                                Cite as 2014 Ark. App. 538




                ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                      No. CR-12-724


                                                  Opinion Delivered   October 8, 2014
 OLIVIA MOODY
                              APPELLANT APPEAL FROM THE JEFFERSON
                                        COUNTY CIRCUIT COURT
 V.                                     [NO. CR-2011-377-1-5]

 STATE OF ARKANSAS                        HONORABLE JODI RAINES
                                 APPELLEE DENNIS, JUDGE

                                                  AFFIRMED

                          BRANDON J. HARRISON, Judge

       A Jefferson County jury convicted appellant Olivia Moody of second-degree

murder in the death of Vanessa Bearden. Ark. Code Ann. § 5-10-103 (Repl. 2009).

Moody was sentenced to thirty years’ imprisonment as punishment. The issues Moody

appeals are that the circuit court erred by (1) permitting the State to cross-examine her

about a Facebook post, (2) admitting text messages from her phone, (3) limiting cross-

examination of a State witness in violation of her Sixth Amendment rights, (4) abusing its

discretion because it failed to submit her proffered instruction to the jury, and (5) denying

her directed-verdict motion because the State failed to negate her justification defense.

       We treat motions for directed verdict as challenges to the sufficiency of the

evidence. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). We will first address

Moody’s argument about her justification defense and the court’s denial of her directed-

                                              1
                               Cite as 2014 Ark. App. 538


verdict motion. Boldin v. State, 373 Ark. 295, 297, 283 S.W.3d 565, 567 (2008). Some of

the trial testimony was confusing, but a fair summary of the testimony as a whole is

presented below.

                                   I. Justification Defense

       Colby Dukes testified during Moody’s trial that the following events occurred on

26 June 2011. Dukes and the victim, Vanessa Bearden, went to the Holiday Apartments

in Pine Bluff to visit a friend, Alisha Jeffers. As they pulled into the parking lot, Dukes

reported that she and Bearden saw Jeffers “hollering” at a woman walking in the street.

The woman, who was later identified as Olivia Moody, responded to Jeffers that “I’m not

worried about it. So what’s up?” The verbal confrontation eventually resulted in a

physical fight between Moody and Jeffers, and a fairly large crowd of people closely

gathered around to watch.

      Dukes told the jury that at some point during the fight she too fought Moody for

about ten seconds and that a man named Brian Gaddy pulled Moody off of her. Moody

then broke free from Gaddy’s grasp and ran straight to Vanessa Bearden, who was

recording the fight on her cell phone. Moody and Bearden fought for a brief time, until

Gaddy picked up Moody, put Moody in his vehicle, and drove away.

      Alicia Jeffers left Dukes’s and Bearden’s company, and Dukes and Bearden walked

to a fenced, shaded area in a nearby apartment complex across the street from where

Jeffers lived. The two girls sat on the wooden fence while hanging out with a group of

people. About forty-five minutes later, Dukes said that they noticed a white Tahoe

driving by with Moody sitting in the passenger seat. The vehicle made several passes by

                                              2
                                Cite as 2014 Ark. App. 538


the apartment buildings and when the Tahoe came in front of the group of girls sitting on

the wooden fence, it slowed. Dukes said that Moody rolled down the passenger side door

window and said “Y’all, come on; ya’ll, come see me.” The Tahoe then drove off.

       Approximately ten minutes later, according to Dukes, a man named Garyl Allen

appeared. Allen testified during the trial that Moody had told him, “Go around and tell

them [the girls sitting on the fence] to come around here if they still want to fight and

jump on me.”      Allen delivered the message, but the girls “didn’t buy into it” and

continued to sit on the fence. He then told Moody that “[the girls] didn’t want to fight.”

At that time, according to Allen, Moody was about forty yards from a breezeway, where

he was standing; she began to walk straight towards him.

       Moody continued to walk past Allen, who was in the breezeway. When Moody

came close, Allen said that he noticed that she had a gun in her right hand. Allen

followed “two or three feet” behind Moody as she walked. When Moody and Allen

reached the end of the breezeway, Allen said that he saw that a few of the girls had

“disappeared” from sitting on the fence, but that Bearden was “running back and

forwards, like [she] didn’t know which way to go.” According to Allen, when Bearden

saw Moody, Bearden turned around to go the other way and Moody “pulled a gun and

shot one time.” Allen testified that Bearden and Moody were about six feet apart and that

Bearden had nothing in her hands when she was shot. After Moody shot Bearden, she

pointed the gun at another girl sitting on the fence; Allen said that he stopped Moody by

saying that the girl on the fence had “nothing to do with it.”




