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ARKANSAS COURT OF APPEALS Reason: I attest to the accuracy and integrity of this document Date: 2021-06-17 12:31:44 Foxit PhantomPDF Version: 9.7.5 DIVISION III No. CR-19-222

Opinion Delivered: October 30, 2019

CRAYTONIA BADGER APPELLANT APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT V. [NO. 14CR-16-7]

STATE OF ARKANSAS APPELLEE HONORABLE DAVID W. TALLEY, JR., JUDGE

AFFIRMED AS MODIFIED

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,

,

. A motion for directed verdict is a challenge to the sufficiency of the evidence. Davis v.

State,

. 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.

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.

Decisions regarding the credibility of witnesses are for the trier

of fact.

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.

(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.

(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.

2 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,

,

. 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,

,

(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

1 A Class C felony requires that the amount of actual damage be more than $5,000 but less than $25,000.

(b)(3).

3 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,

,

(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,

,

.

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

2 Rule 28.2(a) provides that the time for trial shall commence running from the date of arrest or service of summons. Ark. R. Crim. P. 28.2(a). 3 We do not comment on the accuracy of any of Badger’s calculations. 4 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

5 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

4 The docket sheet and court orders reflect that continuances were granted and that the time was excluded for speedy-trial purposes from May 5 to November 3, 2016.

6 prosecutor file-marked November 14, 2016, in which Badger demanded a trial;

correspondence from him to the judge, the court clerk, and the prosecutor, file-marked

November 14, 2016, in which Badger requested a trial and waived extradition; unspecified

correspondence in which Badger asserted that his transportation provider was readily

available to transport him at the court’s request; and the State’s Information. Attached to

the State’s response was a writ of habeas corpus ad prosequendum dated March 23, 2016,

from the Northern District of Mississippi; a copy of the custody-transfer order dated March

25, 2016; a detainer dated October 5, 2016; and a sheriff’s receipt dated January 27, 2017.

No exhibits were offered into evidence at the hearing, but the trial court agreed to Badger’s

request that it take judicial notice of one of the letters attached to Badger’s motion.

In its order denying Badger’s motion to dismiss, the trial court ruled, in relevant part,

that Badger was in federal custody and held at the following facilities on the following dates:

Miller County, Arkansas Detention Facility: March 25–29, 2016;

Lafayette County, Mississippi Detention Facility: April 8–May 6, 2016;

Monroe County, Mississippi Detention Facility: May 6–21, 2016;

West Tennessee Detention Facility: May 21–July 28, 2016;

Monroe County, Mississippi Detention Facility: July 28–August 2, 2016;

West Tennessee Detention Facility: August 2, 2016–January 27, 2017.

The trial court found that the State had made a conscientious effort in its attempts to

return Badger to Arkansas. The trial court further found that the period from April 8, 2016,

to January 27, 2017—a period of 294 days—was excluded for speedy-trial purposes.

7 On appeal, Badger challenges the period of time from April 8 5 to December 14,

2016, when he filed his pro se motion to dismiss—a period of approximately 250 days. A

defendant is not required to bring himself to trial or “bang on the courthouse door” to

preserve his right to a speedy trial; the burden is on the courts and the prosecutors to see

that trials are held in a timely fashion. Estell v. State,

. The appellate courts

have, however, placed the responsibility on the defendant to be available for trial. White v.

State,

,

(1992).

An excluded period pursuant to Ark. R. Crim. P. 28.3(a) is the period of delay

resulting from other proceedings concerning the defendant, including trials of other charges

against the defendant. Another excluded period is a period of delay resulting from the

absence or unavailability of the defendant. Ark. R. Crim. P. 28.3(e). Rule 28.3(e) further

provides, “A defendant shall be considered absent whenever his whereabouts are unknown.

A defendant shall also be considered unavailable whenever his whereabouts are known but

his presence for trial cannot be obtained or he resists being returned to the state for trial.”

Ark. R. Crim. P. 28.3(e). A period of delay resulting from “trial of other charges against the

defendant” in a foreign jurisdiction commences when the accused is taken to the foreign

jurisdiction and ends when the trial in that jurisdiction is completed and the accused

becomes available for extradition. Patterson v. State,

,

(1994).

5 In his argument, Badger actually challenges the period from March 29 to December 14, 2016; however, the trial court did not exclude the period from March 29 through April 7. 8 An accused in prison in another state, for a different crime, must affirmatively request a trial

in order to activate the speedy-trial rule.

Badger argues that he demanded a jury trial in various letters, which were filed with

the court clerk, although he admits that he did not use those exact words. Badger asserts

that the record is replete with documentation that the prosecuting attorney had knowledge

that he (Badger) was out of state. Badger argues that, although the prosecuting attorney

testified that he had no knowledge of his letters, he also testified that he was attempting to

get Badger back to Arkansas for trial. Here, Phillips testified that he had knowledge that

Badger was out of state, but that does not mean Phillips acquired that knowledge because

he, in fact, received Badger’s letters. He could have learned that information through other

sources. Phillips testified that he did not receive Badger’s correspondence directly because

it had been sent to the prosecutor’s physical address, instead of the mailing address.

