                                Cite as 2013 Ark. App. 568


                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                     No. CR-13-144



                                                Opinion Delivered   October 9, 2013

                            APPEAL FROM THE BOONE
 JON AARON SHATWELL         COUNTY CIRCUIT COURT
                  APPELLANT [NO. CR-12-95-4]

 V.                                             HONORABLE GORDON WEBB
                                                JUDGE
 STATE OF ARKANSAS
                                 APPELLEE AFFIRMED


                          BRANDON J. HARRISON, Judge

       Savanna Dickinson’s life ended on a mid-November night in 2011.                Harrison

police officers responded to a call that Savanna had taken her own life in an apartment she

shared with Jon Shatwell. With the help of the fire department, police officers entered the

locked apartment. They found Savanna, alone, slumped on a couch by the front door.

Her face and head were encased in blood. She was dead. A .45-caliber (1911 style) semi-

automatic pistol lay near her right hand.

       Savanna had been shot between her eyes. There was a live round of ammunition

on the living-room floor and a spent casing next to the coffee table by the couch. Law

enforcement secured the scene and began investigating Savanna’s death.

       Shatwell became a person of interest because he and Savanna had fought at a party

earlier the same evening over a personal matter. Not long after Savanna’s death, Shatwell

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appeared at his mother’s house; he had blood on his jacket, hands, and face. He told his

mother that Savanna had shot herself in the head, so his mother called the police to report

what happened. Shatwell gave a voluntary statement to the police shortly after his mother

called them. According to Shatwell’s first account to police, he found Savanna in the

living room holding a gun and, despite his efforts to dissuade her, she shot herself.

Shatwell said that he remained with Savanna, holding her for about ten minutes before

going to his mother’s house.     He told the suicide story to family and friends from

November 2011 until April 2012, when the police interviewed him a second time; that’s

when a different story about the cause of Savanna’s death emerged.

       In his second interview, the police confronted Shatwell with forensic evidence and

told him that they believed suicide was an unlikely cause of Savanna’s death. Shatwell

then told the police that he had accidently shot Savanna.         The State of Arkansas

subsequently charged Shatwell with committing murder in the first degree, tampering

with physical evidence, and using a firearm while committing a felony (sentencing

enhancement). In October 2012 he was tried before a Boone County jury.

       The jury convicted Shatwell of purposefully killing Savanna. It also found that

Shatwell had used a firearm while committing a felony and tampered with evidence. The

circuit court sentenced Shatwell to a total of 672 months’ (56 years) imprisonment in the

Arkansas Department of Correction. Shatwell appealed his conviction and here argues the

following points:

    The circuit court abused its discretion by denying a motion for a mistrial after his
     former girlfriend, Melissa Weaver, testified that he physically abused her.


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    The circuit court erred when it denied his motion in limine to exclude evidence of
     prior bad acts under Ark. R. Evid. 404(b) because Weaver testified improperly that
     he had threatened her with the same gun he used to kill Savanna Dickinson, and
     her testimony was solely offered to show that he would use gun violence against a
     subsequent girlfriend.

    The circuit court erred by concluding that the probative value of Weaver’s
     gun-related testimony outweighed its prejudicial effect.

    The circuit court should have granted Shatwell’s motion for a directed
     verdict on the first-degree murder charge.

    The circuit court should have granted Shatwell’s motion for a directed
     verdict on the tampering charge.

       We treat motions for directed verdict as challenges to the sufficiency of the

evidence.   Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005).          Shatwell’s two

insufficient-evidence arguments come first.      Boldin v. State, 373 Ark. 295, 297, 283

S.W.3d 565, 567 (2008).

