Full Opinion

Cite as 2026 Ark. App. 440 ARKANSAS COURT OF APPEALS DIVISION III No. CR-25-544 Opinion Delivered September 30, 2026 CHARLES EWING, JR. APPELLANT APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT V. [NO. 54CR-23-172] STATE OF ARKANSAS HONORABLE E. DION WILSON, APPELLEE JUDGE AFFIRMED N. MARK KLAPPENBACH, Chief Judge Following a jury trial in the Phillips County Circuit Court, Charles Ewing, Jr., was found guilty of being a felon in possession of a firearm. On appeal, he argues that the circuit court erred in (1) admitting testimony despite a discovery violation; (2) admitting hearsay testimony; and (3) admitting evidence that was unduly prejudicial. We affirm. Charles was charged as a habitual offender with first-degree murder in the shooting death of Ashley Ewing, first-degree battery in the shooting of Edward Griffin, violation of a protection order, and possession of a firearm by a felon. The charge of possession of a firearm by a felon was severed and tried separately in the case now on appeal. Evidence at trial established that Ashley had obtained an ex parte order of protection against Charles on behalf of herself and their children that was set for a hearing the day after the shooting. When police arrived at the scene of the shooting, they discovered Griffin lying on the ground with a gunshot wound to his head. Ashley, who suffered a fatal gunshot wound, was discovered lying behind an air conditioning unit outside her apartment. The only gun found at the scene was a 9mm, which was in Griffin’s waistband. It was determined that a bullet recovered from Ashley’s body was a .45-caliber bullet, which could not have been fired from the gun found on Griffin. Nykalla Young testified that she was on a video call with Ashley before the shooting. Young said that she heard Charles’s voice on the call, and she heard Ashley twice say, “What are you doing here, Charles? You know you’re not supposed to be here.” Ashley told Young to call the police, so Young ended their call and called the police. Patricia Belk, Charles’s sister, testified that Charles was hiding out after the shooting and asked her to drop off food for him. She said that Charles later told her that he did not shoot Ashley. He told Patricia that he had been wrestling over the gun with the man who got shot when it went off, shooting Ashley and the man. Patricia said that Charles drove a Suburban. Griffin testified that he saw Ashley sitting on the air conditioning unit and talking on the phone while he was outside his mother’s apartment. He said that a Tahoe or Suburban pulled up, and a black man jumped out and started arguing with Ashley. Griffin said that Ashley said something like “you’re not supposed to be here.” Griffin was walking away when he heard gunshots. Marilyn Ewing, Charles’s other sister, testified that at the time of the shooting, she was on her way to pick Ashley up and that they were going to pick up Ashley’s children. Marilyn said that Ashley was usually sitting on the air conditioning unit when she arrived to 2 pick her up. Marilyn testified that about a week before the shooting, she went to Ashley’s home to pick something up for Charles, and before she went, Charles asked her to take Ashley her Social Security payment card. She testified that before handing over the card, however, Charles said, “Forget it. Ashley ain’t gone need it because I’m going to kill that bitch anyhow.” Marilyn testified that Charles would say “all the time” that he was going to kill Ashley because “she wasn’t taking his kids.” On appeal, Charles first argues that the circuit court abused its discretion in failing to require the State to disclose the prosecutor’s notes related to Patricia’s statement. During Patricia’s testimony, defense counsel alleged that the State had violated the requirements of Rule 17.1 of the Arkansas Rules of Criminal Procedure by failing to provide notes from an interview with Patricia. The prosecutor argued that the State was not required to turn over notes he took when Patricia gave a verbal statement. The court overruled the objection. On appeal, Charles argues that the circuit court abused its discretion in allowing Patricia’s testimony without disclosure of the prosecutor’s notes. He cites Arkansas Rule of Criminal Procedure 17.1(a)(v), which provides, in relevant part, that the prosecuting attorney shall disclose to defense counsel “any books, papers, documents, photographs or tangible objects, which the prosecuting attorney intends to use in any hearing or at trial.” Charles argues that the prosecutor’s notes should have been disclosed and that he was prejudiced by this violation. Charles has failed to cite any authority or develop any argument showing that the rule applicable to papers and documents used at trial would apply to Patricia’s testimony. We 3 will not consider