                                             3
                               Cite as 2014 Ark. App. 538


       Returning to Colby Dukes’s account of events, after Garyl Allen had conveyed the

message to the girls on the fence, Vanessa Bearden stood up to go towards the breezeway,

but did not get very far. Dukes warned Bearden not to see what Moody wanted because

it seemed “fishy.” Bearden then showed Dukes a little pocket knife that she kept tucked

in her shorts and covered by her shirt. According to Dukes, Bearden walked about three

feet toward the breezeway when Moody appeared with a small gun. Dukes heard Moody

yell something provocative, but ran away when she saw Moody had a gun. Dukes turned

around when she heard Bearden yell and saw that Bearden was holding herself and

running at the same time. Dukes ran for a while before stopping and coming back to the

crime scene. When she arrived, Bearden was on her back bleeding. James Barnes, a

minister, who had seen some of the prior events, appeared and started CPR.

       Reverend Barnes testified that he was across the street in the parking lot of his

church when the shooting occurred. Barnes said that he saw one girl running away and

that the girl who was running had made it about five steps before she was shot by another

girl standing and holding a gun.   The shooter turned around and walked back into the

breezeway. Somebody told him that the girl was dying, so he ran to the girl and started

CPR. Reverend Barnes testified that he removed a knife on the inside right area of the

victim’s clothes before the police and an ambulance arrived.

       Dr. Daniel Dye from the Arkansas State Crime Lab testified that Bearden’s death

was caused by a wound from a 9mm bullet, which was consistent the with shell casing

found on the scene. According to Dr. Dye, the bullet had entered Bearden’s back on the




                                            4
                                Cite as 2014 Ark. App. 538


left side and exited in the front on the right side of her chest. Bearden also had wounds

on her knees consistent with a fall.

       Pine Bluff police detective Shawn Davis testified that Moody was an immediate

suspect in Bearden’s death. Police searched Moody’s apartment but found no weapons.

Moody was brought in for questioning the night the shooting occurred. Moody told

Detective Davis that she was injured in a fight earlier that day. Davis took photographs of

Moody’s injuries, and the State entered them as evidence during the trial. Detective Davis

concluded that the photos showed that Moody had no visible or significant injuries.

       At the close of the State’s evidence, Moody moved for a directed verdict because

“The State has failed to rebut [her] justification defense and has failed to produce any

proof . . . that [she] could have avoided the necessity of using deadly force with complete

safety by retreat.”

       Moody testified in her own defense. She explained that Jeffers had dated her

former boyfriend. On the afternoon of the shooting, Moody said that a group of eight or

so girls, including Jeffers, wanted to fight her and that she did not know any of the girls

save Jeffers. Moody said that she and Jeffers started fighting, and Moody ended up in a

ditch on the opposite side of the street. Moody said she “presumed” that the crowd

gathered around to fight her. In Moody’s view, all she could do to protect herself was to

cover her face and ball up in the ditch. Moody explained that she broke free from K.C.’s

(aka Brian Gaddy) grasp to look for her phone, money, and keys. Moody testified that she

tried to go home, but the girls who had fought her were in front of her apartment. At

some point, Gaddy gave Moody a gun. Moody then returned to her apartment building’s

                                            5
                                Cite as 2014 Ark. App. 538


rear entrance. Moody said that she was afraid because there was a group of girls that she

did not know sitting on the fence, and they were waiting to fight her. As she walked

through the breezeway with the gun, she was confronted by a group of girls with one

saying, “Get her . . . .” Moody feared for her safety because she thought that the girls

were going to jump her again. Moody said she fired the gun “to scare them.”

