                                  Cite as 2013 Ark. App. 507

                  ARKANSAS COURT OF APPEALS
                                       DIVISION II
                                      No. CR-12-913

                                                  Opinion Delivered   SEPTEMBER 18, 2013

MAURICE COSEN                                     APPEAL FROM THE JEFFERSON
                               APPELLANT          COUNTY CIRCUIT COURT
                                                  [NO. CR-11-140-5]
V.
                                                  HONORABLE JODI RAINES
                                                  DENNIS, JUDGE
STATE OF ARKANSAS
                                 APPELLEE         AFFIRMED



                              DAVID M. GLOVER, Judge

          Maurice Cosen was tried by a jury and found guilty of two counts of aggravated

assault and two counts of terroristic threatening. The charges arose from a shooting

incident outside a club called Three Gables in the early morning hours of March 19, 2011.

Cosen was sentenced to concurrent sentences totaling fifteen years. As his sole point of

appeal, he contends that the trial court abused its discretion in excluding ballistic evidence,

which he argues implicated a third party even though it did not exclude Cosen. We

affirm.

                                          Background

          There is no challenge to the sufficiency of the evidence in this case. Although

there was conflicting testimony about whether Cosen was inside or outside of the club on

the night in question, the jury clearly believed the witnesses who placed him outside of
                                  Cite as 2013 Ark. App. 507

the club, in the parking lot, shooting a gun. The sole issue relates to an evidentiary ruling

by the trial court before the trial began.

       In a pretrial oral motion, the State asked the trial court to prohibit the defense from

introducing any evidence related to shell casings, and related ballistic evidence, retrieved

from Three Gables during a subsequent crime-scene investigation of a shooting that

occurred at that location approximately three weeks after the incident at issue here. The

State acknowledged that the shell casings retrieved from the later shooting matched those

retrieved on March 19 in the investigation of the instant case. Defense counsel contended

that the gun and shell casings were not connected to Cosen; that they belonged to a man

named Benny Johnson.         The State argued that the evidence was not exculpatory,

contending that just because others had the gun did not exclude Cosen from having it on

the night in question, and that unless Cosen was trying to blame Benny Johnson, the

evidence should not be admitted where there was no evidence that another party was

guilty. Cosen’s position was that the State had not been able to tie the gun to him and

that evidence tying it to Benny Johnson and a shooting three weeks later at the same

location should be allowed. Cosen argued that the instant case was distinguishable from

Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), that here “we do have the casings,”

and “the gun in the hand of another individual.” At the close of these arguments, the trial

court stated: “If they take the stand and say they saw Benny Johnson there that night . . .

But, it’s going to have to get linked that this other person actually committed this crime.




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It can’t be just an inference. We are not going to mention in opening statements anything

about the shell casings matching.”

       During the actual trial, the State presented Cathy Ruhl, a crime-scene technician

for the Pine Bluff Police Department who responded to the March 19 shooting incident

at Three Gables. She testified about what she found upon arriving at the scene, including

five expended cartridges that the lab report showed were fired from the same weapon.

The report was introduced without defense objection.

       On cross-examination, the State began objecting before defense counsel completed

its first question, which, during the bench conference that followed, counsel stated was

going to be: “Where did she ever associate those cartridges with any gun associated with

this defendant?” The trial court responded, “You can do that, of course.” Defense

counsel then stated, “Judge, I think I’m really entitled to ask that next question: And, did

she ever associate it with anyone?” The following colloquy then occurred among defense

counsel, the prosecutor, and the trial court:

       THE COURT:                    We didn’t finish arguing that, [defense counsel].

       [DEFENSE COUNSEL]:            Okay.

       [PROSECUTOR]:                 I thought that he had conceded that he was not —

       THE COURT:                    You said you gave that up.       If you are wanting to

                                     change that, we need to go back and —

       [DEFENSE COUNSEL]:            Okay. Well, I will just ask that question right now.

       THE COURT:                    No. I’m happy to do that.


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      [DEFENSE COUNSEL]:          Okay. No. No.

      THE COURT:                  Whatever—okay.

      Defense counsel asked Ms. Ruhl, “Did you ever have an occasion to associate

those cartridges—the .38 or the .45, either one of them—with any gun that was associated

with this defendant?” Ruhl responded, “We didn’t find a weapon at the scene.” Defense

counsel stated that was not his question. The State objected. Defense counsel asked

Ruhl, “Did you ever have an occasion to associate those cartridges with any gun that was

ever—.” The prosecutor asked to approach the bench and, at the bench, contended that

Ruhl did not understand the question and was afraid to say what she knew she was not

supposed to say. The following colloquy occurred at that point:

      THE COURT:                  Well, she—my information is that she—there’s
                                  no—there’s nothing linking this—those things to this
                                  man. Well, then why wouldn’t her answer be no?

      [DEFENSE COUNSEL]:          That’s what I mean.

      [PROSECUTOR]:               Well, I mean—I think if she—if she’s understanding
                                  the question—I mean, this is all designed to just make
                                  it look bad, but I just don’t want her to say, Yes, it was
                                  associated with another case where these shell casings
                                  match. I mean that is an association.

