Dontae K. WASHINGTON, Appellant
v.
STATE of Arkansas, Appellee
Page 627
APPEAL
FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-17-235],
HONORABLE JODI RAINES DENNIS, JUDGE
Robinson
& Zakrzewski, P.A., by: Luke Zakrzewski, for appellant.
Leslie
Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen.,
for appellee.
OPINION
N. MARK
KLAPPENBACH, Judge
Appellant Dontae K. Washington appeals his conviction for
being a felon in possession of a firearm, following a jury
trial in Jefferson County Circuit Court. Dontae argues on
appeal that the circuit court erred by permitting the State
to present the jury with the audio and transcript of a sworn,
recorded pretrial statement given by Christina Bradley to law
enforcement. Dontae asserts that her prior statement
constituted inadmissible hearsay that did not fit within the
exception found in Arkansas Rule of Evidence 801(d)(1). We
affirm.
Before
our analysis begins, we outline the precise legal concepts at
issue on appeal. As a general rule, hearsay is not admissible
evidence. See Ark. R. Evid. 802. There are, however,
certain out-of-court statements that are not considered
hearsay, and one such exception is outlined in Rule
801(d)(1):
(1) Prior Statement by Witness. The declarant
testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement
is (i) inconsistent with his testimony and, if offered in a
criminal proceeding, was given under oath and
Page 628
subject to the penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition, or (ii) consistent with
his testimony and is offered to rebut an express or implied
charge against him of recent fabrication or improper
influence or motive[.]
A
circuit court’s evidentiary rulings are reviewed on appeal
under an abuse-of-discretion standard. Tarver v.
State, 2018 Ark. 202, 547 S.W.3d 689. Abuse of
discretion is a high threshold that does not simply require
error in the circuit court’s decision but requires that the
circuit court act improvidently, thoughtlessly, or without
due consideration. Jefferson v. State, 2017 Ark.App.
536, 532 S.W.3d 593. Additionally, unless an appellant can
demonstrate prejudice from an evidentiary ruling, the
appellate court will not reverse, as prejudice is not
presumed. Taffner v. State, 2018 Ark. 99, 541 S.W.3d
430.
At
trial, the State sought to prove that Dontae, who admittedly
had a prior felony, possessed a rifle that was found on the
night of February 20, 2017, in Christina Bradley’s apartment
under the living-room couch. Christina and Dontae were in an
intermittent romantic relationship for several years, and by
February 2017 they had two small children together. A week
before to the April 2018 jury trial, Christina and Dontae
married.
The
evidence showed that on the night in question, Dontae was
near the Camelot Apartments in Pine Bluff, where Christina
lived, when multiple shots were fired. Dontae was struck by
gunfire in the face and eye, was bleeding, went to
Christina’s apartment (# 3030), and banged on the door
seeking help. They went to the local hospital’s emergency
room so that he could receive medical care. Police officers
located Christina in the waiting room and asked her what had
happened, and as a result, Christina went back to the
apartment complex with the police. In processing the crime
scene, officers found multiple spent rounds outside in the
street and surrounding area; Dontae’s car window was
shattered, and there was blood inside Dontae’s car and on
Christina’s apartment door. When asked, Christina gave
consent for the police to come inside her apartment to take
photographs and search. The police found a loaded Saiga 7.62
rifle under the couch in the living room. The rifle was
loaded with a magazine holding twenty-eight cartridges. In a
kitchen cabinet, the police found a backpack that contained
additional ammunition compatible with the rifle and other
items associated with drug dealing.
Christina
was called to testify by the State. She acknowledged in her
testimony that she had previously given a sworn statement to
the police the day after the shooting in which she said that
she let Dontae inside her apartment that night, that he had
that firearm with him, and that he put it on or under the
couch. Christina recalled telling the police that Dontae
stayed at the apartment on a routine and regular basis and
that everything the police found in the search of her
apartment belonged to Dontae. Christina testified, however,
that the truth was that she did not know whose rifle it was,
a different man ...