Baugh v. State

2020 Ark. App. 191

597 S.W.3d 156

Donald BAUGH, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-498

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: March 18, 2020

Watson and Watson, PLLC, by: Benjamin K. Knuckles, for appellant.

Leslie Rutledge, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.

MEREDITH B. SWITZER, Judge

A Polk County Circuit Court jury convicted appellant Donald M. Baugh of the offenses of leaving the scene of an accident, battery in the second degree, and criminal mischief in the first degree. He was sentenced to fifteen years for leaving the scene of an accident, fifteen years for second-degree battery, and thirty years for first-degree criminal mischief. The jury recommended that the sentences run consecutively; the circuit court followed that recommendation. Baugh’s sole point on appeal is that the circuit court abused its discretion when it denied his motion for a continuance after allowing a substitution of counsel less than ten days before trial.¹ We affirm.

Baugh makes no challenge to the sufficiency of the evidence to support the verdicts; therefore, only a brief recitation of the facts is necessary. On April 14, 2018, Tonya Boydstun was driving behind a white Dodge Dakota truck that was being driven erratically. Boydstun could see the truck’s driver, later identified as Baugh, strike the passenger inside the truck. According to Boydstun, Baugh would strike his passenger, gun the truck and speed off, and then brake quickly. She called 911 to report what she was witnessing and honked her horn in an attempt to draw attention to the situation and to make Baugh stop. When she began honking, Baugh turned around and "flipped" her off. Baugh pulled over; Boydstun continued to go straight; and then Baugh pulled in behind her. As Boydstun attempted to turn into a parking lot, Baugh intentionally rammed her vehicle with his truck. He got out of his truck and headed toward her but was distracted and began to follow his passenger when she exited his truck and walked away. According to Boydstun, who suffered shoulder injuries as a result of the wreck, Baugh made no effort to render aid to her or to exchange any information with her after the wreck.

When reviewing the grant or denial of a motion for continuance, the appellate court employs an abuse-of-discretion standard. Whisenant v. State , 85 Ark. App. 111, 146 S.W.3d 359 (2004). An appellant must not only demonstrate that the circuit court abused its discretion by denying the motion but must also show prejudice that amounts to a denial of justice. Id.

During Baugh’s April 18, 2018 arraignment, the circuit court entered "not guilty" pleas on Baugh’s behalf and asked Baugh if he was going to hire his own attorney. Baugh replied he would if he could "come up with the money." Formal arraignment was set for May 4, pretrial hearing for July 18, and a jury trial for August 2; Baugh was also ordered to appear on May 14 for an attorney-status report.

Baugh appeared in court on May 14 and told the circuit court he was "close" to securing an attorney, and he would do so after his next paycheck the following Friday. The case was continued until June 6 for an attorney-status report and remained set for jury trial on August 2.

On June 6, Baugh informed the circuit court he was working at an auto-repair center, but he was also on disability and unable to work on a full-time basis. When asked if he was able to hire his own attorney, Baugh stated that every time he got close, "something happens." The circuit court asked if Baugh wanted it to appoint a public defender, as he qualified for one, and Baugh said he wanted a public defender. The circuit court signed an order appointing the public defender’s office to represent Baugh on June 7; the order was filed on June 11.

On August 1, the circuit court entered an order continuing the pretrial hearing until August 15 and the jury trial to August 23. At the August 15 pretrial hearing, attorney Bob Keeter entered his appearance as Baugh’s attorney. When the circuit court informed Keeter that Baugh’s trial was set for the next Thursday on August 23, Keeter said that he understood and that he had received partial discovery from the public defender’s office. Nevertheless, Keeter noted that the circuit court had an open trial date on September 13 and requested that Baugh’s trial be reset for that date, with a pretrial date of September 10. The State objected, arguing Keeter knew the trial date when he took the case. Keeter agreed he knew the case was set for August 23 but contended that no harm would result from resetting the case for less than a month out. The circuit court pointed out that Baugh had waited until the eleventh hour to retain counsel—with which Keeter also agreed—and that subpoenas had also been issued for the August 23 trial date. The circuit court denied Baugh’s request to continue the trial setting, stating Keeter was aware of the trial date when he entered his appearance, and the trial would occur as previously scheduled.

Baugh cites Greene v. State , 335 Ark. 1, 977 S.W.2d 192 (1998), in support of his argument that the circuit court erred in refusing to grant him a continuance. Greene , however, is factually distinguishable from the present case. Greene was a death-penalty case that had been affirmed by the supreme court ( Greene v. State , 317 Ark. 350, 878 S.W.2d 384 (1994) ), but the death sentence was set aside, and the...