Zachary L. Atwood v. State of Arkansas

2020 Ark. 283

• Court: Supreme Court of Arkansas
• Decided: September 24, 2020
• Status: Published

Opinion

Cite as 2020 Ark. 283 SUPREME COURT OF ARKANSAS No. CR-19-748

Opinion Delivered: September 24, 2020

ZACHARY L. ATWOOD APPELLANT APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT V. [NO. 23CR-16-504]

STATE OF ARKANSAS HONORABLE CHARLES EDWARD APPELLEE CLAWSON, JR., JUDGE

AFFIRMED.

KAREN R. BAKER, Associate Justice

On February 14, 2019, Zachary L. Atwood was convicted of capital murder by a

Faulkner County Circuit Court jury. The circuit court sentenced Atwood to life

imprisonment without the possibility of parole. From his conviction and sentence, Atwood

presents three issues on appeal: (1) there was insufficient evidence for Atwood’s capital-

murder conviction; (2) the circuit court abused its discretion by admitting prior bad-act

evidence that was not independently relevant and that was unduly prejudicial; and (3) the

circuit court erroneously refused to permit Atwood to cross-examine Detective Garlington

regarding prior inconsistent statements made by State witness Sunny Michelle Thomas––

M.A’s mother. We have jurisdiction over this case pursuant to Arkansas Supreme Court

Rule 1-2(a)(2). We affirm. I. Facts

On July 22, 2016, Atwood was charged with one count of first-degree murder in the

May 31, 2016 death of three-month-old M.A. On December 11, 2018, the State filed an

amended felony information and charged Atwood with capital murder in the death of

M.A. The State’s theory at trial was that Atwood had killed M.A. in a “meth[amphetamine]

fueled rage.”

At trial, the State called the following witnesses. First responders and medical

personnel testified to receiving notices on May 31, 2016, to go to the Atwood apartment

where medical aid was rendered to M.A. Kimberly Glover, a volunteer first responder with

the Faulkner County Fire Department, testified that she responded to a 911 call for a

nonresponsive three-month-old baby. Glover testified that she arrived at the Atwood

apartment and performed CPR until MEMS arrived, but M.A. showed no signs of life.

Glover testified that while at the scene, she observed that Michelle was hysterical and

crying. She further testified that Atwood acted agitated, consistent with agitation shown by

drug users.

Deputy Bobby Lockhard of the Guy Police Department testified that he also

responded to the 911 call. He testified that Michelle was hysterical, crying, and emotional.

Lockhard also testified that Atwood was “just standing there with a blank stare on his

face,” and later at the police station Atwood was very agitated, mad and cussing. Lockhard

testified that he summoned two county officers to watch Atwood while he talked with

2 Michelle because Atwood was “everywhere all over the place, hollering, screaming and

cussing.”

MEMS EMT Brian Porter testified that he also responded to the 911 call and that

calls regarding deceased babies are unusual. He testified that this particular call was

unusual because Atwood showed no emotion and did not seem worried; he “just acted

calm, cool and collected,” which was unusual with the death of a family member, especially

a child.

Alex Jenkins testified that he lived in the apartment adjacent to the Atwood

apartment, and the night before M.A.’s death, Jenkins heard arguing and yelling coming

from the Atwood apartment. Jenkins further testified that he observed Atwood using

methamphetamine in the days prior to M.A.’s death and that Atwood was “angry about

everything” when he used methamphetamine.

Deborah Moulton testified that she worked at the Thunderbird gas station in Guy,

Arkansas, with Atwood’s mother, Vicky Archer. Moulton testified that two days prior to

M.A.’s death, she saw M.A. and noticed that he had a little bit of blood in his ears.

Moulton further testified that the day before M.A.’s death, Archer and A.A., Archer’s

granddaughter and Atwood’s daughter, came into the Thunderbird. Moulton testified that

A.A. asked Moulton to buy her a doll. Moulton testified that after work she found a doll

and then went to the Atwood apartment where Archer, M.A., A.A., Michelle, and Atwood

resided. Moulton testified that Atwood seemed very agitated, mad, and aggravated and was

3 pacing back and forth, waiting on something; he kept going to the window, looking out for

somebody and cussing that they had better get there before he had to go to work.

Mark Mahan with the Faulkner County Coroner’s Office testified that he

responded to the call regarding the death of three-month-old M.A. at Conway Regional

Hospital where he took photos of the infant. Mahan further testified that he then went to

Atwood’s apartment where the death occurred and took photos of the scene.

Michelle testified that she was married to Atwood but the two had been separated

for the previous year, and Atwood was not the father of M.A. Michelle testified that

Atwood was aware of this, and the two had reconciled approximately one month prior to

M.A.’s death. Michelle testified that two or three days prior to M.A.’s death, she noticed

that M.A. was not being himself, that he was fussy and his cry was faint, and he wanted to

be held more often. Michelle also testified that she told Atwood about the situation and

also explained that M.A. had a bruise on his ear and they needed to take him to the

doctor; that Atwood told her “little boys get bruises, that there was nothing to worry

about;” that they did not have a car and did not have a way to get to a doctor or a hospital,

nor did she have a phone. Michelle further testified that on the night before M.A.’s death,

Atwood came home and the two argued; that Atwood was angry because Michelle had

allowed their neighbor, Alex, to come over while Atwood was not home; and that during

the night of May 30, 2016, she and Atwood had both used methamphetamine. She

testified that Atwood had anger issues, but his use of methamphetamine caused his anger

issues to escalate, and Atwood became very mean and agitated when he used

4 methamphetamine. Michelle further testified that on the morning of May 31, 2016, she

and Atwood again used methamphetamine and attempted to have sex, but Atwood could

not perform. They tried to have sex again, and she heard M.A. cry. Michelle testified that

M.A.’s cry sounded like he was hungry and that Atwood told her to “lay there” and he

would take care of M.A. Atwood left the room “severely aggravated” because of his inability

to perform. Atwood returned approximately ten minutes later, and Michelle asked him if

he had washed his hands before he made a bottle because Atwood had injected

methamphetamine, and Michelle did not want the methamphetamine on M.A. or in his

bottle. The two again attempted to have sex and Atwood was unable to perform. Michelle

testified that she then went to shower but prior to showering checked on M.A., and he was

asleep on his back. Michelle testified that she was in the shower 15–20 minutes and

returned to their bedroom where Atwood remained irritated, and she heard this “god

awful scream come from our daughter.” Michelle opened their bedroom door and Archer

was standing there with M.A., and he was blue and cold. Michelle testified that Archer

started CPR on the couch as Michelle “tried to get to Alex’s to call 9-1-1. [Atwood] pulled

me down in the living room and told me, ‘No, just wait, just wait.’ And I kind of hit him

and I said, ‘No, we got to call 9-1-1. We’ve got to get help. We’ve got to get help.’ I ran out

the front door. I fell down. I got back up and I beat on Alex’s door screaming at him, ‘My

baby is dead. My baby is dead. Call 9-1-1.’” Michelle further testified that she and Atwood

rode with first responders and they followed the ambulance with M.A. to the hospital.

