             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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                                                            VEA-r,iviior,rs. 10, zl../19
                                                         NOT TO BE PUBLISHED

                                  (E-ourf of l',Rrtiftithg
                                2013-SC-000788-MR


DANIEL C. STOVALL                                                        APPELLANT


                  ON APPEAL FROM BOYLE CIRCUIT COURT
V.                 HONORABLE DARREN PECKLER, JUDGE
                             NO. 13-CR-00071


COMMONWEALTH OF KENTUCKY                                                  APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      A Boyle Circuit Court jury found Appellant, Daniel C. Stovall, guilty of

four counts of first-degree criminal mischief, three counts of third-degree

burglary, and two counts of theft by unlawful taking. As a result, he was

sentenced to twenty years' imprisonment. He now appeals as a matter of right,

Ky. Const. § 110(2)(b), asserting that the trial court erred by (1) denying his

pre-trial motion to suppress evidence seized from his unlawful arrest, (2)

permitting Sheriff Curt Folger to testify as to hearsay statements made by

another law enforcement officer during the investigation, and (3) permitting

Officer Chris Stratton to testify about the contents of a surveillance video that

was not produced in discovery and was unavailable by the time of trial. For the

following reasons, we affirm.
                                 I. BACKGROUND

      Parksville Country Store, Hardee's BP, and Old Bridge Golf Club in Boyle

County were burglarized all on the same night. Burglaries also continued into

neighboring Lincoln County that night. Based on the surveillance video footage

obtained from Parksville Country Store, police suspected that one black male

and two white males were responsible for the burglaries. It also led police to

believe that the men were driving a dark colored sport utility vehicle ("SUV").

As a result, Sergeant Sim Thacker of the Lincoln County Sheriff's Department

attempted to pull over a black SUV, but the driver sped up and evaded

Sergeant Thacker. Subsequently, police found the SUV abandoned, containing

various stolen items from the burglarized stores. Police also found a wallet in

the SUV, which contained a photograph of a young boy.

      Approximately twelve hours later and one and one half miles from the

abandoned SUV, Appellant, a black male, was going from business to business

attempting to obtain a ride from someone. Appellant eventually entered a

green taxi, which drove approximately one mile before stopping to pick up a

white male passenger, Joshua Johnson. Believing that these men matched the

description of the burglars, Lincoln County Sheriff Curt Folger and Lancaster

Police pulled the taxi over and arrested both passengers.

      During the stop, Sheriff Folger noticed that the passengers were dressed

the same as the burglars on the surveillance video. Sheriff Folger also

discovered a photograph in Johnson's wallet which was identical to that found

in the abandoned SUV. After taking Appellant and Johnson to the police


                                         2
station, law enforcement officers learned that the SUV, Johnson, and Appellant

were all from Indiana. Police fingerprinted both suspects and, pursuant to a

warrant, obtained DNA samples from Appellant and Johnson. Appellant's

fingerprints and DNA matched those on a black plastic bag and gloves found in

the SUV.

      Appellant filed a motion to suppress evidence discovered by police after

his arrest on the grounds that the police illegally stopped the green taxi and

arrested Appellant. The trial court denied his motion, and the case proceeded

to jury trial. At trial and over Appellant's objection, Sheriff Folger testified that

Special Deputy Hal Akers told him about Appellant going from business to

business and entering the green taxi. Folger further testified the information

provided by Akers led him to stop the taxi. Appellant also objected when

Officer Chris Stratton testified about what he had seen on the Parksville

Country Store's surveillance video because the video was not produced in

discovery or played for the jury at trial. This objection was also overruled, and

Appellant was convicted by a jury of the aforementioned charges and sentenced

to twenty years' imprisonment. This appeal followed.

                                     II. ANALYSIS

   A. The Trial Court Did Not Err by Denying Appellant's Suppression
      Motion

       Appellant asserts that the trial court improperly denied his motion to

 suppress evidence seized after his arrest. He contends that police lacked the

requisite probable cause to arrest him, and therefore, evidence seized following

 the arrest was the inadmissible fruit of an unlawful arrest. An appellate
                                           3
court's standard of review when addressing a suppression motion regarding an

alleged illegal search or seizure is two-fold:

      First, historical facts should be reviewed for clear error, and the
      facts are deemed to be conclusive if supported by substantial
      evidence. Second, determinations of rea.sonable suspicion a.nd.
      probable cause are mixed questions of law and fact and. are,
      therefore, subject to de novo revie:w. in addition, we are bound to
      give "clue weight to i.n.ferences drawn from th.ose facts by :resident
      judges and local law enforcement officers."

