DIVISION III

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

CACR00-953

APRIL 4, 2001

TALISA POOL

APPELLANT APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT

v. [CR99-483]

STATE OF ARKANSAS HONORABLE JOE MICHAEL

APPELLEE FITZHUGH, CHANCERY JUDGE

AFFIRMED

Appellant, Talisa Pool, was charged with second-degree murder under Ark. Code Ann. § 5-10-103 (Repl. 1997) for knowingly causing the death of Christopher Bell under circumstances manifesting extreme indifference to the value of human life, and/or with the purpose of causing serious physical injury to Christopher Bell, she caused the death of Christopher Bell. Following a jury trial, appellant was convicted of manslaughter and sentenced to ten years in prison. On appeal, she argues three points of error: 1) the trial court erred in denying appellant's motion for mistrial when the prosecution stated to appellant on cross examination that "you're pretty handy with a baseball bat"; 2) the trial court erred in denying evidence of a police call and excited utterance that corroborated appellant's testimony about the alleged victim's assault on another woman; 3) the trial court erred indenying appellant's testimony that she thought two men who accompanied the alleged victim were afraid of him. We find no error on the part of the trial court and affirm appellant's conviction and sentence.

Because appellant does not challenge the sufficiency of the evidence to support her conviction, we need not recite the facts of this case in great detail. On May 25, 1999, Christopher Bell came to appellant's home and began talking to appellant and several other women who sat on appellant's front porch. While talking to the women, Bell became angry when several of them teased him about a woman he had been seeing. Bell then began cursing the women, and appellant asked him to leave. When Bell did not leave, appellant stabbed him with a knife. Medical personnel later pronounced Bell dead and concluded that the cause of death was a stab wound to the chest and left arm. Appellant claimed that she acted in self-defense because she believed that Bell was about to hit her before she stabbed him.

During cross-examination, appellant testified that Bell was not carrying a knife, gun, or baseball bat when he approached her. The prosecutor then remarked: "Speaking of baseball bats. You are pretty handy with a baseball bat, aren't you?" At a bench conference, counsel for appellant moved for a mistrial on the ground that the prosecutor's question was "inflammatory, character evidence" and that the only reasonable conclusion the jury could draw would be that appellant had hit someone with a baseball bat. In response, the prosecutor stated that he wanted to ask appellant about an incident where she was suspected of hitting someone with a baseball bat in the head, and that the question related to appellant'sreputation for violence. After argument by the parties, the trial court denied the motion for mistrial, but admonished the jury to "disregard any statements or any questions that relate to a baseball bat."

Appellant argues that the trial court erred by denying her motion for mistrial when the prosecution stated to her on cross-examination that "you're pretty handy with a baseball bat." She argues that the only logical conclusion the jury could reach from such question would be that appellant had used a ball bat on a past occasion to attack someone. Appellant argues that the "question posed by the prosecutor was of such an inflammatory nature that [her] right to a fair trial was obliterated" and that "the context of the question was that [she] had testified about using a knife out of fear of the deceased." She further argues that "the context of the question in a murder trial made for an attack of [her] character."

A mistrial is an extreme and drastic remedy and is proper only if the action on which it is predicated has infected the trial with so much prejudice to the defendant that justice cannot be served by a continuation of the trial. Hardin v. State, 45 Ark. App. 149, 872 S.W.2d 861 (1994). Since the trial judge is in a superior position to assess the possibility of prejudice, he is vested with great discretion in acting on motions for mistrial, and the appellate court will reverse only where that discretion is manifestly abused. Id.

The trial court has wide discretion in granting or denying a motion for mistrial, and absent an abuse of that discretion, the decision will not be disturbed on appeal. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). Generally, an admonition to the jury cures a prejudicial statement unless it is so "patently inflammatory" that justice could not be servedby continuing the trial. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). Moreover, not every instance of prosecutorial misconduct mandates a mistrial. Hill v. State, 64 Ark. App. 31, 977 S.W.2d 234 (1998).

