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ARKANSAS COURT OF APPEALS

DIVISION II

No. CR-16-344

TERRANCE WASHINGTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered November 30, 2016

APPEAL FROM THE CRITTENDEN 

COUNTY CIRCUIT COURT

[NO. CR-13-1091]

HONORABLE JOHN N. 

FOGLEMAN, JUDGE

AFFIRMED

BRANDON J. HARRISON, Judge

A jury convicted Terrance Washington of grievously injuring then three-month-old 

T.W. by violently shaking him. Washington was sentenced to 10 years’ imprisonment. He 

appealed the sentencing order and now argues that the circuit court erred when it admitted

an unauthenticated CT scan of T.W.’s brain and refused him the opportunity to obtain 

testimony from his own mother, and another witness, that T.W.’s mother may have injured

the baby. 

Was the Computed Tomography (CT) Scan of T.W.’s Injured Brain Properly Authenticated?

Washington does not argue that the State failed to prove beyond a reasonable doubt 

that he committed a first-degree battery against baby T.W., so it is enough to report that 

T.W. was taken to LeBonheur Children’s Hospital in Memphis, Tennessee, on 23 

November 2013, after his mother, Dominique Roberts, called 911. A few days later, T.W. 

was diagnosed as being a victim of a “severe shaking episode” by child-abuse specialist Dr. 
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Karen Laken. Given the severity of his head injuries, hospice care was arranged. But T.W. 

survived, though he is now nourished through a feeding tube, and suffers from seizures and 

cerebral palsy. 

Dr. Laken was not only a consulting doctor on T.W.’s case at LeBonheur; she also 

appeared as an expert witness for the State during Washington’s criminal trial. On direct 

examination, the doctor testified that, before the trial, she had reviewed medical records 

from T.W.’s hospitalization and follow-up outpatient evaluations related to his physical and 

occupational therapies. The doctor made clear that she had relied on medical records of 

other doctors and nurses when she formed her opinion, all of which is information an expert 

in her field might commonly rely on. While on the stand, Dr. Laken said that T.W. 

experienced an acute subdural hemorrhage on the right side of his brain, explained the 

physiology behind the condition, its effect on his health, and that it was a traumatic injury 

given the child’s clinical presentation. The doctor also told the jury about a special type of 

fracture that T.W. had suffered in his right femur—an atypical “chip” fracture consistent 

with “torsional action” a limb may undergo when a child is violently handled. Apart from 

Dr. Laken’s testimony about the fracture, an X-ray of T.W.’s injured leg was received as 

evidence, without objection, during the State’s case-in-chief. Washington did, however, 

object to the admission of State’s Exhibit 11, a paper copy of a CT scan of a human brain. 

Dr. Laken identified Exhibit 11 (a black-and-white paper copy) as being a CT scan 

of T.W.’s injured brain and agreed that it would help the jury understand the acute trauma 

he had suffered. Washington objected to the exhibit based on chain of custody, lack of 

authentication, and hearsay. The circuit court then asked the State to further lay a 
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foundation. When questioned by the prosecutor, Dr. Laken said that she “believed” the 

image was taken on November 24, that it was part of T.W.’s medical record, and that she 

had examined him on November 26. She also said that the image was normally used and 

relied on by doctors handling a case like T.W.’s. This colloquy occurred when 

Washington’s attorney asked about the image: 

DEFENSE COUNSEL: How do you know this is the medical records of [T.W.]? 

DR. LAKEN: These are the ones I just looked at before I came. 

DEFENSE COUNSEL: That’s the only way you know that?

DR. LAKEN: These are also the ones that I submitted to [the 

prosecutor]. 

DEFENSE COUNSEL: And where did you obtain them from? 

DR. LAKEN: From LeBonheur, from the records. 

DEFENSE COUNSEL: The custodian of the records? 

DR. LAKEN: I’m sorry?

DEFENSE COUNSEL: From the custodian of records at LeBonheur? 

DR. LAKEN: No. We use electronic medical records. 

DEFENSE COUNSEL: Then you didn’t, you didn’t have anything to do with 

the taking of these? 

DR. LAKEN: No. The radiologist doesn’t either. The radiology tech 

takes the x-rays. 

