                                Cite as 2017 Ark. App. 273


                ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                      No. CR-16-863

                                              Opinion Delivered   May 3, 2017

MAURICE G. HOPKINS                            APPEAL FROM THE JEFFERSON
                                              COUNTY CIRCUIT COURT
                          APPELLANT           [NO. 35CR-14-105]
V.
                                              HONORABLE BERLIN C. JONES,
STATE OF ARKANSAS                             JUDGE

                             APPELLEE         REVERSED AND REMANDED


                            DAVID M. GLOVER, Judge

       Maurice Hopkins was tried by a jury, found guilty of the offense of sexual assault in

the second-degree, and sentenced to 150 months in the Arkansas Department of Correction.

In his appeal, he raises two major points, with several subpoints: 1) the trial court erred in

denying his introduction of the following evidence to demonstrate his accuser’s bias, motive,

interest, and credibility—(a) her alleged association with the Crips gang, (b) her failure to

cooperate with the prosecutor, and (c) her consultation with an attorney concerning a

possible civil suit; and 2) the trial court erroneously restricted Hopkins’s testimony in his

own defense. Finding error with the trial court’s exclusion of all evidence regarding the

alleged victim’s (E.A.) consultation with an attorney concerning a possible civil action, we

reverse and remand for a new trial.

       The sufficiency of the evidence is not challenged, so we recount the facts as they

pertain to the issues raised in this appeal and for overall context. Maurice Hopkins was a
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police officer with the Pine Bluff Police Department. He responded to a domestic-

disturbance call at an apartment complex on February 23, 2014. The domestic disturbance

was between Josephine Roberson and Emanuel Foster, and it has nothing to do with the

instant case other than to provide background for the events that followed.

       E.A. lived in a different building than Josephine and Emanuel but within the same

apartment complex. She testified that she knew Emanuel, and although she did not witness

the dispute between Josephine and him, she approached the responding police officers to

let them know Emanuel had issues that she believed were causing him to “act out.” She

recounted that Officer Hopkins asked her to get Emanuel some water, which she did, and

that she later contacted Emanuel’s mother, who came to the apartments in an effort to calm

him down.

       Josephine testified that Officer Hopkins returned to her apartment approximately

twenty minutes after Emanuel had been taken into police custody; that Hopkins asked her

where E.A. lived because he needed to get a statement from her; and that she pointed out

where E.A. lived and watched him go in that direction.

       For purposes of this opinion, it is sufficient to say E.A. and Hopkins both testified at

the trial and their accounts of what happened in E.A.’s apartment differ dramatically, with

E.A. describing a sexual assault and Hopkins testifying about a consensual sexual encounter.

                                      Standard of Review

       All of the points raised by Hopkins involve evidentiary rulings by the trial court.

Our standard of review for evidentiary rulings is that a trial court has broad discretion, and

we will not reverse an evidentiary ruling absent an abuse of discretion. Alley v. State, 2015


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Ark. App. 31. Abuse of discretion is a high threshold that does not simply require error in

the trial court’s decision but requires that the trial court act improvidently, thoughtlessly, or

without due consideration. Owens v. State, 2017 Ark. App. 109, ____ S.W.3d ____. In

addition, we will not reverse absent a showing of prejudice, as prejudice is not presumed.

Edison v. State, 2015 Ark. 376, 472 S.W.3d 474.

                                           Discussion

       As one of his arguments for reversal, Hopkins contends the trial court erred in

prohibiting him from introducing evidence that E.A. consulted with an attorney about a

possible civil suit against the City of Pine Bluff. It is with this issue that we find merit.

       The State filed a motion in limine prior to the trial of this matter, seeking to preclude

any cross-examination of E.A. regarding whether she had sought legal advice for a civil

action and intended to pursue one. At the hearing on the motion, the State recognized that

case law allows a witness in a criminal case to be cross-examined for bias when that witness

has filed a civil complaint, but distinguished the situation here from those cases by noting

that E.A. “has not filed any civil action in this matter.” The State explained the nature of

her consultation related to her right to privacy because her name had been disclosed initially

in the newspaper concerning this matter and that discussion with counsel then ensued about

the possibility of a civil suit. The State argued that the mere contemplation of a civil suit

should not serve as a basis for bias cross-examination. The trial court granted the State’s

motion.

