Minor Child v. State of Arkansas

Cite as 2023 Ark. App. 592
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-23-185

Opinion Delivered December 13, 2023

MINOR CHILD APPEAL FROM THE POPE COUNTY
APPELLANT CIRCUIT COURT
[NO. 58JV-22-15]

V. HONORABLE KEN D. COKER, JR.,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

WENDY SCHOLTENS WOOD, Judge

Minor Child (MC) appeals the Pope County Circuit Court’s order adjudicating her

delinquent and committing her to the Division of Youth Services following a jury trial at

which she was found guilty of manslaughter. On appeal, MC argues that the circuit court

abused its discretion by (1) admitting testimony about her prior bad acts; (2) excluding

evidence of the victim’s abusive conduct that MC sought to introduce in support of her

justification defense; and (3) denying two motions for mistrial. We affirm.

On July 18, 2019, MC shot her father, Edward Arnold, in the chest with a 12-gauge

shotgun as he slept on a couch in the family’s living room. The shot went through Edward’s

heart, and he died within seconds. MC was fifteen years old at the time and was under

juvenile-court supervision in a Family in Need of Services (FINS) case that had been filed
by Edward and MC’s mother, Melinda. Less than three hours before the shooting, Edward

discovered MC in her parents’ bedroom smoking a cigarette and using a cell phone in

violation of house rules and the FINS order. By all accounts, Edward became angry, was

yelling at MC, and told her she was going back to juvenile detention or to another

treatment facility. MC was made to sleep on a pallet on the living room floor with her

parents sleeping nearby on couches. After both parents fell asleep, she went to her parents’

bedroom, got her father’s shotgun, and shot him as he slept.

Following the shooting, MC fled in Edward’s truck. Melinda called 911, and police

located MC a short time later in a school parking lot with her school friend and Mark

McQuade, an adult male whom MC was not supposed to contact. MC was arrested and

later gave a custodial statement to a Pope County deputy sheriff.

On August 19, the State charged MC as an adult1 with murder in the first degree2

and a firearm enhancement. MC’s attorney filed a juvenile-transfer motion, and the circuit

court held a hearing on November 18–19, 2021. Following the hearing, the court

transferred jurisdiction of the case to the juvenile division of circuit court for an extended-

1
Arkansas Code Annotated section 9-27-318(c)(2)(B) (Repl. 2015) authorizes the
State to charge a juvenile as an adult if she is at least fourteen years old when she engages
in conduct that, if committed by an adult, would be murder in the first degree under
Arkansas Code Annotated section 5-10-102.
2
A person commits murder in the first degree if with a purpose of causing the death
of another person, the person causes the death of another person. Ark. Code Ann. § 5-10-
102(a)(2) (Repl. 2013). A person acts purposely with respect to his or her conduct or a
result of his or her conduct when it is the person’s conscious object to engage in conduct
of that nature or to cause the result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013).

2
juvenile-jurisdiction adjudication pursuant to Arkansas Code Annotated section 9-27-505

(Repl. 2020). The case was scheduled for a jury trial, and MC gave notice that she intended

to present justification as a defense pursuant to Arkansas Code Annotated section 5-2-

607.3

A jury trial was held on September 20–22, 2022. The 911 operator, law

enforcement officers, MC’s probation officer, her school friend, a forensic pathologist,

MC, Melinda, a family friend, and MC’s pastor testified. At the conclusion of the evidence,

the jury was instructed on first-degree murder, statutory justification for the use of deadly

force, and the lesser offense of extreme-emotional-disturbance manslaughter.4 Following

deliberations, the jury returned a verdict finding MC guilty of manslaughter, and on

October 6, the circuit court entered an order adjudicating her delinquent and committed

her to the Division of Youth Services. It further ordered supervised probation for twenty-

four months after her release or until her twenty-first birthday and suspended imposition

of an adult sentence. This appeal followed.

3
Arkansas Code Annotated section 5-2-607 provides that “[a] person is justified in
using deadly physical force upon another person if the person reasonably believes that the
other person is . . . [i]mminently endangering the person’s life or imminently about to
victimize the person from the continuation of a pattern of domestic abuse.” Ark. Code
Ann. § 5-2-607(a)(3) (Repl. 2013).
4
A person commits manslaughter if “the person causes the death of another person
under circumstances that would be murder, except that he or she causes the death under
the influence of extreme emotional disturbance for which there is reasonable excuse.” Ark.
Code Ann. § 5-10-104(a)(1)(A) (Repl. 2013). The reasonableness of the excuse is
determined from the viewpoint of a person in the actor’s situation under the
circumstances as the actor believed them to be. Ark. Code Ann. § 5-10-104(a)(1)(B).

3
I. Evidence of Prior Bad Acts

For her first point on appeal, MC argues that the circuit court abused its discretion

by admitting evidence of her prior bad acts in violation of Rules 404(b) and 403 of the

Arkansas Rules of Evidence. Proof of other crimes, wrongs, or acts is not admissible merely

to prove the character of the defendant to show that he acted in conformity with it. Ark.

R. Evid. 404(a) (2022). Rule 404(b) provides that proof of other crimes, wrongs, or acts

may, however, be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Ark. R.

Evid. 404(b). The test for admissibility under Rule 404(b) is whether the evidence involving

the defendant’s character is independently relevant, meaning it tends to make the

existence of any fact that is of consequence to the determination of the action more

probable than it would be without the evidence. Atwood v. State, 2020 Ark. 283, at 16;

Swanigan v. State, 2019 Ark. App. 296, at 16, 577 S.W.3d 737, 748. Evidence may be

relevant in connection with other facts or if it forms a link in the chain of evidence

necessary to support a party’s contention. Swanigan, 2019 Ark. App. 296, at 16, 577

S.W.3d at 748.

