FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT
[NO. 66GCR-14-235] HONORABLE JAMES O. COX, JUDGE AFFIRMED.
Danielson Law Firm, PLLC, by: Kyle Lippard, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
LARRYD. VAUGHT, Judge
Andrea Giselle Moore appeals her conviction by a Sebastian
County jury of aggravated assault. Her only argument on appeal is that the
circuit court erred in excluding the testimony of an
undisclosed expert witness who she claimed was necessary for
rebuttal purposes. We affirm.
testimony at trial revealed that on October 24, 2014, Mike
Gibbs and John Greb noticed that their neighbors' dogs
were loose. These dogs belonged to Moore and Michael Turner
and were known to be dangerous. Mrs. Greb called 911 to
report that the dogs were loose while Gibbs and Greb drove up
the road to warn another neighborhood family with young
children to stay indoors until the dogs were contained. The
two men testified that they then drove back toward Moore and
Turner's home and saw another neighbor, Kathy Johanson,
pull into Turner and Moore's driveway and honk
repeatedly, yelling that the dogs were loose. Gibbs and Greb
yelled for Johanson not to get out of her vehicle because the
dogs were nearby and would bite.
undisputed that, at that point, Mike Turner came out of the
house, attempted to corral the dogs, and was bitten on the
hand. Moore also came out. Johanson left but testified that
she heard Moore shouting for Gibbs and Greb to get off her
property. It is undisputed that when
she came outside, Moore was carrying a .38-caliber revolver
in a holster. Gibbs and Greb testified that Moore unholstered
the gun and pointed it at them. Moore testified that she
never unholstered the gun and never pointed it at anyone.
Greb called his wife and told her Moore had a gun and to call
911 and report the gun, which she did. Gibbs used his cell
phone to take pictures of Moore on the edge of the road
holding the gun in her hand but not pointing it at anyone.
These photographs were introduced into evidence.
Edwin Creekmore with the Sebastian County Sheriff's
Office testified that he was dispatched to the Moore/Turner
home in response to a call about the dogs. As he was
arriving, dispatch informed him that the call had changed to
a report of a female suspect with a gun. He testified that,
as he approached the home, he could see Moore walking back
toward her property from the street with what appeared to be
a gun in her hand. He ordered her to come out with her hands
up, which she did. She did not have a firearm at that time
but told Creekmore where she had put it. He located the gun,
which was a .38 revolver. It was loaded with four rounds of
ball ammunition and one hollow-point round. He unloaded the
weapon and secured it. Creekmore testified that Moore
described the verbal altercation with Gibbs and Greb. He
testified that, at no point during their interaction that day
did Moore or Turner say anything about Turner being hit by a
vehicle. Creekmore testified that he spoke to Gibbs, Greb,
Johanson, Moore, and Turner. Gibbs showed him the photographs
of Moore holding the gun. The gun and ammunition were entered
into evidence, and Creekmore testified that, even holstered,
the gun was capable of being fired. On cross examination,
Creekmore admitted that he may have been mistaken about how
far away he was when, while driving up to the house, he saw
Moore with the gun. He also stated that approximately thirty
minutes elapsed between the timing of the original 911 call
about the dogs and when he secured the scene.
Roberts and Ashley Ritter testified about their involvement
in receiving the 911 calls and dispatching officers. Their
accounts matched Creekmore's timeline of events.
testified that she had brought a gun outside when Turner had
gotten into a verbal altercation with Gibbs and Greb over the
dogs being loose. However, she claimed that the men had
yelled profanities at her and had backed into Turner with
their vehicle, hitting him and causing him to fall to the
ground. Moore's testimony matched Gibbs's and
Greb's accounts that the altercation lasted no more than
a few minutes. She denied ever pointing the gun at anyone.
She testified that although he did not seek medical attention
immediately, Turner went to the doctor a few days later.
attorney then recalled Gibbs to testify and asked him about
timestamps on the cell-phone photographs of Moore holding the
gun. Gibbs testified that the timestamps were 1:19 and 1:20
p.m., but the clock may have been set wrong on his cell phone
at the time. He stated that the timestamps were inaccurate.
Moore's attorney then attempted to call a witness
identified as Mr. Calen. He was described as an expert,
although it is not clear what kind of expert. The State
objected based on the fact that (1) Calen had not been
disclosed as an expert witness prior to trial and (2) he had
been in the courtroom during the entire trial despite the
court's invocation of "the rule." Moore's
attorney argued that Calen was a rebuttal witness, made
necessary by Gibbs's testimony that the timestamps on the
photographs were inaccurate. The court excluded Calen's
testimony. Moore's attorney did not provide a proffer for
what Calen's testimony would have been. Moore rested her
defense and was convicted by the jury. This timely appeal
sole point on appeal is that the circuit court erred in
excluding Calen's expert testimony for the purposes of
rebutting Gibbs's assertion that the timestamps on the
photographs were incorrect. Matters pertaining to the
admissibility of evidence are left to the sound discretion of
the trial court, and we will not reverse absent an abuse of
discretion. See Washington v. State, 2010
Ark.App. 596, at 8, 377 S.W.3d 518, 522. Nor will this court
reverse absent a showing of prejudice, as prejudice is not
presumed. Id. Arkansas Rule of Criminal Procedure
Rule 18.3 (2015) provides that,
[s]ubject to constitutional limitations, the prosecuting
attorney shall, upon request, be informed as soon as
practicable before trial of the nature of any defense which
defense counsel intends to use at trial and the names and
addresses of persons whom ...