Tylenn Todd v. State of Arkansas

Cite as 2025 Ark. App. 583
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-24-468

TYLENN TODD Opinion Delivered December 3, 2025
APPELLANT
APPEAL FROM THE ARKANSAS COUNTY
V. CIRCUIT COURT, NORTHERN DISTRICT
[NO. 01SCR-20-92]
STATE OF ARKANSAS
APPELLEE HONORABLE DONNA GALLOWAY,
JUDGE

AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Tylenn Todd appeals after he was convicted by an Arkansas County Circuit

Court jury of fleeing in a vehicle causing danger, fleeing by foot, and second-degree criminal

mischief.1 He was sentenced as a habitual offender to serve an aggregate of 360 months’

imprisonment in the Arkansas Division of Correction (ADC). On appeal, appellant does

not challenge the sufficiency of the evidence. Instead, he argues that the circuit court erred

by granting the State’s motion for continuance.2 We affirm.

1
He was acquitted of first-degree battery with a deadly weapon.
2
Appellant’s previous appellate counsel had filed a no-merit brief. We ordered
rebriefing because the brief was not filed in compliance with Arkansas Supreme Court Rule
4-3 and Anders v. California, 386 U.S. 738 (1967). See Todd v. State, 2025 Ark. App. 383.
Substitute counsel subsequently filed a merit brief, which is now before us.
I. Relevant Facts

Appellant was charged by amended criminal information with first-degree battery, a

Class B felony, in violation of Arkansas Code Annotated section 5-13-201 (Repl. 2024);

fleeing in a vehicle causing danger, a Class D felony, in violation of Arkansas Code

Annotated section 5-54-125 (Repl. 2024); fleeing by foot, a Class A misdemeanor, in

violation of Arkansas Code Annotated section 5-54-125; and second-degree criminal

mischief with damages greater than $5,000, a Class D felony, in violation of Arkansas Code

Annotated section 5-38-204 (Repl. 2024). The State further stated that appellant’s sentence

should be enhanced because he is a habitual offender pursuant to Arkansas Code Annotated

section 5-4-501 (Repl. 2024) and because he employed a firearm pursuant to Arkansas Code

Annotated section 16-90-120 (Supp. 2023).

There were numerous pretrial hearings in this case during which defense counsel 3

argued that appellant’s bond should be reduced, both parties requested continuances for

various reasons, and discussions were held regarding the tolling of speedy trial and other

matters. Relevant to this appeal, appellant’s first trial was originally set for October 7, 2021.

On October 5, 2021, the State moved for a continuance due to the unavailability of an expert

witness from the Arkansas State Crime Laboratory. In the motion, the State explained that

the forensic criminalist subpoenaed to testify that appellant’s clothing was covered in

3
We acknowledge that appellant was represented by several different attorneys at
various times during the pendency of his case. Therefore, instead of referring to each
attorney by name, we generically use “defense counsel” to avoid confusion.

2
gunshot residue was unavailable because of her retirement. Although another forensic

criminalist was offered as a substitute, the State discovered that day that she was not qualified

to testify as an expert on gunshot residue, and any remaining forensic criminalists qualified

to testify as experts in gunshot residue were also unavailable due to having been subpoenaed

in other cases. Moreover, another witness that would testify as to the chain of custody of the

evidence was also unavailable. Appellant filed his objection to the State’s motion for a

continuance, and a hearing was held the next day.

At the hearing, appellant objected to the continuance, arguing in part that the State’s

motion did not provide an affidavit showing the materiality of the evidence expected and

was therefore not in compliance was Arkansas Code Annotated section 16-63-402(a) (Repl.

2005). The State argued that the testimony regarding the gunshot residue on appellant’s

clothing was significant because it was proof that he had fired a gun close in time to his

arrest. Appellant stipulated to the fact that the witness from the crime lab would testify that

gunshot residue was found on his clothing. He claimed that the effect of that information

was something for the jury to infer and determine and was not dispositive to his case because

the crime-lab report offered several explanations. The State offered to amend the motion to

attach an affidavit but maintained that it was “not trying to hide the ball” and simply wanted

testimony about the gunshot residue. The circuit court held that the oral motion was

sufficient and that the State had acted with due diligence. The circuit court filed an order

on October 12, 2021, granting the State’s motion for a continuance and specifically finding

3
that “the State has sufficiently presented that a material witness is unavailable and has acted

with due diligence.”

