Cite as 2026 Ark. App. 491
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-25-600
TIMOTHY DARNELL ALLEN Opinion Delivered October 21, 2026
APPEAL FROM THE FAULKNER
APPELLANT
COUNTY CIRCUIT COURT
[NO. 23CR-22-1260]
V.
HONORABLE H.G. FOSTER, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Timothy Allen (“Timothy”) was convicted by a Faulkner County jury of one count of
first-degree domestic battering and first-degree terroristic threatening and two counts of
aggravated assault on a family or household member. The jury found Timothy not guilty of
attempted first-degree murder. Timothy was sentenced as a habitual offender to an aggregate
sentence of ninety-one years’ incarceration, including sentence enhancements. On appeal,
he does not challenge the sufficiency of the evidence supporting his conviction. Instead, he
contends that (1) the circuit court abused its discretion when it allowed evidence to be
admitted under Arkansas Rule of Evidence 404(b); and (2) the circuit court erred when it
allowed the State to introduce testimonial hearsay statements from MC1 into evidence
because the introduction of those statements violated Timothy’s Sixth Amendment
Confrontation Clause right. We affirm.
On February 3, 2023, Timothy was charged by felony information with one count of
attempted first-degree murder pursuant to Arkansas Code Annotated section 5-10-102
(Supp. 2021), one count of first-degree domestic battering pursuant to Arkansas Code
Annotated section 5-26-303(a)(6) and (b)(1) (Repl. 2013), one count of possession of a
firearm by certain persons pursuant to Arkansas Code Annotated section 5-73-103(c) (Supp.
2021), one count of first-degree terroristic threatening pursuant to Arkansas Code
Annotated section 5-13-301 (Supp. 2021), and two counts of aggravated assault on a family
or household member pursuant to Arkansas Code Annotated section 5-26-306 (Supp. 2021).
The State also alleged that Timothy was a habitual offender pursuant to Arkansas Code
Annotated section 5-4-501 (Supp. 2021).
Before trial, Timothy moved to exclude evidence concerning a December 16, 2022,
incident between him and Mysteria Brown (“Mysteria”) and statements made by Mysteria’s
minor child, MC1. The State subsequently filed a notice of intent to introduce evidence
pursuant to Arkansas Rule of Evidence 404(b), including testimony and text messages
concerning the December 16 incident.
On March 18, 2025, the State filed a second amended felony information, adding a
firearm enhancement pursuant to Arkansas Code Annotated section 16-90-120 (Supp.
2021). On March 21, 2025, the State filed an amended notice of intent to introduce evidence
pursuant to Rule 404(b), adding evidence of Timothy’s alleged flight as evidence of
consciousness of guilt.
2
The circuit court held a pretrial hearing on March 24, 2025. In addressing the State’s
Rule 404(b) notice, Mysteria testified about the December 16, 2022, incident. Mysteria
testified that she and Timothy were in a dating relationship in 2022. On December 16, 2022,
Mysteria and Timothy argued about infidelity, and she attempted to pack her belongings and
leave. Mysteria testified that she and Timothy wrestled and that Timothy pulled out his
firearm and stood over Mysteria with the firearm while threatening to kill himself because
she was attempting to leave. Mysteria subsequently hid Timothy’s firearm in the kitchen.
Mysteria testified that she sent text messages to her friend, Alexis Brown (“Alexis”),
concerning the December 16 incident, which were admitted into evidence without
objection. In the messages, Mysteria told Alexis that she intended to involve the police when
she left and that Timothy had been “playing” with his firearm, that she begged him to put it
down, that he cocked his firearm, and that Timothy “fought” her when she attempted to
pack her belongings and leave.
The State argued that evidence of the December 16 incident was admissible under
Rule 404(b) to establish Timothy’s intent and absence of mistake or accident. Timothy
objected. The circuit court overruled the objection and ruled that the evidence was
admissible under Rule 404(b). The court also granted the parties’ joint motion to sever the
firearm charge for a separate trial.
A two-day jury trial was held on March 25–26, 2025. MC1 testified that she was seven
years old in December 2022, and Timothy was her former stepfather. MC1 recalled that
around Christmas 2022, Mysteria and Timothy were arguing in the living room and then in
3
the kitchen. According to MC1, Timothy dragged Mysteria into the kitchen, yelled in her
face, poured contents of a trash can on her, and grabbed a knife as though he was going to
stab her. MC1 yelled at Timothy to stop, and Timothy tossed the knife.
