Renfro v. State

Ray RENFRO v. STATE of Arkansas

CR 97-547                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 29, 1998


1.   Indictment & information -- trial court erred in instructing jury that
     appellant could be found guilty under two statutory subsections not
     included in unamended criminal information. -- Where appellant was
     charged, under Ark. Code Ann.  8-6-205(a)(4) (Supp. 1995),
     with illegally disposing of solid waste on property owned by
     another person without the written permission of the owner or
     occupant of the property; where, although the prosecutor never
     amended the criminal information to include other prohibited
     conduct under Ark. Code Ann.  8-6-205, the jury was
     instructed that it could find appellant guilty of illegal
     disposal of waste if it found him guilty under any one of
     three subsections, which included, in addition to (a)(4),
     (a)(3) (disposal without a permit) and (a)(5) (creating a
     public nuisance, hazard, or polluted condition); and where the
     jury returned a verdict of guilty without specifying which
     category of conduct amounted to a violation, the supreme court
     concluded that this was error; the court had no way of knowing
     under which subsection the jury found appellant guilty.

2.   Appeal & error -- failure to object to evidence on uncharged crimes not
     pivotal point. -- Where appellant did not object to testimony
     that the dumping of solid waste occurred without a permit, and
     where there apparently was no opportunity to object to
     evidence that the dumping constituted a public nuisance
     because no one specifically testified to that fact, the
     supreme court did not view the failure to object as the
     pivotal point; it was, rather, the instruction by the trial
     court on uncharged crimes that was the fatal error, and
     objections were mounted by the defendants at the instruction
     stage.

3.   Evidence -- testimony insufficient to alert appellant that jury would be
     instructed on two additional offenses. -- Testimony in which a
     witness failed to use the term "public nuisance" and mentioned
     only once the requirement that a person obtain a permit to
     operate a dump site was not sufficient to alert appellant to
     the fact that the jury would be instructed on two additional
     offenses.

4.   Jury -- proffered instruction not required where appellant did not want
     additional instruction or instruction with certain elements. -- Where
     appellant did not want an additional instruction or an
     instruction with certain elements, there was no need for him
     to proffer an instruction; he objected only because he wanted
     the jury instructed on the crime charged and not on separate
     offenses, which did not warrant the proffer of a separate
     instruction.

5.   Indictment & information -- trial court's effective amendment of
     information in jury instruction was fatal -- reversed and remanded for new
     trial. -- It is the prosecutors who can bring or amend a
     criminal charge and not the trial courts; where the prosecutor
     made no attempt to amend the criminal information, but the
     trial court did so, in effect, by means of its instruction to
     the jury on offenses not charged, the supreme court held that
     this could not be harmless error but was fatal to the
     conviction; the court, therefore, reversed and remanded for a
     new trial.

6.   Criminal law -- defense -- written permission to dump waste -- appellant's
     burden. -- Whether appellant had received written permission
     under Ark. Code Ann.  8-6-205(a)(4) (Supp. 1995), to dump
     waste was a defense that was appellant's burden to prove; in
     this respect, a defense is defined as any matter involving an
     excuse or justification peculiarly within the knowledge of the
     defendant on which he can fairly be required to introduce
     supporting evidence; the "written permission" required in  8-
     6-205(a)(4) created a defense under  5-1-111(c)(3) because
     such a matter was peculiarly within appellant's knowledge.


