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Allen v. State

Court of Appeals of Arkansas, Division IV

December 12, 2018



          The Lane Firm, by: Jonathan T. Lane, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.


         Shaun 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.

         On 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.

         On 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 10, 2018.

         At 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.

         Melissa 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.

         The 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.

         Dr. 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.

         Kim 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.

         Allen 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.

         In the 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. ...

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