                                    Cite as 2014 Ark. 391

                SUPREME COURT OF ARKANSAS
                                       No.   CR-14-145

HENRY HARMON                                      Opinion Delivered   September 25, 2014
                               APPELLANT
                                                  APPEAL FROM THE PULASKI
V.                                                COUNTY CIRCUIT COURT, FIRST
                                                  DIVISION
                                                  [NO. CR2012-515]
STATE OF ARKANSAS
                                  APPELLEE        HONORABLE LEON JOHNSON,
                                                  JUDGE

                                                  REVERSED AND REMANDED;
                                                  COURT OF APPEALS’ OPINION
                                                  VACATED.


                         CLIFF HOOFMAN, Associate Justice

       Appellant Henry Harmon appeals from his convictions for first-degree murder, two

counts of aggravated robbery, and aggravated assault. Harmon’s sentences were enhanced

because he used a firearm during the commission of the offenses and because he is classified

as a habitual offender, and he received an aggregate sentence of 105 years’ imprisonment. For

his sole point on appeal, Harmon argues that the circuit court abused its discretion in granting

the State’s motion in limine seeking to exclude DNA evidence. Our jurisdiction is pursuant

to Ark. Sup. Ct. R. 1-2(e) (2014), as we granted Harmon’s petition for review of the decision

of the Arkansas Court of Appeals affirming his convictions. Harmon v. State, 2014 Ark. App.

70. We reverse and remand to the circuit court and vacate the court of appeals’ opinion.

       Harmon was charged with capital murder, aggravated robbery, and aggravated assault
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in connection with the robbery of Christine Dyer and John Williams on January 5, 2012, at

the Heritage House Motel in Little Rock. Williams was shot and killed during the course of

the robbery. Although Harmon does not challenge the sufficiency of the evidence supporting

his convictions, a brief review of the facts and the evidence presented at trial is helpful in

understanding the issue presented on appeal.

       Dyer testified that, at around midnight on January 5, 2012, she and her fiancé,

Williams, had just turned in for the night in their room at the Heritage House Motel when

someone knocked on their door, kicked it in, and then ran into the room screaming,

“Where’s the money?” The assailant fired several shots as he entered the room, and Williams

was fatally shot in the chest. The assailant proceeded to search the room for money, and Dyer

managed to escape from the room as shots were being fired at her. Dyer hid behind a bush

and saw the assailant leave the room and get into the driver’s side of a vehicle that Dyer

described as a brown, older model 4-door sedan similar to an El Dorado. When police

officers began to follow a vehicle meeting that description, the driver led police on a high-

speed chase. The officers eventually lost sight of the vehicle in the vicinity of Wright Avenue

and Marshall Street; however, shortly afterward, police were notified that the vehicle had

been abandoned in a parking lot at Arkansas Children’s Hospital. The hood was still hot to

the touch when police arrived, and several items of discarded clothing, including a jacket, a

sweatshirt, a glove, and a bandana were found near the fence on the playground. A loaded

pistol, later determined to be the murder weapon, was found in a pocket of the jacket, along

with a receipt with Harmon’s name on it. Surveillance video from the hospital that shows


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the vehicle pulling into the parking lot and a male and a female exiting the car and running

toward the playground area near Marshall Street was admitted into evidence.

       Although Dyer was unable to identify Harmon in a photo line-up, Nikita Smith

testified that she was with Harmon on the night of January 5, 2012. Smith stated that she and

Harmon had gotten high and then drove to the Heritage House to obtain more drugs. Smith

stayed in the vehicle but stated that she saw Harmon, who was wearing blue jeans, a black

hoodie, and a black coat, put a bandana on his head and approach one of the motel rooms.

