Jeffery Ryan Allen v. State of Arkansas

Cite as 2021 Ark. App. 22
Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS
Perry
Date: 2022.08.19 09:25:38 DIVISION I
-05'00' No. CR-20-295
Adobe Acrobat version:
2022.002.20191
Opinion Delivered: January 20, 2021
JEFFERY RYAN ALLEN
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. SECOND DIVISION
[NO. 60CR-18-4406]
STATE OF ARKANSAS
APPELLEE
HONORABLE CHRISTOPHER
CHARLES PIAZZA, JUDGE

AFFIRMED

RAYMOND R. ABRAMSON, Judge

Jeffery Ryan Allen appeals his conviction of terroristic act. He argues that the circuit

court erred by denying his directed-verdict motion and by admitting into evidence a pellet

gun found in his car, Carolyn Coffman’s testimony, and a pretrial identification. We affirm.

On November 16, 2018, the State charged Allen with terroristic act related to an

October 5, 2018 road-rage incident in which Allen shot Amber Busby’s vehicle with a pellet

gun.

On December 12, Allen filed a discovery motion asking for all audio and visual

recordings, including dash-camera, body-camera, and mobile-video recordings. On

December 21, Allen filed a motion for preservation of evidence asking the State to preserve

all evidence including body-camera and mobile-vehicle recordings.
Also on December 21, Allen filed a motion to suppress Busby’s identification of him

in a photo lineup. He alleged that the lineup was unduly suggestive, was unconstitutional

in nature, and tainted any subsequent identification.

On September 3, 2019, the State filed a notice of intent to offer Rule 404(b) evidence

and explained that it intended to introduce evidence that Allen had shot another vehicle in

the same area the day following the incident with Busby.

The court held an omnibus hearing on December 5. At the hearing, Busby testified

that she had been driving on Brockington Road in Sherwood between 4:30 and 5:00 p.m.

on October 5, 2018, when a dark-colored sedan cut in front of her. She slammed on her

breaks and avoided a collision with the car, but the male driver made unfriendly gestures

toward her. She explained that she resumed driving and that the car followed her on the

road. She stated that the driver then waved a black, rod-like object outside the driver-side

window and that shortly thereafter, the rear window of her car completely shattered. Busby

testified that she initially believed she had been shot but later realized that glass from the

shattered window had hit her face. She explained that she put her vehicle in park and that

she saw the male driver on the side of the road “taunting” her. Busby testified that another

driver witnessed the incident and provided her with the license plate number for the dark-

colored sedan.

The police arrived and ran the license. Busby testified that she heard from the police

that the vehicle was registered to “Jeffery Allen” but that she did not know a Jeffery Allen.

She further testified that following the incident, she went to the Sherwood Police

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Department and that Detective Jeremy Swilley showed her a photo lineup of multiple

suspects. She stated that the lineup did not include the suspects’ names.

Detective Swilley testified that he met Busby at the Sherwood Police Department

following the road-rage incident and that Allen became a suspect after a witness provided

his license plate number. He stated that he did not know Allen prior to that date and that

he used a computer program to generate a photo lineup using Allen’s driver’s-license photo.

Swilley testified that he presented Busby with the lineup with Allen’s photo and five photos

of other men who had similar physical appearances to Allen. The photos were labeled with

numbers. Swilley explained to Busby that the suspect may or may not be in the lineup, and

Busby circled the number associated with Allen’s photo. Following Detective Swilley’s

testimony, the court denied Allen’s motion to suppress Busby’s pretrial identification of him.

The court then addressed the State’s Rule 404(b) evidence. Specifically, the State

informed the court that it planned to call Carolyn Coffman, who would testify that Allen

shot her vehicle while she was traveling near Brockington Road on October 6, 2018, the

day after the incident with Busby. Allen objected to Coffman’s testimony and argued that

it was prejudicial and would not establish that Coffman’s vehicle was shot. The court granted

the State’s motion to admit the evidence.

