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                 ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                       No. CR-15-555


                                                  Opinion Delivered   January 27, 2016

ARICK JOHNSON                                     APPEAL FROM THE PULASKI
                               APPELLANT          COUNTY CIRCUIT COURT,
                                                  FOURTH DIVISION
V.                                                [NO. 60CR-13-2738]

STATE OF ARKANSAS                                 HONORABLE HERBERT WRIGHT,
                              APPELLEE            JUDGE


                                                  AFFIRMED



                            WAYMOND M. BROWN, Judge


       Appellant Arick Johnson was convicted of terroristic threatening in the first degree in

a bench trial held on February 9, 2015. He appeals his conviction, arguing that the trial court

erred in excluding evidence that the alleged victim and her husband were biased and had

motive to lie. We affirm.

       At the trial, Karen King, general manger of the Otter Creek Homeowners Association,

testified that she was contacted by Julia Pike Holley on May 27, 2013, and asked to retrieve

a copy of the video surveillance from that day. King stated that a Hummer was seen coming

through the entrance of Otter Creek at 12:35:09. However, she stated that she did not know

where the vehicle went when it came into Otter Creek. She also said that she did not know

whether the driver of that vehicle threatened anyone.
                                    Cite as 2016 Ark. App. 59

       Julia testified that she was outside her home on the date in question while her young

children were riding their bikes. She stated that she remembered a Hummer coming onto

her street with the “music really loud and aggressive.” She said that she immediately told her

son to get out of the road and went towards her daughter to get her out of the street.

According to Julia, a female passenger in the Hummer began yelling obscenities to her. She

testified that the driver of the Hummer,1 whom she later identified as appellant, came right

beside her and said, “I’ll kill you, bitch.” Additionally, she stated that appellant held up his

hand and said, “boom, boom.” Julia said that she then tried to make contact with her

husband, Isaac “Ben” Holley, who was in State Trooper school at the time. She stated that

she waited to hear back from Ben, and that after she informed him of the situation and

described the driver, Ben told her to call the police and file a report immediately. Julia stated

that she was 100% sure that appellant was the person who threatened to kill her.

       On cross-examination, Julia stated that she did not inform the police of appellant’s

name until June 5, 2013. She stated that she had never seen appellant before May 27th. She

acknowledged that she did not contact the police until approximately five hours later. She

stated that when she described the person to Ben, he stated that he believed that he knew

who she was talking about and told her to call the police. She said that it was Ben who told

her appellant’s name. She testified that she had never heard appellant’s name before that time.

However, she acknowledged that Ben had mentioned an “individual in the apartment



       1
           The parties stipulated that appellant drove a yellow Hummer during this time frame.


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complex he’d had issues with, so immediately after, Arick Johnson was removed from the

apartment complex.” She said the day following appellant’s removal, the back window of

Ben’s truck was busted out. She said that “just recently my husband told me that [Arick’s]

girlfriend had called state police and said something about my husband went to their

apartment and threatened them.” She denied having any knowledge about complaints filed

by appellant against Ben.

       Ben testified that he was employed by the Arkansas State Police. He stated that he was

also employed by the State Police at the time of the incident. He said that he was hired in

October 2012 as a security guard for an apartment complex in which appellant lived. He

stated that he was informed that appellant was suspected of illegal activity and was asked to

keep an eye on appellant. During Ben’s testimony, the State made an objection to relevance:

       STATE:        The State was allowing some leeway of because I believe it does
                     establish motive of this defendant to commit this crime. At this point
                     the State would object to relevance as the line of questioning.

       COURT:        Relevance?

       DEFENSE:       Your Honor, first of all, it’s relevant because it establishes he’s a liar.
                     Second of all, it goes toward—the whole thing is bias toward my client.

       COURT:        But at this point he hasn’t testified that your client has said or done
                     anything in relation to the charges that we’ve got here before us. So,
                     gain, you may have impeached him. If I take it, take you at your word
                     that he’s lied about something, that’s fine. What is the relevance of his
                     being truthful have to do with this charge?

       DEFENSE:      Because it was, it’s as his wife testified he was the one who told her that
                     it was Arick Johnson.

       COURT:        I’ll give you that. And if that’s your only relevance, then you need to
                     move on. She identified this man as the person that she saw there. So

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                      whether or not he told her who it was, again, does not have any bearing
                      on this particular charge. So you need to move on.