The admission or rejection of evidence under Rule 404(b) of the Arkansas Rules of

Evidence is a matter left to the sound discretion of the circuit court and will not be

disturbed absent a manifest abuse of discretion. Huggins v. State, 2021 Ark. App. 218, at 4,

624 S.W.3d 342, 345. Further, although relevant evidence may be excluded under Rule

403 if its probative value is substantially outweighed by the danger of unfair prejudice,

4
confusion of the issues, or misleading the jury, the balancing mandated by Rule 403 is also

a matter left to a circuit court’s sound discretion. Weir v. State, 2023 Ark. App. 368, at 10,

675 S.W.3d 430, 437–38. This court will not reverse the circuit court’s ruling absent a

showing of manifest abuse. Id., 675 S.W.3d at 438. In addition, this court will not reverse

a ruling on the admission of evidence absent a showing of prejudice. Riggins v. State, 2021

Ark. App. 116, at 4, 619 S.W.3d 64, 66; Sipe v. State, 2012 Ark. App. 261, at 10, 404

S.W.3d 164, 170.

MC argues that the following evidence violates Rule 404(b): (1) the testimony of

Jaime Davis, MC’s probation officer in the FINS case, that MC’s family sought the court’s

assistance in the FINS case in part because she had been caught “sneaking a boy into the

home and having a sexual relationship with him” and had inappropriately used her cell

phone; (2) the testimony of two deputy sheriffs that there had been an ongoing problem

with MC contacting McQuade and allowing him into her home and that MC had run

away; and (3) the testimony of MC and her mother that MC had a sexual encounter with

McQuade and that her parents discovered him hiding in her bedroom closet one night,

that MC had used her phone to take pictures of herself nude and to send them to people,

that her parents were concerned and upset about her conduct, and that she had been

disciplined for it.

5
The foregoing testimony concerns facts that led Edward and Melinda to file the

FINS case seeking the court’s help in addressing MC’s misconduct. 5 The FINS order was

entered just three weeks before MC killed Edward, and as previously noted, MC’s smoking

and cell-phone use in violation of the order is what prompted the confrontation that

preceded the shooting. MC acknowledges that in a pretrial order, the circuit court ruled

that the State would be permitted to introduce evidence about her FINS case and her

relationship with McQuade as proof of her motive for killing her father. She does not

challenge this ruling and, in fact, conceded below that her conduct involving the use of

her phone and her involvement with McQuade was relevant to her motive. Further, MC

stipulated to the admissibility of the FINS order at trial.

On appeal, MC nevertheless contends that pursuant to Rule 404(b), the circuit

court should have excluded testimony that she had run away from home, used her cell

phone inappropriately, allowed an adult male—McQuade—into the home, and had a sexual

relationship with McQuade. She argues that this testimony was not independently relevant

to any issue in the case; instead, it portrayed “[MC] as a bad kid who killed the decedent

in conformity with her poor character as a homewrecker and sexually active teenager”—not

one who was justified in killing her father in his sleep because she feared imminent death

5
“Family in need of services” is defined as “any family whose juvenile evidences
behavior that includes, but is not limited to . . . [b]eing habitually disobedient to the
reasonable and lawful commands of his or her parent . . . or . . . [h]aving absented . . .
herself from the juvenile’s home without sufficient cause, permission, or justification[.]”
Ark. Code Ann. § 9-27-393(23)(B), (C) (Supp. 2021).

6
or victimization from a continued pattern of domestic abuse. She further asserts that, to

the extent the challenged testimony had any relevance, its probative value was grossly

outweighed by the dangers of unfair prejudice and confusion of the issues.

The State responds that the testimony in question was independently relevant to

the contested issues of MC’s motive and intent for the murder and to negate MC’s defense

of justification. More specifically, the State argues that the testimony supports its theory

that MC did not fear imminent physical danger from her father because he lay sleeping

when she shot him, but rather, she shot him because she was angry about his efforts to

correct her pattern of disobedient conduct and about the consequence of going back to

juvenile detention or a treatment facility for violating the FINS order.

Our courts have said that intent or state of mind is seldom capable of proof by

direct evidence and must usually be inferred from the circumstances surrounding the

killing. Gaines v. State, 340 Ark. 99, 111, 8 S.W.3d 547, 555 (2000). Where the purpose

of evidence is to disclose a motive for a killing, anything that might have influenced the

commission of the act may be shown. Id. at 108, 8 S.W.3d at 555. Evidence of

circumstances that explain the act, show a motive, or illustrate the accused’s state of mind

may be independently relevant and admissible. Id., 8 S.W.3d at 555.

Here, testimony about the serious nature and extent of MC’s high-risk misconduct

as an adolescent, which was not reflected in the FINS order itself, was relevant because it

tended to show—as a counterpoint to MC’s evidence of abuse—that Edward was a

concerned parent who sought the FINS order to help his daughter. It further was relevant

7
because it helped to explain Edward’s strong reaction to MC’s violation of the FINS order

on the night she killed him and to explain MC’s understanding of the seriousness of her

violation of the order and the likelihood that she would be confined again for treatment.

The evidence thus supported the State’s theory that MC did not kill her father because

she feared imminent death or the continuation of abuse. Accordingly, we hold that the

testimony concerning the nature of MC’s prior misconduct in relation to the FINS case

was relevant to the charge of murder under Rule 404(b).