Once at the hospital, the two waited in a room while medical personnel worked on M.A.

5 and Atwood “kept telling me to calm down and sit down they were going to know

something was up.”

Michelle further testified that after M.A. died, law enforcement called and asked the

couple to ride with law enforcement to get the autopsy results. Michelle testified that at

that point, they did not know the autopsy results, and Atwood said, “Jeremy, [M.A.’s

biological father], is framing me for murder. I’m being framed for murder.”

Michelle also testified that in the time leading up to M.A.’s death, she witnessed

Atwood holding M.A. by his sleeper like a suitcase or a briefcase, and Atwood would carry

M.A. around like that. She testified that she and Archer both told Atwood to “not be

doing that because his neck muscles at three months are not completely strong enough to

hold up his head. It could hurt him really bad.” Finally, regarding Atwood’s abuse,

Michelle testified that “he would slam me down on the floor. He’d push me around. One

time I had injured my leg and was on crutches. He threw my crutches away and make me

crawl to get them several times and then he give me a black eye.” Michelle further testified

that Atwood would wake A.A. up “to see him hurt me. . . . He would tell me it was good

that [A.A.] was seeing it. He wanted her to watch.” Michelle testified that Atwood was also

abusive to his mother, Archer; “he would shove on her, push her around. He threw

[Archer] out the back door one day.”

Michael Garlington, a homicide detective with the Arkansas State Police, testified

that he was assigned to the M.A. case and interviewed Atwood on two occasions. The State

introduced the custodial statements Atwood made to Garlington. Garlington interviewed

6 Atwood for the first time on June 2, 2016, after receiving the autopsy results. In the first

interview, Garlington told Atwood that M.A. had died from blunt-force trauma to his

head. Atwood responded to Garlington that he did not know how M.A. had been injured

and that he loved M.A. and would never hurt him. Atwood stated that M.A. had been

“real whiny” and spitting up a lot the week prior to his death. Atwood stated that on the

day of M.A.’s death, he got up with M.A. around 8:00 a.m., fed him, changed his diaper,

burped him, and then put him back in his crib. Atwood stated that he was then folding

laundry and could see M.A. sleeping in his crib as he was walking around doing laundry.

Atwood stated that during this time, he may have changed M.A.’s diaper again around 9:00

a.m., but he could not remember what happened between 9:00 a.m. and when Michelle

called 911. During the interview, Atwood suggested that Michelle’s mother may have

dropped M.A. or that he may have rolled off the couch while she was changing his diaper.

Atwood explained that Michelle’s mother had seen the baby the week before his death and

that she was disabled and could not “hang onto nothing but she was always wanting to . . .

take the baby out of everybody’s arms . . . [and] the baby could’ve rolled off the couch. She

could’ve dropped the baby and not told anybody because she’s that kind of person.”

Atwood further suggested that A.A. may have harmed M.A. by shaking him, playing too

rough with him, or slipping and falling on top of him. Atwood stated that he would never

intentionally hurt M.A. and explained that he had a temper: “I’ve got a bad temper . . . and

that’s why I am trying to get medicine . . . for . . . I would never take that . . . out on a

baby.” Garlington asked Atwood if while holding M.A. he had accidentally squeezed him

7 too tight. Atwood agreed that it was very possible and that it may have been what caused

M.A.’s injuries.

Atwood was held overnight, and the following day, June 3, Garlington interviewed

Atwood a second time. During the second interview, Atwood again stated that he loved

M.A., did not know how he had received these injuries, and claimed A.A. had caused

M.A.’s injuries. Later in the interview, Atwood told Garlington that while he was doing

laundry, M.A. was on the couch and he accidentally sat on M.A.’s head. Atwood stated

that he was folding clothes and setting the laundry on the couch, that he forgot M.A. was

on the couch, and that he sat on his head. Atwood further explained that M.A. cried a

little, and Atwood gave him his “binkie” and laid him back down to sleep in his crib.

Atwood stated that he did not check on M.A. again and “prayed that he would be okay.”

Atwood stated that he went back to doing laundry, and an hour later they heard A.A.

scream when she found M.A., who was deceased. At the end of the second interview,

Atwood was allowed to visit with Michelle. Atwood stated that he knew he was “the bad

guy” and did not ask for help because he was “ terrified” and thought Michelle would

“have killed [him].” Atwood explained that it was an accident and that he was scared.

Michelle stated that she was angry with Atwood for waiting for someone to find M.A., for

not telling her so she could get help, and for “pulling her back” when she was running to

the neighbors to call 911.

Finally, in his statement to Garlington, Atwood stated that he had pushed his

mother down. Atwood also stated that he told Michelle in the past that the only way

8 Michelle would leave him is if she left in a body bag, and he had said that to her “because

he knew it would scare her.” Atwood also stated that he had been violent with a Michelle

“a few times.”

Dr. Adam Craig, Associate Medical Examiner and Forensic Pathologist at the

Arkansas State Crime Laboratory, testified that he performed an autopsy on M.A. Dr.

Craig testified that M.A. had skull fractures on both sides of his head as well as bruising to

the back of the head and injury to the front of the brain, which were separate from the

skull fractures. Dr. Craig testified that M.A. had several contusions as well as bruising on

his nose, foot, and arm. Dr. Craig further testified that M.A. suffered eleven retinal

hemorrhages, which suggests some kind of acceleration or deceleration injury to the head.

Dr. Craig testified that M.A. suffered multiple impact sites and multiple hemorrhages at

different ages. Dr. Craig testified that the injuries M.A. sustained would have caused a

change in M.A.’s behavior and would have required immediate medical attention. Dr.

Craig testified that M.A. suffered blunt-force trauma to the head with contusions of the

scalp and nose and fractures of the skull. Dr. Craig testified that the injuries were not

consistent with a crush-type injury or falling off the couch.

Dr. Karen Farst, a pediatrician and expert in child physical abuse, testified as to her

review of the autopsy findings. Dr. Farst testified that M.A.’s injuries were not from a

single-crush event. She testified that “there [is] . . . not just a single act that would account

for all of the injuries. . . . I don’t think there was just a single event because you do have

multiple different injuries on different parts of the skull. So there’s at least four different

9 sites and then there are these two skull fractures. . . . I don’t think it’s possible to say what

single event [led] to all of these. There . . . were multiple different injuries to the head that

wouldn’t be accounted for by just one event.” Dr. Farst testified that a delay in treatment

in M.A.’s case would have contributed to M.A.’s death. Dr. Farst further testified that it

was possible that M.A. would have survived if medical attention had been sought.