       On cross-examination, Moody admitted that Vanessa Bearden did not have a

weapon in her hand and that no one had threatened Moody with one. Moody also

admitted to having the keys to her apartment on her person, and not going to her

apartment; instead, she headed towards the group of girls who had gathered along the

fence. Moody said that she had thought the girls would fight her “regardless” and that she

went towards the group of girls (holding the gun) to tell them that “fighting me because

someone else is fighting me over a boy. That is dumb.”

       Moody renewed her motion for directed verdict after all the evidence was

presented, arguing that she “feared that she would, in fact, be seriously injured and that

she feared for her life when she was in the ditch at the first fight . . . And also when the

girls came toward her, the five girls, that she was in fear that they would do serious bodily

harm to her, if not, you know, cause her death.”

       Moody contends here that the circuit court erred when it denied her motion for

directed verdict because the State failed to negate her justification defense. We disagree

and affirm on this point.

       A person commits murder in the second degree if she “[k]nowingly causes the

death of another person under circumstances manifesting extreme indifference to the value

                                             6
                               Cite as 2014 Ark. App. 538


of human life“ or “[w]ith the purpose of causing serious physical injury to another person

. . . causes the death of any person.” Ark. Code Ann. § 5-10-103(a)(1)–(2) (Repl. 2013).

A justification defense is conditioned on a reasonable belief on the part of the actor that

unlawful physical force is about to be inflicted on her. See Ark. Code Ann. § 5-2-607

(Repl. 2013); McDonald v. State, 42 Ark. App. 37, 42, 852 S.W.2d 833, 836 (1993).

Under Arkansas law, the State must prove each element of an offense. Ark. Code Ann.

§ 5-1-111(a)(1) (Repl. 2013).     When the defendant submits evidence supporting a

defense, “any reasonable doubt on the issue requires that the defendant be acquitted.”

Ark. Code Ann. § 5-1-111(c). Whether circumstances negate a defendant’s excuse or

justification is an element of the offense. See Ark. Code Ann. § 5-1-102(5)(C); Anderson v.

State, 353 Ark. 384, 108 S.W.3d 592 (2003).

       In reviewing Moody’s challenge to the sufficiency of the State’s evidence, we ask

whether the verdict is supported by substantial evidence; the evidence can be direct,

circumstantial, or some combination of the two.       Dunn v. State, 371 Ark. 140, 264

S.W.3d 504 (2007). For circumstantial evidence to be substantial, it must exclude every

reasonable hypothesis other than the accused’s guilt. The jury gets to decide whether the

circumstantial evidence excludes every hypothesis consistent with innocence. Substantial

evidence forces or compels a conclusion one way or the other so that the jury does not

have to speculate to reach a decision. We will not overturn its determination unless the

verdict required speculation and conjecture. The jury also weighs the evidence and judges

witness credibility. Id.




                                              7
                                 Cite as 2014 Ark. App. 538


         Moody argues that she was not the first aggressor, that her apprehension of

suffering great bodily harm was reasonable because she had been assaulted by the group of

girls approximately one hour before the shooting, and she shot the gun only in an honest

attempt to scare the girls. Moody primarily relies on her own testimony.

         We hold that substantial evidence exists to support Moody’s conviction for second-

degree murder. The jury was not required to believe Moody’s testimony. Thomas v.

State, 266 Ark. 162, 583 S.W.2d 32 (1979). Justification is a question of fact that the jury

can resolve, and it is largely based on what the jury concluded regarding Moody’s intent.

See Smith v. State, 30 Ark. App. 111, 115, 783 S.W.2d 72, 74 (1990). The jury could

have reasonably rejected Moody’s justification defense based on the evidence presented at

trial.   The jury could have, among other things, credited Garyl Allen’s testimony that

Moody began to walk straight towards Bearden holding a gun after he told Moody the

girls did not want to fight. As for the reasonableness of the Moody’s belief that she was in

danger of being killed or suffering great bodily injury, the issue was for the jury to decide

based on the evidence presented. See Humphrey v. State, 332 Ark. 398, 408–09, 966

S.W.2d 213, 218 (1998).

         The court did not err by denying Moody’s directed-verdict motions based on the

record presented.

                                       II. Jury Instruction

         A closely related issue comes next: did the court abuse its discretion by refusing to

give the jury Moody’s proffered jury instruction on justification? See Clark v. State, 374




                                                8
                                 Cite as 2014 Ark. App. 538


Ark. 292, 305, 287 S.W.3d 567, 576 (2008) (reviewing alleged jury-instruction error

under an abuse-of-discretion standard). We hold that it did not.

