James Robert Lord v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION I

JAMES ROBERT LORD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-674

April 30, 2003

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT

CR 01-578-2

HON. GARY M. ARNOLD, JUDGE

AFFIRMED

This is an appeal from a Saline County Circuit Court jury trial in which appellant James Robert Lord was convicted of second-degree murder and sentenced to eighteen years in the Arkansas Department of Correction. Appellant's sole point on appeal is that the trial court erred in admitting a videotape taken of appellant while in the back of a patrol unit after the arresting officer decided not to question him because of his alleged intoxication and allowing portions of the videotape to be played to the jury. We affirm.

This case involves an incident that occurred on September 15, 2001, in Saline County, Arkansas. On that date, appellant James Robert Lord struck Gary Arnold in the head with a baseball bat causing his death. Appellant was charged by information with capital murder on October 12, 2001. On January 15, 2002, the State waived the death penalty in the case. Appellant was offered and rejected a plea agreement for first-degree murder and twenty years' imprisonment.

Several witnesses testified to appellant hitting Arnold in the head with a baseball bat. It is undisputed that appellant was intoxicated at the time of the incident, and was passed out in a vehicle when first observed by police. At that time, Detective Long read appellant his Miranda rights but did not question him because of the level of intoxication. Officer Pennington placed appellant in the back of his patrol vehicle and turned a video camera on him. Appellant remained handcuffed in the back of the vehicle and was taped for approximately thirty minutes. This tape was later introduced into evidence over appellant's objection, and certain portions were allowed to be played for the jury. The jury convicted appellant of second-degree murder and sentenced him to eighteen years in the Arkansas Department of Correction. From that verdict comes this appeal.

We note that appellant failed to include the notice of appeal either in his abstract or in the addendum. Accordingly, he is not in compliance with Rule 4-2(a)(8) (2002) of the Rules of the Arkansas Supreme Court and Court of Appeals. We could order rebriefing pursuant to Rule 4-2(b)(3) of the Rules of the Arkansas Supreme Court and Court of Appeals. However, the record reveals that appellant filed a notice of appeal on March 26, 2002, referring to a judgment entered February 28, 2002. Thus, the notice of appeal is timely for purposes ··²SDU_4²····²SDU_4²··of reviewing judgment involved in this case.

Although appellant generally alleges that the trial court erred in allowing portions of the videotape to be played for the jury, he makes no reference to the contents of the videotape or how the playing of the videotape prejudiced him in this matter. We will not reverse a trial court's evidentiary ruling absent a showing of prejudice. Lenoir v. State, 77 Ark. App. 250, 72 S.W.3d 899 (2002). When error is ··²SearchTerm²····²SearchTerm²··alleged, prejudice must be shown because we do not reverse for harmless error. Kelleher v. City of Russellville, 48 Ark. App. 58, 891 S.W.2d 802 (1994). This court will notpresume prejudice where the appellant offers no proof of it. See, e.g., Tucker v. State, 336 Ark. 244, 983 S.W.2d 956 (1999).

Affirmed.

Gladwin and Bird, JJ., agree.