Christopher L. Branning v. State of Arkansas
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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CACR 07-789
CHRISTOPHER L. BRANNING
APPELLANT
Opinion Delivered
October 22, 2008
APPEAL FROM THE BOONE
COUNTY CIRCUIT COURT,
[NO. CR2004-244-4]
V.
STATE OF ARKANSAS
APPELLEE
HONORABLE GORDON WEBB,
JUDGE
REVERSED AND DISMISSED
SARAH J. HEFFLEY, Judge
Appellant Christopher L. Branning was found guilty in a bench trial of criminal
mischief in the first degree and was sentenced to one year of probation. For reversal, appellant
argues that the evidence is not sufficient to support the finding of guilt and that he was denied
the right to a speedy trial. We reverse and dismiss.
Sufficiency of the Evidence
On the morning of February 14, 2004, Boone County Sheriff, Danny Hickman, went
outside his home to get the Sunday paper and found that all four tires on his police cruiser had
been slashed. He also discovered that the rear tires on a pickup truck he owned had been
slashed. Appellant was subsequently charged with criminal mischief in the first degree for
allegedly slitting the sheriff’s tires.
At the bench trial, Sheriff Hickman testified that appellant held animosity toward him
and that appellant also lived on Baughman Cut-off about a half a mile away from the sheriff’s
home. Ricky Mayhugh, a life-long felon, was in jail with appellant after the tire-slashing
incident, and Mayhugh testified that appellant told him on a couple of occasions that he
(appellant) had cut the sheriff’s tires. Heather Branning, appellant’s ex-wife who was married
to appellant at the time of the incident, testified that appellant told her that he had slashed the
sheriff’s tires. Ms. Branning also testified that appellant was with her the whole night of
February 14-15, 2004, and that she thought appellant was joking when he said that he had
cut the tires. Appellant denied slitting the sheriff’s tires and elicited testimony that a student
was implicated as a suspect but that this lead had not been investigated by law enforcement.
A motion to dismiss, which is identical to a motion for a directed verdict in a jury trial,
is a challenge to the sufficiency of the evidence. Reed v. State, 91 Ark. App. 267, 209 S.W.3d
449 (2005). In reviewing this issue, the evidence is viewed in the light most favorable to the
appellee, and the conviction is affirmed if there is substantial evidence to support the verdict.
Id. Substantial evidence is that which will with reasonable certainty compel a conclusion one
way or the other without resorting to speculation or conjecture. Id.
Appellant argues that the evidence is not sufficient to establish that he was the
perpetrator of the crime. He contends that Mr. Mayhugh was not a believable witness and
that the State did not overcome the alibi testimony given by his wife. He further argues that
the investigation was incomplete because the student identified as a possible suspect was not
investigated. As appellant recognizes, the issue here is one of credibility. It is the province
of the fact finder to determine the weight of the evidence and the credibility of the witnesses.
Id. The trial court in this case found credible the testimony that appellant admitted slashing
the sheriff’s tires. We are thus not able to say that the trial court’s finding of guilt is not
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supported by substantial evidence.
Speedy Trial
Appellant filed a motion to dismiss asserting that he had been denied the right to a
speedy trial. The trial court denied the motion. Appellant contends on appeal that the trial
court’s decision was in error. We agree.
On June 25, 2004, appellant was charged with multiple offenses, including the charge
of first-degree criminal mischief at issue in this appeal. On February 2, 2005, the trial court
granted appellant’s motion to sever the first-degree criminal mischief charge from the other
offenses. The trial of the other charges took place on February 22, 2005.
Appellant filed his speedy-trial motion to dismiss the criminal mischief charge on
January 27, 2006, prior to the trial scheduled on February 1, 2006.1 At the hearing, the
prosecutor conceded that appellant was arrested on June 9, 2004.2 According to our rules of
criminal procedure, the time for trial begins to run from the date the charge is filed; but, if
prior to that time, the defendant has been continuously held in custody, the time begins from
the date of the arrest. Rhoden v. State, 98 Ark. App. 425, 256 S.W.3d 506 (2007). Here, the
speedy-trial period began to run on June 9, 2004, the date of appellant’s arrest. Pursuant to
Rule 28.1 of the Arkansas Rules of Criminal Procedure, a defendant must be brought to trial
1
Appellant’s speedy-trial motion was directed toward his trial scheduled for February 1,
2006. Appellant’s trial, however, did not occur until January 2, 2007. The record shows, and
appellant does not dispute, that the period between February 1, 2006, and January 2, 2007, are
excluded and chargeable to appellant based on four continuances he received during this elevenmonth period. See Gamble v. State, 350 Ark. 168, 85 S.W.3d 520 (2002) (delays resulting from
continuances requested by the defendant are excluded).
2
The State in its brief asserts that appellant was arrested on June 25, 2004. We find
nothing in the record that squarely contradicts the prosecution’s concession that appellant was
arrested on June 9. Therefore, we consider June 9 as the date of appellant’s arrest.
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within twelve months, unless there are periods of delay that are excluded under Ark. R.