Bander v. Colionoinvea<th, 299 ,S.W.3d 588, 591 1         2009) (quoti g Ornelas v.

United States, 517 U.S. 690, 699 (1996)) (internal citations omitted); see also

RCr 9.78.

       The trial court found from Sheriff Folger and Deputy Thacker's

testimony that police had discovered the abandoned SUV, which contained

items that had been stolen from the burglaries earlier that night; that the

police were looking for one black male and two white males in connection with

the burglaries; and that, within a relatively short time period and distance from

the abandoned SUV, Appellant had been knocking on doors looking for a ride

before entering a taxi, which picked up a white male passenger a short

distance away. This Court has consistently held that a law enforcement

officer's testimony alone is enough to constitute "substantial evidence."      See

e.g., Payton v. Commonwealth, 327 S.W.3d 468, 471 72 (Ky. 2010); Chavies v.
                                                          -




 Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011); Williams v. Commonwealth,

 364 S.W.3d 65, 68 (Ky. 2011). As such, there was substantial evidence to

 support the trial judge's findings of fact, and they are conclusive. There was no

 clear error by the trial court in regard to its factual findings.


                                            4
      Thus, the question we must now address is whether the trial court

appropriately applied its findings of fact to the law when it held that there was

probable cause for Appellant's arrest. To do so, we must determine whether it

was proper for police to stop the taxi. The Fourth Amendment of the United

States Constitution and Section 10 of the Kentucky Constitution protect an

individual from unreasonable searches and seizures. Therefore, to conduct an

investigatory stop, a police officer must have "a reasonable articulable

suspicion" that criminal activity is afoot or that a person the officer encounters

is wanted in connection with a completed felony. Bauder, 299 S.W 3d at 588

(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)); United States v. Hensley, 469

U.S. 221, 229 (1985). This Court has explained:

      A reasonable suspicion is more than an unparticularized suspicion
      or hunch. Reasonable suspicion, while requiring less of a showing
      than probable cause, requires at least a minimal level of objective
      justification for making the stop. Accordingly, the stop of an
      automobile and the resulting detention of the driver are
      unreasonable, under the Fourth Amendment, absent a reasonable,
      articulable suspicion that . . . an occupant is otherwise subject to
       seizure for violation of the law. The court must consider the
       totality of the circumstances in determining whether a police
       officer had a particularized and objective basis for suspecting that
       a person stopped may be involved in criminal activity.

Bauder, 299 S.W 3d at 591 (citing Terry, 392 U.S. at 27; United States v.

 Sokolow, 490 U.S. 1, 7 (1989); Delaware v. Prouse, 440 U.S. 648, 663 (1979);

 United States v. Cortez, 449 U.S. 411, 417-18 (1981)) (internal citations and

quotation marks omitted).

       Appellant asserts that the police had no reasonable, articulable suspicion

 to stop the taxi. He argues that the police only stopped the taxi because it


                                          5
contained one black male passenger and one white male passenger, and that

the passengers were not doing anything illegal at the time the taxi was stopped.

However, Appellant's assertion ignores the totality of the circumstances. While

the races of the taxi passengers was one factor that led police to make the

investigatory stop, there were many others that also must be considered.        See

Hampton v. Commonwealth, 231 S.W.3d 740, 747 (Ky. 2007) (discussing that

innocent behavior combined with other circumstances can amount to

reasonable suspicion).

      Law enforcement officers were in the midst of their investigation and in

active pursuit of the suspects involved in a series of felony burglaries that

occurred approximately twelve hours earlier. Video surveillance footage

showed two white males and one black male burglarizing the stores. An

abandoned SUV that had earlier evaded the police was discovered, and it

contained various stolen items. Then, not far from the abandoned SUV,

Special Deputy Akers observed a black male, Appellant, on foot looking for a

ride before getting in the taxi and soon thereafter picking up a white male

passenger. Sheriff Folger testified that in his experience, it was not common

for people to be seeking a taxi in that area. He also testified that Special

Deputy Akers had been a Special Deputy for several years, and he had proven

to be a reliable source for receiving such information.

