Albert Kieth Smith v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR06-77
Opinion Delivered
ALBERT KIETH SMITH,
APPELLANT,
VS.
STATE OF ARKANSAS,
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT,
NO. CR2004-84-1,
HON. TOM J. KEITH, JUDGE,
APPELLEE,
AFFIRMED.
BETTY C. DICKEY, Associate Justice
Albert Kieth Smith appeals his conviction of forty years for one count of kidnapping,
and life without parole for one count of capital murder, from the Benton County Circuit
Court. He alleges multiple errors by the circuit court, which include: (1) failing to dismiss
for want of jurisdiction or failing to submit the jurisdiction issue to the jury; (2) failing to
direct a verdict in favor of Appellant based on the insufficiency of the evidence; (3)
permitting the State to impermissibly shift the burden of proof to Appellant; (4) failing to
properly instruct the jury with regard to the evidence that was not admitted for the truth of
the matter; and, (5) permitting the State to introduce prior “bad acts.” We conclude that his
appeal is without merit, and affirm.
Background
On September 18, 1999, the body of an unidentified white man was found in
McIntosh County, Oklahoma, in the right-of-way of Interstate 40. The body was positively
identified on September 20, 1999, as that of David Douglas Howard. Howard had been shot
in the back of the neck, and two .22 caliber bullets were recovered from his body. Howard
was a fifty-six year old, single man who had lived in Bella Vista and managed the Loch
Lomond Marina. Appellant’s involvement with Howard is best understood by reviewing,
in a chronological order, Smith’s relationship with his wife, Linda, in the months preceding
the crimes.
Linda Smith had been married to Albert Kieth Smith for twenty-eight years, and,
according to Linda, their marriage had become “platonic.” She and Smith had their own
computers, and Linda began looking at online websites on hers after learning about them
from her daughter. In June of 1999, Smith and Linda decided to separate; however, for
financial reasons, they continued living in the same house in Van Buren.
With the help of a co-worker and friend, William Dunn, Smith installed a program on
Linda’s computer that kept track of her keystrokes so that he could access the password to
her AOL email account. Although they were separated, Smith was upset about Linda’s
communication with other men, and, at some point in the summer of 1999, he printed twenty
to twenty-five emails involving communication between Linda and other men. Smith took
those emails to Mikeal Bates, who was a detective in the Criminal Investigation Division at
that time. Bates looked at the emails and listened as Smith told him that he had put the
Stealth program on Linda’s computer in order to view her computer activity. Smith asked
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Bates to speak with Linda and tell her to stop emailing other men, whereupon Bates
suggested marriage counseling to Smith.
On July 19, 1999, Smith set up an email account using the alias “jccart.” Smith not
only told Dunn about this account, but Dunn saw the name jccart as it appeared on several
of the emails he had written Linda. Not only Linda received emails from a jccart account,
but also Herbert Hawkins, one of the men with whom Linda had chatted online, received an
email on July 22, 1999, from a jccart account warning him to stay away from Linda Smith.
The Stealth Keyboard Interceptor Program installed on Linda’s computer would, without her
knowledge, send Smith’s computer copies of every email that she sent or received. Smith
filed for divorce on July 29, 1999. Although surprised when Smith filed for divorce, Linda
accepted the situation and moved out of the house she shared with Smith on August 13, 1999.
There were two other men besides Hawkins with whom Linda Smith frequently
exchanged emails, Robert Glendinning of Jacksonville, Florida, and David Howard, the
victim in this case. The evidence suggests that Smith was trying to gather information on
these men. Linda testified that Smith had a Sam’s card and would buy pre-paid phone cards.
She admitted that they occasionally shared the phone cards while she lived with Smith, but
testified that she did not use them after she moved out. The evidence shows that calls were
placed from Smith’s calling card in an attempt to track down Mr. Glendinning. A call was
also placed from that calling card to the Loch Lomond Marina, where David Howard was
employed. In addition, internet searches for Robert Glendinning’s address were entered on
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Smith’s computer.