Crim. P. 28.3. Branning v. State, 371 Ark. 433, ___ S.W.3d ___ (2007).
Appellant and the prosecution agreed that 601 days had elapsed between appellant’s
arrest and the February 1, 2006, trial date. Appellant and the prosecution also agreed that 209
days were excluded from the speedy-trial computation, leaving a delay of 392 days. Appellant
argued that he had been denied the right to a speedy trial because the trial was scheduled to
be held twenty-seven days beyond the one-year deadline. The prosecutor responded that
there was another excludable period when the trial court continued the case due to docket
congestion.
The trial court took the matter under advisement and later issued a written order
denying appellant’s motion. This order contained detailed findings of fact, and the court
determined that there were two additional, excludable periods besides the ones agreed upon
by the parties. As to the first period, a trial date had been set for August 2, 2005. On that
day, the trial court entered an order continuing the case until October 25, 2005. The stated
reasons for the delay in the order were “docket congestion” and “the fact that the defendant
would have to appear before the same jury panel as his earlier trial of the severed offenses in
this case.” In denying the speedy-trial motion, the trial court excluded the eighty-four days
between August 2 and October 25. In regard to the second period, on October 28, 2005, the
trial court entered an order continuing the case to February 1, 2006, because of “docket
congestion.” The trial court ruled that this period of ninety-eight days was also excluded.
At issue in this case is whether the trial court erred in excluding these two periods, either one
of which would bring the trial within the speedy-trial limitations period.
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Appellant demonstrated a period of delay that exceeded the one-year deadline for a
speedy trial. Once a defendant establishes a prima facie case of a speedy-trial violation, the
State bears the burden of showing that the delay was the result of the defendant’s conduct or
was otherwise justified. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007). Rule 28.3(b)
permits an exclusion for docket congestion “if in a written order or docket entry at the time
the continuance is granted: (1) the court explains with particularity the reasons the trial docket
does not permit trial on the date originally scheduled; (2) the court determines that the delay
will not prejudice the defendant; and (3) the court schedules the trial on the next available
date permitted by the trial docket.” Also, the rule permits the exclusion of delays resulting
from “good cause.” Ark. R. Crim. P. 28.3(h).
We first consider the period excluded by the trial court for the time between October
25, 2005, and February 1, 2006. The continuance order entered by the trial court states only
that the trial was continued “due to docket congestion.” Standing alone, this statement does
not meet the requirements of Rule 28.3(b). See Berry v. Henry, 364 Ark. 26, 216 S.W.3d 93
(2005); Moody v. Arkansas County Circuit Court, S. Dist., 350 Ark. 176, 85 S.W.3d 534 (2002);
Miller v. State, 100 Ark. App. 391, ___ S.W.3d ___ (2007).
The order contains no
explanation with particularity as to why the trial docket did not permit the trial on the
scheduled date; it made no determination of prejudice to the appellant; and the order does not
explain why there was no available trial date in three months’ time. The trial court clearly
erred in excluding this period of delay.
The order continuing the case from August 2, 2005, to October 25, 2005, suffers the
same deficiencies. It, too, rescheduled the trial for “docket congestion” without further
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explanation. Consequently, this period cannot be excluded on the basis of docket congestion.
This order, however, contains an additional reason for continuing the case, which was to
prevent appellant from having to appear before the same jury panel that sat on his previous
trial concerning the severed offenses. This justification might be considered “good cause”
under Rule 28.3(h), but factually, this assertion is not borne out by the record.
In his speedy-trial motion to dismiss, appellant noted a previous continuance that was
granted from February 2, 2005, to May 10, 2005, so that appellant would be able to have a
different jury panel than the one he appeared before on the severed offenses In his motion
to dismiss, appellant agreed that this period was excluded from the speedy-trial computation.
At the hearing on the motion to dismiss, the prosecutor discussed this previous continuance
and conceded that the case was continued to May 10, 2005, so that appellant would have a
different jury panel. The order memorializing this continuance, entered on February 2, 2005,
confirms that a new jury panel would be in place by May 10, 2005. Because a new jury panel
was in place by May 10, 2005, it cannot be said that a continuance was necessary on August
2, 2005, for a “new” jury panel that was not involved in the trial of the severed charges. We
thus hold that this period of delay cannot be considered as good cause.
On a final note, we observe that the trial court explained the congestion of its docket
in the order denying appellant’s motion to dismiss. We understand the heavy caseload that
the trial court labors under, but Rule 28.3(b) expressly requires the court to make its findings
regarding docket congestion “at the time the continuance is granted.” Therefore, the court’s
explanations at a later date do not satisfy this requirement of the rule.
If a defendant is not brought to trial within the requisite time, Ark. R. Crim. P. 30.1
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provides that the defendant will be discharged, and such discharge is an absolute bar to
prosecution of the same offense or any other offense required to be joined with that offense.
Dodson v. State, 358 Ark. 372, 191 S.W.3d 511 (2004). Accordingly, we reverse and dismiss
because appellant’s right to a speedy trial was violated.
Reversed and dismissed.
H ART and G LADWIN, JJ., agree.
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