     Appeal from Craighead Circuit Court; John Fogleman, Judge;
reversed and remanded.
     William L. Howard, for appellant.
     Winston Bryant, Att'y Gen., by:  Kelly Terry, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.
     Appellant Ray Renfro was charged with the illegal disposal of
waste under Ark. Code Ann.  8-6-205 (Supp. 1995), after he was
observed with other men dumping rotten potatoes at a site near
connecting waterways in Craighead County.  After a jury trial,
Renfro was found guilty and fined $2,000.00.  He brings this
appeal, asserting three points for reversal.  We hold that one
point raised has merit, and we reverse and remand for a new trial.
     In its criminal information, the State specifically charged
that on June 19, 1996, Renfro illegally disposed of solid waste on
property owned by another person without the written permission of
the owner or occupant of the property.  The State's charge tracked
the language set out in  8-6-205(a)(4).
     The operative criminal statute for the illegal disposal of
waste can be violated in alternative ways in addition to that
specified under subsection (a)(4).  It is a violation of the
statute, for example, to dispose of solid waste at a site for which
a permit has not been issued by the Arkansas Department of
Pollution Control and Ecology.  Ark. Code Ann.  8-6-205(a)(3)
(Supp. 1995).  The criminal statute can also be violated if the
disposal of solid waste creates a public nuisance or health hazard
or constitutes water or air pollution.  Ark. Code Ann.  8-6-
205(a)(5) (Supp. 1995).
     Renfro was not charged with the illegal conduct set out under
subsections (a)(3) or (a)(5), although the State submitted an
instruction that included alternative violations under subsections
(a)(3), (a)(4), and (a)(5).  Renfro objected to the inclusion of
subsections (a)(3) and (a)(5) in the instruction but the trial
court overruled the objection on the basis that the alternative
violations were not separate offenses but alternative means of
committing one offense.  The jury was then instructed that if it
found Renfro guilty of conduct under any one of the three
subsections, it could find him guilty of the crime of illegal
disposal of waste.
     We conclude that this was error.  The jury was so instructed
by the trial court even though the prosecutor never amended the
criminal information to include other prohibited conduct under  8-
6-205.  The jury returned a verdict of guilty without specifying
which category of conduct amounted to a violation.  Thus, we have
no way of knowing whether the jury found Renfro guilty of disposal
of waste on another's property [(a)(4)], or disposal without a
permit [(a)(3)], or creating a public nuisance, hazard, or polluted
condition [(a)(5)].
     In Williams v. State, 302 Ark. 234, 788 S.W.2d 241 (1990),
this court emphasized that a criminal information must contain the
elements of the crime so that a defendant can adequately prepare
the case against him or her.  We held, as a result, that the
language of the information in that case limited the State to proof
of those specific elements set out in the information and that
proof of other elements constituting separate crimes constituted a
fatal variance.  The facts in Williams are somewhat different from
the facts in the instant case in that no proof of the charged
offense under subsection (a)(4) was forthcoming in that case, while
in the instant case proof of the charged offense was presented by
the State.  Nevertheless, the Williams decision relied in part on
Stirone v. United States, 361 U.S. 212 (1960), and that case has
facts analogous to the facts in the instant case.
     In Stirone, the defendant was indicted for interference with
interstate commerce and extortion related to a contract to supply
sand for ready-mixed concrete.  The district court allowed evidence
to come in relating to extortion and contracts to supply steel,
conduct for which the defendant was not indicted.  The district
court then charged the jury that either the conduct relating to the
sand or the steel might constitute a violation, and the defendant
was convicted without specification of which activity resulted in
the guilty verdict.  The Supreme Court reversed the conviction and
first underscored the fact that it was the grand jury and not the
district court that could change the charge.  The Court went on to
say that the district court impermissibly allowed the defendant to
be tried on charges not brought in the indictment against him.  The
Court stated:
     And it cannot be said with certainty that with a new
     basis for conviction added, Stirone (the defendant) was
     convicted solely on the charge made in the indictment the
     grand jury returned.  Although the trial court did not
     permit a formal amendment of the indictment, the effect
     of what it did was the same.
Stirone, 361 U.S.  at 217.  The Court added that the defendant was
deprived of a basic right to be tried only on charges presented
against him and that the matter was "too serious" to be treated as
nothing more than harmless error.  Id.
     The Court concluded:
     Yet because of the court's admission of evidence and
     under its charge this (the conduct relating to steel)
     might have been the basis upon which the trial jury
     convicted petitioner.  If so, he was convicted on a
     charge the grand jury never made against him.  This is
     fatal error.
Id. at 219 (citations omitted).  See also State v. Elliott, 585 A.2d 304 (N.H. 1991) (reversible error for jury instruction to
alter the criminal indictment by instructing on a separate crime --
that the defendant caused the death of the victim as opposed to the
charged offense of shooting the victim); State v. Blankenship, 480 S.E.2d 178 (W. Va. 1996) (reversible error for trial court to