Atwood called Dr. Robert Bux, a Board Certified Anatomical and Clinical and

Forensic Pathologist from Colorado Springs, Colorado, to testify for the defense at

Atwood’s trial. Dr. Bux testified that he agreed in part with the testimony of the State’s

experts. Dr. Bux agreed that the cause of M.A.’s death was blunt-force trauma to the head

but that the causation of that trauma was uncertain. He testified that the causation may

have been from Atwood sitting on M.A. In other words, the bilateral skull fractures could

have been caused by Atwood’s sitting on M.A. On cross-examination, Dr. Bux testified that

it was possible he would consider the findings in this case indicated abuse.

Based on the facts above, Atwood was convicted of capital murder and sentenced to

life imprisonment without the possibility of parole. This appeal followed.

II. Points on Appeal

A. Sufficiency of the Evidence

For his first point on appeal, Atwood challenges the sufficiency of the evidence. We

treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Whitt

v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). When reviewing a challenge to the

sufficiency of the evidence, this court assesses the evidence in the light most favorable to

10 the State and considers only the evidence that supports the verdict. Gillard v. State, 366

Ark. 217, 234 S.W.3d 310 (2006). We will affirm a judgment of conviction if substantial

evidence exists to support it. Id. Substantial evidence is evidence which is of sufficient force

and character that it will, with reasonable certainty, compel a conclusion one way or the

other, without resorting to speculation or conjecture. Ricks v. State, 316 Ark. 601, 873

S.W.2d 808 (1994). Further, circumstantial evidence may provide a basis to support a

conviction, but it must be consistent with the defendant’s guilt and inconsistent with any

other reasonable conclusion. Id. Whether the evidence excludes every other reasonable

hypothesis is left to the jury to decide. Id. Finally, the credibility of witnesses is an issue for

the jury and not the court. Id. The trier of fact is free to believe all or part of any witness’s

testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.

Atwood was convicted of capital murder under Ark. Code Ann. § 5-10-101(a)(9)(A)

(Supp. 2019), which states in pertinent part:

(a) A person commits capital murder if: ...

(9)(A) Under circumstances manifesting extreme indifference to the value of human life, the person knowingly causes the death of a person fourteen (14) years of age or younger at the time the murder was committed if the defendant was eighteen (18) years of age or older at the time the murder was committed.

Further, Ark. Code Ann. § 5-2-202 (Repl. 2018) provides in pertinent part, a person

acts knowingly with respect to: (A) The person’s conduct or the attendant circumstances

when he or she is aware that his or her conduct is of that nature or that the attendant

11 circumstances exist; or (B) A result of the person’s conduct when he or she is aware that it

is practically certain that his or her conduct will cause the result. In the context of capital

murder cases we have stated, “the words ‘manifesting extreme indifference to the value of

human life’ indicate that the perpetrator of capital murder must act with deliberate

conduct that culminates in the death of some person.” Flowers v. State, 342 Ark. 45, 52, 25

S.W.3d 422, 427 (2000) (quoting Sanford v. State, 331 Ark. 334, 344, 962 S.W.2d 335, 340

(1998)). Finally, we have “held that lying about a crime can indicate a consciousness of

guilt, see Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), and a jury may properly

consider an attempt to cover up one’s connection to a crime as proof of a purposeful

mental state. See Terrell [v. State], 342 Ark. 208[, 212], 27 S.W.3d 423[, 426 (2000)];

Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999). Circumstantial evidence of a

culpable mental state may constitute substantial evidence to sustain a guilty verdict. Terrell,

342 Ark. at 212, 27 S.W.3d at 423 (citing Steggall v. State, 340 Ark. 184, 8 S.W.3d 538

(2000)).” Leaks v. State, 345 Ark. 182, 186, 45 S.W.3d 363, 366 (2001).

With these standards in mind, we turn to Atwood’s challenge to the sufficiency of

the evidence supporting his conviction and sentence. Atwood contends that the State

failed to prove he knowingly caused M.A.’s death. Atwood asserts that the medical

evidence adduced at trial supports his position that the death was accidental. Further,

Atwood contends that M.A.’s death was caused by blunt-force trauma to his head, but the

causation could not be specifically determined, which supports Atwood’s claim that the

death was an accident. Based on this assertion, Atwood argues that the jury resorted to

12 speculation and conjecture in order to find that Atwood knowingly caused M.A.’s death.

Further, Atwood contends that the circumstantial evidence did not exclude every other

reasonable hypothesis, including Atwood’s position that he sat on M.A.’s head. Atwood

contends that he is a large man, and his expert’s testimony supports his position that

M.A.’s death was an accident. Relying on Fudge v. State, 341 Ark. 759, 763, 20 S.W.3d 315,

317 (2000), Atwood asserts that there are two equally reasonable conclusions as to what

occurred merely give rise to a suspicion of guilt, and therefore, Atwood’s capital-murder

conviction must be reversed and dismissed due to insufficient circumstantial evidence.

Turning to the facts of Atwood’s case, we must review the testimony presented. The

evidence demonstrates that a few days before M.A.’s death, Michelle discovered a bruise on

M.A.’s ear, he was acting fussy, his cry was faint, and he was not acting like himself.

Michelle wanted to take M.A. to the doctor, but Atwood refused, saying that “little boys get

bruises, that there was nothing to worry about.” Atwood told law enforcement that M.A.

had been “real whiny” and spitting up a lot the week prior to his death, but he did not seek

medical attention and refused Michelle’s request to take M.A. Michelle testified that on

the day of M.A.’s death, once at the hospital, Atwood “kept telling [her] to calm down and

sit down they were going to know something was up.” The State’s two medical experts both

testified that Atwood’s version of events was not supported by the medical evidence and

was improbable in light of M.A.’s numerous injuries, including several that were of

different ages, and the injuries were not consistent with Atwood’s single-crush-event

version of events. Dr. Craig testified regarding M.A.’s injuries: “This is the type of injury

13 that if it had occurred somebody would have known it and seek medical help or we would

have gotten some indication from somebody in the investigation that some type of injury

had occurred. But that didn’t happen. So that leaves me to believe that whatever injuries

occurred to the child were intentional and trying to be hidden.” Additionally, Dr. Farst

testified that M.A. suffered multiple injuries on different parts of the skull with four

different sites on the back and top of his head and then the two skull fractures on the

sides. She also testified that in her opinion M.A.’s injuries were not from a single-crush

event, and M.A. might have survived had medical attention been rendered.