       The instruction at issue is AMI Crim. 2d 704, which is based on Arkansas Code

Annotated section 5-2-607 (Supp. 2011). The statute states that:

       (a) A person is justified in using deadly physical force upon another person if the
       person reasonably believes that the other person is:
              (1) Committing or about to commit a felony involving force or violence;
              (2) Using or about to use unlawful deadly physical force; or
              (3) Imminently endangering the person’s life or imminently about to
              victimize the person as described in § 9-15-103 from the continuation of a
              pattern of domestic abuse.

       (b) A person may not use deadly physical force in self-defense if the person knows
       that he or she can avoid the necessity of using deadly physical force with complete
       safety:

              (1)(A) By retreating.
                (B) However, a person is not required to retreat if the person is:
                            (i) In the person’s dwelling or on the curtilage surrounding the
                            person’s dwelling and was not the original aggressor;

                                                     ....

       (c) As used in this section:

              (1) “Curtilage” means the land adjoining a dwelling that is convenient for
              residential purposes and habitually used for residential purposes, but not
              necessarily enclosed, and includes an outbuilding that is directly and
              intimately connected with the dwelling and in close proximity to the
              dwelling[.]

       The Notes on Use to AMI Crim. 2d 704 state that the court may decide that one

or more options for the jury instruction’s wording, including the curtilage instruction,

may be “inserted depending upon the evidence in the case.” When the evidence does not

support the giving of an instruction, it is not error to refuse it. Christian v. State, 318 Ark.

813, 889 S.W.2d 717 (1994).
                                               9
                               Cite as 2014 Ark. App. 538


       Here, the circuit court gave the standard AMI jury instruction (based on section 5-

2-607), except that it intentionally omitted the “curtilage” concept because the court

thought it had no legal basis to allow the jury to consider it. Moody says that the court’s

justification instruction was incomplete without the curtilage language and should not

have been submitted to the jury in the form it was. The State, however, presented

evidence during the trial that Moody did not enter her apartment and that the breezeway

Moody walked through on her way to the fence where the girls were sitting was a

common area of a separate apartment unit. Moody argued she was within her apartment’s

curtilage because she was close to the apartment.

       The circuit court did not abuse its discretion by refusing to include a curtilage

instruction. Having looked to some Fourth Amendment caselaw to help inform us on the

curtilage question, we do not believe that the grassy area where Moody confronted

Bearden and shot her could properly be considered curtilage. See Walley v. State, 353 Ark.

586, 605, 112 S.W.3d 349, 360 (2003) (A person does not have a reasonable expectation

of privacy in common driveways and walkways.); see also Gustafson v. State, 267 Ark. 830,

833, 593 S.W.2d 187, 189 (1979) (A defendant had no reasonable expectation of privacy

in the wooded area behind his apartment and this area was not within the purview of

one’s “curtilage” as defined by our caselaw.). It is important to point out that Moody was

not prohibited from presenting her justification defense to the jury. The court instead

tailored the instruction to fit the facts of the case in light of its understanding of the

curtilage concept. It did not abuse its discretion by refusing an optional portion of the

model instructions when there was no strong legal reason to characterize the particular

                                            10
                                Cite as 2014 Ark. App. 538


geographical space where Moody shot Bearden as being within the curtilage of Moody’s

dwelling.

                           III. Cross-Examination of Garyl Allen

       The third issue on appeal is whether the court abused its discretion in limiting

Moody’s cross-examination of Garyl “G-Rel” Allen. Moody argues that the court placed

unreasonable restrictions on her cross-examination because it did not allow her to ask

about (1) Allen’s bias due to his probationary status and desire for leniency from the State;

(2) Allen’s prior sworn statement about other altercations leading to the shooting of

Vanessa Bearden; and (3) Allen’s prior sworn statement about Moody’s act of self-defense.

Moody argues here that the court’s restrictions violated her Sixth Amendment rights

under the United States and Arkansas Constitutions.