The remaining question is whether, though relevant under Rule 404(b), the

challenged testimony was nevertheless inadmissible because its probative value was

substantially outweighed by the danger of unfair prejudice. 6 Proof that MC, as an

adolescent, snuck an adult male into her home and engaged in a sexual relationship with

him, sent inappropriate photos of herself to people, and ran away from home cast her in

an unfavorable light. Our courts have noted, however, that there is always some prejudice

that results from the mention of a prior bad act in front of the jury. Thompson v. State, 2019

Ark. 290, at 5, 586 S.W.3d 163, 166. The question under Rule 403 is whether the

testimony caused unfair prejudice. As we have already noted, the challenged testimony was

probative of the contested issue of MC’s motive. Further, the witnesses gave only limited

information about MC’s misconduct and did not provide unnecessary details. Under these

6
Although relevant, 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. Ark. R. Evid. 403 (2022).

8
circumstances, we cannot say that MC was unfairly prejudiced by the introduction of the

probative and relevant testimony concerning the nature of her prior bad acts underlying

the FINS case. Accordingly, we hold that the circuit court did not abuse its discretion by

admitting the testimony.

II. Exclusion of Evidence Relevant to MC’s Justification Defense

For her second point on appeal, MC argues that the circuit court abused its

discretion by excluding evidence relevant to her claim that she acted in self-defense when

she killed Edward. MC presents four separate arguments for reversal under this point.

A. Melinda’s Testimony About MC’s Posttraumatic Stress Disorder (PTSD)

In a pretrial motion, the State moved to exclude MC’s mother, Melinda, from

testifying that MC was diagnosed with PTSD because of abuse she experienced from

Edward. The State contended that Melinda was not qualified as a mental-health

professional to diagnose MC with PTSD or to discuss how PTSD affects MC. In response,

MC conceded that Melinda is not a trained medical professional. Yet, she argued that

pursuant to Rule 701 of the Arkansas Rules of Evidence, Melinda should be permitted to

testify, from her own observations and perception, that MC suffers from PTSD caused by

Edward.

At the pretrial hearing on the motion, the court found that under Rule 701,

Melinda would be permitted to testify about her observations and perceptions relevant to

Edward’s abuse of MC and its effects on MC, but it ruled that Melinda could not give the

lay opinion pursuant to Rule 701 that her observations and perceptions, led her to

9
conclude that MC suffered from PTSD. The court stated, “I don’t see the mother as being

qualified to give an opinion on a psychiatric diagnosis of PTSD.” On appeal, MC argues

that the circuit court abused its discretion in precluding Melinda from testifying that MC

was diagnosed with PTSD and the effect that PTSD has on her.

Opinion testimony by lay witnesses is allowed for observation of everyday

occurrences or matters within the common experience of most persons. Felty v. State, 306

Ark. 634, 640, 816 S.W.2d 872, 875 (1991). Our supreme court has stated that the

requirements of Rule 701 are satisfied if the opinion or inference is one that a lay person

would form on the basis of the observed facts, but if an opinion without the underlying

facts would be misleading, then an objection to it should be sustained. Vasquez v. State,

2022 Ark. App. 328, at 5, 652 S.W.3d 586, 589 (citing Moore v. State, 323 Ark. 529, 549,

915 S.W.2d 284, 295 (1996)). We review a circuit court’s decision to allow lay-opinion

testimony under Rule 701 for abuse of discretion. Vasquez, 2022 Ark. App. 328, at 5, 652

S.W.3d at 589.

Moreover, lay-witness testimony about a defendant’s mental condition relevant to

his or her culpable mental state at the time of the crime may be admissible under Rule

701. Brown v. State, 2016 Ark. App. 616, at 7–10, 509 S.W.3d 671, 675–77; Graham v.

State, 290 Ark. 107, at 110, 717 S.W.2d 203, 204 (1986). The rule provides that if the

witness is not testifying as an expert, her testimony in the form of opinions or inferences

is limited to those opinions or inferences that are rationally based on the perception of the

10
witness and helpful to a clear understanding of her testimony or the determination of a

fact in issue. Ark. R. Evid. 701.

Statements by eyewitnesses that a victim was “scared” and “trying to get away” fit

within the limitations imposed on lay witnesses under Rule 701. Vasquez, 2022 Ark. App.

328, at 6, 652 S.W.3d at 590. The same is true of statements by witnesses that a defendant

“goes to pieces” when under stress. Graham, 290 Ark. 107, at 110, 717 S.W.2d at 204.

Similarly, in the case at bar, Melinda was permitted to testify in detail pursuant to Rule

701 about the abuse MC suffered at the hands of Edward. 7 Melinda was also allowed to

testify about MC’s mental state during her confrontation with Edward in the hours before

and after the shooting. However, Vasquez and Graham do not support MC’s assertion that

Melinda should be permitted to offer a lay opinion that her observations of the abuse MC

had experienced led her to believe that MC developed PTSD or that Melinda should be

permitted to testify about “how [the PTSD diagnosis] affected [MC’s] mental state.”

Whether one has a psychological disorder because of her experience of trauma and

how a psychological diagnosis affects one’s mental state exceed the permissible limits of

lay-opinion testimony under Rule 701 because they are not inferences that a lay person

7
Melinda testified that Edward called MC derogatory names and hit her and choked
her. She described one incident in which Edward choked MC in connection with her use
of a cell phone and another incident in which he beat her with a belt when he found out
that her grandmother had provided her with cell-phone service, even though she was not
supposed to have a cell phone. She said he ”whipped” MC after McQuade was found in
her closet.

