| ,This is the third time this case has come before the Arkansas Court of Appeals.
Robin Halbert, the 911 Director for Hot Spring County, testified that he received a call regarding a shooting on Spruce Street in Malvern on February 12, 2010. A recording of the call was played for the jury, and the victim can be heard screaming that an unidentified black male shot at him when he opened the door of his residence.
Gustavo Cervantes Rodriguez testified that, on February 12, 2010, at approximately 3:00 a.m., there was a knock on the door of his trailer, where he, his wife, and their three children were sleeping. Not realizing the time and thinking he had overslept, Rodriguez opened the door about five or six inches. Rodriguez heard Wells say, “Hey, man.” Rodriguez then “saw fire coming out of the barrel” of a gun Wells had pointed at him. Rodriguez immediately slammed the door, and Wells fired two more shots into the trailer. Rodriguez testified that he did not get a good description of the person that shot at him because “[i]t all happened way too fast.” Rodriguez testified that he did not know of any reason why someone would attempt to
At that point, the trial court noted that the prosecutor and defense counsel stipulated that three bullets and one shell casing were properly submitted to the crime lab in relation to the shooting of Rodriguez on February 12, 2010. The parties also stipulated that one bullet and one shell casing connected to a homicide that occurred in Hot Springs on February 13, 2010, were properly collected and transported to the crime lab for forensic evaluation.
Rebecca Mullin, a firearm and tool-mark analyst at the Arkansas State Crime Lab, testified that the shell casings from the shooting in Malvern and the homicide in Hot Springs had been loaded into and extracted from the same firearm. Mullin further testified that the bullets from both crime scenes had been fired through the barrel of the same firearm. Mullin also testified that she examined a gun found in connection with the Hot Springs murder but that the results were inconclusive as to whether the bullets and shell casing from the incident in Malvern had been fired from that particular gun. Mullin explained that inconclusive results meant that she could not confirm the weapon was used in Rodriguez’s case but could not eliminate that possibility.
Corporal Dan Ussery with the Malvern Police Department testified that he responded to the scene of the shooting on Spruce Street. He processed the scene and took photographs. He noted bullet holes in the front door of the Rodriguez residence. Ussery testified that the bullet holes and trajectory marks were consistent with a door having been opened and slammed. Ussery testified that an intact bullet was found in a back bedroom about three inches from the head of Rodriguez’s one-year-old child. Ussery testified to damage from bullets on the corner of a couch and on a piece of wood paneling inside the trailer.
14Sergeant Curtis Kyle with the Malvern Police Department testified that a shoe print was left in the snow at the corner of Rodriguez’s trailer. According to Kyle, the print was distinctive as to tread pattern and had four circles on the heel impression.
David Hughes, an inmate at the Grimes Unit prison in Newport, testified with respect to Wells: “I been knowing him all my life.” Hughes testified that his birthday was February 10, and that, on the day following his birthday in 2010, Wells bought him a shirt and a pair of Nike “Shox” athletic shoes at Hibbett Sports in Malvern. Wells had bought some clothing for himself as well, including a pair of Nike shoes that were “a little different” from Hughes’s. Hughes and Wells went to a club that Friday night, and Wells left his new shoes in Hughes’s room. Hughes testified that the shoes he later wore to a police interview belonged to Wells, and Hughes explained that he and Wells often wore each other’s clothes and shoes.
Corporal Sonny Hall with the Malvern Police Department testified that Hughes was not a suspect in the attempted murder
Corporal Brian Johnson with the Mal-vern Police Department testified that the shoes worn by Hughes appeared to match the shoe print found in the snow near Rodriguez’s trailer. Johnson conceded that his experience in comparing shoe prints was from his training with CID (Criminal Investigation Division).
