Brandon Clay Stell v. Kerri Lynn Stell

2021 Ark. App. 478, 638 S.W.3d 855

• Court: Court of Appeals of Arkansas
• Decided: December 1, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 478 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document 2023.08.01 10:08:36 -05'00' DIVISION III 2023.003.20244 No. CV-20-601

Opinion Delivered December 1, 2021 BRANDON CLAY STELL APPEAL FROM THE FAULKNER APPELLANT COUNTY CIRCUIT COURT [NO. 23DR-20-338 ] V. HONORABLE H.G. FOSTER, KERRI LYNN STELL JUDGE

APPELLEE AFFIRMED

MIKE MURPHY, Judge

On April 7, 2020, appellee, Kerri Stell, filed a petition for a temporary order of

protection against her husband, appellant Brandon Stell. A temporary ex parte order of

protection was issued on the same day. Due to COVID protocols, a hearing was held via

Zoom on May 15, 2020; neither party objected to holding the hearing remotely. At the

end of the hearing, the trial court granted the order of protection for ten years.

On appeal, Brandon does not challenge the sufficiency of the evidence. Rather, he

presents five other arguments for reversal: (1) significant electronic issues prevented

Brandon’s counsel from being able to adequately advocate for him; (2) the electronic hearing

allowed opposing counsel’s assistant to help Kerri during her testimony; (3) the electronic

hearing violated the best-evidence rule; (4) the electronic hearing negatively affected the

trial court's treatment of Brandon; and (5) the trial court abused its discretion in issuing a

ten-year order of protection against Brandon. We affirm. I. Electronic Issues

First, Brandon argues that he did not get a fair hearing due to technical difficulties

that arose throughout the electronic hearing. Brandon contends that the electronic issues

prevented his counsel from adequately advocating for him. Brandon directs us to notations

in the record where his counsel and the court reporter were unable to hear testimony.

Additionally, Brandon’s counsel was disconnected and had to rejoin the hearing twice. He

argues that counsel cannot zealously advocate for or protect their clients’ interests if they

cannot hear or see the proceedings.

Brandon’s counsel never unequivocally objected to the disruptions. To preserve an

issue for appeal, a party must object at the first opportunity and obtain a ruling from the trial

court. Vaughn v. State, 338 Ark. 220, 223, 992 S.W.2d 785, 787 (1999). We will not review

a matter on which the trial court has not ruled, and the burden of obtaining a ruling is on

the movant; matters left unresolved are waived and may not be raised on appeal. Id.

Therefore, Brandon has failed to preserve this issue for appeal.

II. Assistant Communications

Next, Brandon argues that he did not get a fair hearing because opposing counsel’s

assistant communicated with Kerri during her testimony.

The court determined that the communication consisted of the assistant handing an

exhibit to Kerri. Understanding Brandon’s concern, both opposing counsel and the court

said that the assistant could step outside. Brandon’s counsel said that would not be necessary.

Brandon now argues that it was unclear what the assistant handed Kerri and that

there were no safeguards in place to ensure, as would be present in a courtroom, that what

2 was handed to a witness while testifying is the same exhibit introduced to all. Again, in

order to properly preserve an issue for appeal, a party must timely object at the first

opportunity and receive a ruling from the court. Therefore, this issue, likewise, was not

preserved for appeal.

III. Best-Evidence Rule

Brandon’s next argument is that the trial court erred in admitting three photographs

taken by Kerri because it violated the best-evidence rule. That rule requires that, unless

otherwise provided, an original of a photograph must be offered in order to prove its

contents. Ark. R. Evid. 1002.

A trial court’s decision to admit evidence will not be reversed absent a manifest abuse

of discretion. Steele v. Lyon, 2015 Ark. App. 251, at 4, 460 S.W.3d 827, 831. The abuse-of-

discretion standard is a high threshold that does not simply require error in the trial court’s

decision but requires that the trial court act improvidently, thoughtlessly, or without due

consideration. Gully v. State, 2012 Ark. 368, 423 S.W.3d 569. Further, this court will not

reverse a trial court’s decision absent a showing of prejudice. Davis v. State, 350 Ark. 22, 86

S.W.3d 872 (2002).

Kerri testified the photographs were taken on her phone, and the same photographs

were sent electronically to her attorney who then sent electronic versions to the court and

to Brandon’s counsel. At trial, Brandon objected and argued that the photographs were not

the originals and should not have been admitted into evidence. The trial court opined that

the photographs were original because they were sent in electronic format to opposing

counsel and to the court and that an appellate court would see them in electronic format.

3 On appeal, Brandon argues that without appropriate procedures in place, an

unscrupulous attorney could send one version to opposing counsel and another version to

the court, and the opposing counsel would have no way of knowing. He argues this

dilemma is not possible with an in-person hearing; each party can see the proffered

photograph before it is given to the court or introduced into evidence; but, with electronic

hearings, there are no such protections in place. 1

Brandon has not shown that the trial court abused its discretion in admitting the

photographs. Pertinently, the court noted that Kerri’s counsel was holding up the exhibit

so everyone could see what the witness was looking at. If there was any issue it should have

been noted at that juncture.

IV. Negative Treatment

Next, Brandon directs us to a comment from the court to argue that the electronic

hearing negatively affected the court’s treatment of him. This argument is not properly

preserved for appeal because Brandon never asked for a mistrial or objected to the court’s

handling of the matter.

V. Length of Order of Protection

Brandon’s last argument is a conclusory challenge to the length of the order of

protection. In granting an order of protection, it is in the court’s discretion to grant relief

1 Brandon also argues for the first time on appeal that Kerri’s counsel added red circles to the photographs. He contends this alteration meant the photographs were not the originals sent from Kerri’s phone and should not have been allowed to come in as evidence. This argument is not preserved for our review.

4 for a fixed period of time between ninety days and ten years. Ark. Code Ann. § 9-15-205(b)

(Repl. 2015).

Here, the court issued the order of protection for ten years, which is within the

statutory range. Brandon fails to cite any convincing argument. We will not consider an

argument when the appellant presents no citation to authority or convincing argument in

its support, and it is not apparent without further research that the argument is well taken.

Hollis v. State, 346 Ark. 175, 179, 55 S.W.3d 756, 759 (2001). Brandon has not

demonstrated how entering an order within the statutory time limit was an abuse of the

court’s discretion.

Affirmed.

HARRISON, C.J., and HIXSON, J., agree.

Gordon & Caruth, PLC, by: Jeannie L. Denniston, for appellant.

Ryan C. Allen, for appellee.