Full Opinion

Cite as 2026 Ark. App. 460 ARKANSAS COURT OF APPEALS DIVISION III No. CR-25-582 Opinion Delivered October 7, 2026 NICHOLAS LIPPERT APPELLANT APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT V. [NO. 17CR-24-21] STATE OF ARKANSAS HONORABLE MICHAEL APPELLEE MEDLOCK, JUDGE AFFIRMED N. MARK KLAPPENBACH, Chief Judge Nicholas Lippert was found guilty of three counts of rape following a jury trial in the Crawford County Circuit Court. He now appeals, raising five arguments for reversal. We affirm. The State alleged that Lippert committed three counts of rape against a minor between December 2012 and November 2013. Lippert was sixteen and seventeen years old during this time, and the victim was five years old. A warrant was issued for Lippert’s arrest in June 2015; however, he was not arrested on these charges until January 2024. Before trial, Lippert filed a motion to dismiss, a motion to transfer the case to juvenile court, and a motion to exclude evidence pursuant to Rule 404(b) of the Arkansas Rules of Evidence. All of these motions were denied. The jury found Lippert guilty on all three counts, and he was sentenced as a habitual offender to eighty years’ imprisonment on each count to be served consecutively. Lippert filed a motion for new trial, which was deemed denied. Lippert first argues that the circuit court should have dismissed the charges against him due to the delay in prosecution. In his motion to dismiss below, Lippert alleged that Crawford County was notified in 2016 that he was incarcerated in the State of Washington, but Crawford County declined to transport him to Arkansas until 2024. He argued that his due-process rights were violated because the delay impaired his ability to present a defense. If the State delays the filing of charges in order to gain a tactical advantage and the defendant is able to show prejudice to his defense because of prosecutorial delay, the charges should be dismissed unless the State can come forward with a satisfactory reason for the delay. Parker v. State, 2022 Ark. App. 315. The accused has the burden of first showing prejudice resulting from the loss of witnesses or physical evidence or the dimming of the witnesses’ memory and how that loss is prejudicial to him. Id. The burden is then on the government to give a satisfactory reason for the delay. Id. Due-process considerations do not arise until prejudice resulting from the delay is proved and it further appears that the State intentionally delayed the proceedings to gain some tactical advantage over the accused. Id. Lippert has failed to meet his burden of showing prejudice. He makes only conclusory allegations that the delay harmed his defense: “1. Witnesses that the Defendant could have used to prove his innocence. 2. Any alibi as to whereabouts when the alleged offenses occurred. 3. Witnesses to determine the veracity of the testimony of the alleged 2 victims. 4. The possibility of any DNA testing done on clothing and/or alleged victims.” Here, the crimes were alleged to have taken place in Lippert’s bedroom with no witnesses; they were alleged to have occurred over a period of nearly one year; and they were alleged to have occurred around two years before they were disclosed by the minor victim. Lippert has failed to specify what witnesses, alibi, or DNA testing would have been lost under these circumstances. Accordingly, he has failed to prove a due-process violation caused by the delay in prosecution. Below, Lippert moved to transfer his case to juvenile court and apply “Extended Juvenile Jurisdiction” to the charges because he was a juvenile when the offenses were allegedly committed. Lippert now argues that the circuit court erred in denying his motion. Lippert’s appeal of this denial is not properly before us. An appeal from an order granting or denying transfer of a case from one court to another having jurisdiction over juvenile matters must be considered by way of interlocutory appeal, and an appeal from such an order after a judgment of conviction in circuit court is untimely and will not be considered. Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995). The circuit court ruled before trial that certain Rule 404(b) evidence the State sought to introduce was admissible. Lippert argues that this evidence should have been excluded because the acts occurred subsequent to the charged crimes. In his brief, Lippert recounts the arguments he made during a pretrial hearing but does not cite to them because he has not filed a record transcript of this hearing. Lippert’s amended notice of appeal specifically requested transcripts from two other hearings but not the hearing at which these arguments 3 were made. He has also failed to supplement the record with this transcript. Accordingly, he cannot show that his arguments were preserved. It is, of course, the appellant’s duty to bring up a sufficient record to enable the appellate court to consider his claims. Furlow v. State, 2023 Ark. App. 192, 664 S.W.3d 457. Even if preserved, however, Lippert’s claim that only “prior” bad acts are admissible under Rule 404(b) is incorrect. See Harris v. State, 2018 Ark. App. 219, 547 S.W.3d 709 (noting that the Rule also applies to subsequent bad acts). Lippert was subject to an extended term of imprisonment of forty to eighty years under the “serious felony involving violence” subsection of the habitual-offender statute, Arkansas Code Annotated section 5-4-501(c) (Supp. 2025). Lippert now argues that it violated his due-process rights to enhance his sentence in the current case on the basis of a crime that occurred after these offenses.1 Lippert failed to preserve this argument. Even if preserved, however, it is without merit. The supreme court has held that the date of the commission of an offense used to enhance a sentence under section 5-4-501 is not relevant. Dodson v. State, 358 Ark. 372, 191 S.W.3d 511 (2004). A prior conviction, regardless of the date of the crime, may be used to increase punishment. Id. Finally, Lippert argues that his 240-year sentence is effectively a life sentence without parole that violates the spirit of the Fair Sentencing of Minors Act. Lippert’s argument is again not preserved and meritless. He failed to object at sentencing and fails to recognize the Act’s provision for parole eligibility after twenty years of incarceration for persons who 1 A certified copy of a 2015 felony rape conviction from Washington State resulting from a crime committed in 2014 was admitted into evidence. 4 were minors at the time of committing a nonhomicide offense. See Ark. Code Ann. § 16- 93-621(a)(1)(A) (Supp. 2025). Affirmed. ABRAMSON and VIRDEN, JJ., agree. Catterlin & Arnold Law Firm, by: Ben Catterlin, for appellant. Tim Griffin, Att’y Gen., by: A. Evangeline Bacon, Ass’t Att’y Gen., for appellee. 5