FROM THE LITTLE RIVER COUNTY CIRCUIT COURT [NO. CR-14-77]
HONORABLE TOM COOPER, JUDGE
Law Firm, by: Lee D. Short, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, Judge
Paul Andruszczak appeals his convictions in the Little River
County Circuit Court of residential burglary and theft of
property. On appeal, Andruszczak argues that the circuit
court erred in granting the State's motion for a
continuance. We disagree and affirm.
25, 2014, the State charged Andruszczak with residential
burglary and theft of property. The probable-cause affidavit
reported that on May 9, 2014, Elston and Donna Green's
house had been burglarized and over $40, 000 worth of items
had been stolen, including Donna's class ring from Hope
High School. The affidavit further reported that Andruszczak
had been arrested in Lake Providence, Louisiana, in
possession of the class ring. The circuit court set trial for
March 21, 2016.
day of trial, the State filed a motion to depose a witness
pursuant to Arkansas Code Annotated section 14-22-201 (Repl.
2013). The State alleged that it had discovered a material
witness, Curtis Baham, in Louisiana, but Baham could not
travel to Little River County for the trial due to his
health. The State asked the court to enter an order allowing
it to take a deposition of Baham to present at trial.
court also held a hearing on March 21, 2016. At the hearing,
the State asked the court to continue the trial and to enter
an order approving its request to depose Baham. The State
explained that on March 18, 2016, while preparing for trial,
it learned that Baham had discovered Andruszczak burglarizing
his home in Lake Providence, Louisiana, with the same crowbar
used to burglarize the Greens' home. The State noted that
Louisiana police had recovered two crowbars: the crowbar at
Baham's residence and another crowbar in
Andruszczak's car. Prior to March 18, the State believed
the crowbar found in Andruszczak's car had been the
crowbar used to enter the Greens' home; however, on March
18, it learned that the crowbar found at Baham's home was
the crowbar used at the Greens' house. The State
explained that it contacted Baham and that he was willing to
testify, but he is eighty years old and suffers from a
medical condition that prevented him from traveling to
Arkansas. The State informed the court that it could depose
Baham on March 23.
objected to the State's request. He asserted that
Baham's deposition testimony was inadmissible under
Arkansas Rules of Evidence 404(b) and 403. He also argued
that a continuance would violate Andruszczak's rights
under the Sixth and Fourteenth Amendments to the United
States Constitution as well as his rights under article two,
section ten of the Arkansas Constitution. He asserted that
the State had failed to act diligently in securing Baham as a
witness, pointing out that the State filed the criminal
information on June 25, 2014, and that he had been arraigned
on September 2, 2014. The court disagreed and granted the
State's request for a continuance and to depose Baham.
The court noted that the State "ha[d] shown proof of
unavailability and due diligence." On March 23, 2016,
the court entered a written order granting the State's
request to depose Baham on that date in Louisiana.
on April 26, 2016, the court held a jury trial. Columbus
Willis, an investigator from East Carroll Parish, Louisiana,
testified that he responded to a burglary at Baham's home
on May 20, 2014, and found a bag containing a gold crowbar in
the house. He further testified that a neighbor had provided
him with the license-plate number of a vehicle that had been
parked in Baham's driveway during the burglary and that
officers located Andruszczak in the car shortly thereafter.
He stated that they had searched the car and discovered a
class ring from Hope High School and a second crowbar. The
ring was identified as Donna Green's ring. The State
played the video deposition of Baham in which he testified
that he had discovered a man burglarizing his home on May 20,
2014, and that the man had abandoned a bag containing a
crowbar when he fled.
Taylor, a criminalist with the Arkansas State Crime
Laboratory, testified that the Greens' door frame had
fragments of gold paint and that the fragments were
consistent with the gold paint on the crowbar. She also
testified that the crowbar had fragments of three layers of
paint that matched three of layers of paint on the
Greens' door frame. Deborah Pumphrey, a firearm and
tool-mark examiner with the Arkansas State Crime Laboratory,
testified that tool marks on the Greens' door frame
matched the gold crowbar found at Baham's residence.
jury convicted Andruszczak of residential burglary and theft
of property. Andruszczak was sentenced to twenty years in the
Arkansas Department of Correction on each charge to run
consecutively. Andruszczak timely appealed his conviction to
this court. On appeal, he argues that the circuit court erred
in granting the State's request for a continuance.
within the circuit court's discretion to grant or deny a
motion for continuance, and the appellate courts of Arkansas
will not reverse the circuit court's decision absent a
clear abuse of discretion. See Haskins v. State,
2013 Ark.App. 613. The abuse-of-discretion standard is a high
threshold that does not simply require error in the circuit
court's decision. Grant v. State, 357 Ark. 91,
161 S.W.3d 785 (2004). An abuse of discretion requires the
appellant to make a showing that the circuit court acted
improvidently, thoughtlessly, or without due consideration.
Hill v. State, 2015 Ark.App. 587, 473 S.W.3d 556. An
appellant must also demonstrate that, as a result of the
ruling on the motion for a continuance, he suffered prejudice
that amounts to a denial of justice. Id.
27.3 of the Arkansas Rules of Criminal Procedure (2016)
provides that a circuit court shall grant a continuance only
upon a showing of good cause and shall take into account the
request or consent of the prosecuting attorney or defense
counsel, as well as the public interest in the prompt