Further, the evidence demonstrates that Atwood attempted to prevent Michelle

from seeking help for M.A. once he had been discovered cold and blue. Michelle testified

that Atwood held Michelle back from running to the neighbor’s apartment to call 911 and

told her to “just wait.” Additionally, Atwood denied knowing what could have caused

M.A.’s injuries and repeatedly explained that his injuries were likely caused by A.A. or by

his mother-in-law inadvertently harming M.A. In his interviews with law enforcement,

Atwood stated it was possible that he may have accidently injured M.A. while holding him

and then later in the interviews stated that he accidentally sat on M.A.’s head but did not

seek medical help for M.A. Atwood admitted that M.A. was injured and attempted to cover

it up because he feared Michelle would be upset with him. Finally, prior to receiving the

autopsy results or meeting with law enforcement, Atwood explained that he was being

“framed for murder.”

14 Based on this record and in viewing the testimony in the light most favorable to the

jury’s verdict, we hold that substantial evidence supports the jury’s conclusion that Atwood

committed capital murder. There was sufficient evidence for the jury to find that Atwood

had knowingly killed M.A. under circumstances manifesting extreme indifference to the

value of human life. Accordingly, we do not find error and affirm the conviction

B. Prior Bad-Acts Evidence

For his second point on appeal, Atwood contends that the circuit court abused its

discretion in admitting evidence of prior bad acts that were not independently relevant and

were unduly prejudicial. Atwood contends that the circuit court erroneously admitted the

following evidence regarding Atwood’s actions: (1) alleged acts of domestic violence against

Atwood’s mother, Archer; (2) alleged acts of domestic violence against his wife, Michelle;

and (3) evidence of arguments that allegedly took place between Atwood and Michelle the

night before M.A.’s death. Atwood contends that the evidence had no independent

relevance and did not fall into any of the listed or known exceptions to Arkansas Rule of

Evidence 404(b). Atwood presents three arguments in this point, which we address below.

We begin our analysis with the definition of “relevant evidence,” which is evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence. Ark. R. Evid. 401; Lard v. State, 2014 Ark. 1, at 6–7, 431 S.W.3d 249, 257–58.

Next, Rule 404(b), “Character Evidence Not Admissible to Prove Conduct, Exceptions –

Other Crimes,” provides:

15 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 explained that “the first sentence of [Rule] 404(b) sets out the general rule

excluding evidence of a defendant’s prior bad acts, while the second sentence provides an

exemplary, but not exhaustive, list of exceptions to that rule. Hamm v. State, 365 Ark. 647,

232 S.W.3d 463 (2006). Evidence is not admissible under Rule 404(b) simply to show a

prior bad act. Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. Rather, the test for

admissibility under Rule 404(b) is whether the evidence is independently relevant, which

means it must have a tendency to make the existence of any fact that is of consequence to

the determination of the action more or less probable than it would be without the

evidence. Vance v. State, 2011 Ark. 243, 383 S.W.3d 325.” Lard, 2014 Ark. 1, at 6–7, 431

S.W.3d at 257–58.

Further, “pursuant to Rule 403 of the Arkansas Rules of Evidence, ‘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 (2013).

Therefore, a circuit court may refuse to admit evidence that is unfairly prejudicial to the

defendant, even if it might be relevant. Lockhart v. State, 2010 Ark. 278, 367 S.W.3d 530.

We have observed that evidence offered by the State is often likely to be prejudicial to the

accused, but the evidence should not be excluded unless the accused can show that it lacks

16 probative value in view of the risk of unfair prejudice. Chunestudy v. State, 2012 Ark. 222,

408 S.W.3d 55.” Lard, 2014 Ark. 1, at 6–7, 431 S.W.3d at 257–58.

Upon review, “the admission or rejection of evidence under Rule 404(b) is

committed to the sound discretion of the circuit court, and this court will not reverse

absent a showing of manifest abuse of discretion. Dimas-Martinez v. State, 2011 Ark. 515,

385 S.W.3d 238. Likewise, the balancing mandated by Rule 403 is also a matter left to a

circuit court’s sound discretion, and an appellate court will not reverse the circuit court’s

ruling absent a showing of manifest abuse. Croy v. State, 2011 Ark. 284, 383 S.W.3d 367.

Abuse of discretion 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. Craigg v. State, 2012 Ark. 387, 424 S.W.3d 264, 2012 WL

4829813.” Lard, 2014 Ark. 1, at 6–7, 431 S.W.3d at 257–58. Finally, a defendant must

object at the first opportunity, and he must then renew his objection each time the issue is

raised; otherwise, he has waived his argument regarding that issue on appeal. Vaughn v.

State, 338 Ark. 220, 992 S.W.2d 785 (1999).

Regarding the specific evidence at issue, prior to trial, Atwood made an oral motion

in limine asserting that testimony regarding Atwood’s violence against Archer should be

excluded and contending that the evidence was not admissible pursuant to Rule 404(b).

The State responded that “there will be instances of violence against Michelle . . . and

Archer that are relevant to show his mental state, that this wasn’t necessarily an accident,

that it goes to show this is an absence of mistake. The prior incident would be an absence

17 of mistake and show his mental state at the time.” The circuit court agreed with the State

and denied the motion, stating, “I think 404(b) provides for evidence regarding lack of

mistake or an accident and my understanding is the contention is this was accidental. It

involved a family member.”

Next, Atwood also made a motion in limine regarding testimony that he and

Michelle argued the night before M.A.’s death. Atwood argued that the evidence was not

relevant, “it’s not relevant or probative. It’s - - there’s really not any dispute that . . .

Atwood and Michelle . . . were both meth addicts and whether or not they argued amongst

themselves about methamphetamines or anything else isn’t relevant to the issue of whether

or not my client knowingly killed the child.” The State responded that what was heard by

the “witness that heard [the argument] is believed to be the result of [Atwood] . . . being

upset and angry because he did not have drugs at that particular moment and, again, it

goes to [Atwood’s] state of mind over the course of the night and the morning.” The circuit

court agreed with the State and denied the motion in limine stating, “[R]elevance kind of

depends on everything that surrounds it in my judgment. . . . So I’m going to allow it at

this point. If that -- before that comes out in the course of the trial, if you want to renew

your objection to relevance I’ll have a better understanding of -- I think of the lay of the

land -- if you will -- at that point and can make a better ruling on the objection. But at this

point I’m going to allow it subject to your objection at the time it’s offered.”

At trial, Michelle testified that Atwood “would slam me down on the floor. He’d

push me around. One time I had injured my leg and was on crutches. He threw my

18 crutches away and make me crawl to get them several times and then he give me a black

eye.” Michelle further testified that Atwood would wake A.A. up “to see him hurt me. . . .

He would tell me it was good that [A.A.] was seeing it. He wanted her to watch.” Michelle

testified that Atwood was also abusive to his mother, Archer, “he would shove on her, push

her around. He threw [Archer] out the back door one day.” Finally, in his statement to law

enforcement, Atwood admitted having a temper and being violent toward Archer and

Michelle.

1. Rule 404(b): the evidence was not independently relevant First, Atwood contends that the circuit court erred in admitting the evidence

regarding his alleged violence against Archer and Michelle and that the evidence of his

argument with Michelle the night before M.A.’s death should not have been admitted.

