Arkansas Court of Appeals
today reversed the child rape conviction of Russell Hudson
in Faulkner Circuit Court. It said the conviction and 20-year sentence should be dismissed because the lower court should not have granted a continuance in a trial when the victim was not available to testify.
Hudson was charged in 2010 with a rape allegedly occurring between 2000 and 2002. Judge Charles Clawson granted a delay in a trial scheduled for March 2012, over defense objections, when the prosecution said the victim was unavailable. The defense objected that the speedy trial rule had been broken, but the judge overruled the motion. Hudson went to trial in December and was convicted.
The Court of Appeals said the judge had abused discretion in granting the continuance. The prosecution waited until the day of the trial to say the victim couldn't be available. The record showed no effort by the state to subpoena the witness. During the hearing on the continuance, the prosecutor didn't seem certain he ultimately could produce the witness.The state had provided no affidavit in support of the continuance for what the witness would testify and what effort had been made to get her to the U.S. from Puerto Rico. The state argued that such an affidavit was required only when the defense requested a continuance for a missing witness, but the court rejected the argument.
The continuance should have been granted, the court said. "Because the continuance was erroneously granted, the State had time to secure the only witness who could provide evidence sufficient to convict appellant, and, that had the continuance not been granted, the charge likely would have otherwise been dropped."
Hudson, 49, who lived in Mount Vernon, was charged with raping a girl who was between 8 and 10 when the assaults occurred. She was 19 when he was arrested, according to reporting in the Log Cabin Democrat. At trial, the jury took 20 minutes to convict. Prosecutor Cody Hiland said at the time that the victim had gone on to a university, scored good grades and was studying in Japan. Under the law, childhood assault victims have six years after they turn 18 to come forward before the statute of limitations tolls.
The prosecution can appeal the dismissal to the Supreme Court. Prosecutor Hiland said he was reviewing the decision, but not ready to comment on plans.