DEFENSE COUNSEL: And they take them and then they do what with them? 

 

DR. LAKEN: Put them in to the electronic medical records for the 

radiologist and all the physicians to have access to. 

DEFENSE COUNSEL: And then you obtained them off that? 

DR. LAKEN: That’s it, yes. That’s the only way we can do it.
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DEFENSE COUNSEL: I object to them being introduced. 

COURT: All right. I’m going to overrule the objection. I find 

that the objection goes more to the weight of the 

evidence rather than its admissibility. It will be admitted, 

State’s Exhibit 11. 

Washington argues that there was “no testimony from any person who could 

establish that the CT scan, which was taken from the electronic medical records was, in fact, 

the CT scan of [T.W.] There was no testimony from the LeBonheur custodian of records 

by affidavit or otherwise.” He cites a chain-of-custody case, Crisco v. State, 328 Ark. 388, 

943 S.W.2d 582 (1997), Arkansas Rule of Evidence 901, and portions of the Hospital 

Records Act (Ark. Code Ann. §§ 16-46-305, 306) to support his argument. The State 

responds that CT scans are expressly excluded from the definition of “records,” so the 

process for authenticating medical records under the statutes does not apply. It also argues 

that the circuit court properly admitted the CT scan under Arkansas Rule of Evidence 703. 

On the legal authority, the State is partially correct. The applicable rule for the CT 

scan issue is Arkansas Rule of Evidence 901, not 703. The former rule is the one that 

addresses the need to authenticate a document before it may be admitted as evidence. And 

it states in part that the “requirement of authentication or identification as a condition 

precedent to admissibility is satisfied by evidence sufficient to support a finding that the 

matter in question is what its proponent claims.” Ark. R. Evid. 901(a) (2016); see also Davis 

v. State, 350 Ark. 22, 39–40, 86 S.W.3d 872, 883 (2002) (discussing authentication). 

Rule 901 further states, as previously summarized by our supreme court, “that the 

testimony of a witness with knowledge that a matter is what it is claimed to be can 

authenticate evidence, and also that appearance, contents, substance, internal patterns, or 
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other distinctive characteristics, taken in conjunction with circumstances can be used to 

authenticate evidence.” Gulley v. State, 2012 Ark. 368, at 13, 423 S.W.3d 569, 578; see also

Ark. R. Evid. 901(b)(1) & (4). One subsection of the rule allows evidence to be 

authenticated by “[a]ny method of authentication or identification provided by [the 

Supreme Court of this State or by] a statute or as provided in the Constitution of this State.” 

Ark. R. Evid. 901(b)(10). That subsection leads us to some statutes that many lawyers and 

judges will know as Arkansas’s Hospital Records Act, which provides ways to authenticate 

medical records using records custodians. Here the State is correct on the law: the statute 

does not, for some unexplained reason, cover diagnostic images like CT scans. Under Ark. 

Code Ann. § 16-46-301(2)(B), the term “‘records’ shall not mean and include X rays, 

electrocardiograms, and similar graphic matter.” So we remain with Rule 901 for the 

purpose of addressing the CT scan’s authentication. 

No party points this out, but it warrants mentioning that Rule 901 should be read 

with Rule 1001(2), which lumps X-rays with photographs. Because there is no good reason 

to treat an X-ray image differently from a computed tomography image for authentication 

purposes, the extension makes sense. 

As a matter of historical interest, many years ago this court recognized that hard-andfast rules regarding the admissibility of an X-ray would be unwise because 

[i]t is neither possible nor wise to establish specific foundational 

requirements for the admissibility of photographic evidence under the ‘silent 

witness’ theory, since the context in which the photographic evidence was 

obtained and its intended use at trial will be different in virtually every case. 

It is enough to say, that adequate foundational facts must be presented to the 

trial court, so that the trial court can determine that the trier of fact can 

reasonably infer that the subject matter is what its proponent claims. 
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Fisher v. State, 7 Ark. App. 1, 8, 643 S.W.2d 571, 575 (1982). In keeping with this court’s 

pragmatic approach, today’s opinion does not implement a static rule on the admissibility of 

a diagnostic medical image like a CT scan. Still, a handful of questions seem likely to arise 

when medical images are at issue, especially with the widespread implementation of 

electronically stored and accessed medical information. See, e.g., Use of CAT Scans in 

Litigation 8 Am. Jur. Proof of Facts 3d 145 § 11 Authentication (discussing authenticating 

modern medical-imaging scans, including computed tomography).