A hearing was held on October 24, 2022, to address appellant’s motion to suppress

filed on August 4, 2020, and amended motion to suppress filed on July 20, 2022. At the

hearing, defense counsel argued that there was no probable cause for the initial pursuit and

that all evidence seized and any statements appellant made should therefore be suppressed.

Mike Wallace, a lieutenant with the criminal investigations division, testified that he

responded to a second shooting that had occurred on April 17, 2020. The victim explained

that the shooter fled in a “gray charger.” Later, another detective radioed and explained that

“he had received a phone call stating that the shooters had fled the gray Charger and one of

the shooters had gotten into a black HHR.” Lieutenant Wallace testified that he later saw a

black HHR “run a stop sign.” He pulled up behind the vehicle and initiated his blue lights

and sirens, but the vehicle fled and ran a red light. During the pursuit, a blue bag was thrown

from the driver’s-side window and landed in a pickup truck. Eventually, “the suspect vehicle

lost control, hit a fire hydrant, went airborne, hit a telephone pole, and flipped upside

down.” When Lieutenant Wallace stepped out of the vehicle, he “took a jolt” and was

burned because the telephone pole and electrical line had fallen on his vehicle. The circuit

court ultimately filed a written order denying the motion on October 26, 2022, finding that

“based on the testimony of Michael Wallace there is sufficient probable cause for the officer

to stop the Defendant.”

4
Appellant’s first trial resulted in a mistrial; accordingly, it is unnecessary to discuss

the testimony presented at that trial. Before appellant’s second trial, Lieutenant Wallace was

involved in a significant traffic accident. After two hearings on the matter, the circuit court

declared that Lieutenant Wallace was an unavailable witness and allowed the transcript of

his testimony presented at the suppression hearing to be read to the jury. Additionally, the

State amended appellant’s criminal information to include a sentencing enhancement that

was to elevate his charge from a small habitual offender to a large habitual offender because

appellant now had four or more prior felony convictions. Defense counsel agreed that the

State should be allowed to amend the information on that basis.

Because appellant does not challenge the sufficiency of the evidence, only a brief

summary of the evidence presented at appellant’s second trial is necessary for context.

Defense counsel told the jury that appellant admitted he was guilty of fleeing in a vehicle

causing danger and fleeing by foot. Appellant also stipulated that the black HHR vehicle

was owned by the appellant’s mother and that the value was at least $5,000. Defense counsel

instead stated to the jury, “All we ask of you is to find Mr. Todd not guilty of battery first.”

The victim, DeAngelo Delancey, testified that he went to the site of a shooting that

had taken place earlier that day. Mr. Delancey said that while he was there, a gray Dodge

Charger with tinted windows pulled up to the scene. A man wearing a black mask got out

of the passenger side and came around the back of the car, aiming a gun at him. The gunman

shot him twice, once in his thigh and then in his abdomen when he fell. Mr. Delancey

5
identified appellant as the shooter. He explained that the shooter then sped off in the same

gray Charger.

The transcript of Lieutenant Wallace’s testimony given at the suppression hearing

regarding his subsequent pursuit of appellant in a black HHR vehicle was read into evidence

without objection. Sergeant James Cignac testified that he was also involved in the pursuit

of appellant. He explained that he saw the vehicle strike an electrical pole, lose control, and

roll over into the ditch. Appellant then exited the vehicle and began running east. Sergeant

Cignac chased him for a couple of blocks and eventually caught up with appellant and was

able to take him into custody.

The jury found appellant guilty of fleeing in a vehicle causing danger, fleeing by foot,

and second-degree criminal mischief with damages greater than $5,000. 4 Appellant was

sentenced as a habitual offender to serve an aggregate of 360 months’ imprisonment. This

appeal followed.