Atwood contends that the evidence was not independently relevant and therefore not

admissible pursuant to Rule 404(b). Specifically, Atwood contends that the evidence was

not relevant to show absence of mistake or accident because he was not charged with

alleged violence toward Michelle or Archer. Relying on Russey v. State, 322 Ark. 786, 788–

89, 912 S.W.2d 420, 421–22 (1995), and Tate v. State, 367 Ark. 576, 580, 242 S.W.3d

254, 258 (2006), Atwood contends that the evidence at issue was not admissible pursuant

to Rule 404(b) because it was not prior acts of domestic violence to the same victim, M.A.,

or the same class of victims, children. Atwood further asserts that the circuit court erred

because there is not a similarity between the prior act and the charged act. The State

responds that based on Atwood’s accident defense, the evidence was properly introduced

19 to rebut Atwood’s accident defense to show Atwood had been physically violent toward

family members and to demonstrate his state of mind in the hours prior to M.A.’s death.

Finally, the State responds that the crux of this case revolved around whether Atwood

knowingly caused M.A.’s death and was not accidental, and the evidence was necessary to

rebut Atwood’s accident claim.

With regard to Rule 404(b) evidence, in Russey, 322 Ark. at 788–89, 912 S.W.2d at

421–22, the State was required to prove Russey purposely killed his wife. We allowed

testimony from a detective that thirty-nine days prior to the murder, the detective

responded to a disturbance call at the Russeys’ residence; observed a loaded shotgun lying

on a bed; and unloaded it and returned it to Russey. During his direct examination, the

detective was shown the shotgun Russey had used in shooting his wife, and he said that it

was the same gun he had seen at the disturbance call. “Because [Russey] claimed he shot

his wife accidently, the detective[’s] . . . testimony concerning the . . . domestic violence call

was relevant to show lack of mistake or accident on [Russey’s] part.” Id.

Further, in Tate, 367 Ark. at 580, 242 S.W.3d at 258, we allowed the admission of

evidence of violent acts toward the victim’s roommate. In that case, Tate maintained that

he accidentally fired the shot that killed the victim. Over Tate’s objection, we allowed the

admission of the evidence that two days prior to the murder, Tate intentionally fired the

murder weapon at the victim’s roommate inside the same house where the killing

20 occurred, in an apparent attempt to intimidate the victim’s roommate. Id.1 We affirmed

the admission of the evidence and held that “the evidence of Tate’s intentional discharge

of the murder weapon in the manner and circumstance described above was relevant to

show lack of mistake or accident.” Tate, 367 Ark. at 580, 242 S.W.3d at 258.

In Saul v. State, 365 Ark. 77, 86, 225 S.W.3d 373, 380 (2006), Saul appealed his

conviction for manufacturing methamphetamine and alleged that the circuit court erred by

admitting Rule 404(b) evidence. At trial, the State introduced evidence of “prior crimes in

order to show Saul’s knowledge. The catalyst for doing so was Saul’s claim to [law

enforcement] that the methamphetamine lab found in his van [for which he was charged]

was placed there by someone else and that he had no knowledge of its existence.” Saul, 365

Ark. at 85, 225 S.W.3d at 379. We affirmed and explained that “this testimony is

significant . . . because it shows a similar pattern of Saul’s criminal activity—or, at least a

similar pattern of how he responds to police officers when he is caught with drug

paraphernalia. Two different times when he was caught with articles associated with a

methamphetamine lab in his vehicle, he has claimed that they did not belong to him.” Id.

More recently in Coakley v. State, 2019 Ark. 259, at 6, 584 S.W.3d 236, 239, we also

addressed Rule 404(b) evidence and allowed the admission of prior acts toward the victim,

the victim’s brother, and the victim’s cousin. Coakley’s defense at trial for first-degree

murder was justification. On appeal, Coakley challenged the admission of prior-acts

1 As recounted in our opinion, the challenged evidence was a shooting of the victim’s roommate, not the murder victim as Atwood has asserted in his brief.

21 evidence, arguing that Rule 404(b) prohibited its admission. We affirmed the admission of

evidence regarding three prior similar incidents involving violence with (1) the victim two

weeks before the murder; (2) the victim’s brother two to three weeks before the murder;

and (3) the victim’s cousin three years before the murder. We held that the evidence was

admissible because “despite [Coakley’s] contention . . . that his intent was not an issue, his

intent was at the crux of the jury’s determination of guilt, as the jury was required to

determine whether [Coakley] acted with the requisite intent for the charged offense or

whether his act of shooting [the victim] was justified.” Id.

Here, in his interviews with law enforcement, which were admitted to the jury,

Atwood stated multiple times that he had never hurt M.A. Additionally, in his interviews

he stated that he was not upset about having to take care of the baby because he wanted to

be a family man for Michelle because he had always treated her poorly:

I loved getting up [at night with the baby]. That’s what I told her; you know? When she came back to -- you know, because she carried the baby for nine months. I told her, you know, I love getting up with the baby every night through the night, take care of that baby for her. Because I use to be a . . . dickhead, man; you know? And that’s something that I know I have to make up for it to show her that I’m really . . . being honest here. That’s all I want is my family; you know? My mom has always been there for me. I didn’t know why, but Michelle (inaudible) always been there for me; you know? And I’ve always treated her like shit and stuff . . . but want to be a real . . . family.

Later in the interview, Atwood admitted injuring M.A. but repeatedly claimed it was

an accident. Atwood stated approximately thirteen times that M.A.’s death was an

accident. As in Russey, Tate, Saul, and Coakley, Atwood’s defense triggered admission of the

22 evidence at issue. Atwood’s accident defense that he was a family man and that M.A.’s

death was an accident allowed the admission of the evidence at issue to rebut his defense.

Therefore, the evidence regarding his abuse against his wife and his mother was

independently relevant and admissible to demonstrate the absence of mistake or accident.

Further, Atwood asserts that admitting evidence of Atwood arguing with Michelle

the night before M.A.’s death has no bearing on whether Atwood knowingly caused M.A.’s

death. Atwood contends that the evidence submitted regarding the argument the night

before M.A.’s death only painted him as an unpleasant person who forbade his family from

welcoming outsiders and was not independently relevant. The State responds that the

evidence was properly admitted and urges us to affirm the circuit court. As discussed

above, we likewise hold that the evidence depicting Michelle and Atwood arguing in the

hours before M.A.’s death was independently relevant to demonstrate Atwood’s state of

mind and was admissible for this purpose.

For the reasons discussed above, the evidence was not offered to show the bad

character of Atwood as he contends; rather, the evidence was independently relevant proof

of Atwood’s intent and the absence of mistake or accident in committing the offense.

Therefore, it is admissible under the intent and absence-of-mistake-or-accident exception to

Ark. R. Evid. 404(b).