an argument when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Tate v. State, 2025 Ark. 186, 722 S.W.3d 516. Charles also argues that the State “did not give the notes to the Court to determine if they were not admissible under Ark. Code Ann. § 16-89-115.”1 This argument was not made below, and therefore, it is not preserved for appeal. Charles next argues that the circuit court abused its discretion in admitting Young’s testimony about what she heard Ashley say on the phone before the shooting. The circuit court overruled Charles’s hearsay objection upon finding that the testimony qualified as a present-sense impression and was thus admissible as an exception to the hearsay rule. On appeal, Charles specifically challenges only Young’s testimony that Ashley stated, “You know you’re not supposed to be here.” He contends that this was not a present-sense impression because it did not describe an event or condition; rather, it was a statement of Ashley’s opinion of Charles’s state of mind. Charles argues that the testimony was prejudicial because it suggested that he knew he was violating the order of protection. 1 Arkansas Code Annotated section 16-89-115(b) (Repl. 2005) provides that “[a]fter a witness called by the State has testified on direct examination, the court on motion of the defendant shall order the State to produce any statement, as defined in subsection (e) of this section, of the witness in the possession of the State that relates to the subject matter about which the witness has testified. If the entire contents of the statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his or her examination and use.” 4 We review evidentiary rulings under an abuse-of-discretion standard, and we do not reverse absent a manifest abuse of that discretion and a showing of prejudice. Lacy v. State, 2020 Ark. App. 224, 599 S.W.3d 661. Arkansas Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” An out-of-court statement is not hearsay, however, if it is offered, not for the truth of the matter asserted, but to show the basis for the witness’s actions. Wayne v. State, 2024 Ark. App. 318, 689 S.W.3d 702. The State argues that Ashley’s statement “[y]ou know you’re not supposed to be here” is not hearsay because it was not offered to prove the truth of the matter asserted—that Charles knew he was not supposed to be there. We agree. Proof that Charles knew he should not be at Ashley’s apartment is not relevant in a trial when the only charge is felon in possession. The ex parte order of protection excluding Charles from the property had already been admitted into evidence. Instead of being offered to prove that Charles knew about the order of protection, Ashley’s out-of-court statement showed the basis for Young’s action in calling the police to report Charles’s presence at the property. Because the statement was not hearsay, we hold that the circuit court did not abuse its discretion in admitting this testimony. In his last point, Charles argues that the circuit court abused its discretion in admitting Marilyn’s testimony that Charles told her he was going to kill Ashley. Charles argues that the testimony should have been excluded under Arkansas Rules of Evidence 403 and 404(b) because the probative value of the testimony was outweighed by the danger of 5 undue prejudice, and the sole purpose of the testimony was to show that he is a bad person. The circuit court overruled Charles’s objection to the testimony below. In issues relating to the admission of evidence under Arkansas Rules of Evidence 401, 403, and 404(b), a circuit court’s ruling is entitled to great weight and will not be reversed absent an abuse of discretion. Marmolejo v. State, 102 Ark. App. 264, 284 S.W.3d 78 (2008). Rule 403 states that “[a]lthough 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.” Ark. R. Evid. 403. Rule 404(b) provides that [e]vidence 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 test for admissibility under Rule 404(b) is whether the evidence is independently relevant, which means it must have a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Vance v. State, 2011 Ark. 243, 383 S.W.3d 325. Any circumstance that links a defendant to the crime or raises a possible motive for the crime is independently relevant and admissible under Rule 404(b). Id. Here, the evidence that Charles repeatedly voiced a desire to kill Ashley is relevant to the issue of whether he possessed a gun on the day of the shooting and shows proof of motive, intent, and plan. We hold that the circuit court did not abuse its discretion in failing 6 to find that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice. Accordingly, we affirm. Affirmed. ABRAMSON and VIRDEN, JJ., agree. Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant. Tim Griffin, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee. 7