In an email exchange on August 10, 1999, Linda and David Howard discussed
meeting one another. That same day, Linda received emails from the jccart account
mentioning Howard. One email read, “How about David is he going to be more competition
for me,” and the other stated, “Maybe I don’t have the right to be jealous, but I am anyway.
I hope you don’t start anything with David.” Linda was still unaware that the jccart account
had been registered on Smith’s computer, thinking jccart was a stranger on the internet who
had somehow hacked into her computer. She received another email from jccart on August
11, 1999, stating “I will try to stop monitoring your email account, although it will be hard
to do knowing all of your other friends.”
While Smith was not a hunter and did not collect guns, his Visa was used to purchase
a Marlin .22 caliber rifle, with scope and ammunition, at the Van Buren Wal-Mart on August
11, 1999. The next day, a call was placed from Smith’s new cell phone to the Loch Lomond
Marina, and Linda received an email from the jccart account regarding Howard coming to
stay with her on Sunday night and Monday. The email warned her that Howard was out
every night with a different woman and that she should use a condom to be safe. On August
14, 1999, Smith’s work records from his job as a mail carrier for the U.S. Postal Service
revealed that he took the day off. His Visa was used on that day for purchases from the
Rogers Wal-Mart, and the purchases included a pair of binoculars, black jeans, a black longsleeve shirt, and a pair of black shoes. A call was placed that night from Smith’s cell phone
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to Howard’s home phone number in Bella Vista.
On August 15, 1999, Linda and Howard met in person for the first time, and he spent
that night at her apartment. Smith’s work records for that day indicate that he had the day
off, and his computer later revealed that he had spent time that day researching different
poisons. During this time period Linda was still communicating with Robert Glendinning,
the man from Florida. Smith’s computer also revealed that he emailed Glendinning on
August 17, 1999, stating that “there is more at stake here than you can imagine.” In addition,
Smith’s Visa records indicate more purchases at the Van Buren Wal-Mart, including a onehalf inch white nylon rope. Two days later, August 19, 1999, Smith purchased a new white
van, although his truck was fairly new with low mileage. The van’s license plate read
535DMK.
David Howard and Linda decided that she should visit Howard at his home in Bella
Vista on August 21, 1999. Smith’s work records show that he again took a sick day on the
same day, and his cell phone records reveal that calls were made to Howard’s place of
employment. The calls to the Loch Lomond Marina were connected through the nearest cell
tower, indicating that the calls were placed from Bella Vista. That night, Smith’s Visa
revealed a purchase of a nine-and-a-half inch stainless steel knife at the Van Buren WalMart, and Smith’s calling card showed three calls were placed to Howard’s home.
On August 23 and 25, 1999, Smith again took leave from work. His Visa records
indicate that he rented a car at Hertz in Fort Smith on August 23, 1999, and that he made a
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purchase from the Exxon in Little Rock on August 24, 1999. Later that day, the license tag
on Smith’s van, 535DMK, was run by law enforcement authorities in Greenville, Mississippi,
and Smith’s Visa records revealed a purchase at the Exxon in Loxley, Alabama. Smith went
to Jacksonville, Florida, where Robert Glendinning lived. His calling card showed another
call to Howard’s home in Bella Vista on August 24. On August 25, Smith’s Visa was used
at a Chevron station in Baldwin, Florida, and his calling card was used from a pay phone at
the Hardee’s in Neptune Beach, Florida, to call Robert Glendinning. Smith finally reached
him, but could not convince Glendinning to meet him.
Linda and David Howard made plans for another date at Howard’s home in Bella
Vista on August 26, 1999. On August 27, Smith missed another day at work, and on that
same day, rented a car from the Hertz location in Springdale. In addition, several phone calls
were placed from his cell phone indicating that he was in the Rogers, Bentonville, and Bella
Vista area. Two calls were made to Loch Lomond Marina, and calls were also placed to
Howard’s home. Smith took a sick day at work on August 30, 1999, and, that same day, he
ordered the book, “How to Make a Silencer for a .22.” The book was to be shipped to an
Albert Smith in Van Buren. Smith ordered eight more books pertaining to gun silencers on
September 1, 1999. The order called for overnight delivery. On that same day, a call was
again placed to Howard’s home from Smith’s cell phone, going through a cell tower in Bella
Vista, indicating that the call originated from there. On September 2, 1999, another call from
Smith’s phone to Howard’s home was placed, this time from the north Fort Smith area. The
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same day, David Howard drove to visit Linda and spent the night at her apartment.
