Edward Charles Wright v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION I

EDWARD CHARLES WRIGHT

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-419

FEBRUARY 19, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR2001-445]

HONORABLE JOHN BERTRAN PLEGGE, CIRCUIT JUDGE

AFFIRMED

Appellant, Edward Charles Wright, appeals a Pulaski County jury verdict convicting him of breaking or entering, two counts of terroristic threatening, and theft of property. He was sentenced to 540 months' imprisonment in the Arkansas Department of Correction. On appeal, he asserts two points for reversal: (1) that the trial court erred by allowing the State to amend the felony information to change the name of the victim; (2) that the trial court erred by admitting testimony about unrelated allegations of breaking into other vehicles, when the trial court had previously instructed the parties to limit testimony to the break-in of the vehicle of Sean Robertson and when the testimony was not relevant to the charges against appellant. We find no error and affirm.

On January 10, 2001, police officers received a call that a black male wearing light-colored painter's pants and a dark jacket was breaking into cars in the River Market District. The police officers proceeded on foot to Riverfront Park to look for the suspect. The officers made contact with the appellant, who was seated on a park bench. The appellant matched the description given to the

officers and was intoxicated. He had in his possession a duffel bag and a briefcase. The officers arrested him for public intoxication and subsequent to the arrest, inspected the contents of the duffel bag and briefcase. Documents inside the bags showed that the items belonged to Sean Robertson.

The officers entered a nearby bar and restaurant in the River Market area to try to locate the owner of the items and found Sean Robertson. At trial, Mr. Robertson testified that he had inadvertently left his 2000 Tahoe unlocked, that appellant did not have permission to enter his vehicle, that the items found with appellant belonged to Mr. Robertson, and that appellant did not have permission to possess Mr. Robertson's property.

After discovering that appellant did not lawfully possess Mr. Robertson's property, the officers informed appellant that they were going to charge him with breaking or entering and theft of property. At that point, appellant became agitated and combative, threatening to kill the arresting officers, Aaron Johnson and James Ross. Both officers testified to these threats at trial.

On the morning of trial, the State asked the court for leave to amend one of the felony informations. The initial charges included one charge of terroristic threatening against Officer James Ross and a second, duplicate charge of terroristic threatening against the same officer. The prosecutor orally amended the duplicate information by changing the name of the second victim to Officer Aaron Johnson. The prosecutor also emphasized that Officer Johnson was on the witness list, was present to testify, and that Officer Johnson's report provided to appellant stated that appellant threatened to kill officers with a gun when he got out of jail. Appellant's counsel objected to the amendment and argued surprise. However, he did not ask the trial court for a continuance of the matter in order to prepare.

The State may amend an information up until the point after the jury has been sworn but before the case has been submitted to the jury (1) as long as the amendment does not change thenature or degree of the crime charged or (2) if the accused is not prejudiced through unfair surprise. See Lovett v. State, 330 Ark. 33, 36, 952 S.W.2d 644, 645 (1997) (allowing amendment to change name of victim, stating that the appellant "could express little surprise" since he was well aware of which person he injured); Kilgore v. State, 313 Ark.198, 852 S.W.2d 810 (1993); Ark. Code Ann. § 16-85-407 (1987). Even where it is clear that the amendment changes the degree of the crime, which was not the case here, appellant must show he was prejudiced by the amendment. Johnson v. State, 71 Ark. App. 58, 70-71, 25 S.W.3d 445, 453 (2000)(citing Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993)(affirming where charge was amended from attempted rape to rape and appellant failed to demonstrate prejudice). Our courts will not presume prejudice when a defendant fails to move for a continuance or claim surprise after he is put on notice that the State plans to amend an information. Id.

The two felony informations filed by the State were identical. The State had inadvertently repeated the name of the first victim as the victim in the duplicate information. The second victim, Officer Johnson, was the other arresting officer present when appellant voiced his threats. Officer Johnson was identified as a witness and was present to testify. In addition, he issued one of the reports provided in discovery which specifically stated that appellant had threatened to kill the officers. The amendment of the information did not change the nature or degree of the crime charged, and nothing indicates how the correction of the information resulted in unfair surprise. As in Lovett, supra, appellant could express little surprise since the allegation was that he had threatened to kill more than one officer, and Officer Johnson was identified in discovery as an integral part of the prosecution's case against appellant.