Allen then orally moved to suppress a pellet gun that officers seized from his vehicle

at the time of his October 6 arrest following the incident with Coffman. He argued that

officers located the pellet gun during a warrantless search of the car. In response to Allen’s

motion to suppress the gun, the State offered Officer Benjamin Witherspoon’s testimony.

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Witherspoon testified that on October 6, 2018, he and other officers responded to

multiple emergency calls that an individual in a sedan had been shooting at other vehicles

on the road. He testified that they located the vehicle, identified the driver as Jeffery Allen,

and arrested him for driving with a suspended license. He further stated that due to Allen’s

arrest, they impounded his car and inventoried its contents. He testified that they located a

black pellet gun in the car. He further testified that he had a body camera and that the patrol

car had a camera. He had not reviewed the recordings associated with the traffic stop.

Following Witherspoon’s testimony, Allen asked the court to reserve a ruling on his

motion to suppress the pellet gun because he needed more time to inspect the inventory

list. The court granted Allen’s request.

Thereafter, on December 31, 2019, Allen filed a written motion to suppress the pellet

gun found in his vehicle following his October 6 arrest based on an improper inventory

search. He also filed a separate motion to suppress the pellet gun based on the State’s failure

to comply with its disclosure obligations and spoliation. He asserted that the State had failed

to preserve and produce the recordings of his October 6 arrest; thus, the court should

exclude the gun that officers seized during the arrest.

The court held a bench trial on January 6, 2020. The court first addressed Allen’s

outstanding motions to suppress the pellet gun, and Allen relied on his argument in his

written motions. As to Allen’s argument concerning an invalid search of his vehicle, the

State responded that the officers executed a valid inventory search, and even if they did not,

the pellet gun was in plain view from outside the car window. The court noted the State

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did not “need a search warrant when [the gun] is in plain sight in the back seat.” However,

the court again reserved a ruling on the motions.

Busby and Detective Swilley testified consistently with their testimony from the

pretrial hearing. Coffman then testified that on October 6, 2018, she was driving near

Brockington Road when she saw a dark-colored sedan with a pole protruding from the rear

driver-side window. She explained that as she moved away from the car to avoid the pole,

two objects hit her car making loud noises. Coffman initially believed that the driver of the

car had thrown rocks at her vehicle. She immediately drove to her sister’s house and found

a hole about the size of a finger in her car’s passenger-side door.

Sergeant Clifford Manek testified that he assisted with the traffic stop of Allen on

October 6, 2018. He stated that he saw the pellet gun between the two front seats in plain

sight from outside the vehicle. Officer Witherspoon testified consistently with his testimony

from the pretrial hearing that he found a pellet gun in Allen’s car following his October 6

arrest. Witherspoon again testified that he had worn a body camera during his arrest and

that his patrol car had a dash camera. He stated that the State had not been provided with

the recordings from the cameras and that they were deleted six months following the

incident.

During Witherspoon’s testimony, the State sought to introduce the pellet gun. Allen

renewed his objection to the gun based on an improper inventory search and discovery

violations and spoliation. The court overruled Allen’s objection and admitted the gun into

evidence.

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At the conclusion of the State’s case, Allen moved for a directed verdict and argued

that the State did not prove that he projected an object or shot the pellet gun at Busby’s

window causing the window to shatter. The court denied Allen’s motion. Allen presented

no evidence, and the court thereafter found him guilty of terroristic act. The court later

sentenced Allen to thirty months’ probation. This appeal followed.

On appeal, Allen first argues that the circuit court erred by denying his directed-

verdict motion. He asserts that the State failed to establish that he projected any type of

object toward Busby’s vehicle, and he points out that the State presented no evidence that

the pellet gun found in his vehicle was in working condition.