Ben testified that his first incident with appellant took place shortly after Ben began working

at the apartment complex. After which, the following took place:

       DEFENSE:       Okay, now what can you tell us how it came to be that you threatened
                      to mistake Arick Johnson’s phone for a gun—

       STATE:         Objection.

       DEFENSE:       -- and kill him?

       STATE:         This is well beyond anything that’s relevant to the charges.

       COURT:         Sustained.

       DEFENSE:       Your Honor, this is absolutely necessary to show his bias and motive to
                      get my client convicted.

       COURT:         Well, and I grant you, you could prove that he’s biased against your
                      client. At this point, you haven’t given—there’s no evidence before me
                      that he has accused your client of saying or doing anything. I have the
                      testimony of Mrs. Holley saying what happened and identifying your
                      client. So, you can prove he’s biased all day long. I’ll give you that, but
                      I don’t see the bearing.

       DEFENSE:       Okay.

Ben stated that he spoke to his wife on May 27, 2013, about someone threatening her. He

said that he told her that he believed the person was appellant. However, Ben denied telling

Julia to make false accusations against appellant.

       The defense continued to ask Ben questions that were challenged for relevance. The

court cautioned the defense that it had failed to provide any proof that Ben had gotten Julia

to falsely testify to something. The court stated that the defense was “loading up on proof of

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that he had a motive to do that, but without proof that he did it, where does that leave us?”

The court subsequently allowed the defense to make its proffer.

       DEFENSE:      Okay, Your Honor, I would proffer that Trooper Holley told my client
                     and told Detective Everett the same that he, that he was going to, that
                     Arick Johnson approached him with a phone recording him on the
                     night of their first incident.

                     In doing so, Trooper Holley said the words, “I could mistake that
                     phone for a weapon and kill you.” At which time Mr. Johnson replied,
                     “Are you threatening to kill me like Travon Martin?” And he said,
                     “No, I’m not a security guard. I’m a police officer.” Okay? And then
                     he stated, “Are you threatening to shoot me?” And Trooper Holley left
                     the scene.

                     I also would proffer at this time the fact that Trooper Holley made a
                     false police report against Mr. Johnson stating that he smelled weed from
                     across the complex, yet Mr. Johnson was never arrested. The police, in
                     fact, never came into Mr. Johnson’s residence based on any smell of
                     marijuana.

                     I would also proffer that Trooper Holley would testify that he had told
                     his wife that on Halloween night, when someone threw a rock through
                     their truck window that they believed it was Arick Johnson, but they
                     didn’t have proof. You[r] Honor, I believe that is all I have.

        Detective Angela Everett of the Little Rock Police Department testified that she was

assigned to the incident that took place on May 27, 2013. She said that Julia did not give her

appellant’s name initially, and that it was after Julia spoke with Ben that they provided her

with appellant’s name. She said that Ben gave her a “more extended version of the events.”

       The court then allowed the defense to proffer that Ben told Detective Everett

something “relating to mistaking the [appellant’s] phone for a weapon and killing him.”

       Appellant testified that he never threatened to kill Julia and that he never had any

problems with her before the case started. He acknowledged that he did, however, have

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problems with Ben, which started when Ben began working as the security guard at the

apartment complex in which appellant lived. Appellant denied ever threatening Ben or

damaging any of Ben’s property. He testified that he had filed several reports on Ben with

several agencies to no avail. Appellant stated that he had numerous videos of Ben threatening

to shoot him, but that the evidence was taken when his residence was searched pursuant to

a search warrant. He admitted that he went inside the gate in Otter Creek on May 27, 2013,

but he denied threatening Julia.

       On cross-examination, appellant stated that he was familiar with where the Holleys

lived because it was directly behind the apartment complex where he used to live. He

testified that he disliked Ben because Ben threatened to release his dog on appellant and his

son. Appellant said that he “tried to take every appropriate action in every way [he] could

to submit that [Ben] is not mentally capable of being in that position. He could easily mistake

someone for having a gun for their phone.” Appellant stated that he posted pictures of the

Holleys’ house on Facebook after he was notified that they had made complaints against him.