11
would form from the observed facts and are not within the common experience of most

people. Ark. R. Evid. 701. Such opinions require “scientific, technical, or other specialized

knowledge” that would bring such testimony within the scope of expert-witness testimony

under Arkansas Rule of Evidence 702.8 And MC conceded below that Melinda lacked

specialized medical training. Therefore, we hold that the circuit court did not abuse its

discretion in precluding Melinda from testifying that MC developed PTSD from Edward’s

abuse and how that diagnosis affected her mental state on the night of the shooting.9

B. Dr. Morais’s Expert Testimony About PTSD

MC argues that the circuit court erred by excluding the expert testimony of Dr.

Hugo Morais, a clinical psychologist who diagnosed MC with PTSD. At trial, the State

sought to preclude Dr. Morais’s testimony about the psychological effects of PTSD because

MC had not raised the affirmative defense that she lacked the mental capacity to form the

8
Rule 702 provides that “[i]f scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.” Ark. R. Evid. 702 (2022).

9
We acknowledge MC’s reliance on Graham, 290 Ark. at 110, 717 S.W.2d at 204;
Brown, 2016 Ark. App. 616, at 6, 509 S.W.3d at 675; and Arkansas Code Annotated
section 5-2-303 for the proposition that evidence that a defendant is suffering from a
mental disease or defect is admissible to prove whether the defendant had the kind of
culpable mental state required to commit a crime. MC argues that under these precedents,
Melinda should have been “allowed to testify using the language of [MC’s] diagnoses in
her testimony and how this affected her mental state.” This law is inapposite because on
appeal, MC argues that Melinda’s testimony about MC’s PTSD diagnosis and the effect
the diagnosis has on her is relevant to her justification defense—not to her culpable mental
state. And as set forth in more detail in section II.B., evidence of MC’s PTSD and its effects
is irrelevant to the justification defense.

12
necessary intent for first-degree murder. In response, defense counsel asserted that the law

permitted MC to introduce Dr. Morais’s expert testimony because it was relevant to the

issue of whether she acted with a purposeful mental state, regardless of whether she also

asserted a defense of mental incapacity, and counsel requested an instruction on

diminished capacity.

After further discussion, defense counsel changed course and said he was not

offering Dr. Morais’s testimony as it related to the issue of MC’s purposeful culpable

mental state for first-degree murder. He said that he was offering Dr. Morais’s testimony

to explain the reasonableness of MC’s belief under the justification statute that she was in

imminent danger of death or of being victimized by Edward as the result of a pattern of

domestic abuse. The State objected to the admissibility of the testimony on that basis

because expert testimony would not assist the jury in determining what a person would

think is reasonable under the justification statute.

The circuit court noted that under the justification jury instruction and statute, a

reasonable belief is one that an ordinary and prudent person would form under the

circumstances in question and not a belief formed recklessly or negligently. The court

stated, “So we’re looking at that old reasonable prudent man fellow. That’s the standard

here.” Under this standard, the court found that Dr. Morais’s testimony about how MC’s

PTSD affects her would not be of assistance to the jury in determining whether MC’s belief

of imminent physical danger was reasonable. The court sustained the State’s objection but

allowed MC to proffer Dr. Morais’s testimony.

13
Whether one is justified in using deadly force upon another person is generally a

factual question for the jury to decide. Brown, 2020 Ark. App. 198, at 5, 595 S.W.3d at

459. Expert testimony is admissible on the issue when it will aid the jury to understand

the evidence presented or to determine a fact in issue. Ark. R. Evid. 702; Harris v. State,

295 Ark. 456, 748 S.W.2d 666 (1988); see also Ark. R. Evid. 401 (defining “relevant

evidence”). We review rulings on the admissibility of expert testimony for an abuse of

discretion. Stewart v. State, 316 Ark. 153, 158, 870 S.W.2d 752, 755 (1994).

On appeal, MC argues that Dr. Morais’s testimony is admissible because it is

relevant to her justification defense—“to the objective reasonableness of her belief in the

need to use force” against Edward. She relies on Sharp v. State, 90 Ark. App. 81, 204

S.W.3d 68 (2005), where this court stated that expert testimony about a defendant’s

mental condition, even if it does not show mental disease or defect sufficient to constitute

an affirmative defense, may be admissible if it is relevant to the defendant’s culpable

mental state. Id. at 93, 204 S.W.3d at 76.

Sharp is not implicated here. As we have noted, MC expressly stated that she was

not offering Dr. Morais’s testimony to disprove her purposeful culpable mental state. She

proffered Dr. Morais’s testimony on the narrow issue of whether her belief that her life

was in imminent danger or that she was imminently about to be victimized in a

continuation of a pattern of domestic abuse was reasonable. If jurors find that a

defendant’s belief of imminent physical harm was reasonable and that she used only such

force as was reasonably necessary, the justification statute requires an acquittal even if the

14
defendant acted with a purposeful culpable mental state. See AMI Crim. 2d 705 (informing

jurors that they must find the defendant not guilty if they believe she held a reasonable

belief of imminent harm and used only such force as was reasonably necessary). Sharp’s

holding that expert testimony may be admissible to disprove the necessary culpable mental

state, therefore, does not inform the analysis of the narrow issue before this court.