| ^Shannon Shepherd, senior special agent with the Arkansas State Police, testified that he interviewed Wells on February 17, 2010. Shepherd stated that, prior to questioning, he advised Wells of his Miranda rights, that Wells wrote his initials beside each right, and that Wells signed the bottom of the rights form. Shepherd testified that he and Sergeant Davis then conducted an interview with Wells. Shepherd testified that, after Davis typed Wells’s statement, Wells read the statement, initialed each paragraph, and signed at the bottom. Shepherd then read the document containing Wells’s confession:
On 2-17-10 at approximately 2030 hours I, Sgt. Davis, and Sr. Special Agent Shannon Shepherd (ASP) interviewed Timothy Allen Wells (DOB 10-13-86). I advised Mr. Wells of his Miranda Rights using the Hot Springs Police Department’s Standard Rights Form. Mr. Wells advised that he understood both verbally and in writing. The following was his statement:
Man, I lost my mind the other day in Hot Springs. I blanked out. I’m bipolar and sometimes I flip out and go in a rage. I remember going in that building and a man and lady started screaming at me. My bi-polar acted up and I just shot. Any body could have been hurt that day in Hot Springs. I was ready to go in [sic] a rampage. Jason said that he couldn’t believe the way I was acting. I remember going to the Liquor store to cash the check. I was OK there. I remember going to Hot Springs and parking the car. I remember getting out and running into the little building. Jason was yelling at me and I told him to shut the fuck up and I just kept going. In the store, these Arabian. or Indian people were yelling at me and I just shot. They were inside the building. That day anyone could have got hurt. I was ready to kill somebody or kill myself. [Redacted] I didn’t know the lady in Hot Springs had died. I threw the gun out the passenger’s side window between Mal-vern and Hot Springs. It was between the Reynolds plant and before the Rainbow Mart. As far as the Mexican dude, I did that deal. I lost my mind. I didn’t even know that dude. I woke up the next day and I was like, what did I do. A judge just won’t understand. It was cold that day and I was walking and I got cold. I walked up to the door, knocked on it, the Mexican dude opened the door, and I shot. I shot for no reason, because I was on that rampage. I don’t remember how many times I shot. I’m glad they stopped me, I need some help.
| (¡Sergeant Mark Davis with the Hot Springs Police Department testified that he was investigating the murder of Ms. Patel in Hot Springs and that he went to Malvern to interview Wells because Special
The State rested its case, and Wells moved for a directed verdict on all three counts. The trial court denied the motions, and the jury returned with guilty verdicts. In the sentencing phase, Patricia Taylor, Wells’s mother, testified that Wells was only twenty-four years old and that he was “a good kid” but had been hanging out with older guys. Taylor testified that Wells had a history of mental illness, was diagnosed with bipolar disorder, suffered depression, and was at times suicidal.
Denial of Directed-Verdict Motions
Wells argues that the trial court erred in denying his directed-verdict motions. A motion for a directed verdict is a challenge to the suffíciéncy of the evidence. Arnett v. State,
Arkansas Code Annotated section 5 — 10—102(a)(2) (Repl.2006) provides that a person commits first-degree murder if, with the purpose of causing the death of another person, the person causes the death of another person. A person commits criminal attempt if the person purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause a particular result. Ark.Code Ann. § 5-3-201(b) (Repl.2006). A person acts purposely with respect to his conduct or a result of his 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.2006).
Wells argues that he did not intend to shoot Rodriguez because he did not know Rodriguez personally; rather, he simply shot at anyone who opened the door of the trailer. A criminal defendant’s intent or state of mind is seldom apparent. Tarentino v. State,
“[A] person commits a terroristic act if, while not in the commission of a lawful act, the person shoots at an oecupia-ble structure with the purpose to cause injury to a person or damage to property.” Ark.Code Ann. § 5-13-310(a)(2) (Supp. 2009)
Wells contends that he did not shoot at an occupiable structure; rather, he shot at Rodriguez. The evidence showed that, after initially shooting at Rodriguez, Wells fired his weapon two more times as Rodriguez was in the process of shutting his door. The natural and probable consequences of Wells’s action in continuing to shoot as the door was closing resulted in the bullets striking Rodriguez’s trailer, even though Wells aimed at Rodriguez with the purpose of causing personal injury. Accordingly, we hold that substantial evidence supports Wells’s convictions for committing a terroristic act.