There is some concern on whether the image in this case was properly authenticated 

before the circuit court received it as evidence against Washington for a few reasons: 

• The image (a poorly reproduced paper copy at that) is not readily 

identifiable as being one of T.W.’s brain because there is no name, 

birthdate, or some other specific personal identifier on the reproduced 

image that links it to T.W. 

• Dr. Laken said the image was of T.W.’s brain, but she did not order 

or conduct the scan; and no other medical-care provider corroborated 

who ordered it, who oversaw the scanning process, and most 

importantly, as we just said, that the image was actually T.W.’s brain.

• No witness described with particularity the process Dr. Laken used to 

access and retrieve T.W.’s electronic medical file, much less how the 

image was entered into the database in the first place; in other words, 

no one explained at all how CT images are handled to ensure the 

correct image is entered under the correct patient’s medical file. 

We need not decide if the CT scan was properly authenticated because even if it was not, 

its admission would be a harmless error given the whole of Dr. Laken’s testimony and the 

multiple sources of medical information she relied on when giving her opinion—including 

the X-ray of T.W.’s leg that the doctor used to show that he had a fracture consistent with 

having experienced severe physical abuse. Rodriguez v. State, 372 Ark. 335, 339, 276 S.W.3d 
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208, 212 (2008) (harmless-error doctrine). The circuit court is therefore affirmed on this 

point. 

Should Washington Have Been Allowed to Use “Reverse 404(b)” Character Evidence?

During his defense at trial, Washington tried to introduce some “bad acts” of T.W.’s 

mother, Dominique Roberts. The goal was to inform the jury, through Washington’s 

mother (Katina Hall), how Dominique had treated Washington and her children in the past. 

Washington’s lawyer told the court he anticipated that Hall would testify about two events. 

One involved an incident when Dominique allegedly jumped on Washington at their 

house; the second incident involved Dominique placing T.W.’s sibling at the door step, 

ringing the doorbell, and leaving the child on the front porch. 

Washington’s lawyer also told the circuit court that he had a witness, whose name is 

not mentioned, who could testify that “he saw her shaking [T.W.].” No additional details 

were provided during the proffer of the unnamed witness. 

When asked about the purpose and relevancy of the proffered testimony, 

Washington’s lawyer answered that it was allowed under Rule 404(b) and relevant to 

Dominique’s knowledge, temperament, and that “she was with [T.W.] right before she left 

and it shows that she’s got a tendency to be violent or have anger problems.” The circuit 

court allowed Hall (Washington’s mother) to testify about Washington’s education but did 

not allow her to testify about Dominique, because Washington had not stated that 

Dominique had an “angry outburst” or “a rage” directed toward T.W. Nor did the court 

permit Washington’s unnamed witness to testify that Dominique had previously shaken 

T.W. The circuit court also stated, 
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[T]he testimony that’s before the Court now doesn’t suggest anything about 

anything she might have done or anything of the baby crying or anything that 

would suggest . . . this is a little more dealing with evidence of possible guilt 

of other people, and there always has to be something more than he had a 

speculation or conjecture. 

Here is the rest of the colloquy: 

DEFENSE COUNSEL: [M]y other witness that’s supposed to be here, that’s 

what he’s going to testify to is he saw her shaking [T.W.] 

. . . It falls under, it doesn’t fall under 404(b)?

COURT: If he [Washington] had said he had heard the baby crying 

and all of a sudden the baby stopped and he wasn’t in the 

room, you know, just before she left, something like 

that, that would be one thing . . . But the testimony has 

been that she fed him and put him down. 

DEFENSE COUNSEL: And he [Washington] couldn’t wake him.

COURT: Yeah, after she left couldn’t wake him, but there was 

nothing about the baby crying or about her being angry 

or doing anything, not hearing anything. And I mean, 

nothing to suggest that she might have done it. 