On September 3, 1999, Smith was not working and rented another car from Hertz.
More calls from Smith’s phone to Linda suggest that Smith was in the Bella Vista area.
Three days later, on Monday, September 6, 1999, calls were placed on Smith’s calling card
from the All In 1 Market, located near the Sonic in Bella Vista. Smith’s phone also indicated
a three-minute phone call to Howard’s home at 5:19 p.m.. At 6:28 p.m., Howard sent Linda
an email regarding their plans for the upcoming weekend. He informed her that he had “run
into complications for Saturday night” and had been “offered a job opportunity” and needed
to “be back in Bella Vista by 7 p.m. on Saturday night.” Linda and Howard spoke about the
email later and Linda testified that he was supposed to meet someone near the Sonic in Bella
Vista. Howard told her that he had been contacted by a man named Billy Martin, whom he
believed to be a recruiter for people who wanted Howard to build a new marina in an
undisclosed location. Bill Dunn testified that he and Smith actually had worked with a postal
carrier named Billy Martin, indicative that Smith knew an actual person by that name.
Smith told Linda that he planned to travel on Saturday, September 11, 1999, and
would not return until September 17. Smith rented another car from the Springdale Hertz
location on September 10, and on September 11, he placed two calls on his calling card. One
call placed him in Springdale at 6:46 p.m., and the other placed him in Seminole County,
Oklahoma, at 10:51 p.m.. Finally, at 1:18 a.m. on September 12, Smith again used his calling
card, placing a call from Marietta, Oklahoma. Several of Howard’s communications relayed
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that he traveled a similar route that night when he was with the recruiter, whom he knew as
Billy Martin. Linda spoke with Howard on Sunday, September 12, and testified that he had
been very frustrated as something had gone wrong with his trip. However, he informed
Linda that he intended to get back with the recruiter at a later date. The evidence indicated
that Howard had also been seeing other women and that he had shared his belief with them,
as well as Linda, that building a marina was a future business opportunity for him.
On September 12, 1999, Smith told Linda, his son, and his daughter-in-law that he
was about to do some traveling to Mississippi with a girlfriend, Rebecca. However, nobody
ever saw Rebecca or even believed that she existed. What is known is that Smith bought a
new computer at Best Buy in Fort Smith and then charged a room at the Howard Johnson
Motel in North Little Rock on his Visa later that same day. The next day, September 13,
1999, a Ruger .22 pistol and ammunition were purchased from Midsouth Guns and charged
to Smith’s Visa. Smith called his friend Bill Dunn when he had trouble getting his computer
to work, and, after speaking with Dunn, he was able to get the computer hooked up to the
Internet from his motel room. On September 14, 1999, searches for information on silencers
and poisons were entered on this new computer.
Around the same time, Howard called two people in an attempt to get information on
a white van with an Arkansas license plate of 535DMK. Chief Wozniak of the Bella Vista
Sheriff’s Office testified that Howard asked him to run the tag because he had seen a white
van around the marina. However, Chief Wozniak told him that he could only run checks for
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law enforcement purposes. Layla Wheeler testified that Howard had also asked her to run
that very same tag. Wheeler was told that Howard wanted the tags run because he was being
recruited by someone to build a marina, but the individual would not give him a company
name and would not reveal much about himself, except to say he was driving a company car.
Howard wanted to see to whom the car was registered. Layla Wheeler finally ran the tags
for him, but it was after Howard had been murdered.
