Badger v. State

2019 Ark. App. 490

588 S.W.3d 779

Craytonia BADGER, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-222

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: October 30, 2019

Andrew W. Best, for appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

BART F. VIRDEN, Judge

A Columbia County jury convicted appellant Craytonia Badger of third-degree escape, first-degree criminal mischief, and breaking or entering. He was sentenced as a habitual offender to an aggregate term of sixty years' imprisonment. Badger argues that the trial court erred in (1) denying his motion to dismiss for violation of the speedy-trial rules, (2) denying his motion to suppress a custodial statement, and (3) denying his directed-verdict motion as to his first-degree criminal-mischief conviction. We affirm as modified.

I. Directed-Verdict Motion

Although it is his third point on appeal, we address Badger's sufficiency argument first because of double-jeopardy concerns. Raheem v. State , 2018 Ark. App. 620, 566 S.W.3d 148. A motion for directed verdict is a challenge to the sufficiency of the evidence. Davis v. State , 2009 Ark. App. 753, 2009 WL 3762749. On appeal, in reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Decisions regarding the credibility of witnesses are for the trier of fact. Id.

Badger challenges the sufficiency of the evidence only as it pertains to his first-degree criminal-mischief conviction. A person commits the offense of criminal mischief in the first degree if he or she purposely and without legal justification destroys or causes damage to any property of another. Ark. Code Ann. § 5-38-203(a)(1) (Repl. 2013). The offense is a Class D felony if the amount of actual damage is more than $1,000 but $5,000 or less. Ark. Code Ann. § 5-38-203(b)(2).

Considering only the evidence that supports the verdict, Badger was an inmate at the Columbia County detention facility when he escaped on the night of December 6 or the early morning of December 7, 2015. The testimony established that Badger had been the only inmate in pod 5C. There was testimony that a dismantled speaker and various tools found in pod 5C had been used to create a hole through the ceiling of the cell and the roof of the building. An invoice from a sheet-metal company showed that the facility had been billed $2,474.21 on December 22, 2015, for "labor and material to repair hole cut in roof and repaired roof leaks." Captain Mike McWilliams testified that the Columbia County Sheriff's Department paid the bill and that he was not aware of any other holes in the roof needing repair in December 2015.

Badger argues on appeal that there was no substantial evidence that he committed criminal mischief because McWilliams had no personal knowledge of the repairs, he did not create the invoice, and he did not pay the invoice himself. Badger contends that McWilliams should not have been permitted to testify that he (Badger) was 100 percent at fault for the damage and subsequent repairs to fix the hole and the leaking roof. Badger argues that the invoice was the only evidence as to the amount of damages caused by his escape and that the jury had to speculate that the amount of the damages exceeded $1,000.

When reviewing the sufficiency of the evidence, this court considers all the evidence, whether admitted properly or erroneously. Campbell v. State , 2017 Ark. App. 59, 512 S.W.3d 663. Even if the trial court abused its discretion in admitting the invoice into evidence, this court would nevertheless consider it. Although Badger argues that he was not entirely at fault for the repairs, this argument was raised as part of his evidentiary objection to the admission of the invoice, and not part of his directed-verdict motion. Ingle v. State , 2010 Ark. App. 410, 379 S.W.3d 32 (holding that arguments made in support of sufficiency-of-the-evidence challenge that were not made in directed-verdict motion are not preserved for review). Given McWilliams's testimony, together with the invoice, we hold that there was substantial evidence that Badger damaged jail property in an amount exceeding $1,000. In his argument, Badger also complains about the "resulting restitution," but the sentencing order does not reflect that he was ordered to pay restitution. We also note that the sentencing order indicates that Badger was convicted of a Class C felony, which is incorrect.¹ We therefore modify the order to reflect that Badger was convicted of a Class D felony under section 5-38-203(b)(2).

