                                Cite as 2015 Ark. App. 516

                ARKANSAS COURT OF APPEALS
                                      DIVISION II
                                     No. CR-14-1036


                                                 OPINION DELIVERED SEPTEMBER   30, 2015
EMILIO GUTIERREZ
                              APPELLANT          APPEAL FROM THE SEVIER
                                                 COUNTY CIRCUIT COURT
                                                 [NO. CR-2014-9-2]
V.
                                                 HONORABLE CHARLES A.
                                                 YEARGAN, JUDGE
STATE OF ARKANSAS
                                 APPELLEE        AFFIRMED



                        ROBERT J. GLADWIN, Chief Judge

       Appellant Emilio Gutierrez appeals his convictions by a Sevier County jury on charges

of trafficking a controlled substance–methamphetamine; simultaneous possession of drugs and

firearms; maintaining a drug premises; and possession of drug paraphernalia. Appellant argues

that the circuit court erred by denying his motion in limine and overruling his objections by

allowing a video of law-enforcement officers firing a weapon found in the search of his home

to be played for the jury and admitted into evidence. We affirm.

       On January 28, 2014, the Sevier County Sheriff’s Office, relying upon information

provided by a confidential informant, executed a search warrant on a residence owned by

appellant at 261 West Line Road in DeQueen, Arkansas. Upon entry, officers found Maria

Mosqueda and a minor child in the home. After conducting a search of the premises, law

enforcement located in the home approximately 1,389 grams of methamphetamine, drug
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paraphernalia, and ammunition, along with several weapons–including a .22-caliber rifle, a

30-06 rifle, and a modified AR-15 rifle.

       Following the search, appellant was arrested upon his return from work and taken to

the Sevier County Sheriff’s Office. Later that day, officers, acting on information provided

by a different confidential informant, returned to the premises after obtaining a second search

warrant, conducted a second search of the home, and discovered an additional amount of

methamphetamine.

       At trial, the State produced the controlled substances found in the home, as well as

the weapons seized, and they were introduced into evidence. In addition, the State’s witness,

Agent Greg Davignon, a member of the South Central Drug Task Force, testified in detail,

without objection, regarding the items discovered during the search, including the admittedly

legal enhancements and specific firing rate of the AR-15 rifle. At trial, there was no

testimony that the gun had been used for any illegal purpose.

       Then, over objection from appellant’s counsel prior to its introduction, the circuit

court allowed the video of task-force officers firing the modified AR-15 rifle to be presented

and played for the jury. The video depicted the agents holding and loading the AR-15 rifle

with rounds secured from a source other than appellant or his home and were not those

seized in the search leading to his arrest. The video showed the agents emptying the

magazine loaded in the weapon using the gun’s automatic-fire setting.




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       On August 14, 2014, appellant was found guilty on all counts and sentenced to a total

term of seventy-three years in the Arkansas Department of Correction. On September 15,

2014, appellant timely filed his notice of appeal.

       The decision to admit or exclude evidence is within the sound discretion of the

circuit court, and we will not reverse a circuit court’s decision regarding the admission of

evidence absent a manifest abuse of discretion. See Paschal v. State, 2012 Ark. 127, 388

S.W.3d 429; Williams v. State, 2011 Ark. App. 521. When reviewing a denial of a motion

in limine or a refusal to take judicial notice, we use the abuse-of-discretion standard. Mhoon

v. State, 369 Ark. 134, 251 S.W.3d 244 (2007). An abuse of discretion is a high threshold; it

does not simply require error in the circuit court’s decision, but requires that the circuit court

acted improvidently, thoughtlessly, or without consideration. Williams, supra.

       Rule 402 of the Arkansas Rules of Evidence (2014) states that “[a]ll relevant evidence

is admissible, except as otherwise provided by statute or by these rules or by other rules

applicable in the courts of this State. Evidence which is not relevant is not admissible.”

Further, Rule 403 of the Arkansas Rules of Evidence states that, “[a]lthough relevant,

evidence may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” Our supreme

court in Lard v. State, 2014 Ark. 1, 431 S.W.3d 249, stated,

       As a general matter, all relevant evidence is admissible. Ark. R. Evid. 402. Relevant
       evidence is evidence that has a tendency 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. Ark. R. Evid. 401. Evidence, although relevant, may be

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       excluded if its probative value is substantially outweighed by the danger of unfair
       prejudice. Ark. R. Evid. 403.

Id. at 19–20, 1 S.W.3d at 264. Additionally, video evidence is admissible if it is relevant,

helpful to the jury, and not prejudicial. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691

(1993). The same requirements for the admission of photographs apply to the admission of

video evidence. Williams v. State, 374 Ark. 282, 287 S.W.3d 559 (2008). Because a videotape

can give the jury a different perspective on the crime scene, a videotape can be helpful to a

jury’s understanding of the case. See Hamilton v. State, 348 Ark. 532, 74 S.W.3d 615 (2002).

It is well recognized that the balancing of probative value against prejudice is a matter left to

the sound discretion of the circuit court. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305

(2001).

       Agent Davignon testified without objection that he was familiar with the AR-15 rifle

and furthermore to the enhancements made to the weapon found in appellant’s residence.

In his testimony, he set out each enhancement, including the laser sight, firing-rate selector,

rounds used in the weapon, and the various magazines that can be used with the weapon and

those found with or near the weapon. Agent Davignon further stated that law enforcement

had no reason to believe that the weapon had been illegally obtained and that both the

weapon and the enhancements on the weapon were legal. His testimony indicated that there

was no evidence that appellant had fired the weapon for any illegal purpose.