change the charge by instructing the jury on a charge not covered
in indictment).
     The instant case is comparable to Stirone.  The trial court
instructed the jury that violation of subsections (a)(3) and (a)(5)
constituted illegal disposal of solid waste even though Renfro had
not been charged with that conduct.  In doing so, the trial court
altered the criminal information, and the jury may well have
returned a guilty verdict for activity that was not the subject of
the criminal information filed against Renfro.  Hence, as we noted
in Williams v. State, supra, Renfro had no opportunity to prepare
a defense to those separate charges.
     We are aware that in this case Renfro did not object to the
testimony of George Turner, an inspector with the Arkansas
Department of Pollution Control and Ecology, that the dumping of
solid waste was occurring without a permit [subsection (a)(3)]. 
There apparently was no opportunity to object to evidence that the
dumping constituted a public nuisance [subsection (a)(5)], since no
one specifically testified to that fact.  In Stirone v. United
States, supra, an objection to the evidence relating to the
transportation of steel and extortion in connection therewith was
made.  Be that as it may, there was no indication from the court
that the objection in Stirone was a prerequisite to appellate
review of the jury instruction that constituted the fatal variance. 
Moreover, the presence or absence of an evidentiary objection was
not even broached in State v. Elliott, supra, State v. Blankenship,
supra, or this court's decision in William v. State, supra.  We do
not view the failure to object in this case as the pivotal point. 
It was, rather, the instruction by the trial court on uncharged
crimes that was the fatal error, and in the Stirone case and the
instant case objections were mounted by the defendants at the
instruction stage.  And, again, with regard to the instruction of
dumping as a public nuisance [subsection (a)(5)], there was no
specific evidence introduced on this point.
     Furthermore, we can easily see how Renfro might have concluded
that the evidence of no permit was introduced against him in
connection with the crime charged of dumping solid waste on
another's property, and not as a separate offense.  The only
witness to testify to this point was George Turner, who described
the condition of the area.  He failed, though, to use the term
"public nuisance" in his testimony and mentioned only once the
requirement that a person obtain a permit to operate a dump site. 
This testimony, in our judgment, was not sufficient to alert Renfro
to the fact that the jury would be instructed on two additional
offenses.
     Finally, the State urges that Renfro should have proffered the
correct instruction and that he waived his objection by failing to
do so.  The State cites us to Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997), and Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996), as authority.  Neither case, however, is apposite.  In
Dixon v. State, supra, the defendant wanted an instruction that
contained an omitted element of the offense þ- þcontinuing criminal
activity and/or gang related activity" -- and failed to proffer
one.  In Wallace v. State, supra, the defendant wanted the jury
instructed on the lesser-included offense of robbery but, likewise,
failed to proffer the desired instruction.  Here, Renfro did not
want an additional instruction or an instruction with certain
elements.  Thus, there was no need for him to proffer an
instruction.  He objected only because he wanted the jury
instructed on the crime charged and not on separate offenses.  This
did not warrant the proffer of a separate instruction.
     We have made it clear that it is the prosecutors who can bring
or amend a criminal charge and not the trial courts.  See, e.g.,
State v. Vasquez-Aerreola, 327 Ark. 617, 940 S.W.2d 451 (1997);
State v. Knight, 318 Ark. 158, 884 S.W.2d 258 (1994); State v.
Pulaski County Circuit Court, 316 Ark. 514, 872 S.W.2d 414 (1994)
(per curiam); State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993);
Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992); State v. Hill,
306 Ark. 375, 811 S.W.2d 323 (1991) (per curiam).  The prosecutor
in this case made no attempt to amend the criminal information.  It
was the trial court that did so, in effect, by means of its
instruction to the jury on offenses not charged.  We agree with the
Stirone reasoning that this cannot be harmless error but is fatal
to the conviction.  We, therefore, reverse and remand for a new
trial.
     There is one other point raised on appeal that may reoccur in
a new trial on remand.  Renfro contends that the State failed to
show that he did not have permission to dump the waste and that the
permission element was one that the State had to prove.  We
disagree.  Whether Renfro had received written permission under
Ark. Code Ann.  8-6-205(a)(4) (Supp. 1995), to dump waste is a
defense which was Renfro's burden to prove.  In this respect, a
defense is defined as any matter involving an excuse or
justification peculiarly within the knowledge of the defendant on
which he can fairly be required to introduce supporting evidence. 
Ark. Code Ann.  5-1-111(c)(3) (Repl. 1993).  The "written
permission" required in  8-6-205(a)(4) creates a defense under 
5-1-111(c)(3), because such a matter was peculiarly within Renfro's
knowledge.  See Fendley v. State, 314 Ark. 435, 863 S.W.2d 284
(1993) (court held "authorization" clause in Ark. Code Ann.  5-73-
103 (Supp. 1991), which permits a felon to possess a firearm if
authorized by the Governor or the Treasury Department, created a
defense as defined by  5-1-111(c)(3) for which the defendant was
obliged to present evidence).
     Reversed and remanded.
     Arnold, C.J., Glaze, and Corbin, JJ., dissent.