As framed by MC, the issue presented revolves around the justification statute,

which provides: “A person is justified in using deadly physical force upon another person

if the person reasonably believes that the other person is . . .[i]mminently endangering the

person’s life or imminently about to victimize the person . . . from the continuation of a

pattern of domestic abuse.” Ark. Code Ann. § 5-2-607(a)(3); see also AMI Crim. 2d 705

cmt. __ (“‘Reasonably believes’ or ‘reasonable belief’ is defined in Ark. Code Ann. § 5-1-

102.”). Section 5-1-102 (Supp. 2019) defines “reasonably believes” or “reasonable belief”

as a belief (1) that an ordinary and prudent person would form under the circumstances

in question, and (2) not recklessly or negligently formed. Ark. Code Ann. § 5-1-102(18).

This court has emphasized that “the defendant’s belief must be objectively reasonable and

not arrived at via fault or carelessness.” Brown, 2020 Ark. App. 198, at 5, 595 S.W.3d at

460; Kauffeld v. State, 2017 Ark. App. 440, at 9, 528 S.W.3d 302, 309. Thus, under the

foregoing statutory framework, the reasonableness of MC’s belief that she was in imminent

harm that called for the use of deadly force is judged by an objective standard. And the

measure of her reasonableness is the belief that an ordinary and prudent person would

form under the circumstances in question.

15
In his proffered testimony, Dr. Morais said his PTSD diagnosis was based, in part,

on MC’s account of her experience of intense physical violence by her father and her

reported symptoms of nightmares and distressing memories of the abuse. Dr. Morais

testified that people with PTSD, including MC, may, due to cognitive distortion, interpret

a general stressor as life threatening and that such a stressor may trigger a reaction because

people with PTSD have a low threshold for activation of the fight-or-flight response.

It is not relevant that MC, because she suffers from PTSD, had a subjective belief

that she was in imminent danger of being victimized. Instead, the issue is whether a

reasonable person under the circumstances would have believed that she or he was in

imminent danger. Therefore, Dr. Morais’s testimony that MC has PTSD would not assist

the jury in determining whether her belief was objectively reasonable. In fact, such

testimony might confuse the jury by causing it to think that MC’s diagnosis should be

considered, despite the jury instruction—based on the justification statute—telling them

that the standard is that of an “ordinary and prudent person.” Accordingly, we cannot say

that the circuit court abused its discretion in excluding Dr. Morais’s testimony.

C. Recording of Melinda and Edward

Melinda recorded an argument between her and Edward four days before the

shooting. In the seven-minute recording, Edward is verbally abusive to Melinda, calling

her derogatory names and threatening to “knock her in the head.” In a pretrial hearing,

the circuit court considered the State’s motion to exclude the recording on grounds that

it was not relevant to MC’s defense and, alternatively, was unduly prejudicial. The State

16
noted that the recording had been made days before the shooting, that it did not concern

abuse of MC herself, and that Melinda had previously indicated that MC was not present

when the argument occurred. In response, MC asserted that the recording was relevant to

her justification defense to show a history of domestic abuse in the home that MC had

experienced or was aware of, and the probative value of the recording outweighed the risk

of unfair prejudice. The circuit court ruled that the recording was relevant to show a

pattern of domestic abuse, and it conditioned the admissibility of the recording on the

presentation of a proper foundation showing that MC had knowledge of the argument

before she killed Edward. At trial, the circuit court reconsidered its ruling and excluded

the recording after considering additional argument, including the State’s argument that

the language of the justification statute referring to “victimization from a continued

pattern of domestic abuse” means victimization of the defendant, not third parties.

On appeal, MC argues that the circuit court abused its discretion by excluding the

recording of Edward’s verbal abuse of Melinda. Citing Schnarr v. State, 2017 Ark. 10, at 7,

MC contends that the general rule that a victim’s prior acts of violence that are known to

a defendant may be probative of whether the defendant reasonably believed he was in

imminent physical danger to justify self-defense. She asserts that she proffered testimony

that she knew of the recorded argument and showed how it affected her state of mind at

the time of the shooting. She further contends that had the jury heard the recording, she

might have been acquitted.

17
Although MC asserts in her brief that she proffered testimony at trial showing that

she had knowledge of the recording, her citations to the record do not reflect that she did

so. Absent a record demonstrating a proper foundation for the introduction of the

recording, we cannot say the circuit court abused its discretion by excluding it. See Halfacre

v. State, 277 Ark. 168, 172, 639 S.W.2d 734, 736 (1982) (holding that absent knowledge

of a victim’s prior violent acts, they cannot have informed the defendant’s reasonable belief

of imminent harm and will be inadmissible). Further, we cannot say the circuit court

abused its discretion by restricting evidence of Edward’s prior bad acts to those directed at

MC, considering that the premise of her justification defense was that she had a reasonable

belief that she was imminently about to be victimized from a continuing pattern of

domestic abuse. To the extent that evidence of Edward’s abuse of third parties bore some

relevance to MC’s perception of imminent harm, the evidence risked jury confusion. Ark.

R. Evid. 403. And finally, we cannot say that the exclusion of the seven-minute recording

of Edward threatening Melinda was prejudicial because MC and Melinda testified not only

about disparaging comments Edward made to MC and derogatory names he called her,

but also about physical abuse he inflicted on both her—by hitting, slapping, choking,

whipping, and punching her—and on family pets in MC’s presence.10 Under the

10
MC testified that, when she was between seven and nine years old, her father
began to abuse her verbally and physically, usually when she would break the rules—like
talk back to him, smoke a cigarette, or have a phone. She said he would hit, slap, kick, or
choke her and estimated that he had done so about one hundred times over the span of
seven years. She described one incident in which, because she had used a cell phone, he
struck her with a belt on her bare skin twenty-five times until she had welts and bruises

18
circumstances, the seven-minute recording of verbal abuse would have added little to MC’s

first-person account of abuse inflicted directly on her by Edward. We will not reverse an

evidentiary ruling absent a showing of prejudice. Montgomery v. State, 2019 Ark. App. 376,

at 6, 586 S.W.3d 188, 194. Accordingly, we affirm the circuit court’s decision to exclude

the recording.