He also admitted to posting, “This bitch said he was going to shoot me when he had a badge

on. He didn’t even know him and his precious family is on Goblin Watch for his lack of

reality. That badge ain’t shit on this field.”

       The State moved to introduce the Facebook post. At that point, the defense argued

that the State had opened the door “to all other issues based on the fact that he’s getting into

the threats between the two of them.” The State contended that the evidence was introduced

to show appellant’s knowledge of where the Holleys lived. The court ruled that the door had


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not been opened, and it denied the defense’s request to go into the evidence that had been

proffered.

       On redirect, appellant testified that Ben had originally told him, “Your precious family

on Goblin watch.”

       The court found appellant guilty of first-degree terroristic threatening after finding

Julia’s testimony credible. Appellant filed a timely notice of appeal. This appeal followed.

       The decision to admit or exclude evidence is within the sound discretion of the circuit

court, and this court will not reverse a circuit court’s decision regarding the admission of

evidence absent a manifest abuse of discretion.2 An abuse of discretion is a high threshold

that does not simply require error in the circuit court’s decision but requires that the circuit

court acted improvidently, thoughtlessly, or without due consideration.3

       The law is clear that a party should be allowed to cross-examine a witness in order to

prove bias.4 The right of cross-examination includes the right to show that testimony is

unbelievable because this type of evidence can at times make the difference between

conviction and acquittal.5 The supreme court has found the “denial of cross-examination to

show the possible bias or prejudice of a witness may constitute Constitutional error of the first




       2
           Jones v. State, 2011 Ark. App. 324, 384 S.W.3d 22.
       3
           Id.
       4
           Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986).
       5
           Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987).

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magnitude as violating the Sixth Amendment right of confrontation.”6 However, this rule

is subject to the harmless error rule.7 When determining whether the denial of a party’s right

to cross-examine a witness for possible bias is harmless error, the court considers a host of

factors, including the importance of the witness’s testimony, whether the testimony was

cumulative, whether evidence existed that corroborates or contradicts the testimony of a

witness, and the overall strength of the prosecution’s case.8 The correct inquiry is whether,

assuming that the damaging potential of the cross-examination was fully realized, this court

might nonetheless say that the error was harmless beyond a reasonable doubt.9

       Here, the court stated that appellant could prove that Ben was biased against appellant,

but that Ben had not offered any testimony saying or accusing appellant of doing anything.

Additionally, the court found that the evidence was irrelevant as it related to the charge that

appellant was currently facing. Appellant failed to offer any evidence against Julia to show that

she was influenced by Ben’s bias to falsely accuse appellant of a crime he did not commit.

The court noted that the case hinged on credibility, and it found Julia’s testimony credible.

We hold that the court did not abuse its discretion by excluding the evidence appellant sought

to introduce.




       6
       Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994) (citing Henderson v. State, 279
Ark. 435, 652 S.W.2d 16 (1983)).
       7
           Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994); Winfrey v.State, supra.
       8
           Winfrey v. State, supra; Sullivan v. State, 32 Ark. App. 124, 798 S.W.2d 110 (1990).
       9
           Winfrey v. State, supra.

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       Even if we did find that the court committed error by not allowing the evidence

against Ben in, this error was harmless beyond a reasonable doubt.                Julia testified

unequivocally that appellant was the person who threatened to kill her on May 27, 2013. The

court believed this testimony, and we do not weigh the credibility of witnesses on appeal.10

       Appellant also contends that the State opened the door when it introduced appellant’s

Facebook post, and that appellant should have been allowed to question Ben about the

proffered evidence. This argument is without merit. Appellant did not object to the evidence

until the State sought to admit it as an exhibit. Furthermore, the State stated that the post was

introduced to prove appellant’s knowledge of the Holleys’ residence, a fact which appellant

had already admitted. We note that even if the trial court erred in its finding that the State

had not opened the door, the error was harmless in light of Julia’s testimony against appellant.

Accordingly, we affirm.

       Affirmed.

       GLADWIN, C.J., and ABRAMSON, J., agree.

       James Law Firm, by: James O. “Bill” James, Jr., for appellant.

       Leslie Rutledge, Att’y Gen., by: Ashley Priest, Ass’t Att’y Gen., for appellee.




       10
            Sizemore v. State, 2015 Ark. App. 295, 462 S.W.3d 364.

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