morrow met with Bowden at

the Yell County Sheriff’s Office. Bowden was advised of his Miranda rights and interviewed.

He confessed to going to the home of Richardson, his mother, with the intent to kill her.

Bowden told the detectives that he took a shovel from one of the sheds on the property and

used it to break the glass out of the door to Richardson’s residence. He admitted entering

the residence by reaching in and opening the door, and then striking Richardson repeatedly

in the head with the shovel until it broke. Bowden stated that, once the shovel broke, he

then beat her with the broken piece until she was dead.

       Bowden was charged by information filed on February 23, 2012, with one count of

murder in the first degree, a Class Y felony, in violation of Arkansas Code Annotated § 5-10-

102. By amended information filed on June 14, 2012, Bowden was charged as a habitual

offender, having been convicted of four or more felonies. Before trial, Bowden gave notice

that he intended to assert the affirmative defense of lack of capacity as a result of mental

disease or defect pursuant to Arkansas Code Annotated § 5-2-312 and provided the State

with a report of a psychiatric forensic evaluation, which had been previously performed by

Dr. Bradley Diner.


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       The State filed a motion in limine on October 3, 2012, seeking to exclude Dr. Diner’s

report and any evidence of a mental disease or defect during the guilt phase of trial, voir dire,

or opening and closing statements. A hearing on the motion was held on October 8, 2012,

during which the circuit court granted the State’s motion to exclude Dr. Diner’s testimony

as it related to mental disease or defect. It is from that decision that Bowden now appeals.

       It is well settled that challenges to the admissibility of evidence are left to the sound

discretion of the circuit court, and the court’s ruling on these matters will not be reversed

unless there has been an abuse of discretion. See Lacy v. State, 2010 Ark. 388, 377 S.W.3d

227. The abuse-of-discretion standard “is a high threshold that does not simply require error

in the trial court’s decision, but requires that the trial court act improvidently, thoughtlessly,

or without due consideration.” Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004).

       First, it is important to note that Bowden does not challenge the circuit court’s ruling

that Dr. Diner’s opinion failed to provide him with an affirmative defense pursuant to

Arkansas Code Annotated § 5-2-312.1 Rather, Bowden’s argument below and on appeal is

that Dr. Diner’s opinion was relevant evidence because the defense intended to request that

the jury be permitted to consider the lesser-included offense of manslaughter. The relevant

portion of the statute on manslaughter provides:

       (a) A person commits manslaughter if:
       (1)(A) The person causes the death of another person under circumstances that would


       1
        Pursuant to section 5-2-312, a defendant can present an affirmative defense of mental
disease or defect if it can be shown that he or she lacked capacity as a result of that disease
or defect at the time they engaged in the conduct charged.


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       be murder, except that he or she causes the death under the influence of extreme
       emotional disturbance for which there is reasonable excuse.
       (B) The reasonableness of the excuse is determined from the viewpoint of a person
       in the actor’s situation under the circumstances as the actor believed them to be.


Ark. Code Ann. § 5-10-104(a)(1)(A), (B) (Supp. 2011).

       Bowden contends that the evidence of his diagnosis was relevant to the determination

of “extreme emotional disturbance.” However, as the circuit court correctly held, “extreme

emotional disturbance,” as referenced in section 5-10-104(a)(1)(A), is not the type of

disturbance that is internally caused by mental disease or defect. See Bankston v. State, 361

Ark. 123, 205 S.W.3d 138 (2005). In Bankston, this court specifically held that

       the type of disturbance that will reduce a homicide from murder to manslaughter is
       that resulting from an event of provocation, in the form of physical violence, a threat,
       or a brandished weapon, not that resulting from a mental disease or defect.

Id. at 130, 205 S.W.3d at 143. In the instant case, there was no evidence that the victim

provoked Bowden in any way, physically or otherwise, to cause the requisite “extreme

emotional disturbance.”

       To the extent that Bowden argues that Dr. Diner’s testimony was relevant to prove

that Bowden believed his mother was poisoning him and his stepfather, and that such belief

was the provocation because, per Dr. Diner, it led to overwhelming anger, rage, and a desire

for retribution, his argument is not well taken. As explained in Bankston, the language

previously used in this statute to describe the “extreme emotional disturbance” was the “heat

of passion.” 361 Ark. at 129, 205 S.W.3d at 142. This court held in Collins v. State, 102

Ark. 180, 143 S.W. 1075 (1912), that the grade of a homicide may be reduced from murder


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to manslaughter by reason of a passion caused by a provocation apparently sufficient to

“make the passion irresistible.” Here, even Dr. Diner opined that Bowden was able to

appreciate the wrongfulness and criminality of his behavior and had the ability to conform

his behavior to the requirements of the law if he chose to do so. Furthermore, in Kail v.

State, 341 Ark. 89, 14 S.W.3d 878 (2000), this court explained that a defendant is not entitled

to an instruction on manslaughter unless there is a factual basis showing that the defendant

killed the victim “in the moment following ‘provocation’ . . . .” 341 Ark. at 94, 14 S.W.3d

at 880. Although Bowden argues on appeal that the provocation was the belief that his

mother was poisoning him and his stepfather, and more specifically because of a phone call

the afternoon of the murder during which he was informed that his stepfather was

hospitalized after suffering a stroke, he did not kill his mother “in the moment following”

the alleged provocation—not even in the moments following the phone call. Bowden had

to leave where he was in Yell County, drive through Pope County and into Johnson

County, where his mother lived. Then, when he arrived at his mother’s home, he stopped

to get a shovel out of the shed before beating down the back door to her home. Once

Bowden forced himself into her home, he then beat her to death.

       For all the aforementioned reasons, the circuit court did not abuse its discretion by

granting the State’s motion in limine and disallowing the opinion of Dr. Diner. In the

instant case, Bowden received a sentence of life in prison. Pursuant to Ark. Sup. Ct. R. 4-3(i)

(2013), the record has been reviewed for all objections, motions, and requests that were

decided adversely to Bowden, and no prejudicial error has been found.

       Affirmed.
       John Burnett, for appellant.
       Dustin McDaniel, Att’y Gen., by: Rachel H. Kemp, Ass’t Att’y Gen., for appellee.

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