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DONALD BAUGH v. STATE OF ARKANSAS
Case Number: 2020 Ark. App. 191
Judge: MEREDITH B. SWITZER
Court: ARKANSAS COURT OF APPEALS
Plaintiff's Attorney: David L. Eanes, Jr., Ass’t Att’y Gen
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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
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 case was remanded for
resentencing. Greene had hired and fired several attorneys. His attorney was appointed
on January 31, 1996, with the resentencing hearing set for February 26. Counsel filed a
motion for continuance on February 13 having determined the case was complicated and
would involve protracted preparation, including not only matters from the prior trial but
also issues anticipated in the current resentencing trial. Our supreme court held in Greene
that, while not a full-blown capital-murder trial, there was a voluminous record to be
reviewed in order to ensure Greene had the full benefit of counsel in a life-or-death
proceeding, and once the change in counsel was allowed, it was an abuse of discretion to
permit counsel less than a month to prepare, especially when he had not received all of the
record eleven days before the proceeding.
Here, the facts of the case are rather straightforward. Baugh was accused of
intentionally hitting Boydstun’s vehicle with his truck and leaving the scene of the
accident. Unlike Greene, this was not a retrial after remand on appeal, and it was not a
complex life-or-death case.
When a motion for continuance is based on a lack of time to prepare, the totality of
the circumstances will be considered. Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002).
A lack of diligence alone is a sufficient basis to deny a motion for a continuance. Id. Rule
27.3 of the Arkansas Rules of Criminal Procedure provides, “The court shall grant a
continuance only upon a showing of good cause and only for so long as is necessary, taking
into account not only the request or consent of the prosecuting attorney or defense
counsel, but also the public interest in prompt disposition of the case.” Once competent
counsel is obtained, “any request for a change must be considered in the context of the
public’s interest in a reasonably prompt and competent disposition of justice.” Leggins v.
State, 271 Ark. 616, 618, 609 S.W.2d 76, 78 (1980). If a change of counsel would require
a trial to be postponed due to inadequate time for new counsel to prepare for trial, “in
denying or granting the change, the court may consider such factors as the reasons for the
change, whether other counsel has already been identified, whether the defendant has
acted diligently in seeking the change, and whether the denial is likely to result in any
prejudice to defendant.” Id. at 619, 609 S.W.2d at 78.
Here, Keeter entered his appearance on August 15. He was aware Baugh’s case was
set for trial eight days later. Baugh was already represented by the public defender’s office.
Keeter did not condition his entry of appearance on the grant of a continuance; rather, he
simply pointed out that the circuit court had an open date approximately one month later
and requested a continuance until that time.
Furthermore, Baugh has failed to show how he was prejudiced by the denial of the
continuance. Eight days before trial, at the pretrial hearing, Keeter stated he had received
partial discovery from the public defender’s office and was working on getting all of the
file. However, counsel did not expound on how much of the file he had already obtained
or how much he still lacked. Baugh did not specify what else he would have done if given
more time in this case or explain why he needed more time to prepare a defense. In fact,
there was one primary witness, Tonya Boydstun, and Baugh presented no defense at trial.
Based upon the totality of the circumstances, we cannot say the circuit court abused its
discretion in denying Baugh’s request for a continuance.