                            I. The First-Degree Murder Conviction

       Shatwell committed first-degree murder if, with a purpose of causing Savanna’s

death, he caused Savanna’s death. Ark. Code Ann. § 5-10-102(a)(2) (Repl. 2006). In

reviewing Shatwell’s challenge to the sufficiency of the State’s evidence, we ask whether

the verdict is supported by substantial evidence; it does not matter whether the evidence is

direct, circumstantial, or some combination of the two. Dunn v. State, 371 Ark. 140, 264

S.W.3d 504 (2007). For circumstantial evidence to be substantial, the evidence must

exclude every reasonable hypothesis other than the accused’s guilt. The jury gets to

decide whether the circumstantial evidence excludes every hypothesis consistent with

innocence. Substantial evidence forces or compels a conclusion one way or the other so


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that the jury does not have to speculate to reach a decision. We will not overturn its

determination unless the verdict required speculation and conjecture.       The jury also

weighs the evidence and judges witness credibility. Id.

       A criminal defendant’s state of mind is seldom capable of proof by direct evidence

and must usually be inferred from the circumstances of the crime. Leaks v. State, 345 Ark.

182, 45 S.W.3d 363 (2001). The existence of criminal intent or purpose is a matter for

the jury to determine when criminal intent may be reasonably inferred from the evidence.

McClard v. State, 2012 Ark. App. 573.

       In his directed-verdict motions, Shatwell argued that the State failed to prove that

he acted with the intent to purposely cause Savanna’s death. Shatwell was alone in his

apartment with Savanna the same night that the two had argued and Savanna was shot.

Shatwell admitted at trial that he was holding a loaded .45—with his finger on the

trigger—when the gun fired. Detective Schaeffer testified that a safety release had to be

disengaged at the same time the trigger was pulled for the gun to fire. The spray of

gunpowder across Savanna’s forehead indicated a close-range shooting.          The State’s

forensic expert, Adam Craig, said the gun was three feet or less from Savanna’s forehead

when it discharged. Craig also said that the bullet’s path through Savanna’s head was

“suspicious” and “atypical for a suicide.” Detective Schaefer told the jury how the blood

patterns on the gun, and swiping patterns on Savanna’s body, did not match Shatwell’s

suicide story. Shatwell’s fingerprints were on the gun’s magazine.

       Shatwell also changed his story about what happened inside the apartment the night

Savanna died. The jury could properly consider Shatwell’s vacillating stories as proof of a

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purposeful mental state. Leaks v. State, 345 Ark. 182, 186, 45 S.W.3d 363, 366 (2001).

The jury could also infer Shatwell’s intent from the circumstances surrounding the

shooting. See Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999) (the natural and

probable consequence of putting a pistol against another person’s neck and firing the gun

is the death of the victim); Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996) (gun

fired at close range to victim’s head can be substantial evidence of defendant’s purposeful

intent). The jury was ultimately allowed to accept or reject Shatwell’s story that he

accidentally killed Savanna. See Williamson v. State, 2013 Ark. 347, at 6.

       The jury also heard testimony from a woman who had dated Shatwell before he

reunited with Savanna. Her name is Melissa Weaver, and she testified that, about one

month before Savanna died, she had broken up with Shatwell. But before she did so, he

had held a gun to her forehead and threatened her. Weaver’s testimony, which we discuss

in more detail below, is additional evidence that the jury heard when judging Shatwell’s

accidental-shooting story.

       The jury’s guilty verdict on the first-degree murder charge was based on substantial

evidence. We affirm it.

                          II. The Tampering-with-Evidence Conviction

       Arkansas Code Annotated section 5-53-111(a) (Repl. 2005) provides that

              [a] person commits the offense of tampering with physical evidence if
       he or she alters, destroys, suppresses, removes, or conceals any record,
       document, or thing with the purpose of impairing its verity, legibility, or
       availability in any official proceeding or investigation.

Shatwell argues that the State did not prove that he altered or removed anything from the

crime scene with the purpose of impairing the investigation.           The same standard-of-
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review points we applied to Shatwell’s challenge of his murder conviction apply here. We

also reach the same result:       the jury’s conviction on this charge was supported by

substantial evidence, so it is affirmed.