Smith checked out of the Little Rock Howard Johnson Motel on September 15, 1999,
and saw his chiropractor in Fort Smith the same day. That afternoon, Howard left work at
the Loch Lomond Marina. At 5:45 p.m., he emailed Linda Smith for the last time, informing
her that he was to meet the recruiter at six o’clock at the Sonic in Bella Vista and would
probably be gone for several hours. Investigators later found a notepad at Howard’s house
beside his computer, with a few notes jotted on it, “Billy Martin, marina, build, license
number of car, AR535DMK, meet six o’clock Allen’s parking lot by Sonic, one hour away
9/15/99.” Days later, Howard’s Blazer was towed away from where it had been parked near
the Sonic.
On September 16, 1999, the day after Howard was to meet the recruiter, Smith called
Linda and informed her that he was back in town. Linda was worried about Howard because
she had not heard from him. Smith offered to bring dinner to Linda’s home. When she
allowed Smith to come, he kept telling her that he was tired and had taken a sleeping pill.
Smith fell asleep on the floor and Linda decided to leave him there and went to her bedroom
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to go to sleep. Linda’s computer records indicate that at 4:22 a.m. on September 17, the
Stealth program that had been monitoring her computer activity was deleted and was sent to
the recycle bin of her computer. Linda awoke around 6:30 a.m., and Smith was already up
and about to leave her apartment. Linda attempted to contact Howard but was unsuccessful,
and, that same day, he was reported missing by a co-worker. On September 18, 1999, the
body of David Howard was discovered in Oklahoma. On January 22, 2004, more than four
years later, Smith was arrested and charged in Benton County, Arkansas, with the capital
murder and kidnapping by deception of David Howard.
Sufficiency of the Evidence
Smith contends that the trial court erred by not granting his motion for a directed
verdict, and challenges the sufficiency of the evidence supporting his convictions. More
specifically, he alleges that the evidence was merely circumstantial and did not exclude every
other hypothesis consistent with his innocence.
We treat a motion for directed verdict as a challenge to the sufficiency of the
evidence. Cluck v. State, ___ Ark. ___, ___ S.W.3d ___ (Feb. 6, 2006). We have repeatedly
held that, in reviewing a challenge to 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.
Id. We affirm a conviction if substantial evidence exists to support it. Id. Substantial
evidence is that 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
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conjecture. Id.
Although Smith did not raise his sufficiency challenge until the second point on
appeal, double jeopardy considerations require this court to consider it first. See Johnson v.
State, ___ Ark. ___, ___ S.W.3d ____ (Mar. 23, 2006); Standridge v. State, 357 Ark. 105,
161 S.W.3d 815 (2004); Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). However,
as noted by the State, Smith did not make a proper directed-verdict motion. The following
motion was made to the court at the close of the State’s case:
We move for a directed verdict on insufficiency of the evidence. On the whole
the evidence is too speculative and too conjectural to submit to the jury. As
you know, a jury should decide the case only on the hard facts and all we have
here is speculation masquerading us back and conjectural masquerading us
back and theory masquerading us back, so we would move for a directed
verdict.1
At the close of the trial, Smith renewed his motion as follows:
Our directed verdict motion we premised much upon the same thing. That is,
if the court doesn’t bounce this for jurisdiction, then the court should look at
the state of evidence and again acknowledge that insufficient evidence was
presented insofar as the kidnapping is concerned, because the evidence that the
1
Appellant abstracted the three phrases “us back” to read “as fact,” which makes more
sense in context; however, it is not how the record reads. (R. 4533)
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judge did admit was admitted with the admonition that it is not being offered
for the truth [of] the matter. We once again have a situation where there is no
affirmative evidence that the alleged kidnapping occurred. . . . I would
incorporate everything said on the jurisdiction argument into our motion for
directed verdict and to dismiss for insufficiency of the evidence.
%%%%
[T]here is no evidence of a kidnapping or murder for this jury to consider and
it would be allowing the jury to speculate and base their verdict on speculation
and conjecture.
%%%%
Judge, for the purpose of the record, we would reiterate and incorporate our
previous motions word for word and line for line for everything that has been
said in our written motions previously filed, as well as our motions presented
at the initial end [sic] of the State’s case, at the end of our case, and we would
incorporate all of those, and without belaboring, I would just like to
incorporate them by reference.