       Our supreme court has held that a defendant’s right to confront witnesses against

him or her is guaranteed by the Sixth Amendment to the United States Constitution and

article 2, section 10, of the Arkansas Constitution. See Bowden v. State, 301 Ark. 303,

308–09, 783 S.W.2d 842, 844–45 (1990).             This constitutional right includes the

opportunity to conduct effective cross-examination. Id. But to preserve a confrontation

clause argument on appeal, a defendant must obtain a ruling from the circuit court on that

specific issue. Bertrand v. State, 363 Ark. 422, 429, 214 S.W.3d 822, 826–27 (2005).

       Although Moody objected to the court’s limitation on her cross-examination of

Allen during her trial, she did not argue to the circuit court that the lack of cross-

examination violated her constitutional rights, nor did she obtain a ruling from the court

on any constitutional issue regarding Allen’s testimony. Moody’s appellate argument that

                                             11
                                Cite as 2014 Ark. App. 538


the circuit court erred under our federal and state constitutions by placing unreasonable

restrictions on her cross-examination of Garyl Allen is not preserved for review.

                                     IV. Text Message

       Moody also argues that the court erred by permitting the State to cross-examine

her about a text message sent to her phone around 9:46 p.m. the night of the shooting.

Moody testified that her cell phone was taken during the first fight with Alisha Jeffers.

Immediately after Moody’s cross-examination statement, the court held a bench

conference outside the hearing of the jury.

       The State wanted to introduce a picture of a phone message that was sent to

Moody’s phone after the shooting occurred. The message was from Moody’s cousin, who

lived in Chicago. Moody argued that the text message was hearsay, that she did not

possess the phone when the message was sent, and that the message was sent “way after

the fact.”   Moody said it was “highly prejudicial” because it was a message sent by

someone else to Moody when she did not have the phone, which was likely already in

police custody, and that the jury would get the impression that she was trying to “hide

something.” The State argued that it had a right to ask Moody if she talked to her cousin

Bianca after the shooting, or if she had seen the message, or knew anything about it.

According to the State, “this appear[ed] to be a message delivered by the shooter or on

behalf of the shooter. It will either be authenticated by her or it will not, but [the State]

has a right to inquire.” The court ruled that the text message “is never going to get

introduced” but that the State could ask Moody about how her cousin knew that




                                              12
                               Cite as 2014 Ark. App. 538


somebody had been shot. The court also said it would allow the State to ask Moody

about whom she talked to and if she told anyone that she had killed someone.

       The trial resumed and the State started to question Moody about her cell phone.

Moody said that her cell phone was taken by one or more of the girls that she had

originally fought with. She also admitted that her cousin Bianca was a contact in her

phone. Moody flatly denied that she had knowledge of any text messages sent to her

phone by Bianca. The prosecutor then asked Moody if she recognized the phone he was

holding. Moody answered yes, and defense counsel promptly objected. The State then

withdrew its question and passed Moody as a witness.

       Moody essentially argues that the court abused its discretion by allowing the State

to display the cell phone and otherwise “imply that the text message communicated

threats and indicated the state of appellant’s mind on the night of the shooting” because

she was required to identify the phone and acknowledge the text from her cousin in front

of the jury.

       The text message was never admitted as evidence, and its content was never

revealed to the jury.   Second, the court sustained Moody’s hearsay objection to the

message, and when she objected the second time to the State asking about her phone, the

State withdrew its question. So Moody received all the relief she had requested from the

court. There was no abuse of discretion in any event. See Gilliland v. State, 2010 Ark.

135, 361 S.W.3d 279.




                                           13
                               Cite as 2014 Ark. App. 538


                                          V. Facebook Posts

       Moody alleges that another evidentiary error occurred when the court allowed the

State to cross-examine her about past Facebook posts.

       Moody    filed   a   motion in limine seeking          to exclude certain “email

communications.” She argued that the emails were not material (or probative) to her

criminal charges and that some of the emails were prejudicial because they contained

“language generally considered vulgar and offensive.” In Moody’s view, the State sought

to introduce such evidence to “cast aspersions on [her] character and to unduly prejudice

[her] in the eyes of the jury.” The court did not rule on the motion in limine.

      The following colloquy occurred between Moody and her lawyer on direct

examination:

       DEFENSE COUNSEL:            [H]as Alisha [Jeffers] ever said anything to you
                                   about her—the young man you used to date?