       We begin this discussion by noting that Hopkins did not make a formal proffer of

the excluded evidence; however, we are able to address this evidentiary issue because the


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substance of the evidence is apparent from the context. See Pryor v. State, 71 Ark. App. 87,

27 S.W.3d 440 (2000). We have wrestled with this issue because it is undisputed E.A.

consulted with an attorney and that, among other issues, the possibility of a civil action was

discussed. Hopkins primarily relies upon Wilson v. State, 289 Ark. 141, 712 S.W.2d 654

(1986), in asserting trial error. In Wilson, our supreme court held that the trial court erred

in granting the State’s request for a mistrial when defense counsel asked a prosecuting witness

about a civil suit the witness had filed arising out of the alleged battery that was the subject

of the criminal case and “implied by one of his questions that, had appellant paid the

prosecuting witness $18,000, the criminal charges would have been dismissed.” Id. at 142,

712 S.W.2d at 654. In finding error, our supreme court stated, “This court has always held

that pecuniary interest, personal affection or hostility, a quarrel or prejudice may always be

shown to discredit a witness.” Wilson, 289 Ark. at 145, 712 S.W.2d at 655. It is possible to

distinguish Wilson from the instant case because, in Wilson, the witness had not only

consulted an attorney, he had also retained one and filed suit against the defendant. Here,

E.A. had merely consulted with an attorney about several issues, including a possible civil

suit, but she had not filed one.

       In Edison v. State, 2015 Ark. 376, at 5, 472 S.W.3d 474, 477, the witness “clearly

admitted that she had an attorney, who had been present when she was questioned by police,

and stated that she did not know if she planned to file a civil suit.” (Emphasis added.) However,

the witness had already testified about these things before the State raised an objection. The

issue before our supreme court in Edison, therefore, does not directly address the issue

presented here. That is, the Edison decision is limited to whether the trial court erred in


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refusing to allow the defendant to delve into further details in cross-examining the witness

because evidence she had consulted with an attorney about the possibility of filing a civil

action was already before the jury. Our supreme court affirmed the trial court’s ruling,

explaining

                Thomas clearly admitted that she had an attorney, who had been present
       when she was questioned by police, and stated that she did not know if she planned
       to file a civil suit. Merely because one is allowed wide latitude to inquire as to bias
       does not mean that one is permitted to do so without limit. To the contrary, once
       the main circumstances showing bias have been admitted, a circuit court does have
       the discretion to determine how far the examiner may delve into the details. See
       Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994). When the evidence reaches
       this posture, the circuit court may impose reasonable limits on cross-examination
       based on concerns about harassment, prejudice, waste of time, unnecessary
       duplication of testimony, confusion of issues, or interrogation that is repetitive or
       only marginally relevant. See Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70;
       Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). The circuit court’s discretion
       to limit these details will not be reversed absent a showing of abuse. See Billett, 317
       Ark. 346, 877 S.W.2d 913.

Edison, 2015 Ark. 376, at 5–6, 472 S.W.3d at 477.

       While Wilson and Edison can be distinguished from the situation presented here, we

have concluded that the distinctions would be superficial, and they would undercut the

basic premise explained in Wilson, that “pecuniary interest . . . may always be shown to

discredit a witness.” 289 Ark. at 145, 712 S.W.2d at 655. It is without question that if E.A.

should decide to pursue a civil action based on the events described in the instant case, a

pecuniary interest would be involved, and it is undisputed that she sought counsel about the

possibility of pursuing such an action. Yet, Hopkins was not allowed to inform the jury of

that fact. We conclude the trial court abused its discretion in excluding this information.

Witness credibility is a linchpin in cases such as this where the jury is essentially confronted

with a swearing match. The case turns entirely on whom the jury believes. The severity of

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the charges and the diametrically opposed accounts make witness credibility a critical

ingredient. Consequently, we cannot say the error was harmless. We therefore reverse and

remand for a new trial.

       Because we are reverse and remand this case for a new trial, it is unnecessary to

address the remaining issues raised by Hopkins.

       Reversed and remanded.

       VIRDEN and HARRISON, JJ., agree.

       Jeff Rosenzweig, for appellant.

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




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