                                  Cite as 2016 Ark. App. 507

                 ARKANSAS COURT OF APPEALS
                                        DIVISION I
                                       No. CR-15-866


                                                   Opinion Delivered   October 26, 2016

HENRY WILLIAMS                                     APPEAL FROM THE PULASKI
                              APPELLANT            COUNTY CIRCUIT COURT,
                                                   SEVENTH DIVISION
V.                                                 [NO. 60CR-14-961]

STATE OF ARKANSAS                                  HONORABLE BARRY ALAN SIMS,
                              APPELLEE             JUDGE

                                                   REVERSED AND REMANDED



                                CLIFF HOOFMAN, Judge


       Appellant Henry Williams appeals after he was convicted by a Pulaski County Circuit

Court jury of first-degree battery in connection with the shooting of Jacent Winston. On

appeal, appellant contends that (1) the trial court abused its discretion when it allowed prior

bad-acts evidence that was not independently relevant and was unduly prejudicial and (2) the

trial court abused its discretion when it denied appellant’s motion for a mistrial. This appeal

returns to our court after we ordered appellant to provide a supplemental addendum to

include the jury-verdict forms. See Williams v. State, 2016 Ark. App. 261. We hold that the

trial court abused its discretion in its evidentiary ruling and reverse and remand on that basis.

       Appellant was charged by information with battery in the first degree, possession of
                                 Cite as 2016 Ark. App.507

firearms by certain persons,1 a firearm enhancement, and a child enhancement. Prior to trial,

appellant filed a motion in limine to exclude any references to a separate alleged criminal

incident that was used by law enforcement in developing him as a suspect. At the pretrial

hearing, Detective Jarrod McCauley testified that he investigated the shooting of Jacent

Winston that occurred on February 22, 2014. He explained that appellant was developed as

a suspect after law enforcement received a separate call from appellant’s alleged ex-girlfriend,

Cassandra Thomas, stating that appellant had assaulted her. Thomas’s description of appellant

and his clothing matched the description of the alleged shooter, and the alleged assault

occurred approximately a block away from the shooting and was reported only minutes later.

After appellant’s counsel argued that evidence regarding his alleged assault of Thomas should

be excluded under Arkansas Rule of Evidence 404(b) and because the probative value was

outweighed by the danger of undue prejudice, the trial court stated that it would “consider

it” and that “I don’t understand how I could keep that out[.]”

       Defense counsel renewed his motion immediately prior to trial, and the trial court

stated that it would stand by its prior ruling. During opening statements, defense counsel

objected again that this separately reported crime was not admissible. The State responded

that this information was relevant on the issue of how appellant was developed as a suspect.

The trial court overruled the objection.

       At the jury trial, Jacent Winston testified that appellant approached him while he was



       1
           The possession-of-firearms-by-certain-persons charge was subsequently nolle
prossed.

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washing his truck in front of his home. His girlfriend and several children were at the home

celebrating one child’s birthday. Winston stated that appellant pointed a gun at him and told

him to “get broke.” Winston explained that he slapped the gun away and ran between his

truck and the boat in his yard. Appellant shot Winston in the legs. Winston said that

appellant tried to shoot him in the head but that appellant’s gun either jammed or was out of

bullets. The children ran toward Winston, who was on the ground, and appellant proceeded

to walk away from the scene. Winston had identified appellant in a photographic lineup

presented to him prior to trial, and Winston reaffirmed in open court that appellant was the

man who shot him.

       Lenya Harmon, Winston’s neighbor, and Mary Holmes, Winston’s girlfriend, both

testified that they heard the gunshots. Harmon said that she ran outside after she heard the

shots, saw Winston on the ground, and called 911; she observed a bald, light-skinned person

wearing all red walking away from the scene. Holmes testified that she ran to a window from

inside Winston’s home after she heard multiple gunshots and saw appellant pointing a gun

toward the ground. The State asked Holmes to describe what the man was wearing, to which

she replied, “He looked like a gangster. He had on all red.” Defense counsel objected and

moved for a mistrial based on her description of the assailant as a gangster. The trial court

denied the motion for mistrial but instructed the jury to disregard the statement.

       Detective McCauley testified at trial that he spoke with the victim after responding to

the scene and that Winston described the shooter as a light-skinned black male with a shaved

head, wearing all red. McCauley stated that he made contact with Cassandra Thomas, which


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drew a hearsay and relevancy objection. The State responded that this was not to prove the

truth of the matter but to show how appellant became a suspect. After the trial court

overruled the objection, McCauley continued his testimony:

       Yes, I responded to 700 West Markham to our police headquarters. I made contact
       with a Cassandra Thomas. She advised me that she had just been in an altercation
       with her boyfriend, a Henry Williams, Jr. Ms. Thomas stated that she had been
       assaulted at the address of 3319 Short Springs in Little Rock, Arkansas. She had
       multiple injuries to her face, split lip, things of that nature. She had stated that during
       the altercation, her boyfriend or ex-boyfriend had choked her around the neck and
       threatened her and also had - -

Defense counsel approached the bench for another objection, stating, “Your Honor, we think

this is - - this is far afield. It’s 404(b). It’s an act that has nothing to do with this incident.”

The prosecutor offered to “skip over the details,” but defense counsel stated that it was too

late and that the State had “already got into the fact that she was supposedly bruised and all

those sorts of things, and this is a battery case.” The trial court ruled that it would allow what

had been said but that the State should move on with its questions.

       Detective McCauley indicated that Thomas provided a description of appellant that

matched the description provided by Winston, and there was close proximity in time and

space between these incidents. Therefore, Detective McCauley developed appellant as his

suspect. McCauley created a photo lineup, and Winston identified appellant as the shooter.