Where a motion for directed verdict is made, Arkansas Rule of Criminal Procedure
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33.1 requires that it specifically state how the evidence is deficient. See Ark. R.Crim. P.
33.1(a). Rule 33.1 further provides that the failure of a defendant to challenge the sufficiency
of the evidence at the times and in the manner required by the rule will constitute a waiver
of any question pertaining to sufficiency of the evidence. See Ark. R.Crim. P. 33.1(c)
(emphasis added). Smith's motion was improper, in that “[a] motion merely stating that the
evidence is insufficient does not preserve for appeal issues relating to a specific deficiency
such as insufficient proof on the elements of the offense.” Ark. R.Crim. P. 33.1(c). The
motion must specifically advise the trial court as to how the evidence was deficient. Nelson
v. State, ___ Ark. ___, ___ S.W.3d ___ (Feb. 16, 2006); Pyle v. State, 340 Ark. 53, 8 S.W.3d
491 (2000). The reason underlying this requirement that specific grounds be stated and that
the absent proof be pinpointed is that it allows the circuit court the option of either granting
the motion, or, if justice requires, allowing the State to reopen its case to supply the missing
proof. See Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997). This court has repeatedly
held that it will not address the merits of an appellant's insufficiency argument where the
directed-verdict motion is not specific. See Nelson, supra.; See Davis v. State, 330 Ark. 501,
956 S.W.2d 163 (1997). Smith’s directed-verdict motion was a surface objection insufficient
to preserve the argument for appeal. Therefore, we will not address the merits of the
sufficiency argument.
Jurisdiction
Smith contends that the trial court erred in failing to dismiss for want of jurisdiction
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or for failing to submit a jury instruction, proffered by Smith, that would have instructed the
jury that the State bore the burden of proving jurisdiction beyond a reasonable doubt.
Smith’s main objection is that the evidence is insufficient to prove that the murder took place
in Arkansas, especially considering that the body of David Howard was discovered in
Oklahoma. In addition, Smith argues that the issue of jurisdiction should not be determined
by a trial court, but that the State should have to prove jurisdiction beyond a reasonable doubt
to the satisfaction of a jury.
The Arkansas Criminal Code instructs that jurisdiction is one of four elements that
must be proven beyond a reasonable doubt to convict someone of an offense. See Ark. Code
Ann. § 5-1-111(a) (Repl. 2006).
However, Ark. Code Ann. § 5-1-111(b) creates a
presumption in favor of jurisdiction where the charge is actually filed by the State. Ridling
v. State, ___ Ark. ___, ___ S.W.3d ___ (Jan. 27, 2005). Section 5-1-111(b) states:
(b) The state is not required to prove jurisdiction or venue unless evidence is
admitted that affirmatively shows that the court lacks jurisdiction or venue.
Before the State is required to put on evidence to prove jurisdiction, there must be
positive evidence that the offense occurred outside the jurisdiction of the court. Findley v.
State, 307 Ark. 53, 818 S.w.2d 242 (1991). In the instant case, there was only evidence that
the body was found in Oklahoma. There was no positive evidence presented that the crime
actually occurred outside of Arkansas. In addition, this court has said that any state in which
an essential part of the crime is committed may take jurisdiction, as it is not essential that all
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of the elements of the crime charged take place in Arkansas. Id. The record in this case
provides ample substantial evidence that, at the very least, the premeditation and deliberation
element of capital murder, see Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2006), or the act of
kidnapping by deception, see Ark. Code Ann. § 5-11-101(3) and § 5-11-102(a)(4) (Repl.
2006), occurred in Arkansas. Therefore, we conclude that this argument has no merit.
Burden of Proof
Smith contends that the trial court erred by allowing un-redacted custodial statements
made by Smith into evidence. He argues that in doing so, the court allowed the State to
impermissibly shift the burden of proof to him. The particular statements Smith is opposing
are comments that were made in response to his being asked by investigators how he could
convince them that he is not guilty with the evidence they had against him. Smith contends
that with those statements being admitted, the State was able to shift the burden of proof to
him to prove his innocence.