Appellant also contends that the trial court erred by admitting testimony about unrelated allegations of breaking into other vehicles, when the trial court had previously instructed the partiesto limit testimony to the break-in of the vehicle of Sean Robertson and when the testimony was not relevant to the charges against the appellant. First, we note that after the trial court had granted appellant's motion in limine presented by appellant's counsel regarding certain testimony, appellant requested that his counsel be relieved and he proceed pro se at trial. All litigants, including those who proceed pro se, must conform to the rules of procedure, or else demonstrate good cause for not doing so. Key v. State, 297 Ark. 111, 759 S.W.2d 567 (1988); see also Garner v. State, 293 Ark. 309, 310, 737 S.W.2d 637, 638 (1987) (holding that if mere declaration of ignorance of the rules of procedure were enough to excuse lack of compliance, it would be just as well to have no rules since an appellant could simply bypass the rules by claiming a lack of knowledge).

At trial, appellant failed to object to the majority of the testimony about which he complains on appeal. His failure to make contemporaneous objections to this testimony procedurally bars him from asserting error on appeal. See Vaughan v. State, 338 Ark. 220, 225, 992 S.W.2d 785, 787-88 (1999). Appellant urges that even though he did not make proper objections to the references made to a person breaking windows out of cars, his conviction should nevertheless be reversed.

The initial reference that the officer made in testimony was that the officers were in the area where they encountered appellant in response to a phone call that an individual was breaking out a window of a vehicle. When the officers arrived in the area, the subject had left, and the person reporting the incident gave a description of the suspect. The remaining testimony described the officers' observation that appellant fit the suspect's description and the officers' approach to and interaction with appellant including placing him in custody for public intoxication.

Appellant's first objection came after the officer stated that they didn't want to let appellant go if they "did have, in fact, the suspect that busted out the window." Appellant objected, saying that the reference should be excluded because he had not been charged with breaking out windows. The judge overruled the motion saying that the testimony didn't reach what had been excluded.

In reviewing the discussion of the motion in limine, the prosecutor was concerned that the defense would argue that witnesses were missing who could identify appellant as the individual who had been breaking windows out of vehicles. The issue, he argued, was whether appellant had entered Mr. Robertson's vehicle that had been left unlocked and had no windows broken. Appellant's counsel agreed that testimony concerning the entry into other vehicles was irrelevant to the accusation that appellant entered Mr. Robertson's car. The trial court then limited testimony concerning the entry of vehicles to that concerning Mr. Robertson's car.

A trial court's ruling regarding the admissibility of evidence is within its sound discretion and will not be reversed absent an abuse of that discretion and a demonstration of prejudice. Hart v. State, 77 Ark. App. 206, 210, 72 S.W.3d 540, 542 (2002). When similar evidence is previously admitted without objection, the admission of later testimony on the same subject is not prejudicial. Jenkins v. State, 348 Ark. 686, 706, 75 S.W.3d 180, 192 (2002). In this case, the officer's testimony was cumulative to previous testimony that the officers were investigating a report of breaking or entering. Furthermore, as the court stated, the testimony did not reach the exclusion. The officer's testimony explained the presence of the officers in the vicinity where they encountered appellant and provided a factual context for the sequence of events.

In addition, appellant himself continued to refer to the breaking of windows in his questioning of witnesses and continued to refer to the fact that he had not been charged with breaking windows. After appellant specifically questioned one officer about whether he had obtained fingerprints in his investigation of the smashing of car windows, he referred to the officer's "bringing that up over and over" as "some kind of dirty move." The court interjected and pointed out to appellant that he was the one who kept bringing it up and keeping the issue in front of thejury, and he needed to stop. An appellant cannot be heard to complain of error that he invited. McGhee v. State, 330 Ark. 38, 40, 954 S.W.2d 206, 208 (1997). We find no abuse of discretion by the trial court on this point.

Accordingly, we affirm.

Crabtree and Roaf, JJ., agree.