Cite as

Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.03 13:26:51 DIVISION I -05'00' No. CR-18-921 Adobe Acrobat version: 2022.001.20169 Opinion Delivered October 2, 2019 CHRISTOPHER W. TERRELL APPELLANT APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT V. [NO. 56CR-15-21]

STATE OF ARKANSAS HONORABLE JOHN N. FOGLEMAN, APPELLEE JUDGE

AFFIRMED

N. MARK KLAPPENBACH, Judge

A Poinsett County Circuit Court jury found appellant Christopher Terrell guilty of

first-degree murder in the death of James Hunt. On appeal, Terrell argues that (1)

insufficient evidence supports his conviction; (2) the circuit court erred in denying his

motion in limine; (3) the circuit court erred in admitting the prior testimony of an

unavailable witness; (4) the circuit court erred in denying his motion for a new trial; and (5)

the circuit court erred in denying his two motions for a mistrial. We affirm Terrell’s

conviction.

James Hunt’s body was discovered by law enforcement underneath his burnt truck

at a levee in Marked Tree on November 29, 2014. Hunt died from a shotgun wound to

the head. Trails of blood led to the truck, and law enforcement determined that the body

had been rolled down a hill for more than sixty feet. Hunt’s wife, Peggy, told law

enforcement that Terrell and Betty Grant had been around her husband prior to his death. Peggy testified that on November 27, 2014, she received a call from Terrell from the phone

number (870) 227-3854 asking if she knew where Grant was. She provided police with

Terrell’s phone number as well as other numbers that appeared on her husband’s phone.

Law enforcement started looking for Terrell and Grant and did an “emergency ping” on

Terrell’s phone number.

Grant was interviewed by police the next day and told them that she had accidentally

killed Hunt. However, she testified at trial that she was under the influence of

methamphetamine during this interview and that nothing she had said was true. She testified

that it was, in fact, Terrell who had killed Hunt. Grant said that she had been in sexual

relationships with both men. She recounted her actions in the days leading up to the murder

starting on Thanksgiving Day, November 27, which was when she said Hunt took her to

his house to get high and injected her with methamphetamine. Grant recalled going to a

motel with Hunt and another man and making a “sex movie.” She testified that on

November 29, she took Terrell to “Miss Laura’s” home before she went back to Hunt’s

house and continued using methamphetamine. Later, both Grant and Terrell were at a

friend’s house when Terrell walked outside holding something wrapped in a blue shirt and

told Grant to get in her car.

Terrell and Grant drove to the levee, and Terrell then called Hunt several times to

tell him to come to the levee with some gasoline. Grant testified that the hood and trunk

of the car were open, and she fell asleep in the front seat. Grant awoke to “a really loud

noise like a gun” and saw Hunt bleeding from the face and appearing to take his last breaths.

Grant then saw Terrell dragging Hunt past the car, and she refused his request to help.

2 When she looked up again, Hunt was at the bottom of the levee. Terrell then drove Hunt’s

truck down to the bottom of the levee, poured gas on it, and set it on fire. When Terrell

returned to the car, he told Grant that she “was his now.” Grant said that Terrell changed

clothes, they drove around, and Terrell watched the “sex movie” from the camcorder he

had taken from Hunt’s truck. They eventually ended up at the house of Terrell’s brother,

Keith Terrell. Grant said that she went to sleep and remembered Terrell waking her up,

hitting her in the face and head, and telling her that she was not telling the story right.

Joseph Wilson testified that “Miss Laura” is his grandmother and that he was working

on her car with Terrell on November 29, 2014, when Terrell asked if Wilson could get

him a gun. When he asked Terrell what he needed a gun for, Terrell said it was to “take

care of some business.” Wilson was not able to get a gun for Terrell. Wilson said that he

later dropped Terrell off at Sydney Phillips’s home and then rode around with his girlfriend

before encountering Terrell sitting in Grant’s car at the levee. Wilson thought he saw Grant

pass by him in the passenger seat of an older model truck. As Wilson was leaving, he saw

Grant’s car parked with the trunk open and Terrell walking out of the woods.

