                                 Cite as 2014 Ark. App. 317

                 ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                       No. CR-13-569


                                                  Opinion Delivered   May 21, 2014

RENFORD S. WILLIAMS                               APPEAL FROM THE FAULKNER
                               APPELLANT          COUNTY CIRCUIT COURT
                                                  [NO. CR-2011-732]
V.
                                                  HONORABLE DAVID L.
                                                  REYNOLDS, JUDGE
STATE OF ARKANSAS
                                  APPELLEE        AFFIRMED



                           BRANDON J. HARRISON, Judge

       Renford Williams was convicted of three counts of theft of property and now appeals

his convictions, arguing that the circuit court erred in allowing the State to introduce certain

evidence under Ark. R. Evid. 404(b). We affirm.

       On 26 March 2011, Nick Wray, Travis (Lee) Burchfield, and Jeff Jones were robbed

at gunpoint at Nick and Jeff’s apartment in Conway. In an amended felony information filed

2 September 2011, Williams was charged in the Faulkner County Circuit Court with

aggravated residential burglary, three counts of aggravated robbery, and three counts of theft

of property in connection with this robbery.

       Before trial, Williams filed a motion in limine to prohibit Rule 404(b) evidence,

specifically evidence that Williams was accused of committing aggravated robbery, aggravated

residential burglary, and theft of property in Pulaski County on March 29, three days after the

alleged conduct that led to this appeal; that a trial on those charges ended in a hung jury; and
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that a second trial was pending on those charges. The State responded that the Pulaski

County charges were independently relevant because they were sufficiently similar to the ones

Williams faced in Faulkner County and the alleged criminal conduct in Faulkner County and

Pulaski County was closely related in time. The State also filed a separate motion in limine

to prevent Williams from mentioning that the first Pulaski County trial ended in a hung jury.

       Immediately before trial, the motions in limine were addressed by the court. Counsel

for Williams argued that the prejudicial effect of the evidence outweighed any probative

value; the State argued that the two incidents were “so close in time and so similar that they

do show a pattern, a common scheme or plan with this defendant.” The court ruled that the

Rule 404(b) evidence would be allowed but that there would be no mention of the hung jury

during the first trial in Pulaski County.

       During the Faulkner County trial, the three alleged victims testified in a substantially

similar manner that they were robbed by three African-American males and that Williams was

one of them. The State also presented evidence that Williams’s fingerprint was found on a

wine glass at the crime scene, that Williams’s DNA was found on a hoodie left behind at the

crime scene, and that the victims’ wallets were found in a dumpster at Williams’s place of

employment two days after the robbery. In addition, another victim, Will Carter, testified

that Williams and two other African-American males robbed him in his home in Pulaski

County on March 29, 2011.

       A jury found Williams guilty of three counts of theft of property and recommended

a sentence of twenty years’ imprisonment for each count.            The court imposed the


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recommended sentences, to run consecutively, for a total of sixty years’ imprisonment.

Williams now appeals to this court.

       Under Ark. R. Evid. 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). For evidence to be

independently relevant, the evidence must have a tendency to make the existence of any fact

of consequence to the determination of the action more or less probable than it would be

without the evidence. Ark. R. Evid. 401. But even relevant evidence may be excluded if

its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid.

403.

       The admission or rejection of testimony is a matter within the circuit court’s sound

discretion and will not be reversed on appeal absent a manifest abuse of that discretion and a

showing of prejudice to the defendant. Solomon v. State, 2010 Ark. App. 559, 379 S.W.3d

489. To abuse its discretion, a circuit court must act improvidently, thoughtlessly, or without

due consideration. See Craigg v. State, 2012 Ark. 387, 424 S.W.3d 264. Even when a circuit

court errs in admitting evidence, we may declare the error harmless and affirm if the evidence

of guilt is overwhelming and the error is slight. Kelley v. State, 2009 Ark. 389, 327 S.W.3d

373.


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       Williams argues that the circuit court erred in allowing evidence of the March 29

robbery under Rule 404(b). Because the Rule 404(b) evidence pertained to a subsequent bad

act, not a prior bad act, Williams argues that it could not be used to show preparation, plan,

motive, or knowledge as to the March 26 incident. And with those exceptions exhausted,

Williams asserts, the evidence only tended to show that he “was a criminal three days after the

current crime, and therefore he must have committed this crime. Rule 404 is in place to

prevent this exact situation.” He also denies that the jury instruction on the proper use of

Rule 404(b) evidence was sufficient to cure the prejudicial effect of the evidence. Finally, he

contends that even if relevant, the Rule 404(b) evidence should have been excluded under

Rule 403 because it “served no effect than to confuse the issues of the two crimes, and

mislead the jury, which is precisely what the rule prohibits.”

       The State argues that the Rule 404(b) evidence was independently relevant to the

Faulkner County incident “to show that Appellant possessed the same intent, motive,

knowledge, plan, and identity—that is, to rob—as he did in the earlier case.” The State

denies that the probative value was outweighed by the prejudicial effect and argues that any

prejudicial effect was minimized by the limiting instruction read by the court. The State also

contends that any error was harmless given overwhelming evidence of Williams’s guilt.

       We hold that, even assuming that the admission of the Rule 404(b) evidence was error,

there was overwhelming evidence of Williams’s guilt, which included a positive identification

by all three victims that Williams was involved in the alleged criminal conduct. A fourth

identification from Will Carter was merely cumulative, and prejudice cannot be demonstrated


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where erroneously admitted evidence is merely cumulative to other evidence properly

admitted. Holloway v. State, 2013 Ark. 140, ___ S.W.3d ___. Williams’s conviction is

affirmed.

       Affirmed.

       WALMSLEY and WYNNE, JJ., agree.

       Law Office of Chris Lacy, by: Chris Lacy, for appellant.

       Dustin McDaniel, Att’y Gen., by: Ashley Argo Priest, Ass’t Att’y Gen., for appellee.




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