ARKANSAS COURT OF APPEALS DIVISION III No. CACR09-80 JEFFREY PAUL GOLDEN V. STATE OF ARKANSAS APPELLANT APPELLEE Opinion Delivered SEPTEMBER 30, 2009 APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT, [NO. CR-06-2508, CR-06-1512] HONORABLE DAVID L. REYNOLDS, JUDGE AFFIRMED RITA W. GRUBER, Judge Jeffrey Paul Golden was convicted by a jury of two counts of aggravated robbery, one count of possession of firearms by a felon, and two counts of misdemeanor theft, for which he was sentenced to imprisonment for a total of twenty-five years. The events leading to these charges were the robberies of a Subway Sandwich Shop on August 11, 2006, and the robbery of a Playland three days later, each located in Faulkner County. Golden appeals his convictions and the circuit court s denial of his motion for new trial, contending that the circuit court erred 1) by refusing to admit into evidence a receipt supporting his alibi testimony, and 2) by denying his motion for a new trial. We affirm. Circuit courts have broad discretion in evidentiary rulings, and a ruling on the admissibility of evidence will not be reversed absent an abuse of discretion. Eastin v. State, 370 Ark. 10, 257 S.W.3d 58 (2007). Golden contends in his first point that the circuit court
abused its discretion by refusing to admit a purported receipt for movie tickets and refreshment, which he claimed corroborated his alibi testimony that he was in the theater with his children during the time and date in question. At trial he moved to introduce a document entitled Rave Motion/Credit Card History Report, stating that he could identify it as the credit card history report from Rave Motion Pictures... produced at my request for my credit record for that purchase on that day. The State objected to the admission of the document into evidence, and the following colloquy ensued: THE STATE: That s not a self-authenticating document. It came from the Rave. The custodian of records is not here and it cannot be authenticated. Anybody could have printed that out. THE COURT: Response, Your Honor. Okay. This is hearsay. It... has significant indicia of reliability in, on its face, it shows that it is a credit card receipt. It exactly matches Mr. Golden s testimony and it therefore has... sufficient indicia of reliability to be admissible. THE STATE: THE COURT: The State s response is it don t even that the credit card number on it. [Sic] Your objection is sustained. Golden contends on appeal that the receipt was admissible because it met the provision of Arkansas Rules of Evidence that 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 its proponent claims. Ark. R. Evid. 901(a) (2008). Examples of authentication or identification include [t]estimony of a witness with knowledge that a -2- CACR09-62
matter is what it is claimed to be. Ark. R. Evid. 901(b)(2). The requirements of authentication and identification are satisfied where the trial court in its discretion is satisfied that the physical evidence presented is genuine and in reasonable probability has not been tampered with. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). The document is not relevant if it is not shown to be authentic, and whether the document constitutes hearsay does not come into consideration. Id. The fact that the party proponent supplies the authentication does not go to admissibility although it may go to the weight of the evidence. United Bilt Homes, Inc. v. Elder, 272 Ark. 496, 615 S.W.2d 367 (1981). Golden argues that the Rave receipt should have been admitted because he testified that it accurately described what it purported to be, and that the jury should have been permitted to determine its weight. None of the cases that Golden cites, however, involve an attempt to authenticate a document solely through the testimony of a person who was not its creator. See Owens v. State, 363 Ark. 413, 214 S.W.3d 849 (2005) (rejecting an argument in an appeal of a robbery conviction that still photographs taken from videotape in an E-Z Mart s surveillance camera were not authenticated by the testimony of the victim that the photographs accurately depicted the scene at the store); McDermott v. Strauss, 283 Ark. 444, 678 S.W.2d 334 (1984) (finding error in the trial court s refusal to admit into evidence documents and a letter where the person who had drafted them demonstrated the requisite knowledge of them by identifying them through his testimony); United Bilt Homes, Inc., supra, (upholding in a foreclosure action the admission into evidence of a document prepared by a -3- CACR09-62