       This court and our supreme court have interpreted section 5-53-111(a) in cases

where a defendant removes or conceals a murder weapon. Puckett v. State, 328 Ark. 355,

358, 944 S.W.2d 111, 113 (1997); Scott v. State, 1 Ark. App. 207, 210, 614 S.W.2d 239,

241 (1981). Here, there was no evidence that Shatwell totally removed the gun from a

crime scene or concealed its presence from potential investigators. But having read the

plain words of the statute—and being mindful that criminal statutes must be construed

narrowly in favor of a defendant—we hold that the State produced substantial evidence

that Shatwell altered the position of Savanna’s body and the murder weapon with the

purpose of impairing the Harrison Police Department’s investigation into Savanna’s death.

Puckett, 328 Ark. at 358, 944 S.W.2d at 113.

       Shatwell told investigators that Savanna had fallen on the floor after she shot herself

and that he picked her up and placed her on the couch. Based on the placement of

Savanna’s body and the location of the gun beside her, Detective Schaefer told the jury

that he thought Shatwell manipulated the crime scene to make it look like Savanna had

committed suicide. The detective said specifically that Savanna’s body had been moved at

least 5 to 12 inches from where it lay originally. The State also presented evidence that

the blood-swiping patterns on Savanna’s head and arms indicated that she was found in a

different position from where she was shot.

       We affirm Shatwell’s conviction under section 5-53-111(a).

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                                 III. Prior Bad-Acts Evidence

       We collapse Shatwell’s first three points on appeal into this question: did the

circuit court abuse its discretion and prejudice Shatwell’s case by admitting Melissa

Weaver’s testimony? Some background is needed to understand the related points that

touch on why we hold that the jury did not receive inadmissible and prejudicial bad-acts

evidence about how Shatwell treated Weaver, a former girlfriend.

       Shatwell filed a pretrial motion in limine asking the court to exclude evidence of

prior bad acts, including “threats with the use of a gun both to the victim and other

persons.” Weaver testified at the second pretrial hearing on Shatwell’s motion. She told

the court about her volatile relationship with Shatwell and how he had threatened her

with his gun on more than one occasion. She also said that Shatwell’s abuse permanently

damaged her neck.

       Weaver detailed several gun-related incidents with Shatwell. Weaver also provided

a detailed description of the same gun that Shatwell admitted getting from his grandfather

and with which he claimed to have accidentally shot Savanna. Weaver told the circuit

court that, on one night, Shatwell forced her to her knees and placed his gun to the back

of her head. Another time Shatwell became upset while they were watching a movie and

fired the gun while inside the bedroom. He later apologized, claiming an accidental

discharge. On cross-examination, Weaver said that she did not know if it was an accident

but that is what she told the police.

       According to Weaver, another gun-related incident occurred within two months

of Savanna’s death, after Weaver and Shatwell had argued for hours.        The fight got

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“physical,” Weaver testified, and Shatwell told her to get on her knees; he then stood

directly in front of her and put his gun to her forehead. Weaver testified that she was

scared but looked Shatwell in the eyes and said, “They’re going to know you did this.”

He then reportedly said, “You have so many problems [that] they’re going to think it’s a

suicide.” Shatwell then set the gun down, according to Weaver, and she quickly hid it

from him.

       Shatwell argued to the circuit court that Weaver’s testimony was impermissible

character evidence meant only to portray him as a “bad person” and that “he is supposed

to be tried on the merits of this case, not for allegedly bad stuff that happened in the past.”

He contended that the incidents Weaver described—and the physical evidence at the

crime scene—were too dissimilar, so Weaver’s testimony was irrelevant. The State argued

that the past incidents with Weaver were independently relevant to show that Savanna’s

death was not an accident or mistake and that the past acts tended to prove Shatwell’s

criminal intent.

       The court seems to have orally granted in part and denied in part Shatwell’s motion

to exclude Weaver’s testimony. The court’s ruling was not crystal clear, but the record as

a whole shows that the parties understood that Weaver could testify about how Shatwell

had threatened her with his gun during their relationship; but she could not testify about

other physical abuse. The court also issued posttrial written orders denying Shatwell’s

motion in limine and memorializing its oral ruling. We have not considered those orders

because they were filed after the jury returned its verdict, meaning the parties did not have




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the benefit of the written orders on the limine issue before the jury decided the case, just

the oral rulings.