DEFENSE COUNSEL: Well, except for the fact that she was the last one to have 

him before he could, he wouldn’t wake.

. . . .

COURT: I’m not going to allow it.

Under Rule 404(b), evidence of other crimes, wrongs, or acts by a party other than 

the defendant may not be admitted to show that the party acted in conformity with a known 

character trait, but the evidence may be admitted for other purposes—such as to show 

motive, opportunity, intent, identity, a plan, knowledge, or absence of a mistake or accident. 

Ark. R. Evid. 404(b) (2016); Price v. State, 365 Ark. 25, 223 S.W.3d 817 (2006). 
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In his brief, Washington characterizes his argument as being a “reverse 404(b)” 

argument, which means he essentially wanted to use prior alleged bad conduct by 

Dominique (T.W.’s mother) to establish that she had a propensity for irresponsible and, 

more importantly, violent behavior against T.W. and was therefore inclined to physically 

harm T.W. the day he received emergency medical treatment. For “reverse 404(b)” 

evidence to be admissible, the alleged prior wrongs by someone other than the targeted 

defendant must be so closely connected in time and method that the evidence can cast doubt 

upon whether the defendant committed the crime. See Tomboli v. State, 100 Ark. App. 355, 

361–62, 268 S.W.3d 918, 922 (2007). 

The testimony Washington sought to have admitted is character evidence that Rule 

404(b) and the case law prohibits. Given the record before us and the standard of review 

we must apply to this issue, Conte v. State, 2015 Ark. 220, 463 S.W.3d 686 (abuse of 

discretion), we hold that the circuit court did not err when it excluded the proffered 

testimony. The circuit court’s sentencing order is therefore affirmed. 

Affirmed. 

 HOOFMAN, J., agrees. 

 GRUBER, J., concurs. 

RITA W. GRUBER, Judge, concurring. I agree with the majority’s decision to 

affirm this case but write separately to express my belief that the CT scan of T.W.’s brain 

was properly authenticated. The majority opinion correctly notes that Arkansas Rule of 

Evidence 901 applies to the authentication of the CT scan in question in this case. The 

opinion further points out that Arkansas Rule of Evidence 1001(2) lumps x-ray films with 
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photographs and states that “there is no good reason to treat an x-ray image differently from 

a computed tomography image for authentication purposes.” I agree. Where I differ is that, 

for purposes of proving the content of the evidence a party seeks to introduce, Arkansas 

Rule of Evidence 1001(3) defines an “original” as the writing or recording itself or any 

counterpart intended to have the same effect by a person executing or issuing it. The rule 

further states that if data is stored in a computer or similar device, an “original” is any 

printout or other output readable by sight and shown to accurately reflect the data. The 

printout of the CT scan introduced by the trial court and authenticated by a witness with 

knowledge, Dr. Laken, falls within the definition of an “original” under subsection three of 

Arkansas Rule of Evidence 1001. 

 While not specifically dealing with medical images, our supreme court has held that 

electronic messages are properly authenticated under Arkansas Rule of Evidence 901 when 

circumstantial evidence ties the party to the messages. Donley v. Donley, 2016 Ark. 243, at 

14, 493 S.W.3d 762, 770 (citing Gulley v. State, 2012 Ark. 368, at 15, 423 S.W.3d 569, 

579). The supreme court has also held that “screenshots” of comments on a Facebook 

photograph were properly authenticated when a witness testified that the comments were 

made using her Facebook account. Id. In Dirickson v. State, 104 Ark. App. 273, 278, 291 

S.W.3d 198, 201 (2009), this court held that an officer’s testimony was sufficient to 

authenticate “printouts” of internet conversations with a defendant. In Buffalo v. State, 2010 

Ark. App. 127, at 8, 374 S.W.3d 82, 87, this court held, again, that an officer’s testimony 

was sufficient to authenticate printouts of an “online chat” with a defendant. 
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Given our rules of evidence and caselaw, I believe Dr. Laken’s testimony explaining 

how she obtained the CT scan electronically was sufficient to authenticate the scan, and the 

court did not err in admitting it into evidence. For the above stated reasons, I concur in the 

majority’s decision.

Bryan Donaldson, for appellant. 

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.