D. Exclusion of Other Third-Party Abuse

MC argues that the circuit court abused its discretion by excluding testimony about

Edward’s abuse of Melinda and two of MC’s older half siblings, Amber and Tyler, who left

the home more than a decade earlier when MC was no more than five years old. MC

argues that the court’s ruling limiting the admissible evidence of Edward’s abuse to that

which directly involved MC prevented her from informing the jury that Edward had

abused her siblings in “bizarre, cruel ways[.]” She cites Smith v. State, 273 Ark. 47, 616

S.W.2d 14 (1981), for the proposition that our supreme court “routinely reverses homicide

convictions when a trial court improperly restrict[s] presentation of a justification defense

by excluding prior violent acts of the decedent.” However, in Smith, the circuit court

and bled. She said that he would tell her she was worthless and selfish and call her
derogatory names (b**ch, dumb***, whore, f***ing idiot) almost every day, noting that he
had done so in front of their pastor to whom Edward had taken her for counseling about
her behavior. She said that Edward abused her mother and siblings and also her pets. She
described one incident in which her father had taped her cat’s feet together, threw the cat
on the roof, and would not help her get down. She also described an incident in which he
made her kill her dog by helping her pull the trigger after the dog had begun chasing their
chickens. When asked about a photograph in which she is posing next to a dead dog, she
said, “I thought that’s just what we did. We did that with deer and other kills like that.”

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improperly prohibited evidence of any prior altercations between the defendant and the

victims. Id. at 49, 616 S.W.2d at 15. Here, the circuit court did not prohibit any testimony

about the abuse that Edward inflicted on MC, which was the relevant issue in establishing

her justification defense.

Further, during her testimony, MC briefly mentioned that her father had abused

her mother and her siblings, although she did not provide any details of the abuse. The

jury, thus, had some awareness of Edward’s abuse of others. Finally, this court has held

that a circuit court does not abuse its discretion by placing temporal limitations on the

admission of evidence of a victim’s violent acts. Roberts v. State, 2018 Ark. App. 332, at 10,

552 S.W.3d 446, 451–52. Here, the abuse of MC’s siblings had occurred more than a

decade before the trial.

Under these circumstances, we cannot say that the circuit court abused its

discretion, nor can we say that MC suffered prejudice, considering the previously

mentioned testimony that was admitted without restriction regarding Edward’s abuse of

MC. We affirm the circuit court’s decision to exclude the evidence of abuse inflicted on

Melinda and MC’s half siblings.

III. Mistrials

For her last point on appeal, MC challenges the circuit court’s denial of two

motions for mistrial. A mistrial is an extreme remedy that will be granted only when there

has been an error so prejudicial that justice cannot be served by continuing the trial.

Anderson v. State, 2023 Ark. App. 397, at 7, 675 S.W.3d 453, 457. The circuit court is in a

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favorable position to evaluate potential prejudice, so this court defers to its discretion in

these matters. Id., 675 S.W.3d at 457. This court will not reverse the circuit court’s decision

in the absence of an abuse of discretion. Id., 675 S.W.3d at 457. The abuse-of-discretion

standard is a high threshold that does not simply require error in the circuit court’s

decision but requires that the circuit court act improvidently, thoughtlessly, or without

due consideration. Riggins, 2021 Ark. App. 116, at 4, 619 S.W.3d at 66; Brown v. State,

2019 Ark. App. 36, at 2, 568 S.W.3d 312, 313. In determining whether a circuit court

abused its discretion in denying a mistrial motion, our courts consider whether an

admonition to the jury could have cured any resulting prejudice. Thompson v. State, 2019

Ark. 290, at 4–5, 586 S.W.3d at 165.

A. MC’s Threat to Melinda

On cross-examination, the State asked MC if she had ever threatened to harm her

mother. MC’s counsel objected and moved for a mistrial, claiming that he had not asked

MC if she was a peaceful person; thus, the State was not permitted to impeach her

character for peacefulness. The State contended that it had wide latitude on cross-

examination and further noted that MC did not answer the question. The circuit court

denied the motion and directed the State to “move on.”

On appeal, MC argues that the circuit court abused its discretion by denying her

request for a mistrial when the State asked her if she had ever threatened her mother. She

contends that whether she had threatened her mother was irrelevant in her trial for

murdering her father, and the insinuation that she had done so was prejudicial. For

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reversal, she points to cases reversing denials of mistrial requests where State’s witnesses

testified to the defendants’ prior bad acts that were unrelated to the charged offense.

We hold that the circuit court did not abuse its discretion in denying MC’s motion

for mistrial. First, contrary to MC’s argument, her state of mind at the time of the shooting

was relevant to both her intent and her justification defense. Evidence that MC threatened

her mother with the shotgun after she had just used that gun to shoot and kill her father

undermines MC’s claim of self-defense.

