Anderson v. State
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION III
No. CACR08-853
LAWRENCE ANDERSON, III,
APPELLANT
Opinion Delivered
APRIL 15, 2009
APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
[NO. CR-2007-707]
V.
STATE OF ARKANSAS,
APPELLEE
HONORABLE VICTOR LAMONT
HILL, JUDGE,
AFFIRMED
KAREN R. BAKER, Judge
Appellant, Lawrence Anderson, III, challenges the revocation of his suspended imposition
of sentence asserting two points of error: (1) The trial court erred when it denied the motion for a
directed verdict, specifically in that the State had failed to preserve the audio/video tapes that may
have been exculpatory in proving that the auto incident, which precipitated the new charges, may not
have been due to any criminal activity by appellant; (2) The trial court erred when it overruled
defendant’s objection to the statements of the passengers as being hearsay when it actually violated
the appellant’s right to confrontation. We find no error and affirm.
On December 7, 2007, appellant was served with a petition to revoke his suspended
imposition of sentence. The petition alleged that appellant had failed to lead a law-abiding life as
a result of being charged with endangering the welfare of minors, resisting arrest, DWI, and being
a felon in possession of a firearm. The events leading to the imposition of those charges began with
appellant traveling by car to pick his children up from their grandmother’s house. Appellant was
returning home with the children in the vehicle when Officer Jo Carol Carter observed appellant
hitting a parked car with the vehicle he was driving. Officers pursued appellant with blue lights
activated, and appellant had ample opportunity to stop. Officers testified that when appellant finally
stopped the car, appellant resisted arrest by moving towards the back of the car. In contrast
appellant testified he immediately stopped the car as soon as he saw that he was being pursued.
After the stop was initiated, the officers then realized that there were three children in the
back seat of the car. The officers observed one child holding a pill bottle and dropping a gun which
prompted the officers’ immediately securing the items. Appellant argued that the gun must have
been left by one of his friends who had been riding with him that day and that he had no knowledge
of how the pills came to be in the car. The children, when asked at the site of the stop, stated that
appellant had handed the items to them to hold when he realized that he was being stopped by law
enforcement. The statements were allowed in over the hearsay objection of appellant. At trial, one
child recanted the majority of the statements and testified that his brother had taken the bottle of pills
from his grandmother’s house and the gun was found in the floorboard.
The trial court found by a preponderance of the evidence that appellant was in possession of
a firearm, was driving while intoxicated, and had endangered the lives of his three children. The
court further found that for the purposes of revocation, appellant had not resisted arrest. Based upon
these findings, appellant’s suspended sentence was revoked and he was sentenced to 48 months’
imprisonment.
Appellant argues that the trial court erred in failing to dismiss the case on his motion for a
directed verdict as the State had failed to preserve the audio/video tapes of the arrest on the new
charges. Appellant asserts that the tapes may have proven exculpatory. The State responds that it
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is only required to preserve evidence that is expected to play a significant role in appellant’s defense,
and then only if the evidence possesses both (1) an exculpatory value that is apparent before it was
destroyed; and (2) a nature such that an accused would be unable to obtain comparable evidence by
any other reasonably available means. Autry v. State, 90 Ark. App. 131, 142, 204 S.W.3d 84, 89-90
(2005). If the police fail to preserve essential evidence, a defendant is entitled to a negative inference
only if there is evidence of bad faith in the destruction or loss of the evidence. Id.
Appellant argued at the revocation hearing that had the video been shown to the court, the
outcome would have been different in that it would have shown that appellant was seeking the cause
of the traffic incident, in which he hit a parked car; that the children did not make statements to the
officers regarding their father handing them the gun and pill bottle; and that appellant was not trying
to disobey the officers when they tased him.
Even if the videotapes would have shown that appellant cooperated with the officers, the trial
court did not revoke the suspended sentence based on a resisting-arrest charge. Accordingly,
preservation of the video would have been irrelevant for that purpose.
Similarly, the tapes would have been irrelevant in refuting the evidence to the charge of
driving while intoxicated. A video of the arrest could not have refuted testimony that appellant hit
a parked car drawing the officers’ attention to appellant’s driving on the street, that he smelled of
intoxicants, and that he had blood-shot eyes. Neither does appellant dispute that he refused bloodalcohol tests, which the court found demonstrated “a consciousness of guilt.”
As to the endangerment charges, appellant never disputed that his three children were with
him or that a loaded gun was found in possession of one child. Regardless of whether he provided
the loaded gun to the children, he was nevertheless driving while intoxicated with a loaded gun
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accessible to his three minor children, one of whom gained possession of the gun. Appellant owned
the car where the gun was located in plain sight, accessible to him and the three children, and within
his care and control. Accordingly, appellant demonstrates no evidence or argument that the tapes
could logically provide an exculpatory explanation. We affirm on this point.
Appellant’s second point fails as well. Appellant contends that the trial court committed
reversible error by allowing a police officer to recount statements made by appellant’s son shortly
after appellant’s arrest regarding his father’s entrustment of the gun and pill bottle. As discussed
above, the allegation is not necessary to support the endangerment charge. Even if it were, when
a declarant testifies at trial and is subject to unbridled cross-examination, the Confrontation Clause
is not violated by the admission of additional hearsay statements made by the declarant. Watson v.
State, 308 Ark. 444, 825 S.W.2d 569 (1992). Furthermore, the rules of evidence with respect to the
admission of hearsay are not strictly applied in revocation hearings. Jones v. State, 31 Ark. App. 23,
786 S.W.2d 851 (1990).
Affirmed.
ROBBINS and KINARD , JJ., agree.
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