Denial of Motion to Suppress Custodial Statement
Wells argues that the trial court erred in not suppressing his incriminating statement to Shepherd and Davis. Statements arising from custodial interrogation are presumed to be involuntary. Britt v. State,
At the suppression hearing, Shepherd testified that he interviewed Wells twice in connection with a homicide in Malvern.
Davis testified that Shepherd contacted him because a homicide in Malvern was similar to one that Davis was investigating in Hot Springs. Davis said that, prior to Wells’s third interview with police, he advised Wells of his Miranda rights. Davis testified that he read each right to Wells, and Wells read along with Davis. Davis asked whether Wells understood each right, and Wells indicated that he did by placing his initials beside each right. Wells then signed the Miranda-ñghts form. Davis testified that, following Wells’s confession, Davis allowed Wells to review the notes made during the interview, and Wells said, “that’s great.” Davis then typed the confession. After Davis corrected “a grammatical error” at Wells’s request, Wells initialed and signed the typed statement. Davis testified that he believed that Wells’s confession was completely voluntary.
Following the suppression hearing, the trial court found that Wells’s statement was “knowing, voluntary, intelligent, un-coerced,” and thus denied Wells’s motion to suppress the statement.
On appeal, instead of making an argument, Wells simply recites facts that he seems to suggest are relevant factors in determining whether his custodial statement was voluntary.
To the extent Wells’s argument is preserved, Wells was twenty-four years old at the time of his confession. Even at such a young age, Wells was no stranger to the criminal-justice system, in that he had five prior felony convictions. Both Shepherd and Davis testified that they advised Wells of his Miranda rights by reading each one to him and that Wells placed his initials beside each right, indicating that he understood.
Admission of Rule WMb) Evidence
A hearing was held on February 16, 2011, to address the State’s motion to admit evidence regarding the homicide in Hot Springs pursuant to Ark. R. Evid. 404(b). Arkansas Rule of Evidence 404(b) (2012), provides:
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.
The State argued that evidence of the homicide was admissible as evidence of other crimes, wrongs, or acts because the shell casing and bullet at the homicide matched those found at the scene of the attempted murder of Rodriguez. Also, the State argued that the evidence was relevant in connection with other facts in the chain of evidence. Wells objected, but at the conclusion of the arguments, the judge ruled that the evidence “fits almost precisely within 404(b)” because evidence of the Hot Springs homicide showed design, intent, identity, and absence of mistake or accident in the attempted murder of Rodriguez. In ruling the evidence admissible, the judge found it to be “absolutely direct and independently relevant evidence.”
In analyzing the admission of evidence under Rule 404(b), our supreme court has stated that such evidence is not admissible simply to show a prior bad act. Davis v. State,
Appellant argued that the part where he talks about the shooting in Mot Springs should not be admissible under 404b due to the fact that he’s not been convicted of that crime and that it’s happened after this crime and it’s too prejudicial because once the jury hears that a murder has been committed somewhere else and they link him up to the murder, they’re not really going to pay any attention to any of the rest of [the] evidence here because it’s going to put nothing, nothing — puts fear in a jury or sticks in their mind as much as a murder will and that makes it too prejudicial for it to come in on the case where this is just a shooting. It’s not a murder here and they will have a tendency to just where well, if you murder somebody over there and we link that 1Mup to here, they will automatically go the way-or he’s guilty over here. That washed all the analysis or any judging the credibility of the evidence they present here, in the jury’s minds is going to completely shut down on him. That will prevent my client from having a fair trial and a fair determination of the issues in this trial, violate his due process rights, and Your Honor, just to be frank about it, it’s just plain unfair. They, have evidence here that they can put on that will carry their case if the jury believes it, it will just be unfair to let them put in a murder on my client in this ease over here with no murder to let them do that. That will violate his constitutional rights. They haven’t specified which one is admissible which one they’re trying to show motive, intent, plan, absence of mistake or accident. They don’t specify any one of them, they just want it to go in under something. So that’s not fair because they have enough evidence here, if the jury believes it....