Additionally, evidence that MC had threatened Melinda after the shooting had

already been admitted into evidence at trial without objection. For example, prior to the

State’s question that drew the first mistrial motion, Melinda’s 911 call was played for the

jury. Melinda can be heard on the recording stating that she (Melinda) had the gun and

was “not letting it go ‘cause [MC] was going to shoot [Melinda]” and “was going to use [the

gun] on me.” In MC’s custodial statement, which was also played for the jury, the detective

stated, “[T]his is important,” and “Your mom had told me for just a moment that you kind

of turned in her direction with the shotgun . . . what was the deal with that?” MC gave a

lengthy answer in which she indicated it was possible that her mother could have thought

MC pointed the gun at her.

Not only had evidence that MC threatened Melinda been introduced into evidence

without objection before the mistrial motion was made, it was also introduced into

evidence after the mistrial motion was made. The State continued its cross-examination of

MC and inquired, without objection, if she heard her mother say in the 911 call that MC

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“had tried to kill her.” MC acknowledged her mother said it but denied having pointed

the gun at her mother. Also, after the mistrial motion had been denied, Melinda testified,

without objection, that she told the 911 operator that MC had tried to shoot her and that

she told law enforcement that MC pointed the gun at her (Melinda) and that she (MC)

said, “I didn’t want to have to do this.”

Because evidence that MC threatened Melinda with the shotgun that MC used to

shoot and kill Edward was admitted into evidence—without objection—before and after the

mistrial motion, and because MC did not answer the question at issue, we hold that MC

has failed to demonstrate that the circuit court’s denial of her motion for mistrial was an

error so prejudicial that justice cannot be served by continuing the trial. We affirm this

point.

B. Admission of the Recording of an Argument between Edward and Melinda

As previously discussed, in a pretrial ruling, the circuit court denied the State’s

motion to exclude a recording that Melinda made of Edward verbally abusing her. The

circuit court found that it was relevant on the issue of whether there was a pattern of

domestic abuse for purposes of MC’s justification defense. The court found that the

recording was admissible if a proper foundation was made at trial.

At trial, however, during MC’s testimony, the circuit court reconsidered the

admissibility of the recording and excluded it on the basis that the abuse and threats

contained in the recording were directed to Melinda—not MC—and therefore the contents

of the recording were not relevant to MC’s justification defense. In response, MC moved

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for a mistrial, arguing that she was prejudiced by the circuit court’s reversal because her

lawyers had relied on the initial ruling that the recording was admissible, and counsel told

the jury in opening statement that they would hear the recording. MC’s counsel told the

jury that “Eddie says such wonderful things of ‘I’m going to knock you in the head,’ says

that multiple times. And he says, ‘I’m going to knock you the f*** out.’” MC’s counsel

argued that when the circuit court changed its ruling and the jury did not hear the

recording, counsel lost credibility with the jury because it appeared as though counsel had

lied.

The circuit court denied MC’s counsel’s mistrial motion. In response, counsel

requested an admonition, and the court granted the request. The court read the jury an

instruction prepared by MC’s counsel specifically admonishing the jurors to “draw no

inferences” from any evidence regarding the domestic abuse of people other than MC that

was mentioned in opening statements but subsequently deemed inadmissible by the court.

On appeal, MC reasserts her contention that the circuit court abused its discretion

in denying her motion for a mistrial after it reversed its initial decision to admit the

recording of the argument between Melinda and Edward. MC argues that the reversal of

the circuit court’s pretrial ruling occurred “so late in the game” and warranted a mistrial

because it “dashed [MC’s] carefully constructed trial strategy that was built on the [circuit]

court’s pretrial rulings,” which included telling the jury in opening statement that they

would hear the recording. We disagree.

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First, a circuit court’s ruling on a motion in limine is not a final ruling and is subject

to reconsideration and change by the court during trial. Conagra, Inc. v. Strother, 68 Ark.

App. 120, 126, 5 S.W.3d 69, 73 (1999). Second, a review of the record discloses that the

circuit court made it very clear to the parties that its initial ruling that the admissibility of

the recording was conditioned on laying a foundation that MC had personal knowledge

of the recording, which at that time had not been established. Nevertheless, MC’s counsel

elected to mention the recording in opening statement before counsel had an opportunity

to admit the evidence. The risk of this strategy was known to MC’s counsel. Albeit in a

different context, the circuit court warned MC’s counsel of telling jurors in opening

statement about prior bad-acts evidence before it was admitted, stating, “And if they don’t

come in, then [counsel] look[s] like the bad guy.” MC’s counsel acknowledged the risk

stating, “I don’t plan on saying anything in opening that I will not get into court.”

Third, while the recording—evidence of Edward’s verbal abuse of Melinda—was not

admitted in evidence, the circuit court permitted MC and Melinda to testify about years

of continual abuse MC suffered at the hands of Edward, including the abuse MC said had

occurred when she was found smoking and using a cell phone before she killed Edward in

his sleep.

Finally, the circuit court is afforded broad discretion in ruling on a motion for

mistrial, and a mistrial will not be declared when the prejudice can be removed by an

admonition to the jury. Bell v. State, 334 Ark. 285, 303, 973 S.W.2d 806, 816 (1998). Here,

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the jurors were admonished in a nonmodel instruction to disregard counsel’s remarks in

opening statement regarding the contents of the recording:

The introduction of evidence in court is governed by law, and you
should accept without question the Court’s rulings as to the admissibility or
rejection of evidence, drawing no inferences that by these rulings I have in
any manner indicated my views on the merits of the case. As a result of the
Court’s rulings, certain things relating to domestic abuse of people other than [MC],
as stated in opening statement, were subsequently held not admissible. As such, you
should draw no inferences regarding any lack of evidence regarding those topics.