After returning to the living room, Timothy told MC1 to go to her bedroom. MC1
testified that she later came out of her room and saw Timothy with a gun, although she could
not remember whether he was pointing it at Mysteria or holding it up or down. MC1
returned to her room but subsequently came out again and saw Timothy pointing the gun
at her and her brother, MC2. MC1 screamed at Timothy that she was going to call the police.
She later heard a “big boom” and came out of her room again. MC1 eventually heard
Mysteria calling her name and looking for her. Defense counsel cross-examined MC1
regarding her account of the incident.
Mysteria testified that in December 2022, she lived in a duplex in Conway with
Timothy and her three children, MC1, MC2, and MC3. At that time, MC1 was seven years
old and MC2, whom she shared with Timothy, was three months old. On December 26,
2022, Mysteria and Timothy began arguing after Timothy returned to the residence. MC3
was not present at the residence during this time. During the argument, Timothy punched
Mysteria in the face two or three times, grabbed her by her hair, dragged her across the
kitchen floor, continued hitting her, emptied a trash can on her, threw items at her, and
held a knife while yelling at her. MC1 yelled at Timothy to stop.
Mysteria testified that MC1 threatened to call the police using her tablet. Timothy
took the tablet from her and threw it down the hallway. Mysteria attempted to go outside
4
for help, but Timothy grabbed her, pulled her back into the residence, and shut the door.
Timothy then accused Mysteria of cheating and demanded that she unlock her phone.
Timothy retrieved Mysteria’s .380-caliber Ruger from the bedroom and repeatedly
threatened to kill Mysteria and everyone in the residence. When MC1 came out of her
bedroom and begged Mysteria to unlock her phone, Timothy turned and pointed the gun at
MC1. Timothy then pointed the gun at Mysteria, cocked it, and shot Mysteria in her left leg
near her knee. Mysteria eventually unlocked her phone and gave it to Timothy; while
Timothy was looking through the phone, Mysteria ran from the residence.
Mysteria ran down the street yelling for help while Timothy chased her and continued
shooting at her. According to Mysteria, Timothy threatened to kill her as he pursued her.
Timothy eventually stopped when other people began coming outside. Mysteria testified that
Timothy stood near his green Tahoe before getting into the vehicle and leaving. Mysteria
was transported to the hospital.
Mysteria also testified concerning the incident that occurred on December 16, 2022,
approximately ten days before the shooting. Timothy and Mysteria were arguing about
infidelity while Mysteria was preparing to leave the residence. During the argument, Timothy
retrieved his firearm, cocked it, waved it around, and pointed it at himself. Mysteria
subsequently hid Timothy’s firearm in the kitchen. Mysteria also testified that she exchanged
text messages with Alexis concerning the December 16 incident. Following a hearsay
objection, the December 16 text messages previously described were admitted into evidence.
5
Several neighbors and responding officers corroborated Mysteria’s account.
Neighbors heard multiple gunshots, saw a green Tahoe leaving the area, and saw Mysteria
outside with injuries to her face and leg. Responding officers saw blood inside and outside
the residence and what appeared to be a gunshot wound near Mysteria’s left knee.
Officer Adrianna Martin (“Officer Martin”) with the Conway Police Department
testified that she responded to the shooting call and stayed with MC1, who was upset and
“almost hysterical” and repeatedly expressed concern that Timothy would return.
When the State sought to elicit statements MC1 made to Officer Martin, Timothy
objected on hearsay and Confrontation Clause grounds. The State responded that MC1 had
testified and was subject to cross-examination and argued her statements were admissible
under Arkansas Rule of Evidence 803 as a present sense impression, excited utterance, and
then existing mental state. The circuit court overruled Timothy’s objection. Officer Martin
testified that MC1 told her that Timothy and Mysteria had been arguing, MC1 was afraid
Mysteria and MC2 would be shot, Timothy pointed a gun at MC1 and told her to leave, and
Timothy took MC1’s tablet and threw it down the hallway when she attempted to call 911.
Officer Martin’s body-camera footage, which captured her interaction with MC1, was
admitted over Timothy’s renewed objection, with the circuit court making the same ruling.
The physical evidence also corroborated the testimony concerning the shooting.