Admission of evidence about the Hot Springs homicide was unquestionably prejudicial to Wells. Although Wells argued that this evidence was “too prejudicial,” which is essentially a Rule 403 argument,
As for Wells’s argument that the trial court erred in admitting evidence of the Hot Springs homicide because the homicide did not occur prior to the attempted murder of Rodriguez, we note that the trial court remarked, “Makes no difference.” We agree with the trial court’s ruling. This court has recognized that Rule 404(b) also applies to evidence of subsequent bad acts by an appellant. Fitting v. State,
Before we move to Wells’s next argument, we note that Wells requested a limiting instruction with regard to the Rule 404(b) evidence at the pretrial hearing, and the trial court gave the following instruction prior to Muhin’s and during Shepherd’s trial testimony:
[E]vidence of other alleged crimes, wrongs, or acts of a Defendant may not be considered by you to prove the character of a Defendant in order to show that he acted in conformity therewith. This evidence is not to be considered to establish a particular trait of character that he may have, nor is it to be considered to show that he acted similarly or accordingly on the day of the incident. This evidence is merely offered as evidence of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident. Whether any other alleged crimes, wrongs, [or] acts have been committed, is for you to determine.
For the reasons set forth above, and given this limiting instruction, we cannot say that the trial court abused its discretion in admitting evidence of the homicide in Hot Springs pursuant to Rule 404(b).
Hearsay Objection
Finally, Wells argues that the trial court erred in overruling his objection to hearsay when Ussery testified as to what Rodriguez had told him. Hearsay is a statement, other than the one made by the declarant while testifying at trial, offered in evidence to prove the truth |1fiof the matter asserted. Ark. R. Evid. 801(c) (20Í2). A trial court’s ruling on the admissibility of evidence is entitled to great weight and will not be reversed absent an abuse of discretion. Martin v. State,
At trial, Ussery testified that the bullet holes or trajectory marks were consistent with Rodriguez’s statement that he shut the door as Wells began shooting. The trial court overruled the objection and remarked that the testimony was “just formulated opinion.” We agree. A witness not testifying as an expert may provide testimony in the form of opinions and inferences if those opinions and inferences are rationally based on the perception of that witness and are- helpful to a clear understanding of the witness’s testimony or a determination of a fact in issue. Ark. R. Evid. 701 (2012). Ussery was merely offering his opinion that the evidence at the scene was consistent with the victim’s account of how Wells fired the gun at him and then into the door as it was being shut. We cannot say that the trial court abused its discretion in admitting Usser/s testimony. In any event, Ussery’s testimony was merely cumulative to Rodriguez’s testimony describing the actions he took upon being shot at by Wells. Goss v. State,
Affirmed.
Notes
. Wells v. State,
. The record indicates that the homicide in Hot Springs occurred at 6:30 p.m. on February 12, 2010, and not February 13, 2010.
. At a competency hearing prior to trial, the prosecutor and defense counsel advised the judge that Wells was evaluated by two psychiatrists, one at the behest of the State and the other for the defense. Both psychiatrists opined that Wells did not suffer any mental disease or defect and was competent to stand trial. The trial court made a specific finding in that regard.
. The trial court learned at the suppression hearing that Wells was a suspect in the murder of Mr. Northcutt in Malvern. At trial, however, the jury did not hear evidence regarding the Malvern homicide. Witnesses made no specific mention of it, and Wells’s reference to it in his custodial statement was redacted. The trial court instructed the jury that the redacted portion of Wells’s statement was not relevant to the current proceedings.
. Wells cites Bisbee v. State,
. Miranda v. Arizona,
. Arkansas Rule of Evidence 403 provides that, 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.