       MOODY:                      Yes.

       DEFENSE COUNSEL:            Without telling me what she said, how would
                                   you describe her attitude about that in the late
                                   spring as we move toward June?

       MOODY:                      She was more—I guess she was trying to brag,
                                   more like, That’s my boyfriend now; it’s not
                                   yours. Like it was more trying to, I guess, make
                                   me feel bad now that she was dating my
                                   boyfriend—well, my ex-boyfriend.

       DEFENSE COUNSEL:            Okay. Did you respond to that?

       MOODY:                      No.

       DEFENSE COUNSEL:            When she would bring that up, you would not
                                   respond—is your testimony?

       MOODY:                      That’s my testimony.
                                             14
                               Cite as 2014 Ark. App. 538


      On cross-examination, Moody was asked the following questions:

      PROSECUTOR:                 Now, you indicated that Alisha Jeffers and
                                  you—there was some conflict over a boy.

      MOODY:                      There was.

      PROSECUTOR:                 And you never responded to any of that
                                  conflict?

      MOODY:                      I can’t say never. At the time we were fighting,
                                  I never responded to anything that she did.

      PROSECUTOR:                 You are talking about the day of the fight?

      MOODY:                      Right.

      PROSECUTOR:                 Prior to that you had responded to it, hadn’t
                                  you?

      MOODY:                      Yes.

      PROSECUTOR:                 And there were several Facebook posts—

      DEFENSE COUNSEL:            Objection.

      The court held a bench conference outside the jury’s hearing on the Facebook

posts. Moody’s counsel argued that the Facebook posts were irrelevant because they were

not threatening; the statements were made over ten weeks before the shooting happened;

and he never asked Moody about any social media on direct examination. The State

responded that Moody had testified on direct examination that she did not respond to

Jeffers, and it had a right to cross-examine her on the truth of her statement. The court

ruled that the Facebook posts could not be entered as evidence in the record but that the

State could ask Moody about any responses she had to Jeffers.

      After the trial reconvened, Moody admitted on cross-examination that she had

traded Facebook posts back and forth with Jeffers. She said the Facebook messages were

                                           15
                                 Cite as 2014 Ark. App. 538


about “leave me alone; you be with him.” Moody also said that she was unsure if she said

anything else to Jeffers but agreed that, at times, it was not a pleasant conversation.

       Moody argues here that “the State was allowed to both confuse and mislead the

jury by implication of threats purported to exist in Facebook posts which did not exist.”

She says that the evidence should have been excluded under Arkansas Rules of Evidence

401 and 403 because the Facebook posts were not relevant and were more prejudicial than

probative.

       We review matters concerning the scope of cross-examination under an abuse-of-

discretion standard. Rodgers v. State, 360 Ark. 24, 27, 199 S.W.3d 625, 627 (2004). Our

supreme court has said that the use of cross-examination is an important tool in bringing

the facts before the jury and that wide latitude should be afforded by the circuit court. Id.

That said, a circuit court must determine when the matter has been sufficiently developed

and when the outer limits of cross-examination have been reached. But unless the court’s

discretion was exercised thoughtlessly, we will not reverse. Id.

       The content of the Facebook messages, whatever it was, was never exposed; no

prejudice could therefore have resulted. And the State never alleged, in front of the jury,

that threats were made on Facebook—it asserted that the exchanges between Moody and

Jeffers were unpleasant. The two concepts (threats versus unpleasant exchanges) as they

came up in this case do not establish reversible error. Regarding the scope of the cross-

examination being too far, Moody said on direct examination that she had not responded

to Jeffers, so the State’s questioning of Moody on cross-examination about her past

responses via Facebook responded to her testimony on direct examination, was probative

                                              16
                                Cite as 2014 Ark. App. 538


of her truthfulness, and not unduly prejudicial. The court did not abuse its discretion in

allowing the cross-examination to proceed as it did.

                                      VI. Conclusion

       We affirm Moody’s conviction in all respects and the related sentence.

       Affirmed.

       WYNNE and GLOVER, JJ., agree.

       McKissic & Associates, PLLC, by: Gene E. McKissic, Sr., for appellant.

       Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.




                                             17