       After the trial began, but before Weaver told the jury her story, Shatwell again

objected to her testimony, citing Ark. R. Evid. 404(b) and 403. The court permitted

Weaver to testify. After establishing that Weaver had a past romantic relationship with

Shatwell, and in the jury’s presence, the prosecuting attorney asked the following

questions on direct examination:

       PROSECUTOR:          And when [was] your relationship terminated?

       WEAVER:              It was—it was October?

       PROSECUTOR:          Okay, of 2011?

       WEAVER:              Yes, ma’am.

       PROSECUTOR:          So about a month before Savanna was killed?

       WEAVER:              Yes, ma’am[.]

       PROSECUTOR:          Describe your relationship with Jon, was it a good
                            relationship, bad, tell the Court and the jury about that?

       WEAVER:              The relationship—just the relationship standings.

       PROSECUTOR:          Yes?

       WEAVER:              It was good. There was a lot of—there wasn’t any problems
                            at all in the beginning. And then the exact opposite when the
                            conditions on a regular basis until the end of—

       PROSECUTOR:          All right. Tell the jury what you mean by things toward the
                            end getting bad?

       WEAVER:              They started to become bad. It started with a lot of different
                            variations of physical abuse.

       DEFENSE:             Your Honor, may we approach?
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       COURT:                You may.

       DEFENSE:              Your honor at this point in time, I’m going to ask for a
                             mistrial because she is going into exactly what I filed the
                             motion in limine about, about the prior bad acts. This Court
                             ruled that she was not supposed to be talking about any acts of
                             violence other than this deal with the gun. Now she is saying
                             there was physical abuse.

       PROSECUTOR:           I can ask her to define that, Your Honor?

       COURT:                I think—I think all she said was verbal abuse, the Court is
                             going to allow that. That’s not a prior bad act under the law.
                             The Court’s finding—

       DEFENSE:              I just want to make sure—

       COURT:                I understand what you’re saying. You know, I am assuming
                             the State has cautioned the witness about what can be talked
                             about, so that’s what we’re going to—

       DEFENSE:              Thank you, Your Honor.

       The remainder of Weaver’s trial testimony mirrored that which she gave the court

during the pretrial hearing on Shatwell’s motion in limine. Weaver did not subsequently

mention physical abuse beyond the gun-related incidents.

       Shatwell argues here that the court erred by denying his motion for mistrial and

allowing the State to present reputation and other bad-acts evidence. He specifically

argues that Weaver’s testimony was so prejudicial that a new trial is due. The State argues

that Shatwell failed to preserve his arguments on appeal, or alternatively, that the court did

not abuse its discretion in admitting the testimony because any prejudice to Shatwell did

not substantially outweigh the probative value of Weaver’s testimony, which was to help

establish the required mental state.



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      We review the admissibility of Weaver’s testimony under an abuse-of-discretion

standard. Flanery v. State, 362 Ark. 311, 314, 208 S.W.3d 187, 189 (2005). The circuit

court also has wide discretion in granting or denying a motion for mistrial, and absent an

abuse of that discretion, the court’s decision will not be overturned on appeal. Smith v.

State, 354 Ark. 226, 243, 118 S.W.3d 542, 552 (2003).

      Character evidence is not admissible during the State’s case in chief if its only

purpose is to suggest that a defendant is more likely to have committed the charged crime.

Ark. R. Evid. 404(b) (2012). But a defendant’s prior bad conduct is admissible evidence

if it tends to establish a specific point related to the current charge. Id. The “something

specific” may include—but is not necessarily limited to—motive, intent, absence of

mistake, identity, or common plan. Id. If the prior bad act is independently relevant then

the State may use it as part of its case. Vance v. State, 2011 Ark. 243, at 8, 383 S.W.3d

325, 339–40. For example, any circumstance that links a defendant to the crime, or raises

a possible motive for the crime, is independently relevant and admissible under Rule

404(b). Id.