Although Allen moved for a directed verdict, such a motion at a bench trial is a

motion for dismissal. Wheeler v. State, 2017 Ark. App. 540, 532 S.W.3d 602. A motion to

dismiss at a bench trial and a motion for a directed verdict at a jury trial are both challenges

to the sufficiency of the evidence. Id. In reviewing a challenge to the sufficiency of the

evidence, we view the evidence in the light most favorable to the State and consider only

the evidence that supports the verdict. Ealy v. State, 2017 Ark. App. 35, at 2, 511 S.W.3d

355. We affirm a conviction if substantial evidence exists to support it. Id. Substantial

evidence is that which is of sufficient force and character that it will, with reasonable

certainty, compel a conclusion one way or the other, without resorting to speculation or

conjecture. Id.

A person commits a terroristic act if, while not in the commission of a lawful act, the

person shoots at or in any manner projects an object at a conveyance which is being operated

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or which is occupied by another person with the purpose to cause injury to another person

or damage to property. Ark. Code Ann. § 5-13-310(a)(1) (Repl. 2013).

In this case, we hold that the State presented sufficient evidence that Allen shot

Busby’s vehicle. Busby testified that she saw Allen wave a rod-like object outside his car

window and immediately thereafter she heard a loud shot and her car window shattered.

Further, Allen was arrested the following day with a pellet gun in his vehicle. Accordingly,

the circuit court did not err in denying Allen’s motion to dismiss.

Allen next argues that the circuit court erred by admitting the pellet gun found in

his car because officers located the gun during an improper inventory search. We need not

address Allen’s argument because Allen fails to challenge an alternative basis for the circuit

court’s decision. When an appealing party leaves an alternate, independent ground

unchallenged, the circuit court’s ruling must be affirmed. May v. State, 2016 Ark. App. 605,

509 S.W.3d 14. Here, the State argued that the pellet gun was admissible on the basis of a

valid inventory search as well as the plain-view doctrine. Allen does not contest that the

plain-view doctrine applied here. Accordingly, we find no reversible error on this point.

Allen next argues that the circuit court erred by admitting the pellet gun into

evidence because the State failed to comply with disclosure obligations and spoliation of the

evidence. He cites Arkansas Rule of Criminal Procedure 17.1 and asserts that the State had

the duty to provide the mobile-video and body-camera recordings of his October 6 arrest

after he requested the recordings in his discovery motions. He points out that the recordings

were destroyed, and he claims that without them, he had no means to impeach the officers

regarding probable cause for his October 6 arrest that led to the discovery of the pellet gun.

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On appeal, the standard of review for admission or rejection of evidence is abuse of

discretion. O’Neal v. State, 356 Ark. 674, 683, 158 S.W.3d 175, 181 (2004). A prosecutorial

discovery violation does not automatically result in reversal. Duck v. State, 2018 Ark. 267,

555 S.W.3d 872. The key in determining if a reversible discovery violation exists is whether

the appellant was prejudiced by the prosecutor’s failure to disclose. Id. Absent a showing of

prejudice, we will not reverse. Id. An appellant cannot use the discovery rules as a substitute

for his own investigation. See Irvin v. State, 28 Ark. App. 6, 771 S.W.2d 26 (1989).

We find no abuse of discretion in the circuit court’s denial of Allen’s motion to

suppress the pellet gun because Allen cannot show he was prejudiced by the prosecutor’s

failure to disclose the recordings. Allen had a full opportunity to cross-examine the officers

about their probable cause to arrest him both at the omnibus hearing and at the bench trial.

See Jackson v. State, 2020 Ark. App. 379, 609 S.W.3d 418; Turner v. State, 325 Ark. 237,

246, 926 S.W.2d 843, 848 (1996). Further, Allen did not contest the legality of the traffic

stop or his arrest for driving with a suspended license. He fails to show that the video would

have altered the circuit court’s ruling on the admissibility of the pellet gun or the outcome

of the case. Given these circumstances, we cannot say that the circuit court abused its

discretion.

