Colston v. State

Cite as 2017 Ark. App. 282

ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-16-717

Opinion Delivered May 3, 2017

CURTIS COLSTON APPEAL FROM THE MILLER
APPELLANT COUNTY CIRCUIT COURT
[NO. 46CR-14-483]
V.
HONORABLE KIRK JOHNSON,
STATE OF ARKANSAS JUDGE
APPELLEE

AFFIRMED

WAYMOND M. BROWN, Judge

Appellant Curtis Colston was convicted by a Miller County jury of aggravated assault

and possession of a firearm by certain persons, for which he was sentenced to a total of thirty

years’ imprisonment. On appeal, appellant contends that the trial court abused its discretion

by admitting the video of the alleged incident without proper authentication. We affirm.

On September 20, 2014, appellant and other truck drivers were in the drivers’ lounge

at the Flying J Truck Stop in Texarkana. Appellant had to be removed from the lounge after

he began arguing with the other men. As he was being walked out, he threatened to return

with his gun. Approximately an hour later, he returned with a gun and pointed it at Steven

Carter. Carter was able to take the gun from appellant and bring it to the manager on duty.

The police were called, and appellant was subsequently located in his truck and arrested. He

filed a motion in limine on January 20, 2017, seeking to have a video of the incident declared
Cite as 2017 Ark. App. 282

inadmissible due to his belief that the State could not produce a witness to authenticate the

video.

Appellant’s jury trial took place on April 26, 2016. Donna Bodkin testified that she

was the manager on duty the night of September 20, 2014. She stated that she heard a

“ruckus” going on in the drivers’ lounge and had to walk appellant out because he was “loud

arguing back and forth” while watching a ball game. She said that appellant was angry and

that he told her that “he was going to go out and get his gun and come back.” She testified

that she advised appellant “to go out there and sleep it off” because the police would be called

if he returned with a gun. She stated that she did not see appellant return but that she heard

“all the ruckus going on again.” According to Bodkin, “[t]hey were saying he’s got a gun

back there.” She said that she automatically called the police and that Carter came with the

gun and laid it in front of her. She also testified that Carter informed her that appellant was

going to get more guns. She said that Carter wanted someone to stop appellant from leaving.

She admitted that she did not personally hear appellant make the statements, but stated that

she saw him leaving the store. She testified that she subsequently saw a Facebook video that

night of what took place in the drivers’ lounge. However, she said that the video was

removed from Facebook and placed on YouTube. She maintained that the video

accurately depicts the truck stop on that date and time it happened. I can hear my
voice on the video. I can see my image on the video. The noise that I heard in the
back matches the noise on the video and [the] statements that were made that I heard.

The State offered the video as evidence, and appellant objected on the bases that the

first part of the video was not properly authenticated under Arkansas Rules of Evidence 901

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Cite as 2017 Ark. App. 282

and that Bodkin did not have personal knowledge as required by Arkansas Rules of Evidence

602. Bodkin testified during voir dire that the first part of the video took place in the drivers’

lounge and that she was not back there during that time. She stated that she did not know

what happened back there, she just heard the noise. She said that someone recorded the

video with their cell phone and that Carter sent the video to her via Facebook. She testified

that she had a discussion with Carter about the video. Bodkin stated that the voice on the

video saying “he’s got a gun” is the same voice she heard from the front of the store. The

court allowed the video in over appellant’s objection. Appellant was subsequently found

guilty and sentenced to thirty years’ imprisonment. He filed a timely notice of appeal on May

16, 2016.

Appellant argues that the trial court abused its discretion by admitting the video of the

alleged incident without proper authentication. The admission of evidence is left to the sound

discretion of the trial court, whose ruling will not be reversed on appeal absent a manifest

abuse of discretion.1 To have abused its discretion, the circuit court not only must have made

an error in its decision, but also must have acted “improvidently, thoughtlessly, or without

due consideration.”2 Even if the trial court erred in making an evidentiary ruling, we would

affirm absent a showing of prejudice.3

1
Bruner v. State, 2013 Ark. 68, 426 S.W.3d 386.
2
Id.
3
Id.

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Cite as 2017 Ark. App. 282

The admissibility of photographic evidence is based on two different theories. One

theory is the “pictorial testimony” theory. Under this theory, the photographic evidence is

merely illustrative of a witness’s testimony, and it only becomes admissible when a sponsoring

witness can testify that it is a fair and accurate representation of the subject matter, based on

that witness’s personal observation.4 A second theory under which photographic evidence

may be admissible is the “silent witness” theory. Under that theory, the photographic

evidence is a “silent witness,” which speaks for itself, and is substantive evidence of what it

portrays independent of a sponsoring witness.5

The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in question

is what the proponent claims.6 The requirement can be satisfied, for instance, through

testimony of a witness with knowledge that a matter is what it is claimed to be.7 Here,

Bodkin testified to having personal knowledge of certain portions of the video but admitted

that she did not have such knowledge as to other portions, including the part showing

appellant with the gun. This is not fatal because although Bodkin was not present when the

gun was drawn, she testified that the video accurately represented what she heard at the time

in question from her location. We hold that even if the video did not satisfy the pictorial-

4
Fisher v. State, 7 Ark. App. 1, 643 S.W.2d 571 (1982) (citing 2 C. Scott, Photographic
Evidence § 1021 (2d ed. Supp. 1980); 3 J. Wigmore, Evidence § 790 (Chadbourn rev. 1970)).
5
Id.
6
Ark. R. Evid. 901(a) (2016).
7
Ark. R. Evid. 901(b)(1).

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Cite as 2017 Ark. App. 282

testimony theory, it satisfied the silent-witness theory because the foundation requirements

for each are different. Here, the foundation presented allowed the trial court to determine

that the subject matter was what the State claimed. Therefore, the trial court did not abuse

its discretion by allowing in the evidence.

Affirmed.

KLAPPENBACH and WHITEAKER, JJ., agree.

Short Law Firm, by: Lee D. Short, for appellant.

Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.

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