Smith then heard Harmon kick in the door, and several shots were fired.          Smith next

witnessed a woman run out of the room yelling for help, and Harmon returned to the vehicle

carrying a pistol. When Smith asked Harmon what had happened, he stated that he had “shot

that man.” Harmon then fled from the scene and from police until he stopped the vehicle

in the Children’s Hospital parking lot. According to Smith, Harmon told her to run, and she

saw him abandon several items of clothing and throw his gun over a gate. The two then split

up and fled from the scene. Although Harmon warned Smith not to tell anyone what had

happened, Smith told her cousin, who reported it to the police.

       Jennifer Beatty, a forensic DNA examiner, testified that she had collected DNA

samples from Harmon and the victim. She then tested the items of clothing that had been

discarded near the hospital. Beatty stated that Williams’s blood was found on the pistol,

jacket, sweatshirt, glove, and bandana. In addition, Beatty testified that Harmon’s blood was

found on the sweatshirt and bandana. On cross-examination, Beatty further explained that

there were major and minor contributors to the DNA found on the sweatshirt and the


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bandana.

       Prior to Beatty’s testimony at trial, the State had moved to exclude from evidence that

portion of the DNA results that indicated the presence of more than one contributor to the

DNA profiles on the sweatshirt and the bandana. The State argued that this evidence raised

only a speculative inference of third-party guilt and was inadmissible pursuant to our holdings

in Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), and Birts v. State, 2012 Ark. 348.

Defense counsel asserted that these cases were distinguishable from the present case, as

Harmon was seeking to challenge the credibility of the DNA evidence introduced by the

State that linked Harmon with the commission of the crimes, not to introduce independent

evidence of third-party guilt. The defense also argued that the evidence was relevant to

corroborate Harmon’s defense that he had let someone else borrow his vehicle on the night

of January 5, 2012, and that he did not commit the crimes with which he was charged.

       The circuit court granted the State’s motion in limine to exclude the evidence;

however, over an objection by the State, the court did allow the defense to question Beatty

as to whether there was a major and a minor contributor to the DNA profiles. Harmon then

proffered additional testimony by Beatty that there was DNA from at least two other persons

on the sweatshirt and the bandana, although Harmon was the major contributor. Beatty also

testified that these minor components were inconclusive for comparative purposes. Following

this proffer, defense counsel requested that the circuit court reconsider its ruling on the

motion in limine, which the court declined to do.

       During the defense’s case, Harmon admitted that the vehicle found at Children’s


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Hospital was his, but he testified that he had loaned the car to Cedric Johnson on the night

of the murder because Johnson was interested in buying it. Harmon also admitted that he

owned the sweatshirt. He claimed that the bandana was not his and that it was left in the car

by a previous owner, although he did testify that he had used the bandana to wipe his sweat.

Harmon also explained that his blood on the receipts in the jacket and the car was a result of

cutting his hand when working on his car approximately one week prior to the crimes.

Harmon denied committing the crimes or being present at Heritage House on the night of

the murder and stated that Smith had lied during her testimony. Harmon also presented

testimony from someone who claimed that Harmon was present at a friend’s house during the

time of the murder.

       The jury convicted Harmon of first-degree murder, aggravated robbery, and

aggravated assault. He was also found guilty of using a firearm during the commission of the

crimes. He was sentenced as a habitual offender to a total of 105 years’ imprisonment.

Harmon appealed his convictions and challenged the circuit court’s ruling on the motion in

limine. The Arkansas Court of Appeals affirmed in Harmon v. State, supra, and this court

granted Harmon’s petition for review. When we grant a petition for review, we treat the

appeal as if it had been originally filed in this court. Fowler v. State, 339 Ark. 207, 5 S.W.3d

10 (1999).

       Harmon’s sole point on appeal is that the circuit court erred in granting the State’s

motion in limine to exclude the evidence that there was DNA from more than one individual




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on several pieces of evidence.1 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.