Lloyd Watson was deemed an unavailable witness, and his prior testimony was read

into the record. Watson lived next door to Terrell’s brother, Keith. On November 29

between 7:30 and 8:15 p.m., Watson was outside when he saw a car speed by his house and

park next door. Watson had not seen the car in a while, but Terrell had previously told

him that it belonged to his girlfriend. Watson heard two doors slam but did not see who

got out of the car. The next morning, Watson saw the car backed into the shed area behind

the house. He saw Terrell get out of the car and take several items from the trunk into the

3 shed, including a spare tire, several gas cans, and clothes. Watson said that Terrell seemed

to be in a rush and that Terrell then removed the driver’s-side door panel and took it into

the shed. The police seized the door panels, along with clothes and gas cans, but no blood

was found on them.

Special Agent Kevin Horan of the FBI testified about performing a historical record

analysis of the cell phone number (870) 227-3854 for the time between 1:54 and 4:04 p.m.

on November 29, 2014. Horan explained how cell phones communicate with phone

towers by measuring the signal strength and how he could illustrate where a phone was

located at a certain date and time that it was used. The phone number in this case belonged

to a Verizon prepaid phone. Horan said that Verizon measures how long it takes for the

phone signal to go from the tower to the phone and back, and on the basis of that

measurement, Verizon could provide the approximate distance a phone was located from a

cell tower. Horan said that thirty range-to-tower measurements were taken in the analyzed

time period from calls, texts, and data usage. He produced maps showing the areas the

phone had been used in close proximity to the location of the murder.

The jury found Terrell guilty, and he was sentenced to twenty-three years’

imprisonment. Terrell subsequently filed a motion for new trial alleging that the jury had

erroneously considered the theory of accomplice liability and had convicted him as an

accomplice. After a hearing, the motion was denied.

I. Sufficiency of the Evidence

4 Terrell first argues that there is no substantial evidence to support his conviction

given Grant’s initial confession to the murder and the fact that she blamed him only after

she had been in custody for four months facing a murder charge. Grant admitted that she

told police numerous times in her initial interview that Terrell had nothing to do with

Hunt’s death and that it took her four months to remember things. Special Agent Mike

Grimes with the Arkansas State Police testified that he believed Grant may have been under

the influence of something at the time of her interview. She had been unable to make bond

until after her murder charge had been dropped, and at the time of Terrell’s trial, she was

facing only a charge of hindering apprehension. Terrell further argues that, notwithstanding

her credibility issues, because Grant testified that she did not see the shot being fired or the

circumstances surrounding it, her testimony was insufficient to show that he purposely

caused Hunt’s death.

The test for determining the sufficiency of the evidence is whether the verdict is

supported by substantial evidence, direct or circumstantial. Lenoir v. State,

,

(2002). Substantial evidence is evidence of sufficient certainty and

precision to compel a conclusion one way or the other and pass beyond mere suspicion or

conjecture.

In reviewing the sufficiency of the evidence, we view the evidence in a

light most favorable to the State and consider only the evidence that supports the verdict.

Terrell was charged with causing the death of another person “with a purpose of

causing the death of another person.”

(a)(2) (Supp. 2017). A

person acts purposely with respect to his or her conduct or a result of his or her conduct

5 when it is the person’s conscious object to engage in conduct of that nature or to cause the

result.

(1) (Repl. 2013). A criminal defendant’s intent or state

of mind is seldom capable of proof by direct evidence and must usually be inferred from the

circumstances of the crime. Stearns v. State,

,

. It is

axiomatic that one is presumed to intend the natural and probable consequences of his or

her actions.

Furthermore, the intent necessary for first-degree murder may be inferred

from the type of weapon used, the manner of its use, and the nature, extent, and location

of the wounds.