(Emphasis added.)11 Given the wide latitude afforded circuit courts in acting on mistrial

motions, we see no abuse of discretion, and we affirm on this point.

Affirmed.

ABRAMSON, J., agrees.

HIXSON, J., concurs.

KENNETH S. HIXSON, Judge, concurring. I agree with the majority that this case

must be affirmed on the basis of the applicable laws enacted by our legislature and the

Arkansas Model Jury Instructions that track the language of those statutes. However, I write

this concurring opinion to express my position that the legislature—or perhaps the Supreme

Court—could, and perhaps should, reconsider since the statutes fail to consider our

emotionally and mentally challenged population.

11
The jury was also given the following instruction: “Opening statements, remarks
during the trial, and closing arguments of the attorneys are not evidence but are made only
to help you in understanding the evidence and applicable law. Any argument, statement, or
remarks of attorneys having no basis in the evidence, should be disregarded by you.” AMI
Crim. 2d 101(f).

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To begin with, I am not referring to situations in which a defendant does not have

the requisite mental ability to appreciate his1 conduct or cannot participate in his defense.

Rather, I am referring to the narrow issue of where a defendant’s mental or emotional

condition may affect his ability to avail himself of the justification defense. During trial, the

circuit court excluded Dr. Morais’s testimony regarding his post-incident diagnosis that

appellant suffered from posttraumatic stress disorder (PTSD) and that her response to events

on the evening in question was affected by her PTSD. The circuit court determined that

such expert testimony would not be helpful to the jury, ostensibly under Arkansas Rule of

Evidence 702. The jury was allowed to hear extensive testimony regarding the appellant’s

previous conduct and behavior and her father’s alleged participation and contribution to it,

but the jury was not allowed to hear expert testimony that could explain her resultant

reaction. Recall that the defense proffered Dr. Morais’s testimony only for the narrow

purpose to support and prove appellant’s justification defense, specifically the reasonableness

of appellant’s belief that she was imminently about to be victimized by her father from the

continuation of a pattern of domestic abuse under Arkansas Code Annotated section 5-2-

607(a)(3) (Repl. 2013). When asked what effects appellant might have if she was still

experiencing trauma at the time of the shooting, Dr. Morais proffered that “[i]t would be

certainly sufficient to – to trigger intense traumatic responses that can include numbing; that

can include brief dissociation; can include re-experiencing a previous traumatic memories

1
For ease of communication and without discrimination, I am using the masculine
“he” and “his” in this opinion.

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and feelings.” He went on to explain that “[t]he [fight] or flight response, which is very easily

triggered in individuals who have PTSD, is difficult for them to bring down to a baseline

following a traumatic event. So three hours later would be well within an interval in which

[appellant could still experience] active symptoms of – of PTSD.” On appeal, appellant

argues as she did below that this testimony was necessary to explain the reasonableness of

her belief that she was about to be victimized by her father from the continuation of a pattern

of domestic abuse under Arkansas Code Annotated section 5-2-607(a)(3).

The majority opinion unfortunately, but correctly, concludes that appellant’s PTSD

disability is irrelevant to the reasonableness of her actions because the reasonableness

standard must be judged on an objective basis under our existing statute and case law. The

comment to AMI Crim. 2d 705, the model jury instruction for the applicable justification

defense pursuant to Arkansas Code Annotated section 5-2-607(a)(3), states that

“‘[r]easonably believes’ or ‘reasonable belief’ is defined in Ark. Code Ann. § 5-1-102.”

Arkansas Code Annotated section 5-1-102(18) (Repl. 2013) states the following definition:

(18) “Reasonably believes” or “reasonable belief” means a belief:

(A) That an ordinary and prudent person would form under the circumstances in
question; and

(B) Not recklessly or negligently formed[.]

(Emphasis added.) In addition, our case law on this issue has explained that the defendant’s

belief must be objectively reasonable and not arrived at via fault or carelessness. See Kauffeld

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v. State, 2017 Ark. App. 440, 528 S.W.3d 302. Accordingly, it does not matter if appellant’s

conduct was subjectively reasonable on the basis that she had PTSD.

In other words, under the applicable statutes and case law, it does not matter if

appellant’s actions were reasonable for a person that had been “triggered” because of her

PTSD condition or disability; instead, it matters only if the ordinary and prudent person

with no disabilities or conditions would have done the same thing. To make matters worse,

the statutory definition does not limit only mental disabilities from being considered by the

jury. Physical disabilities such as blindness, deafness, amputated limbs, and other physical

disabilities would also be excluded from consideration. Perhaps, crudely asked, can a blind

person avail himself of the justification defense if he has to prove that his decision or conduct

was that an ordinary and prudent person would form under the circumstances in question? Can

a deaf person avail himself of the justification defense if he has to prove that his decision or

conduct was that an ordinary and prudent person would form under the circumstances in

question? To allow persons with physical disabilities to be justified in their actions but not

persons with mental or emotional challenges or disabilities to be justified in their actions

would be an affront to the monumental strides we have taken in the education and diagnoses

of emotional and mental conditions. Without intending a pun, dare we turn a blind eye to

our fellow citizens who are not ordinary and prudent?

I cannot conclude that the legislature intended to exclude a person’s mental and

physical challenges or disabilities in determining the reasonableness of a person’s actions

and therefore invite the legislature to revisit its legislation in this regard. However, because

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the circuit court’s ruling was accurate according to the law as it currently stands, I must

concur in the affirmance of appellant’s conviction. Having said this, I make no opinion on

whether allowing such testimony in the case at bar would have affected the jury’s verdict.

Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.

Tim Griffin, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.

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