       In Zinger, supra, we discussed the standard for admissibility of evidence incriminating

third persons and held that

       [a] defendant may introduce evidence tending to show that someone other than the
       defendant committed the crime charged, but such evidence is inadmissible unless it
       points directly to the guilt of the third party. Evidence which does no more than create
       an inference or conjecture as to another’s guilt is inadmissible.

313 Ark. at 75, 852 S.W.2d at 323 (quoting State v. Wilson, 367 S.E.2d 589 (N.C. 1988)).

We further stated,

                                             ...

       [T]he rule does not require that any evidence, however remote, must be admitted to
       show a third party’s possible culpability . . . [E]vidence of mere motive or opportunity
       to commit the crime in another person, without more, will not suffice to raise a
       reasonable doubt about a defendant’s guilt: there must be direct or circumstantial
       evidence linking the third person to the actual perpetration of the crime.

Id. at 76, 852 S.W.2d at 323 (quoting People v. Kaurish, 802 P.2d 278 (Cal. 1990)). Thus, in

Zinger, we affirmed the trial court’s exclusion of evidence proffered by the defendant

regarding a similar murder in Louisiana, holding that there was no evidence to connect the

Louisiana suspect to the murder in that case other than a few similarities in the crime scenes.

       In Birts, supra, we again affirmed the trial court’s exclusion of evidence where the


       1
        Harmon also argued at trial that the circuit court’s ruling violated his constitutional
right to present a complete defense; however, he has abandoned that argument on appeal.
Williams v. State, 2011 Ark. 489, 385 S.W.3d 228.


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defendant sought to introduce trace-DNA and fingerprint evidence from unknown

contributors that was found at the crime scene and in the victim’s residence. We held that

the evidence proffered by the defendant was too speculative because it related only to an

unnamed third party or parties, rather than to a particular third party, and that it would

require the jury to engage in conjecture to make the inference that the unknown contributor

of the DNA or fingerprints committed the murders, as there was no evidence to directly

connect the unknown third person to the crime. Id.

       In the present case, Harmon argues that the evidence he sought to introduce through

cross-examination of Beatty is distinguishable from the evidence excluded in Zinger and Birts

for at least two reasons. First, Harmon asserts that the DNA evidence at issue in this case was

actually introduced by the State in its case-in-chief and that he only desired to fully examine

that evidence and question it in court. Harmon argues that the circuit court’s ruling here

essentially allowed the State to “have its cake and eat it too,” because it was permitted to both

introduce incriminating DNA evidence against him and have that same evidence shielded

from cross-examination by the defense. Second, unlike in both Zinger and Birts, Harmon

contends that there was a direct link between the third-party-guilt evidence proffered in this

case and the charged crimes. Harmon’s defense, as established through his direct testimony

at trial, was that he allowed a specific individual, Cedric Johnson, to borrow his car on the

night of the murder. Thus, he argues that his proffered evidence that there was DNA from

at least two other individuals on articles of clothing that were found near the car and that also

contained the victim’s blood corroborated his defense and was highly relevant in this case.


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Harmon further asserts that testimony about the minor components of DNA found on the

items would not have misled the jury or caused confusion.

       According to Ark. R. Evid. 401 (2014), relevant evidence is “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.” However,

under Ark. R. Evid. 403 (2014), relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury. The standard for admission of incriminating evidence against a third

person, as we set forth in Zinger, is merely an application of these rules to a specific type of

evidence.

       We agree with Harmon that the facts in this case are distinguishable from those in

Zinger and Birts. The evidence that Harmon sought to admit challenged the credibility of

evidence introduced by the State to connect him to the murder. Furthermore, unlike in

Zinger or in Birts, there was a direct link between the DNA evidence proffered by Harmon

and the crimes at issue, and the evidence also corroborated Harmon’s testimony at trial that

a particular third party was responsible for the crimes. As Harmon asserts, Beatty’s testimony

about the DNA mixture was highly probative to his defense, and it would not have been

unduly confusing or misleading to the jury. Under these circumstances, we agree that the

circuit court abused its discretion in excluding this evidence.