       Appellant testified at trial, and his version of events vastly contradicted that of

Winston’s version. Appellant did not deny that he spoke with Winston that day. However,

he denied that he took out a gun and threatened Winston. Appellant testified that Winston

initiated a conversation with him about someone trying to steal Winston’s boat motor.


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Appellant further testified that Winston pulled out a gun, that he tried to grab it away, and

that the gun discharged as they “tussled for the gun.” He also denied knowing Thomas or

that she was ever his girlfriend.

       After renewals and denials of prior defense motions, the jury was instructed on the law

and retired to deliberate. The jury found appellant guilty of battery in the first degree. This

timely appeal followed.

       Appellant first argues that the trial court abused its discretion when it allowed prior

bad-acts evidence that was not independently relevant and that was unduly prejudicial.

Appellant specifically argues that Detective McCauley’s testimony regarding the information

that he obtained from Thomas was hearsay and that it was immaterial how appellant was

developed as a suspect. Furthermore, he argues that the testimony that he had “choked his

girlfriend, caused several injuries to her face, threatened her[,] and split her lip” mandates

reversal under Arkansas Rules of Evidence 404(b) and 403 because the evidence was

introduced to show that he was a bad person, was irrelevant, and was unfairly prejudicial.

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

court. Rounsaville v. State, 374 Ark. 356, 288 S.W.3d 213 (2008). Evidence offered by the

State in a criminal trial is likely to be prejudicial to the defendant to some degree, otherwise

it would not be offered. Id. Nevertheless, the evidence should not be excluded under Rule

403 unless the defendant can show that the evidence lacks probative value in view of the risk

of unfair prejudice. Decay v. State, 2009 Ark. 566, at 9, 352 S.W.3d 319, 327.

       We disagree with appellant that this testimony constituted inadmissible hearsay. An


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out-of-court statement is not hearsay if it is offered to show the basis of action. Martin v. State,

316 Ark. 715, 875 S.W.2d 81 (1994). Here, Detective McCauley’s testimony was admissible

to the extent that it explained what prompted his investigation of appellant, given the timing

and proximity to this crime as well as the matching physical description of the perpetrator.

McCauley’s testimony was not for the truth of those matters asserted.

       We now turn to appellant’s Rules 404(b) and 403 arguments. Rule 404(b) provides

that “[e]vidence 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. It may, however, be

admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” However, even if evidence is

relevant under Rule 404(b), Arkansas Rule of Evidence 403 provides that “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, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.” The State is not entitled to introduce

evidence of other offenses to persuade the jury that the accused is a criminal and likely to

commit the crimes he has been charged with. Green v. State, 365 Ark. 478, 231 S.W.3d 638

(2006). Specifically, proof of other crimes is never admitted when its only relevancy is to

show that appellant is a man of bad character and addicted to crime. Id. In dealing with

issues relating to the admission of evidence pursuant to Rule 404(b), a trial court’s ruling is

entitled to great weight, and this court will not reverse absent an abuse of discretion. Id.

       Here, Detective McCauley’s testimony that Thomas reported that appellant was


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involved in an altercation with her in the near vicinity of the shooting and that appellant

matched the description of the alleged shooter was independently relevant to prove

opportunity and identity and was thus admissible under 404(b). The trial court did not abuse

its discretion in its preliminary ruling that this particular evidence would be admissible.

However, appellant properly objected at trial to the specifics of the altercation, which included

Detective McCauley’s testimony that Thomas also reported that appellant had choked her,

caused several injuries to her face, threatened her, and split her lip. Appellant argues on appeal

as he did before the trial court that this evidence went too far, was prejudicial, and was

introduced to show that he was a bad person. We agree. The specifics of Thomas’s injuries

had little to no probative value in proving appellant committed first-degree battery in a

separate incident, and it certainly was substantially outweighed by the danger of unfair

prejudice. See Green, supra. Accordingly, we hold that the trial court abused its discretion in

allowing the State to introduce evidence regarding Thomas’s detailed allegations because this

was unfairly prejudicial.

       Even if a trial court errs in admitting evidence, when the evidence of guilt is

overwhelming and the error is slight, we can declare that the error was harmless and affirm

the conviction. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264; Barrett v. State, 354 Ark. 187,

119 S.W.3d 485 (2003). It cannot be said that evidence is overwhelming when this case

turned solely on the credibility of the victim versus the defendant. Compare Austin v. State,

2016 Ark. App. 194, 488 S.W.3d 555. The only witnesses as to who initially had the gun and

how it was discharged were the victim and appellant, and each presented a very different


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version of events. We cannot conclude that the detailed evidence regarding appellant’s

alleged attack on Thomas had no influence on the jury’s determination of who was telling the

truth in this first-degree battery case. Because credibility was critical to the jury’s resolution

of the conflicting stories, we reverse and remand for a new trial. See Purdie v. State, 2010 Ark.

App. 658, 379 S.W.3d 541.

       Appellant next argues that the trial court abused its discretion when it denied

appellant’s motion for a mistrial. Appellant specifically argues that Holmes’s testimony that

appellant “looked like a gangster” was not cured by the trial court’s instruction to the jury to

disregard the remark. Because this issue is not likely to arise on retrial, we do not address this

argument. Brooks v. State, 2014 Ark. App. 84.

       Appellant’s conviction is reversed and remanded for a new trial.

       Reversed and remanded.

       GLOVER and HIXSON, JJ., agree.

       Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.

       Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.




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