Allen also argues that the circuit court erred by permitting Coffman to testify at trial

pursuant to Arkansas Rule of Evidence 404(b). He asserts that her testimony did not fit any

exception to the rule and that the road-rage incident involving Coffman is not similar to

the incident with Busby.

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Rule 404(b) allows evidence of other crimes, wrongs, or acts to be admitted for the

purpose of showing “motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident.” Ark. R. Evid. 404(b) (2020). Evidence meets this test if

it proves a material point but is not introduced solely to prove that the defendant is a bad

person. Fells v. State, 362 Ark. 77, 84, 207 S.W.3d 498, 503 (2005). “The test for establishing

motive, intent, or plan is whether the prior bad act has independent relevance.” Id. Evidence

is independently relevant if it tends to make the existence of any fact that is of consequence

to the determination of the action more or less probable than it would be without the

evidence. Morris v. State, 367 Ark. 406, 412, 240 S.W.3d 593, 597 (2006). Any circumstance

that ties a defendant to the crime is independently relevant and admissible as evidence. Id.

While evidence of other crimes or bad acts may be admissible under Rule 404(b), to

be probative under Rule 403, the prior crime or bad act must be similar to the crime

charged. Davis v. State, 362 Ark. 34, 46, 207 S.W.3d 474, 483 (2005). The bad act does not

have to be identical, just similar. See id. We have stated that Rule 404(b) applies to evidence

of a subsequent bad act by an appellant. Brasuell v. State, 2015 Ark. App. 559, 472 S.W.3d

499.

As with other evidentiary determinations, our standard of review is abuse of

discretion. Id. The degree of similarity between the circumstances of prior crimes and the

present crime required for admission of evidence under Rule 404(b) is a determination that

affords considerable leeway to the circuit court and may vary with the purpose for which

the evidence is admitted. Id.

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In this case, we cannot say that the circuit court abused its discretion by permitting

Coffman to testify pursuant to Rule 404(b). Coffman’s testimony demonstrates Allen’s

intent or absence of mistake. Both Coffman and Busby testified that they were driving in

the same area within one day of each other when an individual in a dark-colored sedan

projected an object toward their vehicles that resulted in damage to their cars. Accordingly,

we find no error on this point.

Allen lastly argues that the circuit court erred by admitting Busby’s pretrial

identification of him. A pretrial identification violates the Due Process Clause when there

are suggestive elements in the identification procedure that make it all but inevitable that

the victim will identify one person as the criminal. Bishop v. State, 310 Ark. 479, 839 S.W.2d

6 (1992). Even if the identification technique used was impermissibly suggestive, however,

testimony concerning it is admissible if the identification was reliable. The following factors

are considered in determining reliability: (1) the prior opportunity of the witness to observe

the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification

of another person prior to the pretrial identification procedure; (4) the level of certainty

demonstrated; (5) the failure of the witness to identify the defendant on a prior occasion;

and (6) the lapse of time between the alleged act and the pretrial identification. Hardrick v.

State, 47 Ark. App. 105, 112, 885 S.W.2d 910, 913 (1994). It is the appellant’s burden to

show that a pretrial identification was suspect, and we will not reverse a circuit court’s ruling

on the admissibility of identification evidence unless it is clearly erroneous. Bradley v. State,

2009 Ark. App. 714, 370 S.W.3d 263.

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Here, Allen claims Busby’s pretrial identification of him was based on an

impermissibly suggestive procedure because Busby heard an officer recite Allen’s name prior

to the identification. His argument is meritless. Even though Busby overheard officers state

his name before the identification, she testified that she did not know Jeffery Allen and that

the photo lineup did not include the suspects’ names. Allen offers no other argument how

the pretrial identification procedure was impermissibly suggestive. Accordingly, we hold

that the circuit court was not clearly erroneous in admitting the pretrial identification into

evidence.

Affirmed.

VIRDEN and HIXSON, JJ., agree.

James Law Firm, by: Alex A. Morphis and William O. “Bill” James, Jr., for appellant.

Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.

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