       Based on the observations and information provided by Special Deputy

Akers, Sheriff Folger believed there was reasonable suspicion to perform an

investigatory stop of the taxi. Sheriff Folger did not pull the taxi over based on


                                         6
a mere "hunch." Rather, the facts taken together indicate "at least a minimal

level of objective justification for the stop." Id. He had a reasonable,

articulable suspicion that the occupants of the vehicle were responsible for the

burglaries, and, thus, subject to seizure for violation of the law. Moreover, we

must give deference to Sheriff Folger's determination of reasonable suspicion:

      Officers may draw on their own experience and specialized training
      to make inferences from, and deductions about, the cumulative
      information available to them that might well elude an untrained
      person . . . . This Court has made clear that due deference must
      be given to the reasonableness of inferences made by police
      officers.

Id. at 592 (citing United States v. Arvizu, 534 U.S. 266, 274-74 (2002));

Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)). Therefore,

considering the totality of the circumstances, we hold that law enforcement

officers had reasonable articulable suspicion to stop the taxi.

      Alternatively, Appellant contends that even if the stop of the taxi was

lawful, the arrest that followed the stop was not. He agrees that only

reasonable suspicion was needed to stop the taxi, but he asserts that probable

cause was required for police to make an arrest. We first note that while we

believe there was probable cause to justify Appellant's arrest, we also think

that this is an exception where police did not need probable cause to justify an

extended detention of Appellant:

       The precise limits on investigatory stops to investigate past
       criminal activity are more difficult to define. The proper . . . test,
       which is grounded in the standard of reasonableness embodied in
       the Fourth Amendment, balances the nature and quality of the
       intrusion on personal security against the importance of the
       governmental interests alleged to justify the intrusion. When this
       balancing test is applied to stops to investigate past crimes, we
                                          7
     think that probable cause to arrest need not always be required . .
     . [W]here police have been unable to locate a person suspected of
     involvement in a past crime, the ability to briefly stop that person,
     ask questions, or check identification in the absence of probable
     cause promotes the strong government interest in solving crimes
     and bringing offenders to justice. Restraining police action until
     after probable cause is obtained would not only hinder the
     investigation, but might also enable the suspect to flee in the
     interim and to remain at large. Particularly in the context of
     felonies or crimes involving a threat to public safety, it is in the
     public interest that the crime be solved and the suspect detained
     as promptly as possible. The law enforcement interests at stake in
     these circumstances outweigh the individual's interest to be free of
     a stop and detention that is no more extensive than permissible in
     the investigation of imminent or ongoing crimes.
United States v. Hensley, 469 U.S. 221, 229 (1985).

      Even assuming probable cause was required, we hold that it existed.

"To determine whether an officer had probable cause to arrest an individual, we

examine the events leading up to the arrest, and then decide whether these

historical facts, viewed from the standpoint of an objectively reasonable police

officer, amount to probable cause." Maryland v. Pringle, 540 U.S. 366, 371

(2003) (internal citations omitted); see also Commonwealth v. Jones, 217

S.W.3d 190, 196 (Ky. 2006). "Probable cause for arrest involves reasonable

grounds for the belief that the suspect has committed, is committing, or is

about to commit an offense." McCloud v. Commonwealth, 286 S.W.3d 780,

785-86 (Ky. 2009).

      After the taxi was stopped, Sheriff Folger was able to identify that

Appellant and Johnson were dressed the same as the burglars were in the

surveillance video. Specifically, Sheriff Folger noted that Appellant was

wearing distinctive black athletic shoes with red and white markings that had


                                         8
been visible in the video. Police also discovered a photograph of a young boy in

Johnson's wallet, which was identical to the photograph found in the SUV.

Johnson claimed that the photograph was of his nephew.

      We hold that the facts, viewed from the perspective of a reasonably

objective police officer, established probable cause for Sheriff Folger to believe

that Appellant was a participant in the burglaries. Because the stop of the taxi

and the subsequent arrest of Appellant were both lawful, no evidence was the

fruit of an illegal search or seizure. Thus, we hold that the trial court did not

err in denying Appellant's suppression motion.