       To sustain a charge of simultaneous possession of a firearm and drugs under Arkansas

Code Annotated section 5-74-106 (Supp. 2013), the State must prove that appellant was in

possession of the firearm in a home while he also possessed a felony amount of a controlled

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substance. The statute under which appellant was charged does not require that the weapon

be fireable, and no defense was asserted by appellant, as set out in the statute, as to his

accessibility to the rifle. Likewise, none of the other offenses with which appellant was

charged require that the weapon be fireable, or even possessed. Appellant contends that the

presentation of the video of law enforcement officers firing the AR-15 rifle was not required

for a finding of guilty under the charges for which he was being tried.

       The above-cited rules of evidence require that evidence be relevant to the charge,

and, if the circuit court determines the evidence to be relevant, it must then balance the

probative value of the evidence against the danger of unfair prejudice, confusion, and

misleading the jury, among other considerations. Appellant argues that the presentation of

the video was not relevant to any of the counts under which he was charged and should have

been excluded as irrelevant evidence.

       Appellant points out that the rifle and the enhancements were legal–as was his

possession of the rifle–because he was of proper age and not a convicted felon. The only

relevant issue, as it relates to the charges against him, was that the rifle was possessed in

proximity to alleged controlled substances—and he never challenged that evidence. Appellant

did not disclaim ownership of the rifle, and he acknowledges that ample proof was presented

that the rifle was found in his home along with the large amount of controlled substances.

But appellant urges that the submission of the video showing someone other than him

loading or firing the weapon was irrelevant and alternatively, inadmissible under the

balancing test set out in Rule 403. Appellant maintains that the video served no other


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purpose during the guilt phase of the trial than to inflame the passion of the jury to believe

that he was a violent person, despite the lack of evidence that he engaged in violent activities

or that he was a violent person, in order to unduly prejudice appellant or mislead or confuse

the jury as to appellant’s use of the weapon.

       Appellant contends that the submission of the video had an effect on the jury, not

only in determining his guilt or innocence, but also by inciting such passion in the minds of

the jury that appellant, was in essence, a violent person, tainting not only the jury’s belief in

the guilt and innocence phase but also its determination of his sentence; even though the

video was introduced again in that phase. Appellant submits that allowing the submission of

the video, despite a lack of evidence regarding his use of the weapon or his tendency for

violence, and further, in light of the officers’ decision to fire the weapon only in its full

automatic position—absent any evidence that it was discovered in that position—unduly

prejudiced him and affected the jury’s perception to such an extent that it amounts to an

abuse of discretion.

       Although we find merit in appellant’s argument that the submission of the video was

not relevant to any specific offense with which he was charged in that it did not have a

tendency 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, see Arkansas Rule

of Evidence 401, we hold that the circuit court’s error in allowing the submission was

harmless. This court has consistently held that under the harmless-error rule, when evidence

of guilt is overwhelming and the error slight, we can declare the error harmless. Johnston v.


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State, 2014 Ark. 110, 431 S.W.3d 895; see also Baker v. State, 334 Ark. 330, 974 S.W.2d 474

(1998) (holding that introduction of testimony regarding the defendant’s state of mind was

harmless error in light of other evidence introduced at trial); Hicks v. State, 327 Ark. 652, 941

S.W.2d 387 (1997) (holding that admission of additional drug paraphernalia was harmless

error when there was overwhelming evidence to support the conviction).

       In determining whether the error is slight, we look to see if the defendant has been

prejudiced. Johnston, supra. Prejudice is not presumed, however, and this court will not

reverse the circuit court’s ruling unless appellant demonstrates prejudice by the admission of

the video. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). The record before us indicates

that the evidence against appellant was overwhelming and justifies his sentence, which falls

within the sentencing range. Under Buckley v. State, 349 Ark. 53, 64, 76 S.W.3d 825, 832

(2002), “[a] defendant who has received a sentence within the statutory range short of the

maximum sentence cannot show prejudice from the sentence itself.”

       Appellant was convicted of two Class Y felonies for trafficking methamphetamine and

simultaneous possession of drugs and firearms, and each conviction carries a sentence range

of ten to forty years or life. Ark. Code Ann. § 5-64-440(c) (Supp. 2013); Ark. Code Ann.

§ 5-74-106(b); Ark. Code Ann. § 5-4-401(a)(1) (Repl. 2013). Appellant received a forty-year

sentence for trafficking and a twenty-five year sentence for simultaneous possession, which

is not life and is fifteen years less than the maximum sentence authorized by law. He was also

convicted of a Class C felony for maintaining a drug premises, and the corresponding

sentence ranges from three to ten years. Ark. Code Ann. § 5-64-402(b)(1) (Supp. 2013); Ark.


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Code Ann. § 5-4-401(a)(4). Appellant received a five-year sentence, which is only half of the

maximum authorized sentence. He was also convicted of possession of drug paraphernalia,

a Class D felony that carries a sentence of up to six years. Ark. Code Ann. § 5-64-443(a)(2);

Ark. Code Ann. § 5-4-401(a)(5). Appellant received a three-year sentence, which is, again,

only half of the maximum sentence. Because there was overwhelming evidence of appellant’s

guilt separate and apart from the video, and because his sentence falls within statutory

sentencing range, we hold that any error from the admission of the video was harmless.

       Affirmed.

       WHITEAKER and HOOFMAN , JJ., agree.

       The Law Office of Darrell F. Brown, Jr., by: Darrell F. Brown, Jr., for appellant.

       Leslie Rutledge, Att’y Gen., by: Ashley Driver Younger, Ass’t Att’y Gen., for appellee.




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