2. The evidence was admitted in violation of Rule 403 because it was unduly prejudicial Second, Atwood contends that the circuit court erred by admitting the evidence

because any probative value the evidence offered was grossly outweighed by the dangers of

23 unfair prejudice, misleading the jury, and confusion of the issues. Accordingly, Atwood

contends that the circuit court abused its discretion by refusing to exclude the evidence at

issue pursuant to Rule 403. The State responds that Atwood failed to preserve his Rule

403 argument regarding the violence toward Archer and Michelle. We agree.

The record demonstrates that Atwood sought exclusion of the evidence at issue

pursuant to Rule 404(b) and argued relevancy, but he did not assert that the evidence

should be excluded pursuant to Rule 403 —that the 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. This argument was not presented to the circuit court,

and therefore, we do reach the issue on appeal.

Atwood also contends that the circuit court erred when it admitted evidence

regarding the argument between Atwood and Michelle the night before M.A.’s death. The

State responds that this issue is not preserved as well. We agree. Although Atwood

obtained a ruling in the pretrial hearing, the circuit court denied his motion and asked

Atwood to renew his objection during the testimony at trial. However, Atwood did not

renew the objection during the testimony. Therefore, the issue is not preserved for review.

Ward v. State, 370 Ark. 398, 402, 260 S.W.3d 292, 296 (2007).

Based on our discussion above, we do not find error and affirm the conviction.2

2 We recognize that Atwood also argues the circuit court’s error was not harmless and urges this court to reverse the circuit court. On appeal, “this court will declare the error harmless and affirm the conviction when the evidence of guilt is overwhelming and the error is slight. Buford v. State, 368 Ark. 87, at 91, 243 S.W.3d 300, 303 (2006). To

24 C. Cross-Examination of Detective Garlington

For his third point on appeal, Atwood contends that the circuit court erred in not

allowing him to question Detective Garlington regarding a prior inconsistent statement

made by Michelle. Michelle testified regarding Atwood’s physical abuse toward her and

making their daughter, A.A., watch. Detective Garlington testified that he interviewed

Michelle around the time of the incident. Atwood sought to cross-examine Garlington

regarding whether, during his interview with Michelle, Michelle had told Garlington that

Atwood was abusive to her and had their daughter watch. The State objected, asserting that

the response would be hearsay and inadmissible and outside the scope of direct

examination. Atwood responded that he was not asking the question for Detective

Garlington to make an out-of-court statement of the truth of the matter asserted. Rather,

Atwood sought to establish through Michelle’s silence that her testimony regarding abuse

determine whether the error is slight, we will look to see if the defendant was prejudiced. Id.” Beard v. State, 2020 Ark. 62, at 7, 594 S.W.3d 29, 33.

Although we do not find error, we note that the record demonstrates that the evidence of Atwood’s guilt is overwhelming. Atwood admitted knowing that M.A. was fussy and whiny. Michelle had asked to take M.A. to the doctor, and Atwood refused. Atwood admitted that M.A. was injured and attempted to cover it up. Further, after M.A.’s death, Atwood lied to investigators. When Atwood later admitted having injured M.A., he claimed it was accidental, contending he sat on M.A.’s head. However, the medical evidence did not support Atwood’s version of events. The State’s two medical experts both testified that M.A. suffered numerous injuries, including skull fractures on each side of his head, additional multiple-impact events to the head, and contusions to his nose, arm, and leg. Further, the two medical experts testified that M.A.’s injuries would not have been caused by a single-crush event as depicted by Atwood.

25 was not true and that her testimony was false. The circuit court denied Atwood’s request

and allowed Atwood to proffer his belief that Garlington would testify that Michelle never

told him that Atwood made A.A. watch him abuse Michelle, which would impeach

significant negative testimony that Michelle gave against Atwood. On appeal, the State

responds that the circuit court was correct in its ruling because Michelle was never asked,

including by Atwood during her testimony, if she had told Garlington about the abuse. In

sum, the State asserts that the circuit court was correct in its ruling preventing Atwood

from asking Garlington about Michelle’s silence because Michelle was never asked what

she said to Garlington about abuse in front of A.A.

“The decision to admit or exclude evidence is within the sound discretion of the

circuit court, and we will not reverse that decision absent a manifest abuse of discretion.

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.’ Nor will we reverse absent a showing of

prejudice.” Scamardo v. State, 2013 Ark. 163, at 7, 426 S.W.3d 900, 904 (internal citations

omitted).

Hearsay is an out-of-court statement “offered in evidence to prove the truth of the

matter asserted.” Ark. R. Evid. 801(c) (2019). Further, Rule 613 of the Arkansas Rules of

Evidence provides in pertinent part:

(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that

26 time, but on request the same shall be shown or disclosed to opposing counsel.

Ark. R. Evid. 613(a) (2019).

Here, the record demonstrates that Michelle was not asked what she said to

Detective Garlington regarding abuse by Atwood in front of A.A. The record further

demonstrates that Atwood cross-examined Michelle regarding her June 2 and June 16

interviews with Garlington. During cross-examination, Atwood impeached Michelle

regarding her truthfulness in her first interview with Garlington regarding her drug use.

Also on cross-examination, defense counsel questioned Michelle about her reconciliation

with Atwood a month prior to M.A.’s death. Defense counsel specifically asked Michelle if

she had told Garlington that Atwood was still violent at that time. Michelle responded in

the affirmative, and defense counsel did not ask further questions regarding his violence.

Accordingly, the record does not support the assertion that Michelle was asked about what

she said to Garlington regarding the abuse in front of A.A. Based on our discussion above,

we do not find merit in Atwood’s argument and affirm the circuit court.

III. Rule 4-3(i) Review

This case involves a sentence of life imprisonment; therefore, it is subject to review

under Arkansas Supreme Court Rule 4-3(i). As required under Ark. Sup. Ct. R. 4-3(i), the

record has been examined for all objections, motions, and requests made by either party

that were decided adversely to Atwood, and no prejudicial error has been found.

27 WYNNE, J., concurs.

HART, J., dissents.

ROBIN F. WYNNE, Justice, concurring. I join the majority in voting to affirm this

case, but I write separately because I would affirm the second point on appeal under a

different analysis. In my view, the circuit court abused its discretion by admitting prior bad-

act evidence that was not independently relevant, but that error does not require reversal

in light of all the circumstances of this case.

The evidence of Atwood’s alleged violence toward his mother and his wife was not

sufficiently similar to the crime charged—capital murder of an infant—to be independently

relevant under Rule 404(b). Rather than showing his intent or absence of mistake or

accident, the evidence served to portray Atwood as a violent person. As recounted in the

majority opinion, however, Atwood challenged only the evidence regarding his mother in

his oral motion in limine to the circuit court. Because he failed to raise an objection below

to the admission of evidence regarding violent acts toward his wife, his argument on that

point is not preserved for this court’s review. E.g., Frye v. State, 2009 Ark. 110, at 7, 313

S.W.3d 10, 15 (parties cannot change the grounds for an objection on appeal but are

bound by the scope and nature of their objections as presented at trial).