Officers recovered blood from inside and outside the residence, a .380-caliber Ruger, and
.380-caliber shell casings. DNA testing established that blood recovered from several
locations was consistent with Mysteria’s DNA profile.
6
Timothy was arrested in West Memphis on December 28, 2022. During a subsequent
interview, Timothy stated, “If she said it, it probably happened.” The State also introduced
messages Timothy sent Mysteria from jail in which he repeatedly apologized, acknowledged
that he had “messed up,” and asked Mysteria not to “go through with this.”
The jury convicted Timothy of first-degree domestic battering, first-degree terroristic
threatening, and two counts of aggravated assault on a family or household member but
acquitted him of attempted first-degree murder. Timothy was sentenced as a habitual
offender to an aggregate sentence of ninety-one years’ incarceration, including
enhancements.
Timothy argues that the circuit court erred when it admitted evidence from the
December 16, 2022, incident under Rule 404(b). Rule 404(b) of the Arkansas Rules of
Evidence provides as follows:
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.
The first sentence provides the general rule excluding evidence of a defendant's prior bad
acts, while the second sentence provides an exemplary, but not exhaustive, list of exceptions
to that rule. Dukes v. State, 2026 Ark. App. 242, at 11, 737 S.W.3d 765, 772 (citing Hamm v.
State, 365 Ark. 647, 232 S.W.3d 463 (2006)).
The analysis of whether evidence is admissible under Rule 404(b) is not resolved in a
vacuum. Id. While evidence of other crimes or bad acts may be independently relevant and
7
therefore admissible under Rule 404(b), that evidence must also be probative and satisfy Rule
403. Id. (citing Cash v. State, 2026 Ark. 16, at 5–6, 727 S.W.3d 614, 618). This court gives
considerable leeway to the circuit court to determine whether the circumstances of the prior
crimes and the crimes at hand are sufficiently similar to warrant admission under Rule
404(b). Id. (citing Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995)).
Arkansas Rule of Evidence 403 provides that “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.” The evidence should not be excluded under
Rule 403 unless the defendant can show that the evidence lacks probative value in view of
the risk of unfair prejudice. Dukes, 2026 Ark. App. 242, at 12, 737 S.W.3d at 773 (citing
Cash, 2026 Ark. 16, at 5–6, 727 S.W.3d at 618).
While evidence of other crimes or bad acts may be admissible under Rule 404(b), to
be probative under Rule 403, the prior crime or bad act must be similar to the crime charged.
Brown v. State, 2025 Ark. App. 46, at 7–8, 704 S.W.3d 358, 363 (citing Davis v. State, 362
Ark. 34, 46, 207 S.W.3d 474, 483 (2005)). When offered as Rule 404(b) evidence, the prior
bad act need not have the degree of similarity that is required for evidence of modus
operandi. Id. at 7–8, 704 S.W.3d at 363 (citing Fowlkes v. State, 2020 Ark. 56, 592 S.W.3d
702). The prior bad act does not have to be identical, just similar. Id. at 8, 704 S.W.3d at
363.
8
The admission or rejection of evidence under Rule 404(b) is committed to the sound
discretion of the circuit court, and this court will not reverse absent a showing of manifest
abuse of discretion. Lard v. State, 2014 Ark. 1, at 7, 431 S.W.3d 249, 258 (citing DimasMartinez v. State, 2011 Ark. 515, 385 S.W.3d 238). Likewise, the balancing mandated by
Rule 403 is also a matter left to a circuit court’s sound discretion, and an appellate court will
not reverse the circuit court’s ruling absent a showing of manifest abuse. Id. (citing Croy v.
State, 2011 Ark. 284, 383 S.W.3d 367). Abuse of discretion is a high threshold that does not
simply require error in the circuit court’s decision, but requires that the circuit court act
improvidently, thoughtlessly, or without due consideration. Id. (citing Craigg v. State, 2012
Ark. 387, 424 S.W.3d 264).
Evidence may be independently relevant if it shows motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake. Id. at 9, 431 S.W.3d at 259
(citing Smith v. State, 2010 Ark. 75, 364 S.W.3d 443). Additionally, any evidence that is
relevant to explain the act, show a motive, or illustrate the accused’s state of mind may be
independently relevant and admissible. Id. (citing Brunson v. State, 368 Ark. 313, 245 S.W.3d
132 (2006); Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000)).