Terrell relies on Grant’s changing statements to police, but this court does not weigh

the evidence presented at trial or weigh the credibility of witnesses, as these are matters to

be resolved by the finder of fact.

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.

The jury credited Grant’s testimony, as it was entitled

to do, and we hold that her testimony along with the testimony of other witnesses

constitutes substantial evidence to support Terrell’s conviction.

Although Grant did not see the shot being fired, she heard it and immediately

thereafter saw Hunt dying from a gunshot wound to his face. She then saw Terrell drag

Hunt’s body, position Hunt’s truck over the body, and light the truck on fire. Earlier that

day, Terrell had asked Joseph Wilson for help acquiring a gun that he needed to “take care

of some business.” Wilson saw Terrell at the levee the afternoon of the murder. After the

murder, Lloyd Watson saw Terrell disposing of items from Grant’s car. A jury may properly

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

6 state.

Viewing the evidence in the light most favorable to the State, we hold

that substantial evidence supports the conviction. Terrell makes a further argument

regarding a juror’s affidavit related to his motion for new trial, but this is not a proper

consideration in determining the sufficiency of the evidence.

II. Motion in Limine

Prior to trial, Terrell filed a motion in limine to exclude the testimony of Special

Agent Horan on the basis that it did not satisfy the requirements of Daubert v. Merrell Dow

Pharmaceuticals, Inc.,

(1993), and that it was speculative, overly prejudicial, and

lacked a proper foundation. At a pretrial hearing, before testifying about his analysis as he

did at trial, Horan testified that he has been a member of the FBI’s Cellular Analysis Survey

Team for seven years, has been through extensive training, and has testified more than eighty

times. The circuit court denied Terrell’s motion upon recognizing Horan as an expert and

finding pursuant to Arkansas Rule of Evidence 702 that scientific, technical, or other

specialized knowledge would assist the trier of fact to understand the evidence or to

determine a fact in issue. Terrell now argues that there was insufficient proof that Horan’s

methodology was valid because there was no proof that it was peer reviewed, generally

accepted within his field, or controlled by any standards. Terrell contends that Horan’s

testimony amounted to little more than his estimates that were based on unverified estimates

from cell providers, and none of his work could be tested.

In Daubert, the Supreme Court established an inquiry to be conducted by the circuit

court when faced with the admissibility of certain expert testimony. In Farm Bureau Mutual

Insurance Co. v. Foote,

,

(2000), the Arkansas Supreme Court

7 adopted Daubert and held that a circuit court must determine at the outset whether the

expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact

to understand or determine a fact in issue. Ridling v. State,

,

(2005). This inquiry entails a preliminary assessment of whether the reasoning or

methodology underlying the testimony is scientifically valid and whether that reasoning or

methodology can be properly applied to the facts in issue.

A primary factor for a circuit

court to consider in determining the admissibility of scientific evidence is whether the

scientific theory can be or has been tested.

Other factors include whether the theory

has been subjected to peer review and publication, the potential error rate, and the existence

and maintenance of standards controlling the technique’s operation.

It is also significant

whether the scientific community has generally accepted the theory.

However, not all expert testimony is subject to the Daubert analysis. Turbyfill v. State,

,

(2005). The inquiry to be made by the circuit court is

a flexible one, not a rigid one, and the Daubert factors neither necessarily nor exclusively

apply to all experts or in every case.

The law grants a circuit court the same broad

latitude when it decides how to determine reliability as it enjoys in respect to its ultimate

reliability determination.

Moreover, the factors identified in Daubert may or may not

be pertinent in assessing reliability, depending on the nature of the issue, the expert’s

particular expertise, and the subject of his testimony.