Even when a trial court errs in admitting evidence, we have held that when the

evidence of guilt is overwhelming and the error is slight, we can declare that the error was

harmless and affirm the conviction. Barrett v. State, 354 Ark. 187, 199, 119 S.W.3d 485,

493 (2003). To determine if the error is slight, we can look to see if the defendant was

28 prejudiced. Id. Here, because evidence of past violence toward his wife was introduced at

trial without objection, I can discern no real prejudice to Atwood by the admission of

evidence of violence toward another family member. Therefore, I respectfully concur.

JOSEPHINE LINKER HART, Justice, dissenting. I dissent. The jury’s verdict was

tainted by inadmissible evidence: allegations of prior acts by the defendant for which he

was never charged. These allegations had no connection to the tragic death of M.A., the

infant victim in this case. Essentially, the majority is allowing the State to introduce prior

bad acts and uncharged crimes as direct evidence, totally unconnected to the charged act,

to supplement a lack of clear proof in the case at bar.

Here, Atwood was charged with capital murder for the death of a three-month-old

infant—a charge that tugs at the heartstrings of even the most unemotional persons among

us. Likewise, it unites us in a desire to punish the offender. As a society, we abhor the act

and despise the perpetrator. It is precisely this type of natural emotional response that

requires our judiciary to be vigilant in its application of the rules designed to ensure a fair

trial based on relevant evidence—lest we run the risk of convicting the innocent on their

character, leaving the guilty to run free. These rules were developed over decades of time,

tailored to ensure that evidence presented to our juries is relevant to the specific issues we

ask them to assess. Today’s decision renders meaningless Arkansas Rule of Evidence

404(b), a rule that was designed to be a cornerstone of our justice system. Instead of

29 affirming Atwood’s conviction for capital murder, we should reverse and remand for a new

trial.

First, the language of the rule. Arkansas Rule of Evidence 404(b) provides as

follows:

(b) 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.

Rule 404(b)’s first sentence operates as a general prohibition: one cannot use

evidence of what a person may have done in the past to suggest that the person did the

same thing on a particular occasion. Mandating the exclusion of such evidence is central to

the truth-finding function of a jury trial. As this court observed over a half-century ago,

The rule itself has been announced in some fifty decisions of this court and is so familiar that we need not discuss at length the reasons for its acceptance by every English and American court. Basically, the rule rests upon that spirit of fair play which, perhaps more than anything else, distinguishes Anglo-American law from the jurisprudence of other nations. Our theory is simply that a finding of guilty should rest upon proof, beyond a reasonable doubt, that the accused committed the exact offense for which he is being tried. We do not permit the State to bolster its appeal to the jury by proof of prior convictions, with their conclusive presumption of verity, and still less is there reason to allow the jury to be prejudiced by mere accusations of earlier misconduct on the part of the defendant. If the accused has committed other crimes, each may be examined separately in a court of law, and punishment may be imposed for those established with the required certainty. In this way alone can we avoid the elements of unfair surprise and undue prejudice that necessarily attend trial by accusation in place of trial upon facts demonstrated beyond a reasonable doubt.

Alford v. State, 223 Ark. 330, 333–34, 266 S.W.2d 804, 806 (1954).

30 Rule 404(b)’s second sentence, sometimes imperfectly characterized as a list of

“exceptions” to the general rule, contemplates that evidence of one’s prior acts may be

nonetheless admissible if there is an alternative and independent purpose for which the

evidence would be relevant, such as to show that the defendant knew what he was doing

on a particular occasion, i.e., an “absence of mistake.” In this situation, Arkansas law

requires that there be a degree of similarity between the prior act(s) and the charged

conduct. Abernathy v. State, 325 Ark. 61, 64–65, 925 S.W.2d 380, 382 (1996). “[T]he

requirement of similarity in circumstances between the uncharged conduct and the

charged crime also applies when the State offers the evidence to prove intent or the

absence of mistake.” Id.

With these principles in mind, let us consider the circumstances of the case at bar.

We have a deceased victim—a three-month-old infant, M.A.—with blunt-force trauma to his

skull. During the investigation, officers focus on Atwood, the man in whose home M.A.,

M.A.’s mother (Michelle), M.A.’s grandmother (Vicky), and M.A.’s half-sibling. (A.A., who

was nine years old at the time) had all been living. All members of the household had

unfettered access to the child and purported to participate in his daily care. No member of

the household claims to have ever witnessed any deliberate incident that would have

resulted in the child’s death. Atwood tells police that he never subjected M.A. to any

deliberate harm, but he does admit to accidentally sitting on M.A.’s head. Atwood says he

was going through laundry to retrieve clothes for a shower when he accidentally sat down

on M.A., who was situated on the couch. According to Atwood, M.A. began to cry, and

31 Atwood put M.A. in his bed and gave M.A. his binkie. M.A. was found dead the next

morning.

Initially, the State charges Atwood with first-degree murder, which requires proof

that the defendant knowingly caused the death of a person fourteen years of age or

younger. Ark. Code Ann. § 5-10-102(a)(3). The State eventually offers Atwood a plea

agreement whereby he will plead guilty in exchange for a recommended sentence of thirty

years in prison. Atwood rejects this offer. In the wake of Atwood’s rejection, the State

amends its information to charge Atwood with capital murder, which requires proof that

the defendant knowingly caused the death of another person fourteen years of age or

younger under circumstances manifesting extreme indifference to the value of human life.

Before trial, the State communicates another offer to Atwood: twenty-five years in prison

with another fifteen suspended. Atwood rejects this offer as well.

At trial, Atwood’s pretrial statement to police is introduced into evidence. A State

expert testifies that the defendant’s pretrial statement cannot explain M.A.’s injuries—that

the injuries are inconsistent with a single crush event. Other experts disagree, testifying

that M.A.’s injuries could have resulted in a single crush event or from a side-to-side

compression. All of this evidence is helpful to the jury for purposes of the question it will

ultimately have to answer: whether the State proved beyond a reasonable doubt that

Atwood knowingly caused M.A.’s death under circumstances manifesting extreme

indifference to the value of human life. See Ark. Code Ann. § 5-10-101(a)(9)(A).

32 The problem is with the other evidence the State used to convict Atwood—

specifically Michelle’s testimony alleging domestic abuse by Atwood. Before trial, the State

notified Atwood that it would be presenting what it characterized as Rule 404(b) evidence

through Michelle’s testimony. Michelle, who had a duty to protect this child and was

certainly not an unbiased witness, testified at length on direct examination about Atwood

pushing her around, slamming her to the ground, giving her a black eye, and even taking

her crutches from her while she was injured so that she would be forced to crawl about.