   B. The Trial Court Did Not Err by Allowing Sheriff Folger to Testify
      Regarding Special Deputy Akers's Statements

      Over Appellant's hearsay objection, the trial court permitted Sheriff

Folger to testify that Special Deputy Akers informed him that he had seen

Appellant going door-to-door looking for a ride before getting in a green taxi,

which shortly thereafter picked up Johnson. Sheriff Folger testified that he

used the information provided by Akers to locate the taxi and pull it over to

investigate Appellant and Johnson as suspects in the burglaries. Appellant

asserts that the trial court committed reversible error when it allowed this

testimony. Specifically, Appellant contends that Akers's statements were

inadmissible hearsay. He further argues that his right under the Sixth

Amendment's Confrontation Clause was violated because he did not have an

 opportunity to cross-examine Akers. We disagree.

        In regard to investigative verbal acts and hearsay testimony, this Court

 has held:
                                          9
     The rule is that a police officer may testify about information
     furnished to him only where it tends to explain the action that was
     taken by the police officer as a result of this information and the
     taking of that action is an issue in the case . . . . Such testimony
     is then admissible not for proving the truth of the matter asserted,
     but to explain why a police officer took certain actions.

Chestnut v. Commonwealth, 250 S.W.3d 288, 294 (Ky. 2008) (internal citation

omitted). We have further explained that this testimony is limited "to

circumstances where the taking of action by the police is an issue in the case

and where it tends to explain the action that was taken as a result of the

hearsay information." Id. at 294. Moreover, "[t]he standard of review for a trial

court's evidentiary ruling is abuse of discretion." Kerr v. Commonwealth, 400

S.W.3d 250, 261 (Ky. 2013). The test for abuse of discretion is whether the

trial court's decision was arbitrary, unreasonable, unfair, or unsupported by

sound legal principles.   Commonwealth v. English, 993 S.W.2d 941, 945

(Ky. 1999).

      At trial, Appellant argued that he was illegally arrested and that Sheriff

Folger did not have a sufficient description of the burglary suspects to arrest

Appellant for the crimes. Thus, the actions taken by police were at issue in the

case. As such, we hold that the trial court did not abuse its discretion when it

permitted Sheriff Folger to testify about the information provided to him by

Akers. The at-issue testimony was not offered to prove the truth of what Akers

told Sheriff Folger. Rather, it was offered to explain Sheriff Folger's "motive" for

stopping the taxi and subsequently arresting Appellant.      See Chestnut, 250

S.W.3d at 294. The testimony explained why Sheriff Folger thought that the



                                         10
burglary suspects were in the taxi and therefore why he pursued the taxi and

pulled it over. Sheriff Folger's testimony concerned only what he did on the

day in question, not the truthfulness of Akers's statements.   See id.

      Further, the Confrontation Clause only applies to the right to confront

and cross-examine witnesses when their statements are being used to prove

the truth of the matter asserted.   Id. at 295 (citing Crawford v. Washington, 541

U.S. 36 (2004); Norton v. Commonwealth, 890 S.W.2d 632, 635 (Ky.App.1994)).

Since the testimony about Akers's statements was admitted only to explain

Sheriff Folger's actions, Appellant was not denied his right to confrontation.

Thus, the trial court did not err in admitting Sheriff Folger's testimony.

   C. The Trial Court Did Not Err by Permitting Officer Stratton to
      Testify to the Contents of a Lost Surveillance Video

      Finally, Appellant contends that the trial court committed reversible

error when it permitted Officer Chris Stratton to testify about surveillance video

from the Parksville Country Store. We review the trial court's evidentiary ruling

for an abuse of discretion. Kerr v. Commonwealth, 400 S.W.3d 250, 261

(Ky. 2013).

      Officer Stratton testified that he personally saw the video and that it

showed three males in hooded sweatshirts breaking into the store and

ransacking it. However, the video was never produced to Appellant, and it was

not played for the jury at trial. Appellant asserts that the Commonwealth's

failure to present the original video recording violates the best evidence rule,

KRE 1002, and the Confrontation Clause of the Sixth Amendment.



                                          11
      The Commonwealth counters that the surveillance recording was lost or

destroyed by the store owner, Jerry Sinkhorn, before the Commonwealth was

able to obtain it. Sinkhorn testified at trial that he was a new owner of the

store at the time of the burglary and that he was unfamiliar with the operation

of the surveillance recording system. Sinkhorn explained that he inadvertently

taped over or erased the pertinent video recording. As such, the

Commonwealth argues that that Officer Stratton's testimony about the video

was admissible pursuant to KRE 1004(1) because the original was lost or

destroyed. We agree with the Commonwealth.