company party s salesman); Dirickson v. State, 104 Ark. App. 273, S.W.3d (2009) (holding that printouts from archives of a police department s computer hard drive were sufficiently authenticated where a computer expert and a police officer testified that the printouts stated verbatim contents of internet chats between the officer and appellant). Here, we find no abuse of discretion in the trial court s ruling that the receipt was not admissible evidence. Golden s second point on appeal is that the circuit court erred in refusing to grant his motion for new trial because the original video of the Subway robbery had not been made available to him. In a pretrial motion to produce the tape, Golden had alleged that there was a twenty-percent loss of fine detail with each copy and that methods such as those used by the Conway Police Department resulted in a loss of quality. The circuit court ordered the State to produce the original, but it was never produced and apparently was never found. At trial Brian Williams of the Conway Police Department testified that he was unaware of the order to produce the original tape of the robbery. He testified that he had followed police department procedure and used the equipment available when he used his Sony Walkman to make a recording from Subway s VHS system, that he did not have a system with the means to play the original tape in a viewable format, and that he took his copy to his office for viewing. He stated that there was no visual difference between the two. He said that he had never experienced problems with hundreds of videos that he had collected for the department, using his Walkman in the way he had been trained. He stated that -4- CACR09-62
Golden s expert told me what he needed specifically, and I produced that. The expert witness, Robert Sanderson of Poughkeepsie, New York, repeated at trial a statement he had made in an earlier report, expressing significant doubt that Golden was the robber shown in the video furnished by Officer Williams. Sanderson testified that the initial purpose of his being retained in this case was to enhance a video that was a result of a video recording so that the perpetrator could be identified, but he was unable to do so because the image quality of the video he received was insufficient. Sanderson testified about the copying methods used by Williams: plugging his Sony Video Walkman device into the output of Subway s video system, importing it into the computer system in his office, and exporting it to a disk. Sanderson explained that recording with the Sony involved digital compression and that playing the tape back into the police computer involved re-transcoding, both loseetype processes that could significantly reduce an image s fine detail. He stated that he could have enhanced facial characteristics had he received the original Subway tape itself, which he said was the highest and best form of the evidence and should have been preserved. He admitted on cross-examination that he neither went to the Subway store nor called it as part of his analysis, nor did he know what type of surveillance video equipment the store used. At the hearing on Golden s motion for a new trial, the only evidence was testimony by Mary McHenry, both Subway s owner and victim of the robbery. She stated that she did not bring the original tape although she had been ordered by subpoena to do so, explaining that she did not have any idea what had happened to the tape. She testified that she had not -5- CACR09-62
seen it since the night of the robbery some two years earlier; that police had told her to hang on to it; and that she and her husband had searched safes at the office, the bank, and at home. After hearing arguments from Golden and the State, the circuit court denied the motion. Golden contends on appeal that he should have been granted a new trial because the disappearance of the original tape from the victim s safe gave rise to a presumption that it was exculpatory evidence. We note that a circuit court s denial of a motion for new trial will not be reversed absent a manifest abuse of discretion. Harrison v. State, 371 Ark. 652, 269 S.W.3d 321 (2007). A duplicate video tape is admissible to the same extent as an original unless a genuine question is raised as to the authenticity or continuing effectiveness of the original or in the circumstances it would be unfair to admit the duplicate instead. Ark. R. Evid. 1001 and 1003 (2008). The State is required to preserve evidence only if it is expected to play a significant role in a defendant s defense, and then only if it possesses an exculpatory value apparent before its destruction and is of a nature such that the defendant would be unable to obtain comparable evidence by other reasonably available means. Autrey v. State, 90 Ark. App. 131, 204 S.W.3d 84 (2005). A defendant must show bad faith on the part of the police to prove a due-process violation based upon the destruction of potentially exculpatory evidence. Id. Bad faith is not demonstrated by a bare contention without supporting facts, and there is no evidence of bad faith where police follow standard operating procedure. Id. -6- CACR09-62
Here, Golden s expert testified that he neither saw the original video nor knew what type of recording equipment Subway had used. Golden did not object to the introduction of the duplicate copy into evidence, nor does he allege bad faith on the part of the police in the loss of the original. Officer Williams testified that he made his recording in keeping with police department procedures, that he did not have the equipment to view the original from Subway s recording system, and he saw no difference between his copy and the original video that he had viewed on Subway s screen. Thus, we cannot say that the circuit court manifestly abused its discretion in denying Golden s motion for new trial. Affirmed. VAUGHT, C.J., and HART, J., agree. -7- CACR09-62