FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43CR-17-64]
HONORABLE BARBARA ELMORE, JUDGE
Lane Firm, by: Jonathan T. Lane, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE
Anthony Allen appeals from his conviction of second-degree
domestic battery. On appeal, he argues that the circuit court
erred by (1) denying his motion to dismiss; (2) admitting
into evidence unauthenticated phone recordings; and (3)
permitting an undisclosed witness to testify. We affirm.
January 31, 2017, the State charged Allen with second-degree
domestic battery in the Lonoke County Circuit Court. The
State also charged Allen as a habitual offender. On March 7,
2017, Allen's counsel filed a motion for discovery
requesting the names and addresses of the persons whom the
prosecuting attorney intended to call as witnesses. On March
10, 2017, the State responded that it has an
"open-file" policy that satisfies its obligations
pursuant to Arkansas Rule of Criminal Procedure 17.2(b). The
court set a trial date for November 15, 2017.
November 9, 2017, the State moved for a continuance because a
necessary witness, Dr. Edward Gardner, was unavailable on the
scheduled trial date. In the motion, the State explained that
it had contacted Allen's counsel and that he did not
object to the request. The court granted the State's
motion, and the case proceeded to a bench trial on January
trial, Officer Randy Mauk testified that Brittany Allen,
Allen's wife, came to the Lonoke Police Department to
make a report. Officer Mauk testified that Brittany had
swelling to the left side of her face and had "limited
mouth movements." He noted that she had been crying and
appeared scared and nervous. He explained that after he
received Brittany's report, he arrested Allen and
interviewed him. He recorded the interview, and the interview
was played for the court. In the interview, Allen stated that
he and Brittany had a disagreement concerning his texting
another woman. He admitted that he had abused Brittany in the
past but denied breaking her jaw.
Woodard, an employee with the Division of Children and Family
Services, testified that she spoke with Allen regarding a
hotline report. She testified that Allen told her that he and
his wife Brittany had a fight concerning his communicating
with another woman. He reported that Brittany got upset and
aggressively grabbed his phone. He then tried to retrieve his
phone and accidentally hit Brittany in the face.
State then called Dr. Edward Gardner to testify, and
Allen's attorney objected to the testimony. Allen argued
that the State had failed to disclose Dr. Gardner as a
witness. Allen acknowledged that he had received medical
records concerning Brittany's injuries but stated that
they were not Dr. Gardner's records. The State responded
that Dr. Gardner's records had been in the case file
since March or April 2017. The court overruled Allen's
objection and permitted Dr. Gardner to testify.
Gardner testified that he is an ear, nose, and throat doctor
and that he saw Brittany in the emergency room with a
fractured cheekbone. He explained that Brittany could not
open her mouth and that she was in pain. He stated that he
performed surgery on Brittany to repair the fracture and that
without the surgery, the injury would have affected her
ability to have a normal life.
Doney testified that she is the assistant jail administrator
at the Lonoke County Sheriff's Office. She explained that
she can access recordings of inmate phone calls by entering
an inmate's name or the telephone number that had been
dialed. She stated that the State provided her with a
telephone number along with dates and times and that she
located recordings of the calls placed to that number. She
noted that the inmate associated with the calls was Jeremiah
Eds but that the calls were made while Allen was housed at
the Lonoke Detention Center. The State then moved to
introduce the recordings.
objected, stating that the State could not introduce the
recordings until they were properly authenticated. The State
asserted that Allen self-identified himself in the phone
call. The court admitted the recordings.
recordings, the male and female refer to each other as
"Shaun" and "Brittany." The female asks
the male for his email address, and he responds,
"Shaunallen22." The female further discusses her
broken jaw. She states that she cannot eat and that she needs
surgery to place a steel rod and plate to repair the injury.
The male apologizes for his actions and explains that he is
addicted to drugs. ...