Cite as 2019 Ark. 254 SUPREME COURT OF ARKANSAS No. CR-18-707
Opinion Delivered: October 3, 2019 RODNEY WAYNE RAYBURN APPELLANT APPEAL FROM THE CLEBURNE COUNTY CIRCUIT COURT V. [NO. 12CR-17-63]
HONORABLE TIM WEAVER, JUDGE STATE OF ARKANSAS
APPELLEE AFFIRMED.
JOHN DAN KEMP, Chief Justice
Appellant Rodney Wayne Rayburn appeals an order of the Cleburne County
Circuit Court convicting him of rape of a minor and sentencing him as a habitual offender
to life imprisonment without parole. For reversal, Rayburn argues that the circuit court
erred in denying his motion to dismiss for violating his right to a speedy trial and his
motion to dismiss for prosecutorial delay. Rayburn also contends that the circuit court
abused its discretion in admitting an Arkansas Department of Correction “pen pack” and
an Arkansas Court of Appeals opinion as evidence of prior convictions. We affirm.
I. Facts
On July 9, 2015, Rayburn raped his eleven-year-old daughter, H.R., at a Cleburne
County campsite. There, Rayburn took H.R. and her brother to the campground showers,
sent her brother to a different shower stall, went into the same shower with H.R., locked the door, began washing her naked body, forced her to perform oral sex while on her
knees, and attempted anal penetration.
On July 13, 2015, the Arkansas State Police Crimes Against Children Division
(CACD) received a call from the child-abuse hotline alleging that Rayburn had sexually
abused H.R. on numerous occasions. The next day, on July 14, CACD Investigator Pamela
Meeks conducted a forensic interview of H.R. During the interview, H.R. described in
detail what Rayburn had done to her in the shower at the Cleburne County campsite. She
also described other sex crimes committed by Rayburn against her at a rice mill in Arkansas
County and at her home in Jefferson County where she and her family lived. Investigator
Meeks sent notice to prosecutors in Arkansas and Jefferson Counties. The Arkansas State
Police did not report the investigation to Cleburne County officials at that time. Arkansas
County officers arrested Rayburn in August 2015.1
The Cleburne County Sheriff’s Office learned about the July 2015 rape in June
2016. Jennifer Osborne, an investigator with the Cleburne County Sheriff’s Department,
testified that she received a call from H.R.’s grandmother inquiring why she had not been
notified by the sheriff’s department about the Rayburn case. Osborne stated that at that
time, she had received nothing from the hotline saying that she had allegations in her
county. After that phone call, Osborne spoke with a CACD investigator and subsequently
1 Rayburn was tried by an Arkansas County Circuit Court jury and convicted of rape and attempted rape of a minor in December 2016. The Arkansas Court of Appeals affirmed the jury’s conviction and sentence in Rayburn v. State, 2018 Ark. App. 84, 542 S.W.3d 882.
2 met with H.R., her mother, and her grandmother. Osborne stated that she went to the
crime scene with the victim and photographed it. She stated that after her initial
investigation in the fall of 2016, she went on vacation for a month and a half and
presented the file to the [Cleburne County] prosecutor “[w]hen I came back.”
On April 18, 2017, the State filed a felony information in the Cleburne County
Circuit Court and charged Rayburn with the rape of a child less than fourteen years of age,
a violation of Arkansas Code Annotated section 5-14-103(a)(3)(A) (Supp. 2017). The
Cleburne County Circuit Court issued an arrest warrant that same day. The arrest warrant
was served on Rayburn on January 12, 2018. On February 9, 2018, after a two-day jury
trial, the Cleburne County Circuit Court entered an order convicting Rayburn of rape and
sentencing him to life imprisonment as a habitual offender. He timely filed his notice of
appeal.
II. Arguments on Appeal
A. Speedy Trial
For the first point on appeal, Rayburn argues that the circuit court erred in denying
his motion to dismiss for violation of the right to a speedy trial. Specifically, he contends
that the State violated his right to a speedy trial by holding his trial in Cleburne County in
February 2018—more than two years after his August 2015 arrest in Arkansas County. On
appeal, we conduct a de novo review to determine whether specific periods of time are
excludable under our speedy-trial rules. E.g., Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50
(2007).
3 Pursuant to Rule 28.1(b) of the Arkansas Rules of Criminal Procedure (2018), any
defendant charged with an offense and incarcerated in this state pursuant to conviction of
another offense must be brought to trial within twelve months “from the time provided in
Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.”