After Horan testified at the hearing on Terrell’s motion, defense counsel argued that

the analysis was merely an investigative tool that produced estimates of varying reliability

and was not based on sufficiently stringent scientific evidence. The circuit court noted that

8 Horan fully acknowledged that the analysis produced estimates of where a phone may have

been located and found that the defense’s objections went more to the weight of the

evidence than its admissibility. Terrell did not obtain a ruling on any of the Daubert factors

that he now argues on appeal. In assessing reliability, the circuit court may, at its discretion,

consider the Daubert factors to the extent relevant.

Here, the court found

under Rule 702 that Horan’s expert testimony was admissible because it would assist the

jury in understanding the evidence or determining a fact in issue. We do not find this to

be an abuse of discretion. Terrell argues in the alternative that his cell-site location records

were illegally seized without a search warrant pursuant to a U.S. Supreme Court case

decided after his conviction. However, because Terrell did not challenge the seizure of his

records below, this argument is not preserved for appeal.

III. Admission of Prior Testimony

Because Lloyd Watson was unavailable as a witness, the State asked to introduce his

prior testimony from Terrell’s first trial, which ended in a mistrial. Terrell objected, arguing

that the prior motive and opportunity to cross-examine was different and that the prior

testimony did not include anything about Watson’s prior convictions or the fact that he had

allegedly used several aliases. The circuit court admitted the prior testimony and allowed

the defense to introduce Watson’s prior felony conviction. The court ruled that Watson’s

1992 misdemeanor conviction for criminal impersonation was not admissible nor was ACIC

information showing possible aliases Watson had used.

Rule 804(b)(1) of the Arkansas Rules of Evidence provides that the following is not

excluded by the hearsay rule if the declarant is unavailable as a witness:

9 Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Thus, the admission of prior testimony requires both the opportunity to cross-examine the

witness and a similar motive to develop his or her testimony. Bertrand v. State,

,

(2005). Similar motive does not mean identical motive, and the

inquiry is inherently factual. Dennis v. State,

,

.

Terrell argues that the motive to cross-examine Watson at the first trial was different

because the information about Watson’s criminal history and use of aliases was not

introduced. We agree with the State that Terrell’s argument is directed not at motive but

instead at defense counsel’s decision in the first trial not to cross-examine Watson on certain

issues. Defense counsel in the first trial had the opportunity and similar motive in cross-

examining Watson, and the fact that Watson was not cross-examined about his criminal

history does not change this. Thus, the circuit court did not err in admitting the testimony.

IV. Motion for New Trial

Terrell next argues that the circuit court abused its discretion in denying his motion

for a new trial. We do not reach the merits of this argument because Terrell failed to timely

appeal the denial. The sentencing order was entered on April 12, 2018, and Terrell timely

filed his motion for new trial on May 9, 2018. On May 10, Terrell filed a notice of appeal

from the sentencing order. On July 23, the circuit court held a hearing on the motion and

orally denied it. Terrell filed an amended notice of appeal on July 26, appealing from the

10 sentencing order and “the circuit court’s denial of his motion for new trial on July 23,

2018.”

Pursuant to Arkansas Rule of Criminal Procedure 33.3(c), if the circuit court neither

grants nor denies a posttrial motion within thirty days after the date the motion is filed, the

motion shall be deemed denied as of the thirtieth day. The circuit court loses the authority

to act on a posttrial motion once it has been deemed denied. Wright v. State,

,

(2004). Terrell’s motion for new trial was thus deemed denied on June 8,

2018, and the circuit court had no jurisdiction to act on it in July. Because the motion was

deemed denied on June 8, Terrell failed to file a timely notice of appeal. Arkansas Rule of

Appellate Procedure–Criminal 2(b)(2) provides as follows:

A notice of appeal filed before disposition of any post-trial motions shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Such a notice is effective to appeal the underlying judgment or order. A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice, complying with subsection (a) of this rule. No additional fees will be required for filing an amended notice of appeal.

