Steve Robinson v. State of Arkansas

DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

CACR02-558

APRIL 30, 2003

STEVE ROBINSON AN APPEAL FROM THE CHICOT

APPELLANT COUNTY CIRCUIT COURT

v. [CR2001-76-1]

STATE OF ARKANSAS HONORABLE DON E. GLOVER,

APPELLEE JUDGE

AFFIRMED

Appellant, Steve Robinson, was convicted of terroristic threatening and sentenced to ten years' imprisonment in the Arkansas Department of Correction. On appeal, appellant does not challenge the sufficiency of the evidence to support his conviction; instead, he asserts that the trial court erred when it allowed the State to amend the information on the morning of his trial. We affirm.

On June 6, 2001, appellant was charged by information with the offenses of terroristic act and first-degree terroristic threatening. The information stated:

COUNT ONE: On or about April 11, 2001, with the purpose to cause injury to person or property, did shoot at an occupiable structure of another, which offense is punishable as a Class B Felony by imprisonment for not less than five years nor more than twenty years and/or by a fine not exceeding $15,000; all against the peace and dignity of the State of Arkansas and in violation of Ark. Code Ann. § 5-13-310; and

COUNT TWO: On or about April 11, 2001, with the purpose of terrorizingCarolyn Pickrom, did threaten to cause death or serious physical injury to her, which offense is punishable as a Class D Felony by imprisonment for not more than six years and/or by a fine not exceeding $10,000, all against the peace and dignity of the State of Arkansas and in violation of Ark. Code Ann. § 5-13-301.

On the morning of appellant's November 1, 2001, trial, the State filed an amended information alleging the following:

COUNT ONE: Ark. Code Ann. § 5-13-310, the said defendant in CHICOT County, Arkansas did unlawfully and feloniously on or about April 11, 2001, with the purpose to cause injury to person or property, did shoot at an occupiable structure of another, which said offense is punishable as a Class B Felony by imprisonment for not less than five years nor more than twenty years and/or by a fine not exceeding $15,000; additionally subject to a minimum sentence of 10 years in state prison without parole but subject to reduction by meritorious good time pursuant to A.C.A. § 16-90-121, all against the peace and dignity of the State of Arkansas.

COUNT TWO: Ark. Code Ann. § 5-13-301, the said defendant in CHICOT County, Arkansas did unlawfully and feloniously on or about April 11, 2001, with the purpose of terrorizing Carolyn Pickrom, did threaten to cause death or serious physical injury to her, which offense is punishable as a Class D Felony by imprisonment for not more than six years and/or by a fine not exceeding $10,000, additionally subject to a minimum sentence of 10 years in state prison without parole but subject to reduction by meritorious good time pursuant to A.C.A. § 16-90-121 all against the peace and dignity of the State of Arkansas and in violation of

The only difference between the original information and the amended information is the provision for a sentence enhancement. Appellant's counsel objected, arguing that the State waived sentencing enhancement "by not filing outside the ten-day rule." The trial courtoverruled the objection and appellant appeals.

Appellant argues that the trial court erred in allowing the State to amend its information the day of the trial to include enhanced penalty under Ark. Code Ann. § 16-90-121 (Supp. 2001). He specifically argues that the amended information violated Rule 20.3 of the Arkansas Rules of Criminal Procedure and caused him surprise in that it resulted in him serving more time than initially anticipated. Appellant failed to raise either of these arguments below. Arguments not raised at trial will not be addressed for the first time on appeal, and 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. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). Accordingly, appellant's argument is not preserved for appellate review.

Furthermore, had we reached the merits of appellant's argument, we would affirm. It is well settled that as long as the amendment does not change the nature or degree of the crime charged and the appellant is not surprised, the State may amend an information at any time prior to submission of the case to the jury. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994). The mere fact that an amendment authorizes a more severe penalty does not change the nature or degree of the crime. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). Here, the amendment of the information did not change the nature or degree of the offense charged or create unfair surprise.

Affirmed.

Pittman and Roaf, JJ., agree.