ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION I

FREDRICK FOSTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1235

MAY 23, 2001

APPEAL FROM THE ARKANSAS

COUNTY CIRCUIT COURT,

NORTHERN DISTRICT

[NO. CR00-51]

HONORABLE F. RUSSELL ROGERS,

CIRCUIT JUDGE

AFFIRMED

Appellant Frederick Foster was charged with four counts of second-degree forgery, but was only convicted on one count (Count III) after a trial before an Arkansas County Circuit Court jury. Appellant was sentenced to three years' imprisonment in the Arkansas Department of Correction. He appeals, arguing that the trial court abused its discretion by permitting the jury to consider several still photographs taken by surveillance cameras at automatic teller machines where the unauthorized use of a credit card occurred. We affirm.

We will not reverse a trial court's admission of photographs absent an abuse of discretion. See Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999); Baker v. State, 334 Ark. 330, 974 S.W.2d 474 (1998). Although the appellate courts are highly deferential to the trial court's discretion in these matters, our supreme court has rejected a carte blanche approach

to admission of photographs. See Berry v. State, 290 Ark. 223, 718 S.W.2d 447(1986). But, when photographs are helpful to explain testimony, they are ordinarily admissible. See, e.g., Williams v. State, 322 Ark. 38, 907 S.W.2d 120 (1995).

With this standard of review, we examine the facts that were presented to the jury as they relate to Count III, the only conviction. Appellant was accused of the unauthorized taking of a Capital One MasterCard issued to Linda Robinson and attempting to access funds at the First United Bank of Stuttgart, Arkansas, on March 2, 1999. Prior to the trial, appellant's counsel filed a motion in limine to exclude the pertinent photographs, but the trial court preliminarily denied the motion, subject to revisiting the issue at trial.

The State called Mark Hoffpauir, a commercial loan officer who also served as security officer for the bank, to testify about the bank's security video, how it was triggered to film, and the acquisition of transaction tapes from the ATM machine. Mr. Hoffpauir identified a series of seven still photographs taken from the bank's surveillance camera depicting the arrival of an automobile, the approach of a man to the ATM machine viewing him from the waist up, and his return to the vehicle. These photographs were marked State's Exhibit 4. The times stamped on the photographs indicate that this occurred between 11:10 and 11:12 p.m. on March 2, 1999. The ATM transaction tapes, which reflected the time of each transaction per the ATM's own internal clock, verified that an attempted transaction occurred at 11:15 p.m. The transaction was not completed, however, because the card inserted into the machine was "warm," suggesting that the card had been reported lost, stolen, or such. Mr. Hoffpauir testified that he was not bothered that the times on the photographs and ATM tapes did not exactly correspond because he checked the transactionsposted before and after this attempt to use the credit card, and the span of time separating the transactions confirmed to Mr. Hoffpauir that he had retrieved the correct photographs. The transaction immediately preceding the one in question occurred at 10:19 p.m., and the transaction occurring after the one in question occurred at 1:15 a.m. Moreover, the internal clocks in the surveillance film and the ATM machine were each independent from the other, though he tried to synchronize them on occasion.

The State introduced the ATM transaction report without objection, but the photographs drew an objection that was overruled. Appellant maintained that the times and dates did not match the charges in the felony information1 and thus were irrelevant, or if relevant, too prejudicial to be admitted.

Appellant candidly admits in his brief that State's Exhibit 4 "does enable a witness to better describe the objects portrayed or the jury to better understand the testimony because it does show the movement of the camera and how it rotates around the parking lot." Indeed, these photographs were direct evidence placing a car looking much like appellant's and a man appearing much like appellant at the bank at or near the time of the rejected transaction at First United Bank of Stuttgart. Appellant reasserts his argument on appeal that the photographs should have been excluded because the times did not match exactly with theATM report; thus the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of misleading the jury. Ark. R. Evid. 401, 402, and 403; see also Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). We disagree that this rendered the photographs inadmissible because we agree with the State that this slight discrepancy in timing goes to the weight to be given the evidence and not to its admissibility. See, e.g., Brown v. State, 321 Ark. 413, 903 S.W.2d 160 (1995) (quality of audiotape went to weight rather than admissibility). It was the jury's province to decide whether and to what extent appellant participated in any forgery, and this evidence was not likely to confuse or mislead the jury.

Appellant's argument with regard to State's Exhibit 2 is summarily dismissed in that these photographs, which consist of two photographs of an approaching vehicle and two photographs of a jacket sleeve with lettering, were admitted as part of the State's proof regarding Count II, of which appellant was acquitted. Those charges pertained to attempts to use Ms. Robinson's credit cards at another bank on that same evening. An acquittal on a charge to which there was an objection renders any error related thereto harmless. See, e.g., Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993); Spillers v. State, 272 Ark. 212, 613 S.W.2d 387 (1981).

The trial judge did not abuse his discretion, and thus we affirm.

Jennings and Baker, JJ., agree.

1 There was an error made with regard to two of the four counts in the felony information in that Counts III and IV were erroneously typed on the charging document as having occurred on March 3, 1999, when in fact all the alleged crimes took place on March 2, 1999. This error was corrected by a motion to conform the pleadings to the proof, and the jury was informed of this clerical error by the prosecutor prior to the jury retiring for deliberations.