Rule 28.2(a) provides that “[t]he time for trial shall commence running from the date of arrest or
service of summons.” (Emphasis added.) If a defendant is not brought to trial within the
requisite time, he or she is entitled to have the charges dismissed, and “[t]his discharge
shall constitute an absolute bar to prosecution.” Ark. R. Crim. P. 30.1(a). Once it has been
shown that a trial was 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, 348 Ark. 544, 75 S.W.3d 677 (2002).
In the present case, the following facts are relevant to our analysis. On February 5,
2018, before trial, Rayburn filed a motion to dismiss alleging that the State did not bring
him to trial within twelve months of his arrest because he was arrested in August 2015 in
Arkansas County. He argued that the twelve-month time period began in August 2015 and
that his speedy-trial time expired in August 2016. He asked the circuit court to dismiss the
charges. The next day, the circuit court held a hearing and denied Rayburn’s speedy-trial
motion.2
2 At the pretrial hearing, the circuit court erroneously denied Rayburn’s motion on the basis that the speedy-trial time had not run from the date of the filing of the felony information in April 2017 instead of the date of the arrest in January 2018. Nevertheless, this court will affirm the ruling of a circuit court if it reached the right result, even though
4 Here, Rayburn’s trial in Cleburne County occurred well within twelve months from
the time of his arrest for the charge in Cleburne County, as required by Rule 28.1 of the
Arkansas Rules of Criminal Procedure. On January 11, 2018, Rayburn was served with an
arrest warrant for the rape that occurred in Cleburne County. Rayburn was brought to trial
in Cleburne County on February 8–9, 2018. Because Rayburn was tried within twelve
months of his arrest, we conclude that his speedy-trial rights were not violated. Thus, we
hold that the circuit court did not err in denying Rayburn’s speedy-trial motion.
B. Undue Delay
For the second point on appeal, Rayburn urges this court to reverse the circuit
court’s denial of his motion to dismiss for lack of a speedy trial because of an “undue
advantage due to prosecutorial delay in filing the Cleburne County charges.” Specifically,
Rayburn contends that this alleged prosecutorial delay violated his right to due process
under the federal and state constitutions. See U.S. Const. amend. XIV, § 1; Ark. Const.
art. 2, § 8.
In support of his argument, Rayburn cites Scott v. State, 263 Ark. 669, 556 S.W.2d
737 (1978), for the proposition that prosecutors cannot delay filing charges to gain a
tactical advantage against a defendant. In Scott, the State gained a tactical advantage
because it had delayed the filing of a murder charge for three years, and in the interim, two
key witnesses had died. However, the Scott case is distinguishable from the case at bar.
it may have been announced for the wrong reason. Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001).
5 Here, Rayburn has not alleged that any witness is unavailable or that any evidence has been
lost or compromised.
Further, the record does not indicate any undue delay. In his pretrial motion,
Rayburn contended that the Cleburne County prosecutor’s delay in filing charges in April
2017—after an Arkansas County Circuit Court jury convicted him of two felonies in
December 2016—violated his due-process rights under the federal and state constitutions
because “it unfairly prejudices him[,] and the State’s delay in filing the charges was done in
order to gain a tactical advantage over the defendant.” He claimed that because the
Cleburne County prosecutor delayed filing charges, he was denied the opportunity to
receive concurrent sentences.
At the pretrial hearing, Investigator Osborne testified that she became aware of the
allegations in Cleburne County in June 2016 when H.R.’s grandmother called her to
discuss Rayburn’s case. According to Osborne, she requested the CACD file in September
2016 and began her investigation by speaking with the other investigators; meeting with
the victim, her brother, her mother, and her grandmother; visiting the crime scene with
the victim; photographing the crime scene; and consulting with a physician. She also
testified that she spoke with the Cleburne County prosecutor in November 2016, went on
vacation, and gave the file to the prosecutor when she returned. According to Osborne, the
prosecutor filed charges in the spring of 2017. After hearing Osborne’s testimony and
arguments from counsel, the circuit court denied Rayburn’s motion, stating,
6 Based on . . . everything submitted before this court on this motion, I will find . . . I’m going to deny this motion to dismiss. I find that defendant cannot – or has not demonstrated that he . . . was prejudiced by the delay of filing the charges. I agree with the State. It’s only speculation as to what would or could have occurred had they all been filed simultaneously in these three counties [Arkansas, Jefferson, and Cleburne]. I’m going to find that this is a . . . statutory sentencing issue that Mr. Rayburn doesn’t like. And I don’t blame him. I mean, it is harsh. And it’s harsh for a reason. Because I would say that there’s probably short of a capital offense, there’s no greater crime than rape. So, I understand what he’s saying about the sentence. But I’m going to find that the sentencing is not a tactical advantage. And that the State has [not] gained some sort of advantage by waiting to file until after the first conviction.
