Abernathy v. State

925 S.W.2d 380, 325 Ark. 61, 1996 Ark. LEXIS 357
Supreme Court of Arkansas·Decided June 17, 1996·No. CR 95-966·Published·Cited by 30 cases

Opinion

BRADLEY D. Jesson, Chief Justice.

Appellant Anthony Lamar Abernathy was convicted by jury of the first-degree murder of his girlfriend, seventeen-year-old Kendra Broadway, and sentenced to life imprisonment. On appeal, he asserts that the trial court abused its discretion in admitting testimony of prior bad acts. We affirm.

The State’s evidence against the appellant included the following. On the evening of January 28, 1994, and into the early morning hours of January 29, 1994, appellant was drinking at a friend’s house in Litde Rock when he noticed he was missing $80.00. Angrily suspecting that his girlfriend Kendra had taken the money, he took a cab to his duplex at 125 College Park Circle in North Little Rock, where Kendra was staying. According to appellant’s statement to police, he thought about shooting her during the taxi ride home, but decided not to do so.

Upon arrival at the duplex at approximately 3:00 a.m., appellant confronted Kendra with the allegations of theft. When she refused to admit that she had stolen the $80.00, appellant beat her with his fists and kicked her with his steel-toe boots. Sherrie Pitts, who lived on the other side of the duplex, was watching television when she heard fighting, yelling, and what she described as “licks” or continuous hitting lasting approximately thirty minutes. She further recalled hearing the appellant repeat, “Bitch, don’t you know I will kill you?” to which the victim, who was crying, would reply, “I know. I know.” Pitts did not call the police because she did not have a telephone.

Shortly before 7:00 a.m., appellant called 911 from a pay telephone at a nearby intersection. Officer John Murphy of the North Little Rock Police Department was dispatched to the appellant’s location. When Murphy arrested him, appellant stated, “I think I killed my girlfriend. I beat her up.” Officers then located the victim’s body at the duplex. Officer Tom Osborne testified that he found evidence of the appellant’s attempt to clean up blood stains, including a water spot on the wall, a mop bucket filled with dirty and bloody water, and bloody rags. According to appellant’s statement to Detective Jerry Smith, appellant told the victim he wanted her to die. He told Smith that he was mad at Kendra for stealing his money and admitted to hurting other people with whom he had intimate relationships, stating, “I stay with a person until I end up hurting them.”

Dr. Charles Kokes of the State Crime Lab performed the autopsy on the victim and determined that her death was caused by “multiple blunt force injuries to everywhere actually.” He estimated that Kendra would have died within two hours of sustaining the injuries. These injuries included a severe wound to the internal nasal structures, a laceration on the left frontal region near the forehead, hemorrhages to the chest and abdominal wall, a large laceration of the liver and right kidney, intestinal bruises, and extensive defensive injuries. According to Dr. Kokes, Kendra could have bled to death from the injury to her internal nasal structures alone. The State introduced photographs depicting the extent of these injuries.

Despite this overwhelming evidence it had against appellant, the State chose to introduce at trial the testimony of four witnesses regarding alleged prior threats and acts of violence by him. The State’s theory was that this evidence was necessary to refute the theory that Kendra’s killing was an accident. We need only discuss the most egregious of this prior-bad-act evidence, which was offered in the form of testimony of Sam Abernathy, appellant’s stepbrother. Sam testified that on January 9, 1993, appellant kicked open the front door of his apartment in the middle of the night and shot him in both thighs, causing a compound fracture in one of his legs necessitating surgery. After Sam, who was unarmed, had fallen to the floor, appellant stood over him and kicked him in the head.

The evidentiary rule at issue in this case is A.R.E. 404(b). It reads:

Other Crimes, Wrongs, or Acts. Evidence 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.

We have interpreted this rule as permitting introduction of testimony of other criminal activity if it is “independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court.” White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), quoting Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). On appeal, we review the trial court’s decision on this issue, like other evidentiary determinations, under an abuse-of-discretion standard. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994) .

We stressed the requirement that there be a very high degree of similarity between the charged crime and the prior uncharged act in Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995). While the issue in that case was identity and the erroneously admitted evidence was offered to show a method of operation, the requirement of similarity in circumstances between the uncharged misconduct and the charged crime also applies when the State offers the evidence to prove intent or the absence of mistake. Professor Imwinkelried illustrates this point in his treatise:

Although the courts have been receptive to uncharged misconduct offered to disprove accident, there are restrictions on the introduction of evidence for this purpose. As is generally true under Wigmore’s theory, the uncharged act must be similar to the charged act. Wigmore’s theory rests on the doctrine of chances, and the evidence does not trigger the doctrine unless the charged and uncharged acts are similar.
Furthermore, the judge has wide discretion to exclude the evidence under Rule 403. The ideal case for exclusion is one in which (1) the defendant has not affirmatively claimed accident and (2) the nature of the crime is such that accident would not be a plausible defense.

Edward J. Imwinkelried, Uncharged Misconduct Evidence § 5:10 at 26-27 (1984)(footnotes omitted).

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Abernathy v. State, 925 S.W.2d 380, 325 Ark. 61, 1996 Ark. LEXIS 357 (Ark. 1996).

925 S.W.2d 380 (Abernathy v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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