Here, the evidence concerning the December 16 incident was independently relevant
to show Timothy’s intent and absence of mistake or accident. Only ten days before the
charged offenses, Timothy and Mysteria argued about infidelity while Mysteria attempted to
leave the residence. During the argument, Timothy armed himself with a handgun, cocked
the gun, waved it around, and pointed it at himself. On December 26, Timothy and Mysteria
9
again argued, and Timothy armed himself with a handgun, pointed it at Mysteria and MC1,
and ultimately shot Mysteria in her leg. Given the temporal proximity and similarity between
the two incidents, the December 16 evidence tended to make it more probable that Timothy
acted intentionally, rather than accidentally or mistakenly, during the December 26
confrontation. Accordingly, the evidence was relevant for a purpose other than merely
demonstrating Timothy’s bad character. The record reflects that the State offered the
evidence to show Timothy’s intent and absence of mistake or accident and that the circuit
court admitted it on those grounds.
Nor was the probative value of the evidence substantially outweighed by any danger
of unfair prejudice. The Arkansas Supreme Court has recognized that although evidence
offered by the State is often prejudicial to the accused, it should not be excluded unless the
accused can show that it lacks probative value in view of the risk of unfair prejudice.
Chunestudy v. State, 2012 Ark. 222, at 6, 408 S.W.3d 55, 60. Although evidence that Timothy
had previously displayed and cocked a firearm during an argument with Mysteria was
prejudicial, the December 16 incident was probative of Timothy’s intent given its similarity
to the charged conduct and its occurrence ten days earlier. Thus, the evidence had substantial
probative value beyond merely demonstrating Timothy’s propensity to engage in violent
conduct. Therefore, the circuit court did not abuse its discretion in admitting the evidence
under Rules 404(b) and 403.
10
Timothy next argues that the circuit court erred when it allowed the State to
introduce testimonial hearsay statements from MC1 into evidence because the introduction
of those statements violated his Sixth Amendment Confrontation Clause right.
The Confrontation Clause in the Sixth Amendment to the United States
Constitution states: “In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI. Article 2, section 10 of
the Arkansas Constitution reiterates that same right of confrontation. The Arkansas
Supreme Court has consistently interpreted both clauses to provide identical rights. Dority v.
State, 2025 Ark. App. 607, at 16 (citing Smith v. State, 340 Ark. 116, 8 S.W.3d 534 (2000)).
We review constitutional questions concerning the Confrontation Clause de novo. Id. (citing
McNeil-Lewis v. State, 2023 Ark. 54, 661 S.W.3d 195).
The Supreme Court held in Crawford v. Washington that testimonial statements are
inadmissible under the Confrontation Clause when the declarant is unavailable and the
defendant did not have an opportunity to cross-examine the declarant. 541 U.S. 36, 68
(2004). The Court noted that the only exceptions to the right of confrontation are those that
were established at the time of the nation’s founding. Id. at 54.
However, the right of confrontation is not violated where testimonial hearsay is
admitted against the defendant, and the declarant is present at trial and available as a witness.
Hughes v. State, 2022 Ark. App. 453, at 10, 655 S.W.3d 312, 318 (citing Toombs v. State, 2015
Ark. App. 71, at 8). If the witness is available in court to cross-examine, then the
Confrontation Clause is satisfied. Id. (citing Davis v. State, 2011 Ark. 373).
11
At trial, MC1 described the events of December 26, 2022. She testified that Timothy
pulled Mysteria into the kitchen and poured trash over her face before grabbing a knife as
though he was going to stab her. According to MC1, Timothy stopped when she yelled at
him. MC1 also testified that she saw Timothy with a firearm and subsequently saw him
pointing it at her and MC2. Timothy cross-examined MC1 regarding her account of the
incident. Because MC1 appeared at trial and was subject to cross-examination, the
Confrontation Clause did not prohibit the admission of her prior statements, even assuming
those statements were testimonial. The admission of those statements through Officer
Martin’s testimony and the body-camera footage therefore did not violate the Confrontation
Clause. Accordingly, Timothy’s Confrontation Clause argument provides no basis for
reversal. We affirm.
Affirmed.
HARRISON and BROWN, JJ., agree.
Theodis N. Thompson Jr., for appellant.
Tim Griffin, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.
12