Cite as 2017 Ark. App. 183 

## ARKANSAS COURT OF APPEALS

DIVISION II No. CR

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- 715

BARRY ANDRUSZCZAK APPELLANT

V.

STATE OF ARKANSAS APPELLEE Opinion Delivered: March 29, 2017
APPEAL FROM THE LITTLE RIVER COUNTY CIRCUIT COURT [NO. CR

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HONORABLE TOM COOPER , JUDGE
AFFIRMED

RAYMOND R. ABRAMSON, Judge Barry 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. On June 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 be en 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. On the day of trial , the State filed a motion to depose a witness pursuant to Arkansas
Code Annotated section 14

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- 201 (Repl. 2013) . The State alleged that it had discoveredCite as 2017 Ark. App. 183

2 a material witness, Curtis Baham, in Louisiana, but Baham could not travel to Little River
Coun ty 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. The 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 Gree ns’ home. The State noted that Louisiana po lice
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 cr owbar 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 i s eighty years old and suffer s from a medical condition that prevented him from traveling to
Arkansas. The State informed the court that it could depose Baham on March 23. Andruszczak objected to the State ’s request. He asserted that Baham’s deposition

te stimony 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 tha t he had been arraigned on September 2, 2014. TheCite as 2017 Ark. App. 183

3 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 req uest to depose
Baham on that date in Louisiana. Thereafter, on April 26, 2016, the court held a jury trial. Columbus Willis, an
invest igator 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 neighbo r had provided him with the license

- plate number of a
vehicle that had been parked in Baham’s driveway d uring 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 a s Donna Green’s ring. The State played the vide o 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

. 1 Chantelle Taylor, a criminalist with the Arkansas State Crime Laboratory , testified
that the Green s’ 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 Green s’ door frame. Deborah Pumphrey, a fi rearm and tool

- ma r k examiner with the Arkansas State
Crime Lab oratory , testifie d that tool marks on the Greens’ door frame matched the gold
crowbar found a t Baham’s residence.

1 Andruszczak’s counsel attended the deposition and cross

- examined Baham.Cite as 2017 Ark. App. 183

4 T he 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. It is 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 abse nt 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

mu st 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. Rule 27.3 of the Arkansas Rules of Criminal Procedure (201 6 ) 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

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- 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 ha s been used to obtain it.Cite as 2017 Ark. App. 183

5 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 lik elihood 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. 2 53. On appeal , Andruszczak asserts that none of the four factors weigh in favor of granting the continuance. Specifically, he argues that the State did not act diligently, did not
establish the materiality of Baham’s testimony, did not prove a likelihood of procuring Baham for trial, and did not file an affidavit. However, at the hearing on the continuance,
Andruszczak asserted only that the State failed to act diligently. Our law is well established that arguments not raised at trial will not be addressed for the first time on appeal, and that parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of the objections and arguments presented at trial. Hutcherson v. State , 74 Ark. App. 72, 47 S.W.3d 267 (2001). “Issues rais ed for the first time on appeal . . . will not be considered because the circuit court never had an opportunity to make a ruling .” Johnson v. State , 2009 Ark. 460, at 9, 344 S.W.3d 74 , 80 (per curiam) (citing Green v. State , 362 Ark. 459, 209 S.W.3d 339 (2005)). Because Andruszczak argued only that the Sta te failed to act diligently, we address only that argument on appeal. See Dotson v. State , 2011 Ark. Ap p. 731 (declining to address the appellant’ s argument that the State failed to file anCite as 2017 Ark. App. 183

6 affidavit pursuant to Arkansas Code Annotated section 16

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- 402(a) because the appellant did not raise the issue to the circuit court). 2
W e find Andruszczak ’s diligence argument unconvincing . The State learned of the second crowbar found at Baham’s residence the Friday before filing its motion on Monday. Further, the State had scheduled Baham’s deposition and asked only for a two -day continuance. Given these circumstances, we are not persuaded that the circuit court abused
its discretion in granting the State’s request for a continuance

. Moreover, Andruszczak has failed to prove that he was prejudiced by the continuance. Investigator Willis testified that he found the cro wbar in Baham’s home following a burg lary and that officers stopped Andruszczak in the car that had been parked
outside Baham’s home during the burglary. Further, the testimony of the witnesses from
the A rkansas State Crime Laboratory connect ed the crowbar found at Baham’s house to the
Greens’ doorway. Thus, even without Baham’s testimony, the link between the crowbar,
Andruszczak , and the Greens’ home was established.
Affirmed.
K LAPPENBACH and V AUGHT , JJ., agree. Short Law Firm , by: Lee D. Short , for appellant. Leslie Rutledge , Att’y Gen., by: Brad Newman , Ass’t Att’y Gen., for appellee.

2 In his brief, Andruszczak asserts that he was not required to object to the lack of an affidavit to the circuit court pursuant to Wilson v. State , 320 A rk. 142, 895 S.W.2d 524 (1995 ). His reliance on Wilson is misplaced. In Wilson , our supreme court held that the circuit court did not abuse its discretion in denying the appellant’s motion for a continuance where he failed to provide an affidavit and where the court questioned his diligence. Id. The court did not discuss preservatio n. Id.