II. Motion to Dismiss for Speedy-Trial Violation

As relevant here, Arkansas Rule of Criminal Procedure 28.1 requires the State to bring a criminal defendant to trial within twelve months from the date of his or her arrest,² excluding only such periods of necessary delay as are authorized by Rule 28.3. If a defendant is not brought to trial within the requisite time, he or she is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1(a). Once it has been shown that a trial will be held after the speedy-trial period set out in Rule 28.1 has expired, the State bears the burden of proving that the delay was the result of the defendant's conduct or was otherwise justified. Miles v. State , 348 Ark. 544, 75 S.W.3d 677 (2002). This court conducts a de novo review to determine whether specific periods of time are excludable under the speedy-trial rules. Federick v. State , 2012 Ark. App. 552, 423 S.W.3d 649.

Badger was arrested on December 8, 2015, and his jury trial occurred on November 28, 2018—a period of 1,086 days. Thus, Badger made a prima facie showing that his trial was held after the speedy-trial period had expired, so the State had the burden of showing that the delay was the result of Badger's conduct or was otherwise justified.

On appeal, Badger stipulates that 684 days³ were properly excluded from the 1,086 total, including a period of 568 days, from March 15, 2016, when Badger filed a notice of intent to rely on the defense of mental disease or defect, to October 4, 2018, when that motion was heard. According to Badger, there are 402 days that are not excludable. He argues that several periods excluded by the trial court should not have been excluded because of the inadequacy of the docket entries. Badger asserts, however, that the "most contested" period is when he was outside the State of Arkansas and being held in federal custody against his will—a period of 260 days. Because this period is determinative, we do not address the propriety of excluding the other periods.

A hearing on Badger's motion to dismiss on speedy-trial grounds was held on May 30, 2018. Ryan Phillips, deputy prosecuting attorney for Columbia County, testified that Badger was arrested on December 8, 2015, and held in a detention facility until January 8, 2016, when he was transferred to the Arkansas Department of Correction. He said that he learned that U.S. Marshals had taken Badger into custody on March 25, 2016, because of federal and state charges pending against him in Mississippi. Phillips said that Badger went back and forth between detention centers in Mississippi and Tennessee. He testified that the period from March 29 to April 8, 2016, was unaccounted for on the U.S. Marshals' information sheets and that he thought Badger was facing a State of Mississippi charge during that time but that he was not able to verify the gap.

Phillips said that in June 2016, he contacted Scott Frazer, the lead investigator on the federal case in Mississippi and a "liaison" with the U.S. Marshals, to assist with getting Badger back to Arkansas. He said that Frazer told him to contact Linda King with the Department of Justice, who told him to speak with Robert Mims, the federal prosecutor for the Northern District of Mississippi. Phillips testified that he made numerous phone calls and sent emails to Mims through July and August but that, ultimately, Mims advised him that Badger would not be released to return to Arkansas until he was sentenced in the federal case. According to Phillips, Badger was not returned to Arkansas until January 27, 2017. He stated that he and prosecuting attorney David Butler "went down every avenue we could think of" to get Badger back to Arkansas and had even offered to pick up Badger and return him to Mississippi, but that offer was declined.

Phillips testified that Badger's name appeared on regular docket calls for the Columbia County Circuit Court, Fifth Division, from March 25, 2016, through January 27, 2017, and that he had advised the court on several occasions that Badger was out of state.⁴ Phillips said that he further advised the court that he was trying to determine Badger's exact location to arrange to get him back to Arkansas for court.

Phillips testified that in Badger's pro se motion to dismiss filed December 14, 2016, he mentioned having sent several letters to the prosecutor demanding a trial, but Phillips said that his office did not receive any direct communication from Badger. Phillips noted that Badger's certificate of service on the letters had the address of 118 East Calhoun but that the prosecutor's official and correct mailing address is P.O. Box 727. Phillips stated that the prosecuting attorney's office does not receive mail from the U.S. Post Office at its physical address.

Attached to Badger's motion to dismiss was correspondence from him to the Columbia County Circuit Court judge with copies to the circuit court clerk and to the prosecutor file-marked November 14, 2016, in which Badger demanded a trial; correspondence from him to...