      KRE 1002 provides, "No prove the content of a writing, recording, or

photograph, the original writing, recording, or photograph is required, except

as otherwise provided in these rules . . . ." (Emphasis added.) "Essentially, this

rule requires a party to introduce the most authentic evidence which is within

their power to present."   Savage v. Three Rivers Med. Ctr., 390 S.W.3d 104, 114

(Ky. 2012). KRE 1004 states that "[t]he original is not required, and other

evidence of the contents of a writing, recording, or photograph is admissible if:

(1) Originals lost or destroyed. All originals are lost or have been destroyed,

unless the proponent lost or destroyed them in bad faith . . . ." "Other

evidence" as prescribed in KRE 1004 includes any type of secondary evidence,

such as oral testimony, and is not limited to just duplicates of the original.    See

Robert G. Lawson, The Kentucky Evidence Law Handbook, § 7.20 [5] (5t1a ed.

Lexis 2013) (citing Evidence Rules Study Committee, Kentucky Rules of

Evidence, p. 111 (Nov. 1989)) ("A satisfactory explanation for nonproduction of


                                         12
the original eliminates the impact of Rule 1002 . . . and leaves the offering

party free to produce whatever secondary evidence he thinks will be most

helpful to his case.").

      The burden of proving that an original was lost or destroyed rests with

the offering party. That party is also required to call the last known custodian,

if available, to testify to the loss or destruction of the original.   Taulbee v.

Drake, 198 S.W.2d 50 (Ky. 1946); see also Robert G. Lawson, The Kentucky

Evidence Law Handbook, § 7.25[2][b] 5th ed. Lexis 2013). After hearing the

offering party's explanation for the loss or destruction of the original, it is

vcrithin the trial court's discretion to determine whether the loss was in bad

faith. See Robert G. Lawson, The Kentucky Evidence Law Handbook, §

7.25[2][b] (5th ed. Lexis 2013) (citing Evidence Rules Study Committee,

Kentucky Rules of Evidence, p. 111 (Nov. 1989)).

       In the present case, the Commonwealth satisfied its obligations by calling

the store owner to testify that he inadvertently lost or recorded over the

surveillance footage. Officer Stratton also testified that he watched the video
                                                                                     (




before it was erased. Appellant did not offer any evidence suggesting that the

video was lost or destroyed in bad faith. Thus, we hold that it was within the

trial court's discretion to determine that Officer Stratton's testimony was the

most authentic evidence of the video that the Commonwealth was capable of

presenting and therefore admit the testimony.'


       I Additionally, the trial court permitted Appellant to have a missing evidence
instruction, which allowed the jury to infer that the lost video would be favorable to
his case if it were available. Even if we accepted Appellant's contention that

                                            13
      As for Appellant's assertions regarding the Confrontation Clause and the

lost video, as discussed above, the Confrontation Clause only applies to

hearsay matters, which are out of court statements offered to prove the truth of

the matter asserted. KRE 801(c). A statement is defined in part as "nonverbal

conduct of a person, if it is intended by the person as an assertion." KRE

801(a). The burglars' actions on the surveillance video were not intended to be

assertions. Therefore, the video was hot hearsay. Harwell v. Commonwealth,

WL 1103112, at *9 (Ky. 2011). In addition, Appellant had the opportunity at

trial to cross-examine Officer Stratton about his recollection and account of the

video. As such, we hold that there was no Confrontation Clause violation and

the trial court did not abuse its discretion when it permitted Officer Stratton to

testify to what he observed on the video.

                                  III. CONCLUSION

      For the aforementioned reasons, we affirm Appellant's convictions and

sentence.

      All sitting. All concur.




permitting testimony on the video constituted an abuse of discretion by the trial court,
we believe the error would be harmless. RCr 9.24. An evidentiary error may be
deemed harmless if the reviewing court can say with fair assurance that the judgment
was not substantially swayed by the error. Winstead v. Commonwealth, 283 S.W.3d
678, 688-89 (Ky. 2009). Given the extensive amount of other evidence provided in the
case, including another surveillance video that was played for the jury and DNA
evidence that linked Appellant to items stolen from the burglarized stores, we can say
with fair assurance that the jury was not substantially swayed by Officer Stratton's
testimony.



                                           14
COUNSEL FOR APPELLANT:

Jason Apollo Hart, Assistant Public Advocate


COUNSEL FOR APPELLEE:

Jack Conway, Attorney General of Kentucky

David Bryan Abner, Assistant Attorney General




                                       15