Citing Ark. R. Crim. P. 29.1(b),6 Badger contends that, although the prosecuting

attorney made a detainer request, there was no testimony from anyone who received it, no

evidence as to the identity of the recipient, and no indication that it had been filed. He also

points out that it was dated October 5, 2016, which was seven months after he had been

taken into federal custody. Badger is raising this argument for the first time on appeal.

Although the detainer was attached to the State’s response to Badger’s motion to dismiss,

6 Rule 29.1 provides that, if the prosecuting attorney has information that a person charged with a crime is imprisoned in a penal institution of a jurisdiction other than the State of Arkansas, he shall promptly cause a detainer to be filed with the official having custody of the prisoner and request such officer to advise the prisoner of the filing of the detainer and of the prisoner’s right to demand trial. 9 no mention was made of it at the hearing. We do not address arguments not made below.

Autrey v. State,

,

(2005).

Badger further argues that the record reflects that the State made “almost no effort”

to get him back to Arkansas. He asserts that, although Phillips claimed to have tried every

avenue, there was no evidence that he attempted to extradite Badger under the Interstate

Agreement on Detainers Act,

et seq., or under the Uniform

Criminal Extradition Act,

et seq., and that there was no

evidence of any attempt to get a governor’s warrant. Badger argues that the emails to Mims

that Phillips referred to were not even introduced into evidence. At the hearing, Phillips

was subjected to cross-examination, but he was not asked about other avenues he could

have tried but did not and was not asked about the absence of documentation. We thus do

not reach these arguments on appeal.

Phillips testified that he communicated with, among others, the federal prosecutor

in Mississippi, who refused to return Badger until he was sentenced on federal charges. The

record reveals that Badger was sentenced to a term of imprisonment by the federal court in

Mississippi on January 25, 2017; Badger was returned to Arkansas two days later. The trial

court properly excluded the time that Badger was out of state because, although his general

whereabouts were known, Badger was not available in that his presence could not be

obtained due to the federal prosecutor’s refusal to release him to return to Arkansas despite

Phillips’s pleas. Badger was unavailable pursuant to Rule 28.3(e).

A total of 1,086 days, minus approximately 684 days, leaves 402, which means that

the State had to account for only thirty-seven days. The 402-day period, minus the 250 days

10 that Badger was unavailable, means that the State tried Badger within approximately 152

days of his arrest, which is well within the one-year period prescribed by Rule 28.1. As

such, we conclude that there was no violation of the speedy-trial rules.

III. Motion to Suppress Statement

After Badger was apprehended, he was advised of his Miranda rights and agreed to

give a statement. During the interview, Badger repeatedly asked for, and was eventually

given, a slice of pizza from a pie the detectives had been eating. Badger later moved to

suppress his statement, contending that his statement had been coerced and was given

“under the influence of hunger.”

A statement made while in custody is presumptively involuntary, and the burden is

on the State to prove by a preponderance of the evidence that a custodial statement was

given voluntarily and was knowingly and intelligently made. Johnson v. State,

,

. In order to determine whether a waiver of Miranda rights is

voluntary, this court looks to see if the confession was the product of free and deliberate

choice rather than intimidation, coercion, or deception.

Once a defendant alleges

coercion during a custodial interrogation, it is the obligation of the State to present all

material witnesses. Smith v. State,

,

(1973).

Following a hearing, the trial court denied Badger’s motion to suppress; however,

the State did not ultimately use the recorded statement at trial. On appeal, Badger argues

that the trial court erred in denying his motion to suppress his statement because there was

coercion and because the State failed to call a material witness. Badger acknowledges that

11 his statement was not ultimately used against him at trial but contends that he nevertheless

suffered prejudice.

Prejudice is not presumed, and the appellate courts will not reverse absent a showing

of prejudice. Watson v. State,

. Badger argues that he suffered prejudice

because his strategy had been to demand that the entire video be played for the jury because

there was mitigating evidence within his explanation for his actions. We note that Badger

did not seek to introduce the evidence himself after the State had chosen not to use the

statement against him. Further, we cannot see how Badger was aggrieved by the trial court’s

ruling because there would have been no change in the outcome if the trial court had

granted Badger’s motion to suppress—the State would not have used his statement against

him. Because his statement was not used at trial, Badger cannot demonstrate prejudice from

the trial court’s ruling. See, e.g., Watson, supra.

Affirmed as modified.

SWITZER and VAUGHT, JJ., agree.

Andrew W. Best, for appellant.

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

12