      THE COURT:                  Hopefully, she will listen to the question and answer
                                  the question asked.

      [PROSECUTOR]:               But there is an association.

      THE COURT:                  That’s not what he asked though.          Not with this
                                  defendant.

      [DEFENSE COUNSEL]:          I didn’t ask that.


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         [PROSECUTOR]:              Well—

         THE COURT:                 That’s my understanding.

         [PROSECUTOR]:              Okay.

         The bench conference concluded and defense counsel asked Ruhl, “Did you ever

associate any of those cartridges that were found with any weapon or gun that was

associated with this defendant?” Ruhl responded, “No.” Ruhl was then excused, and the

State rested its case.

                                          Discussion

         We first address the State’s contention that Cosen’s point of appeal was not

properly preserved and cannot be addressed in this appeal because Cosen: 1) failed to

proffer evidence placing the gun in Johnson’s possession at any time and at any place;

2) failed to obtain a clear ruling from the trial court; and 3) abandoned his initial objection

to exclusion of the evidence.      We disagree.     The trial court’s ruling was clear—the

evidence was not coming in unless Cosen could somehow link Johnson to the March 19

crime.     Moreover, there was not a clear abandonment of the issue; rather, Cosen

abandoned pursuing that line of questioning because he could not provide the link upon

which the trial court conditioned admission of the evidence. The issue presented was

adequately preserved for our review.

         The trial court allowed Ruhl to testify that no gun was found in the March 19

incident at issue here and that no evidence was found that associated the cartridges that

were found to Cosen. The evidence that the trial court excluded was certain ballistic


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evidence. The evidence established that a second set of cartridges and a gun, which were

part of a later crime-scene investigation of another shooting that took place at the same

location three weeks after the March 19 incident, were connected to the cartridges found

on March 19; that is, the cartridges from both incidents were tied to one gun that was

found to be in the possession of a man named Benny Johnson following the subsequent

shooting.

        We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Buford v. State, 2010 Ark. App. 638. We find no abuse of discretion

here.   In Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), our supreme court

reviewed a lower court ruling that excluded evidence about a similar murder that

occurred in Louisiana, about thirty miles from the crime scene at issue in that case. Our

supreme court affirmed the trial court’s ruling, explaining:

               The trial court refused to allow Officer Jimmy Morgan to testify about a
        similar murder which occurred in Cullen, Louisiana, approximately thirty miles
        from Magnolia. Zinger and Risher wanted to use the testimony to convince the
        jury that the person who committed the crime in Louisiana might also have
        murdered Holley.

               Proffered testimony indicated the Louisiana victim had been beaten and
        stabbed several times and left in a position similar to that of Holley. There was also
        evidence of an attempted clean-up after the Louisiana incident and that the victim
        and the assailant knew each other and that it was a drug-related offense. The
        murder weapons used in Louisiana, a hammer and pair of scissors, were found at
        the scene of the crime.

               To address this issue, we must consider under what circumstances evidence
        incriminating others is relevant to prove a defendant did not commit the crime
        charged. In Killian v. State, 184 Ark. 239, 42 S.W.2d 12 (1931), and West v. State,
        255 Ark. 668, 501 S.W.2d 771 (1973), the defendants attempted to introduce


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       testimony that other parties had been charged with the offense for which they were
       being tried. In each case, we upheld the trial court’s refusal to allow the testimony
       because there was no evidence showing the other party was guilty.

              Addressing this precise issue, the Supreme Court of North Carolina stated:

              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.

       State v. Wilson, 367 S.E.2d 589 (N.C. 1988). The Supreme Court of California has
       recognized that a defendant has the right to present evidence of third party
       culpability but 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.

       People v. Kaurish, 802 P.2d 278 (Cal. 1990).

              Although there are some similarities between the crimes committed in
       Louisiana and Arkansas, there was no evidence presented connecting the Louisiana
       suspect to the Holley murder. The trial court was not even given the name of the
       Louisiana suspect or whether he or she had any connection to Holley. There was
       neither direct nor circumstantial evidence connecting the Louisiana perpetrator to
       the Arkansas crime, other than a few similarities found in the two crime scenes, and
       we cannot conclude the trial court abused his discretion in refusing to allow the
       evidence to be admitted.

313 Ark. at 75–76, 852 S.W.2d at 323.

       Birts v. State, 2012 Ark. 348, and Armstrong v. State, 373 Ark. 347, 284 S.W.3d 1

(2008), were both decided after the United States Supreme Court case of Holmes v. South

Carolina, 547 U.S. 319 (2006), and upheld the Zinger analysis.


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       Here, Cosen presented nothing to connect Benny Johnson to the March 19

incident. There was no testimony that he was even present at the club or on the parking

lot that night. The fact that Benny Johnson had the gun in his possession three weeks

later in a subsequent shooting, without more to connect Benny Johnson with the March

19 incident, does not convince us that the trial court abused its discretion in refusing to

allow this evidence to be admitted in Cosen’s trial.

       Affirmed.

       GLADWIN, C.J., and WYNNE, J., agree.

       Morehead Law Firm, by: Robert F. Morehead, for appellant.

       Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.




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