NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL Judge

DIVISION I

CACR01-1177

SEPTEMBER 25, 2002

TOMMY GLEN EDDS AN APPEAL FROM THE GARLAND APPELLANT COUNTY CIRCUIT COURT

v. [CR-2000-189-1]

STATE OF ARKANSAS HONORABLE JOHN HOMER

APPELLEE WRIGHT, JUDGE

AFFIRMED

Appellant, Tommy Edds, was convicted of second-degree murder in the death of Michael Crank and sentenced to twenty years in the Arkansas Department of Correction. Prior to trial, the State filed a motion in limine seeking to exclude evidence of a written autopsy report that indicated that the victim had alcohol and marijuana in his system at the time of his death. The trial court permitted evidence concerning the victim's alcohol level, yet excluded any reference to the assertion that the victim used marijuana prior to his death. On appeal, appellant argues that the trial court abused its discretion by suppressing evidence of the victim's drug use. Finding no abuse of discretion, we affirm.

Trial courts have broad discretion in deciding evidentiary issues, including the admissibility of evidence. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). Those decisions will not be reversed absent an abuse of discretion. Id.

Appellant's trial strategy included a self-defense claim. A condition precedent to a plea of self-defense is an assault upon the defendant of such a character that it is with murderous intent, or places the defendant in fear of his life, or great bodily harm. Humphrey v. State, 332 Ark. 398, 966 S.W.2d 213 (1998). A critical issue with respect to self-defense is the reasonableness of the appellant's apprehension that he was in danger of losing his life or receiving great bodily injury. Id. One who claims self-defense must show not only that the person killed was the aggressor, but that the accused used all reasonable means within his power and consistent with his safety to avoid the killing. Id.

Appellant testified at trial that the victim, Michael Crank, had come to his home and made a phone call when they started arguing. Appellant testified that

I didn't want to argue and I just wanted to lay down. I told him that I just said - I said why don't you go home and just let me lay down, and that's the way it happened. I went and got my cane and sat down on the couch . . . . But as I was flopping is when I heard that click. When I'd - when I heard that click was the same time that I was flopped down, and I - the gun was in his lap when it wasn't in his lap before. From where I was sitting at, him being much higher than I was in the chair and the couch that I was sitting on, the gun was pointed directly at me, as far as I know. If not directly at me, it was as direct as I could see as far as my eyesight, and we weren't that far away from each other. Just - it wasn't that far away. There's things that I saw in his eyes that I'd never really seen before. He said something, I said something back. I don't remember exactly - what are you doing, maybe. Maybe that's what I said. What are you doing? Or maybe I said something else. But I couldn't understand why he had picked it up and put it on his lap to start with. I couldn't understand that. In this case, no matter where his hands was, I feared for my life.

Appellant argues on appeal that the evidence of the presence of cannabinoids in the

victim's system was relevant to his theory of self-defense in that it contributed to appellant's state of mind to decide that deadly force was necessary to save his own life. He relies upon Cagle v. State, 68 Ark. App. 248, 6 S.W.3d 801 (1999), which includes the following:

Appellant argued that, because the victim had a powerful and dangerous drug in his system, appellant was right to be afraid for his life, and therefore was justified in killing the victim in self-defense. This argument might be meritorious if there had been any evidence to show that appellant knew that the victim was taking methamphetamine, or that the victim's behavior was such that appellant could reasonably have inferred the victim was under the influence of the drug. However, no such evidence appears in the record. We think that the evidence of methamphetamine in the victim's blood was only conditionally relevant to the question of appellant's state of mind and, the other conditions not having been shown, it was not error to exclude it.

Cagle v. State, 68 Ark. App. at 251, 6 S.W.3d at 803 (citing Ark.R.Evid. 104(b)).

The State argues that the presence of cannabinoids was only marginally relevant to appellant's testimony that the victim had used marijuana on the day he was killed, and that Cagle is not applicable because appellant never testified that the victim's marijuana usage made him fear for his life. The State also relies upon Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000), where evidence of cocaine usage by a victim was excluded because it had nothing to do with the confrontation. The Jones court found no abuse of discretion in the trial court's ruling that the probative value of the evidence was far outweighed by its prejudicial nature. In the instant case, we agree with the State that it was within the trial court's discretion to rule that the prejudicial effect of evidence of the presence of cannabinoids in the victim's system would have outweighed any probative value of that evidence.

Affirmed.

Bird and Baker, JJ., agree.··²

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