While Smith is correct in that he may not be expected to disprove his guilt, this court
does not find that the admission of Smith’s custodial statements had the effect of shifting the
burden of proof. In fact, the trial court correctly instructed the jury that the State had the
burden of proof beyond a reasonable doubt, and that Appellant was not required to prove his
innocence. While a statement made in custody is presumptively involuntary, the State must
prove that it was given voluntarily and was knowingly and intelligently made in order for it
to be admissible. Flowers v. State, ___ Ark. ___, ___ S.W.3d ___ (May 5, 2005). Smith is
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not arguing that a waiver of his Miranda rights was by intimidation, coercion, or deception.
While Smith could have remained silent, he chose to speak with the investigators and his
statements were admissible, like any other evidence, as pieces of the puzzle that might help
the jury determine Smith’s guilt or innocence. For these reasons, we conclude that this
argument is without merit.
Jury Instructions
Appellant contends that the trial court erred in failing to instruct the jury with regard
to evidence that was not admitted for the truth of the matter asserted. Several evidentiary
items were admitted in trial that were offered for reasons other than the truth of the matter
asserted. A number of these exhibits required an admonishment to the jury for the evidence
to be considered for purposes other than the truth of the matter asserted. Smith admitted that
the court did admonish the jury at the time that the exhibits were introduced. However, he
now argues on appeal that the trial court erred by not instructing the jury again at the
conclusion of the evidence.
First, this argument was not supported by case law in
Appellant’s brief. An argument unsupported by convincing argument or authority, whose
merit is not apparent without further research, cannot support reversal. See Hathcock v.
State, 357 Ark. 563, 182 S.W.3d 152 (2004). Secondly, as noted by the State, jurors are
presumed to comprehend and follow the instructions given to them by the court. Kelly v.
State, 350 Ark. 238, 85 S.W.3d 893 (2002). Smith has not made a convincing argument that
the court erred by not giving certain instructions more than once. For these reasons, this
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court rejects this argument.
Prior Bad Acts
For his last point on appeal, Smith argues that the trial court erred in permitting the
State to introduce certain testimony and certain items found in his home. He contends that
the evidence consisted of “prior bad acts” that should have been excluded by the court under
Rule 404(b) of the Arkansas Rules of Evidence, and that the evidence possessed no similarity
to the crimes for which he was convicted. The State argues that the court did not abuse its
discretion by admitting evidence: that Appellant possessed a brief case that contained a map
of the Southeastern United States, a rope, and a knife; that he went to Florida where one of
his ex-wife’s internet contacts lived; and that the contact from Jacksonville, Florida, Robert
Glendinning, had received email about Linda Smith by a person with a jccart account name.
The admission of evidence under Arkansas Rule of Evidence 404(b) is left to the
sound discretion of the circuit court and will not be disturbed absent a manifest abuse of
discretion. Armstrong v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 13, 2006). Rule 404(b)
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.
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Ark. R. Evid. 404(b) (2006). Howard, the victim in the case, had been a friend of Smith’s
ex-wife whom she met on the internet. Evidence that Smith had contacted Glendinning,
another contact of his ex-wife, to discourage a relationship with Linda, that he had traveled
to Florida, and possessed rope and a knife in a brief case with a map of the Southeastern
United States could be indicative of Smith’s intent, motive, or planning regarding the men
his ex-wife had befriended. This court has held that, when the purpose of evidence is to
show motive, anything and everything that might have influenced the commission of the act
may, as a rule, be shown. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003).
Furthermore, the State is entitled to produce evidence showing circumstances which explain
the act, show a motive, or illustrate the accused's state of mind. Armstrong, supra. (citing
Morgan v. State, 359 Ark. 168, 195 S.W.3d 889 (2004)). For this reason, we find that the
circuit court did not abuse its discretion in admitting this evidence.
Rule 4-3(h)
In compliance with Ark. Sup.Ct. R. 4-3(h), the record has been examined for all
objections, motions, and requests made by either party that were decided adversely to Smith.
No prejudicial error was found.
Affirmed.
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