       In its supplemental brief on review, the State contends that the circuit court’s ruling

permitted Harmon to question the credibility of the DNA sample introduced by the State and


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that “[t]he proffer submitted by the appellant appears to go to the questioning of the sample

itself (something the trial court agreed was permissible) . . . .” Thus, the State faults Harmon

for not further attempting to have this proffered testimony admitted. However, Harmon did

request that the circuit court reconsider its ruling after proffering Beatty’s additional

testimony, and the court stated that “the proffer actually strengthens the Motion in Limine,

and the Motion in Limine is going to stand.” The State also argues that Harmon was entitled

pursuant to the parameters of the circuit court’s ruling to argue in closing that the identifiable

DNA belonged to another person who wore the clothing. To the contrary, the circuit court

was clear in its ruling that Harmon was allowed to ask Beatty only if there were major and

minor components to the DNA profiles and that he was not allowed “to delve farther in that

it could be somebody else” or to “argue that at closing.” Furthermore, the State asserts that

Harmon should have renewed his objection following his testimony at trial that a third party

had access to the victim at the time of the offenses. However, the State cites no authority for

this proposition, and this court has previously held that a defendant is not required to renew

a motion in limine in order to pursue the issue on appeal. Neal v. State, 320 Ark. 489, 898

S.W.2d 440 (1995). Because we hold that the circuit court abused its discretion in granting

the State’s motion in limine to exclude the DNA evidence, we reverse and remand.

       Reversed and remanded; court of appeals’ opinion vacated.

       HANNAH, C.J., and CORBIN and DANIELSON, JJ., dissent.

       PAUL E. DANIELSON, Justice, dissenting. Because I cannot say that the circuit

court abused its discretion in granting the State’s motion in limine, I respectfully dissent.


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The testimony that Harmon sought to be admitted simply did not point directly to the

guilt of a third party. The mere fact that an unknown contributor’s DNA was on

Harmon’s sweatshirt and the bandana found outside of Harmon’s car goes to show only

that, at some point in time, another unknown person came into contact with those articles

of clothing. It in no way links anyone, known or unknown, to the actual perpetration of

the crime.

        The rule in Zinger that this court applies requires that “the evidence a defendant wishes

to admit . . . sufficiently connects the other person to the crime.” Armstrong v. State, 373

Ark. 347, 353, 284 S.W.3d 1, 5 (2008) (emphasis added). Our decision in Birts v. State,

2012 Ark. 348, is directly on point. In Birts, Birts had sought to have admitted certain

fingerprint and trace-DNA evidence of unknown persons that was found at the crime

scene and at the residence of one of the victims. The circuit court excluded the evidence,

and we affirmed that decision, observing that “regardless of the location at which the

proffered evidence was collected, there was nothing to connect that evidence directly with

the perpetration of any of the three murders being tried.” 2014 Ark. 348, at 7–8

(emphasis added). We further stated:

        [T]he fact that unknown trace DNA and fingerprints were found at the crime scene
        and at the victim’s home tends to show nothing other than that some unknown
        third person was present in those two places at some unknown time—it does not
        directly connect the unknown third person with the commission of any of these
        three murders. And a direct connection with the perpetration of the crime on trial
        is what is required for admissibility under the Zinger test.

Id. at 8.



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       Here, Harmon’s testimony that he had loaned his car to another has no bearing on

a determination of whether the DNA testimony was admissible under Zinger. The

evidence sought to be admitted is the evidence that must be evaluated; it is that evidence

that is inadmissible unless it points directly to the guilt of the third party. Because there

was nothing to directly connect the DNA evidence that Harmon wished to have admitted

with the perpetration of the crimes being tried, I would affirm the circuit court’s decision

granting the State’s motion in limine.

       HANNAH, C.J., and CORBIN, J., join.

       Robert M. “Robby” Golden, for appellant.

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




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