      But a 404(b) analysis is only half the process. Even if evidence of other crimes or

bad acts is admissible under Rule 404(b), the court must then, under Rule 403, weigh the

evidence’s probative value against its prejudicial effect. Considerable leeway is given to

the circuit courts when determining if the circumstances of prior acts or crimes, and the

crimes at hand, are sufficiently similar to admit them under Rules 404(b) and 403.

      Weaver testified that Shatwell told her, “You have so many problems, they’re

going to think it’s a suicide.” She accurately described the gun that was used in the

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murder, which Shatwell possessed, and recounted an incident where he put that same gun

to her forehead. Weaver’s testimony was relevant and probative to Shatwell’s murder,

tampering, and firearm charges because it concerned his defense that the shooting was

accidental.

       The most recent gun incident between Weaver and Shatwell occurred a month or

two before Savanna’s death. The close proximity of time between the Shatwell/Weaver

incident and Savanna’s death also weighs in favor of admissibility. See Smith v. State, 90

Ark. App. 261, 268, 205 S.W.3d 173, 178 (2005). Weaver’s testimony is also sufficiently

probative because it has a tendency to reveal Shatwell’s mental state when agitated with or

by a girlfriend—that he might intentionally point a loaded pistol at or near a girlfriend and

threaten to fire it. That Shatwell was arguably familiar with the gun, had placed it to a

previous girlfriend’s forehead under similar circumstances as this case presented and not

fired it, was highly relevant to the State’s effort to prove that Savanna was purposely, not

accidentally, shot. See Stevenson v. State, 2013 Ark. 100, at 12. Simply put, the prior acts

admitted in this case were similar enough to the current alleged unlawful conduct to be

admitted under 404(b) and 403.

       Shatwell relies heavily on Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006) for

reversal on this point. There, our supreme court reversed a murder conviction in a death-

penalty case and remanded for a new trial because of bad-act testimony that was

erroneously admitted. The bad-act testimony portrayed the defendant as a “controlling

abusive father.” Id. at 492–501, 231 S.W.3d at 650–56. The supreme court found that

the testimony was related to the defendant’s credibility but was not independently relevant

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to whether he murdered his neighbors. Id. at 497, 231 S.W.3d at 653. Unlike the

testimony in Green, Weaver’s testimony was independently relevant to two material issues

in the case: Shatwell’s mental state and whether an accidental shooting had occurred.

       The circuit court did not abuse its discretion in denying Shatwell the drastic

remedy of a mistrial just because Weaver said the words “physical abuse” when testifying

at trial. The State argues that Shatwell’s mistrial motion is not preserved because he failed

to tell the court that it had misunderstood Weaver’s testimony and because Shatwell failed

to request an admonition to the jury regarding physical abuse. That argument does not

square with the caselaw in point; Shatwell properly preserved his argument that Weaver

crossed the line to his legal detriment. See Russell v. State, 2013 Ark. 369, at 7 (a specific

motion is required); Anderson v. State, 357 Ark. 180, 213, 163 S.W.3d 333, 353 (2004)

(defendant must obtain a ruling from the circuit court on a mistrial motion when it

appeared that the circuit court’s previous in limine ruling favoring the defendant was

violated by the State).

       We agree that the circuit court misspoke when it said that Weaver mentioned

“verbal abuse” while testifying before the jury. Weaver did say “physical abuse.” But no

reversible error occurred during the court’s handling of Weaver’s trial testimony. Weaver

never testified about specific acts of violence that were unrelated to the gun. And as soon

as she mentioned the words physical abuse, Shatwell’s lawyer, alert to the problem,

objected. Weaver did not subsequently speak of inadmissible past physical abuse after the

court’s bench conference. Shatwell has not demonstrated “an error so prejudicial that

justice could not be served by continuing the trial, or that the fundamental fairness of the

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trial itself has been manifestly affected.” Tate v. State, 367 Ark. 576, 580–81, 242 S.W.3d

254, 259 (2006).

       We affirm Shatwell’s convictions in all respects.

       Affirmed.

       WYNNE and BROWN, JJ., agree.

       Rebekah J. Kennedy, for appellant.

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




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