The law is well-settled that evidence of other crimes or bad acts committed by an accused, for which she is not charged in the present action, is generally not admissible. See Ark. R. Evid. 404; Henderson v. State, 335 Ark. 346, 980 S.W.2d 266 (1998). Here, it is obvious that the prosecutor's statement bearing on appellant's prior act of hitting someone with a baseball bat was inadmissible evidence. The State is disingenuous in suggesting that the jurors in this case "could have perceived the question as pertaining to appellant's skill at playing baseball or softball." Nevertheless, despite this court's disapproval of the trial tactic used by the prosecutor, we cannot say that the prosecutor's statement was so drastic as to require a mistrial. See Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997). The record shows that once the objection was made, the trial court admonished the jury to disregard any statements or evidence relating to baseball bats. It further shows that no further reference was made to that effect throughout the remainder of trial. Under these circumstances, we hold that any potential prejudice was cured by the admonition and that the trial court did not abuse its discretion by denying appellant's motion for mistrial.

Appellant next argues that the trial court erred in denying evidence of a police call and an excited utterance that corroborated her testimony about the alleged victim's assault of another woman.

At trial, appellant asked permission to call Officer Dominic of the Fort Smith PoliceDepartment to testify that, in April 1998, he responded to a call from a woman named Deanna Brewer. Appellant stated that Officer Dominic would testify that when he spoke with Brewer, she was crying and told him that Bell had battered her. The incident occurred at a house across the street from appellant's house. Appellant argued that Dominic's account of the incident involving Deanna Brewer should be admitted as an excited utterance, and that such evidence would support her claim of self-defense and the lack of mental intent to support the charge against her. The trial court declined to rule on the matter until appellant testified about the incident.

Appellant then testified, without objection, that on a previous occasion, she observed Bell beat up his girlfriend across the street from her house. She testified that Bell punched the woman in the face, knocked her against a car, threw her down, and kicked her in the head and arms. She testified that the police arrived at the scene, and Bell was arrested. Thereafter, appellant testified that Bell was capable of hurting a woman. The State did not cross-examine appellant about this incident.

The trial court has wide discretion on rulings concerning the admissibility of evidence, and the appellate court will not reverse such a ruling absent an abuse of discretion. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). Further, the appellate court will not reverse an evidentiary ruling absent a showing of prejudice. Vanesch v. State, 70 Ark. App. 277, 16 S.W.3d 306 (2000).

Here, we cannot say that the trial court abused its discretion in disallowing the testimony of Officer Dominic. The evidence does not show whether the prior incidentappellant observed involved the 1998 incident reported by Deanna Brewer. Further, appellant has not shown that she was prejudiced by the exclusion of Dominic's testimony when she was allowed to testify, without objection, that Bell was capable of hurting a woman and that she had personally observed him abuse a woman across the street from her house. The appellate court has refused to find prejudicial error where the evidence in question was merely cumulative to evidence otherwise admitted at trial. Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999).

For her last point on appeal, appellant argues that the trial court erred in denying her testimony that she believed two men accompanying Bell were afraid of him.

During direct examination, appellant testified that she did not intend to stab Bell and that she wanted him to leave her home. She further testified that two other men who accompanied Bell on the day of the incident did not help her stop Bell, and that it was her belief that "everybody was scared of [Bell]." Counsel for appellant then asked appellant to give an "opinion about what was in those two guys' minds." The State objected on the basis that appellant was asked to speculate. The trial court sustained the objection.

On this point, we find no error. Appellant testified without objection that everyone was scared of Bell, including herself. Because appellant's testimony presented evidence of her state of mind to the jury as well as evidence that others were afraid of Bell, appellant has not shown that she was prejudiced by the excluded testimony. Evidence that is merely cumulative or repetitious of other evidence admitted without objection cannot be claimed to be prejudicial. Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995).

Based on the foregoing reasons and authority, we affirm appellant's conviction.

Affirmed.

Stroud, C.J., and Jennings, J., agree.