Pursuant to this rule, Terrell’s May 10 notice of appeal was effective to appeal only the

sentencing order, and Terrell did not amend the notice of appeal within thirty days of the

denial of his motion. Terrell’s amended notice of appeal filed on July 26, 2018, was too

late, and his appeal of the denial of his motion for new trial is not properly before us. See

V. Motions for Mistrial

Terrell argues that the circuit court abused its discretion in denying his motion for a

mistrial when Grant testified that Terrell had injected her with 80 ccs of methamphetamine.

11 The State contends that Grant did not testify as Terrell alleges. The record reveals that

Grant testified that she got high at Hunt’s house on Thanksgiving Day by ingesting 80 ccs

of methamphetamine via a needle. She further testified as follows:

PROSECUTOR: Okay. Was that, did you typically use that much methamphetamine?

GRANT: No.

PROSECUTOR: How long had you been using meth?

GRANT: I had off and on for a long time, but not like that.

PROSECUTOR: Okay. What do you mean not like that?

GRANT: I would just smoke it whenever I used it like that until Chris done it.

PROSECUTOR: Until Chris done it, you said?

Defense counsel then objected and asked for a mistrial at a bench conference because his

file reflected that Hunt, not Terrell, had injected Grant with a needle and this testimony

violated Rule 404(b). The court denied the motion for a mistrial but agreed to instruct the

jury to disregard the statement. The trial continued as follows:

THE COURT: Ladies and gentlemen, in regard to the last statement of the witness, you are to disregard that statement. All right. Proceed.

PROSECUTOR: All right. So you stated that James Hunt injected you with the 80 of methamphetamine?

GRANT: Right.

We agree with the State that the record does not support Terrell’s allegation that

“Grant testified that Terrell injected her with 80 ccs of methamphetamine.” It is unclear

what Grant was referring to when she brought up Terrell’s name, but after the objection,

12 she clearly testified that it was Hunt who had injected her with the 80 ccs of

methamphetamine. Accordingly, Terrell’s argument on appeal is without merit.

Terrell next argues that the circuit court abused its discretion in denying his motion

for a mistrial during the testimony of Special Agent Mike Grimes. At a bench conference,

the prosecutor stated that he intended to ask Grimes if law enforcement received a phone

number that was “pinged” and what the number was. The court agreed that these questions

could be asked, stating, “I would admit it not for the truth of the matter of who it belongs

to because I’m not permitting him to say that, but to show why they did what they did.”

The prosecutor asked Grimes whether Hunt’s family had provided a phone number, what

law enforcement did with the number, and what the number was. He then asked whether

Hunt’s family had indicated “whose number they believed that to be.” Grimes answered,

“Christopher Terrell.” Defense counsel objected, and the court said that it had just ruled

that this question was not permitted. The prosecutor stated that he did not understand that

to be the ruling. The court denied the motion for a mistrial and instead instructed the jury

to disregard the last answer.

Terrell argues that a mistrial, not an admonition, was necessary to cure the prejudice

of the hearsay statements attributed to Hunt’s family members regarding his association with

that phone number. The State argues that Terrell cannot demonstrate prejudice because

prior to Grimes’s testimony, Hunt’s wife testified that Terrell had called her from the phone

number at issue two days before the murder and she had provided Terrell’s phone number

to the police. It is well settled that a mistrial is an extreme remedy that should be granted

only when the error is beyond repair and cannot be corrected by curative relief. Price v.

13 State,

,

. A circuit court has wide discretion in granting

or denying a motion for a mistrial, and the appellate court will not disturb the court’s

decision absent an abuse of discretion or manifest prejudice to the movant.

When similar

evidence is previously admitted without objection, the admission of later testimony on the

same subject is not considered prejudicial.

We agree with the State that the circuit court

did not abuse its discretion in denying the mistrial because the evidence had already been

admitted.

Affirmed.

HIXSON and BROWN, JJ., agree.

James Law Firm, by: Michael Kiel Kaiser and Bobby R. Digby II, for appellant.

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

14