We agree with the circuit court’s reasoning. First, the record does not reflect any
unnecessary delay by the prosecutor in Cleburne County. Here, Osborne received a call in
June 2016 and began her investigation. The prosecutor filed the felony information in
Cleburne County in April 2017, and Rayburn was brought to trial in February 2018. We
do not perceive any intentional delay, particularly when Rayburn also faced pending
charges in Arkansas County while incarcerated in the Arkansas Department of Correction.
Second, we agree with the circuit court that Rayburn did not suffer any prejudice because
Rayburn could only speculate about whether he would have received concurrent sentences
if the State had filed rape charges simultaneously in all three counties. Thus, we hold that
the circuit court did not err in denying Rayburn’s undue-delay motion and affirm on this
point.
C. Admissibility of Evidence
For the third point on appeal, Rayburn argues that the circuit court abused its
discretion by admitting evidence of prior convictions during the sentencing phase to
7 impose a term of life imprisonment, pursuant to Arkansas Code Annotated section 5-4-
501(d)(1)(A) (Supp. 2017). That documentary evidence included an Arkansas Department
of Correction pen pack reflecting his Arkansas County convictions and an uncertified copy
of the Arkansas Court of Appeals opinion, Rayburn, 2018 Ark. App. 84, 542 S.W.3d 882,
affirming his Arkansas County convictions.
Evidence of an appellant’s prior convictions is admissible during the sentencing
phase of trial as proof of the allegation that the appellant was a habitual offender. See Ark.
Code Ann. § 16-97-103(2) (Repl. 2016). The State bears the burden of proving a
defendant’s prior convictions under the habitual-offender statute. See Williams v. State, 304
Ark. 279, 801 S.W.2d 296 (1990). A prior felony may be proved by any evidence that
satisfies the circuit court beyond a reasonable doubt that the defendant was convicted or
found guilty of the prior felony. Ark. Code Ann. § 5-4-504(a) (Repl. 2013). Arkansas Code
Annotated section 5-4-504(b) lists examples of certain documents that are sufficient to
support a finding of a prior conviction or a finding of guilt. Ark. Code Ann. § 5-4-
504(b)(1). We apply an abuse-of-discretion standard to a circuit court’s decision to admit
evidence in the penalty phase of a trial. Crawford v. State, 362 Ark. 301, 208 S.W.3d 146
(2005).
Here, during the sentencing phase, the circuit court admitted the ADC pen pack
and the court of appeals opinion as evidence of Rayburn’s prior Arkansas County
convictions of rape and attempted rape. While the pen pack incorrectly reflects that
Rayburn pleaded guilty to these two prior felonies in Arkansas County, it does include
8 Rayburn’s prior Arkansas County convictions, offense dates, sentencing dates, felony
classifications, and sentences for each conviction. Additionally, the uncertified Arkansas
Court of Appeals opinion reflects the appellate court’s holding to affirm the Arkansas
County jury’s conviction and sentence. Neither of these documents strictly complied with
the requirements of section 5-4-504(b), but they did satisfy the circuit court beyond a
reasonable doubt under section 5-4-504(a) that Rayburn had been found guilty of the prior
felonies of rape and attempted rape. See, e.g., Heard v. State, 316 Ark. 731, 876 S.W.2d 231
(1994) (stating that the State is not limited to the methods of proof listed in section 5-4-
504(b)). Thus, we conclude that the circuit court did not abuse its discretion in admitting
these exhibits for sentencing-enhancement purposes.3 Accordingly, we affirm the circuit
court’s evidentiary rulings.
D. Rule 4-3(i)
Because Rayburn received a life sentence without the possibility of parole, this
court, in compliance with Arkansas Supreme Court Rule 4-3(i), has examined the record
for all objections, motions, and requests made by either party that were decided adversely
to Rayburn. No prejudicial error has been found. We therefore affirm.
3 Rayburn also contends that the two documents reflecting his prior convictions were inadmissible under our rules of evidence. Although this court has held that our rules of admissibility and exclusion must govern the introduction of evidence in the sentencing phase of trials, Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994), we have also stated that, pursuant to Ark. Code Ann. § 16-97-103, certain evidence is admissible at sentencing that would not have been admissible at the guilt phase of the trial, Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002). Here, the circuit court is granted statutory leeway to admit evidence in this context. Thus, we conclude that the circuit court did not abuse its discretion in admitting this evidence of Rayburn’s prior convictions for sentencing purposes.
9 Affirmed.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. I dissent. Rayburn’s arguments
about speedy trial and undue delay have merit, and this court should deter the actions by
the State in this case.
The State must try a defendant within twelve months of his “arrest or service of
summons,” excluding delays for certain matters. Ark. R. Crim. P. 28.1(b), 28.2(a), 28.3.