These allegations obviously make Atwood look bad, cruel even, but they had nothing to do

with the charged crime.

The circuit court allowed this evidence in over Atwood’s Rule 404(b) objection,

accepting the State’s proposition that this testimony showed an “absence of mistake” with

respect to Atwood causing M.A.’s death. With all due respect to the circuit judge and the

majority, I flatly disagree. Specifically, the former is not probative of the latter. Specifically,

Michelle’s testimony about past spousal abuse does not help the jury determine whether

M.A.’s death was an accident. Michelle and Atwood were an on-again, off-again married

couple with an acrimonious relationship. They disagreed about drugs, what kind of visitors

were allowed in their home, and it sounds like a great deal more. M.A., on the other hand,

was a three-month-old infant who could not even speak yet. Note that the State’s theory of

the case was not that Atwood killed M.A. out of jealousy or retribution for Michelle’s

becoming pregnant while she and Atwood were estranged—there was no such evidence

presented, and the State acknowledged that Atwood was a daily caregiver for M.A. and

33 held himself out as M.A.’s father. More broadly, spousal abuse is not inherently probative

of child abuse, and the two should not be treated interchangeably. In this case, Michelle’s

accusations were not probative of whether M.A.’s death was an accident, so they were not

admissible for those purposes.

The real reason the prosecution wanted these extraneous allegations admitted into

evidence is obvious: this wasn’t a slam-dunk case for capital murder. To support the State’s

charge, the prosecution had to prove beyond a reasonable doubt that Atwood knowingly

caused M.A.’s death under circumstances manifesting extreme indifference to the value of

human life. Atwood acknowledged that he had possibly harmed the child, but he

maintained it was an accident, and there was expert testimony that the child’s injuries

could have happened the way Atwood described. It was possible that the jury would only

convict Atwood of a lesser offense, such as manslaughter or negligent homicide, or perhaps

even acquit Atwood altogether, concluding the prosecution simply failed to meet its

burden of proof. But with the injection of these immaterial accusations from Michelle, the

prosecution didn’t have to present this case against Zachary Atwood, a man who is

presumed innocent until proven guilty. Instead, the prosecution got to present this case

against Zachary Atwood, the abuser—otherwise presumed innocent, but with the unrelated

allegations of abuse being a focus of the trial. At closing argument, the prosecution went

on at length about the domestic violence in Atwood’s past, specifically arguing to the jury

that there was a “link between people who are abusive in the home and physically abusive

to children.” To be clear, this is exactly what is not allowed—classic propensity evidence.

34 The cases the majority cites in support of its decision are inapposite. Russey, Tate,

and Coakley all involved one’s prior acts with adults being used to prove a violent crime

committed against either the same or other adults—not against an infant with no similar

relationship to the defendant. Smith didn’t involve any allegations of violence whatsoever;

that case involved prior acts that were definitively similar and even connected to the crime

with which the defendant was charged: prior instances of possession of methamphetamine

paraphernalia and shoplifting pseudoephedrine tablets offered in a prosecution for

manufacturing methamphetamine.

A better case for comparison is Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380

(1996). There, the defendant was charged with murder for killing his seventeen-year-old

girlfriend. At trial, the State presented evidence of the defendant’s prior intentional

violence against his stepbrother, purportedly to show an absence of mistake with respect to

Abernathy killing his girlfriend. On appeal, the Supreme Court of Arkansas ruled that

allowing this evidence was error:

We are mindful of the State’s burden to prove that appellant killed Kendra with the purpose of doing so. Nevertheless, we can find no logical connection between the uncharged acts perpetrated against appellant’s stepbrother and the killing of his girlfriend in the present case. The trial court remarked that appellant’s act of kicking his stepbrother in the head is similar to what is alleged in the present incident. Yet to accept that this evidence was relevant would require an inference that if appellant shot his stepbrother in the legs and kicked him in the head afterwards, he therefore had the purpose to kill his girlfriend when he hit and kicked her one year later. Because we conclude that the uncharged act perpetrated against Sam was not sufficiently similar to the charged offense, we hold that the trial court abused its discretion in admitting Sam’s testimony at trial.

35 Abernathy, 325 Ark. at 65, 925 S.W.2d at 382 (internal citations omitted).1 The Abernathy

court’s analysis is instructive here. The way one treats his stepbrother is not inherently

probative of how he treats his girlfriend, and the way one treats his spouse is not inherently

probative of how he treats an infant.

Note that the majority is not affirming on the basis of a harmless-error analysis

(which would also be inappropriate in this case)2—the majority refuses to even acknowledge

that allowing these prior bad acts to be admitted for this purpose was an evidentiary error.

In the future, this case will be cited as precedent, and the reliability of our jury-trial system

will diminish because of it.

Jim Hannah, this court’s former Chief Justice, once said:

I concur in affirming this case, but on the basis of harmless error. In considering the majority’s reasoning, I must state that this case yet again raises concern for the current validity and future viability of the longstanding

1 See also Hortenberry v. State, 2017 Ark. 261, at 13, 526 S.W.3d 840, 848 (“Under the pedophile exception, we have approved allowing evidence of similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. We decline to expand the pedophile exception to include evidence of a defendant’s similar acts with an adult.”). This court affirmed Hortenberry “under the unique facts and very limited circumstances of [that] case,” holding that the testimony was relevant for an independent and alternative purpose other than the pedophile exception. 2017 Ark. 261, at 14, 526 S.W.3d at 848–49. 2 I note that while the members of the jury were deliberating, they sent out a note with the following question as read by the circuit court: “Before we can move to discussing a lower charge; for example, First Degree Murder, do all twelve jurors have to agree it is not Capital Murder or can we move to lower charges when everyone agrees?” R. 891–92. It appears that the circuit court’s response was that the jury must follow the transition instructions they had already been given. I also note that it is unclear whether the defendant was present for this exchange. See Terry v. State, 2019 Ark. 342.

36 rule that character evidence is not admissible to prove conduct in conformity with that character. If the rule has not yet been swallowed up by its exceptions, then the rule has so far descended into the gaping maw of the exceptions that the rule is all but lost. The application of the rule in both our trial and appellate courts has deteriorated to the point that legal analysis of the issue of admissibility of character evidence most often begins, and ends, with the assumption that the issue of admissibility of character evidence is only a matter of picking the exception that fits best.

McCoy v. State, 354 Ark. 322, 328, 123 S.W.3d 901, 905 (2003) (Hannah, C.J.,

concurring). I fear that the unfortunate day Justice Hannah described has now come and

gone. At some point, this court must grapple with the fact that its decisions concerning the

rules of evidence are inconsistent with what law students here and around the country are

learning from their professors.

I dissent.

Michael Kiel Kaiser, William O. “Bill” James, Jr., and Megan M. Wilson, for appellant.

Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.