II. State’s Motion for a Continuance

It is within the circuit court’s discretion to grant or deny a motion for continuance,

and our appellate courts will not reverse the circuit court’s decision absent a clear abuse of

discretion. Andruszczak v. State, 2017 Ark. App. 183, 518 S.W.3d 114. The abuse-of-

discretion standard is a high threshold that does not simply require error in the circuit court’s

decision. Hill v. State, 2015 Ark. App. 587, 473 S.W.3d 556. An abuse of discretion requires

4
He was acquitted of first-degree battery with a deadly weapon.

6
the appellant to show that the circuit court acted improvidently, thoughtlessly, or without

due consideration. Id. On appeal, the appellant bears the burden of establishing that the

circuit court abused its discretion and that he or she suffered prejudice amounting to a denial

of justice. Harper v. State, 2019 Ark. App. 163, 573 S.W.3d 596.

Rule 27.3 of the Arkansas Rules of Criminal Procedure (2021) 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 disposition of the case. Arkansas Code Annotated section 16-

63-402(a) (Repl. 2005) states that

[a] motion to postpone a trial on account of the absence of evidence shall, if required
by the opposite party, be made only upon affidavit showing the materiality of the
evidence expected to be obtained and that due diligence has been used to obtain it.

The supreme court has consistently interpreted this statute as requiring the presence of an

affidavit in order to justify a continuance due to a missing witness. Clark v. State, 358 Ark.

469, 192 S.W.3d 248 (2004). In deciding whether to grant or deny a motion for a

continuance to secure the presence of a witness, the circuit court should consider (1) the

diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of

procuring the attendance of the witness in the event of a postponement; and (4) the filing of

an affidavit, stating not only what facts the witness would prove but also that the affiant

believes them to be true. Hudson v. State, 2014 Ark. App. 253.

Appellant’s sole point on appeal is that the circuit court erred in granting the State’s

motion for a continuance that was filed on October 5, 2021, because there was no affidavit

7
attached to the motion. Appellant explains that even though the prosecuting attorney is an

officer of the court, the prosecuting attorney’s oral representations to the circuit court at the

hearing did not relieve him of the requirement to file an affidavit pursuant to Arkansas Code

Annotated section 16-63-402(a). Appellant argues that the circuit court therefore abused its

discretion in granting the motion for continuance. Even assuming arguendo that we agree

with appellant’s argument that the circuit court abused its discretion, appellant has failed to

allege in his opening appellate brief that he suffered prejudice amounting to a denial of

justice. Instead, citing our decision in Hudson, appellant claims that he “is not required to

show prejudice[.]” He is mistaken.

We have consistently held that an appellant bears the burden of establishing that the

circuit court abused its discretion and that he or she suffered prejudice amounting to a denial

of justice. Harper, supra; Andruszczak, supra; Hudson, supra. Here, we need not address the

appellant’s argument that the motion for continuance should have been denied because the

State failed to attach the affidavit as contemplated by Rule 27.3. The motion for continuance

and the omitted affidavit pertained exclusively to evidence of gunshot residue, which was

relevant only to the first-degree-battery charge and not to the charges of fleeing in a vehicle

causing danger, fleeing by foot, and second-degree criminal mischief. Appellant was

subsequently acquitted of the first-degree-battery charge, which renders any argument

pertaining to the gunshot residue and motion for continuance moot. Appellant cannot

show prejudice resulting from his convictions for fleeing in a vehicle causing danger, fleeing

by foot, and second-degree criminal mischief due to the grant of the motion for continuance.

8
Accordingly, because appellant failed to satisfy his burden to establish that he suffered

prejudice amounting to a denial of justice, we must affirm.

Affirmed.

KLAPPENBACH, C.J., and BARRETT, J., agree.

Dusti Standridge, for appellant.

Tim Griffin, Att’y Gen., by: A. Evangeline Bacon, Ass’t Att’y Gen., for appellee.

9