Once a defendant shows that the speedy-trial period has passed, the State must show that
the delay was because of the defendant’s conduct or otherwise justified. Hinton v. State,
2017 Ark. 107, at 4, 515 S.W.3d 121, 123. If the State does not meet that burden, then
the defendant must absolutely be discharged. Ark. R. Crim. P. 30.1(a).
Here, it is helpful to consider the following factual timeline:
July 9, 2015 – The incident at the Cleburne County campsite takes place.
July 13, 2015 – The Arkansas State Police Crimes Against Children Division (CACD) receives a call from the child-abuse hotline alleging that Rayburn has sexually abused H.R. on numerous occasions in Cleburne, Arkansas, and Jefferson Counties.
July 14, 2015 – CACD interviews H.R., and the investigation otherwise continues.
August 2015 – Rayburn is arrested in Arkansas County.
June 2016 – H.R.’s grandmother calls an employee at the Cleburne County Sheriff’s office about the status of Rayburn’s prosecution in Cleburne County.
July 2016 – Here is the State’s first known communication with Cleburne County officials about the allegations at issue.
10 December 2016 – Rayburn is convicted in Arkansas County of rape and attempted rape of a minor.
April 18, 2017 – The State files information against Rayburn in Cleburne County.
January 11, 2018 – Rayburn is served with an arrest warrant for the Cleburne County allegations.
February 7, 2018 – The Arkansas Court of Appeals affirms Rayburn’s Arkansas County convictions.
February 8–9, 2018 – Cleburne County trial.
The State contends that the speedy-trial clock for Rayburn’s Cleburne County
charges began to run when he was served with the arrest warrant on January 11, 2018, less
than a month before he would stand trial on those charges. But embracing this
proposition ignores the history of this matter. Plainly, the State was aware of the Cleburne
County facts when Rayburn was arrested in August 2015. The events at the Cleburne
County campsite, which would have occurred on July 9, 2015, are what prompted the
CACD investigation, which began less than a week after the child-abuse hotline call.
Moreover, the testimony at the pre-trial hearing below reflects that, other than the prior
CACD investigation, there were no “new” or separate investigative measures ever
conducted relating to the later-filed Cleburne County case. The State even used the Cleburne
County allegations as evidence of prior acts against Rayburn in the Arkansas County trial. Any
assertion that Rayburn’s August 2015 arrest somehow should not relate to both the
Cleburne and Arkansas County allegations is simply baseless.
11 And yet, the State (initially, of course) filed charges against Rayburn for the
allegations relating only to Arkansas County. According to representations made by the
State to the circuit court below, the State did not even inform Cleburne County officials
about the allegations or the underlying investigation until July 2016, and those charges
were not filed until April 18, 2017. Rayburn was not tried for the Cleburne County facts
until February 8–9, 2018, some two and a half years after he was arrested pursuant to these
same allegations in August 2015. One struggles to think of a legitimate reason why the
State would take this winding and delayed approach. Rayford argues that this was a
deliberate omission and that the delayed prosecution gave the State an undue advantage in
violation of his due-process rights.
Rayburn asserts that this prejudiced him in several ways, including adverse
sentencing implications. With the prosecution for the Cleburne County allegations
separated and delayed until after Rayburn was convicted of rape and attempted rape for the
Arkansas County allegations, Rayburn’s only possible sentence for the Cleburne County
allegations was life without the possibility of parole. Ark. Code Ann. § 5-4-501(d).
Without those prior convictions, Rayburn could have received a sentence for a term of
years on the Cleburne County charges.
The State’s tactics here should be deterred. The allegations against Rayburn are
obviously condemnable, but gamesmanship has no place in our criminal justice system.
No one reasonably believes that the delay in the State’s prosecution of the Cleburne
County case was incidental. The State delayed for a reason, and that reason was to make
12 Rayburn’s penalty in terms of prison time greater. That should not be part of the State’s
consideration when electing whether to file criminal charges against someone––in any case.
Moreover, I fear the majority allows for disparate and unequal punishment.
Consider the following hypothetical comparison. Two defendants, separately, each
commit three violent crimes against the same victim over the course of a single week. In
each case, all three crimes are covered by a single investigation leading to the arrest of the
defendant, who has no prior convictions. The first defendant committed all three crimes
in a single county, and the second defendant committed two crimes in one county and one
crime in another. Assume that each defendant’s crimes, in every conceivable respect, are
equally condemnable and that justice would see each defendant receive equal punishment.
By the majority’s rationale, the first defendant’s sentence will be subject to a term of years
in prison, while the second defendant’s sentencing options will be limited to life in prison
without the possibility of parole. Our system of justice should avoid such inconsistencies.
I dissent.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.
Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.