     Tom Glaze, Justice, dissenting.  Because the majority opinion
fails to reveal that any error, much less prejudicial error,
occurred to support reversing this case, I must dissent.
     Here, the State charged Ray Renfro with violating Ark. Code
Ann.  8-6-205 (1987), thereby committing the offense of Illegal
Disposal of Waste.  Under  8-6-205, a person can commit the one
offense in three different ways.  See  8-6-205(a)(3), (4), and
(5).  The State's information cited the entire statute, but
specifically set out prohibited conduct tracking the 205(a)(4)
provision, stating that, on June 19, 1996, Renfro illegally
disposed of solid waste upon property owned by another person
without the written permission of the owner or occupant of the
property.
     At trial, undisputed proof was shown that, on June 19, 1996,
three law enforcement officers on separate occasions saw Renfro and
other men dumping rotten potatoes on property at a location near
Twin Bridges in Craighead County.  One officer said the property
was owned by a drainage district, and, the burden clearly being
Renfro's, Renfro failed to show he had any permission, written or
otherwise, to dump waste at the site.  See Ark. Code Ann.  5-1-
111(c)(3) (1987) and Fendley v. State, 314 Ark. 435, 863 S.W.2d 284
(1993).  Based on the foregoing proof given the jury, the State
clearly showed Renfro committed the offense of illegal disposal of
waste as defined by  8-6-205(a)(4).
     Even though Renfro's guilty verdict is supported by undisputed
evidence at trial, the majority opinion says the trial judge erred
because, in addition to instructing the jury on illegal disposal of
waste under 205(a)(4), he further instructed it on the offense as
defined in 205(a)(3) and (5), as well.  The State presented
evidence, without objection, that supported these additional ways
Renfro committed the offense.  
     To support its holding, the majority relies on Williams v.
State, 302 Ark. 234, 788 S.W.2d 241 (1990), which is simply not
applicable.  There the State charged Williams with falsifying
business records in violation of Ark. Code Ann.  5-37-202(a)(1) --
one of four means by which the crime could be shown.  Id., see  5-
37-202(a)(1)-(4).  At trial, however, the State failed to prove
Williams committed the crime under 202(a)(1), and on appeal,
Williams claimed the trial court should have directed a verdict. 
In response, the State contended it was not limited to proving the
crime under 202(a)(1), but instead the State could show Williams's
guilt by showing his prohibited conduct violated any of the
statute's four subsections.  Williams, 302 Ark. at 237, 788 S.W.2d 
at 243.  The Williams court reversed, holding that the language of
the information limited the State's proof to those specific
elements set forth in the information, and to attempt to prove any
of the other three subsections would constitute a fatal variance
between the information and the proof.  Id. 
     Obviously, the Williams case is far different from Renfro's
situation because, in Williams, the State never proved its case as
pled in its information; here the State unquestionably charged and
proved that Renfro had violated  8-6-205(4).  Thus, no variance
whatever existed between the information and the proof.
     The majority opinion also attempts to justify its reversal by
citing Stirone v. United States, 361 U.S. 212 (1960) -- another
case which has no application to the facts and situation before us. 
There, Stirone was indicted with interfering with interstate
commerce by extortion in violation of the Hobbs Act, 18 U.S.C. 
1951.  The only interstate commerce mentioned in the grand jury
indictment involved importing sand into Pennsylvania to be used in
building a steel plant there.  Id.  However, at trial, the judge,
over Stirone's objection, allowed the State to introduce evidence
to show interference of interstate commerce by exporting steel from
Pennsylvania to other states.  Stirone, 361 U.S.  at 214.  In doing
so, the judge also instructed the jury it could base a conviction
upon interference with either the importation of sand or the
exportation of steel.  Id. 
     The Supreme Court in Stirone held the district judge had erred
because (1) no court could know if the grand jury would have been
willing to indict Stirone for his conduct based on the new charge
involving the exportation of steel, and (2) it could not be said
with certainty that, with the adding of the exportation charge at
trial, the jury convicted Stirone solely on the indictment returned
by the grand jury.  The Court based its holding on the fact that
the very purpose of the requirement that a man be indicted by a
grand jury is to limit his jeopardy to offenses charged by a group
of his fellow citizens acting independently of either prosecuting
attorney or judge.  Stirone v. United States, supra.  (Emphasis
added.)
     Excuse my reference to an old adage, but the majority
opinion's reliance on Stirone is like comparing apples to oranges. 
Here, the prosecutor, not a grand jury, brought the illegal
disposal of waste charge against Renfro, and no question arises in
the present case whether a group of fellow citizens would have
indicted Renfro under the other subsections of statute  8-6-205. 
But, most important, I point out, once again, that the prosecutor
proved beyond any doubt that Renfro violated  8-6-205(a)(4) in the
exact manner alleged in the information.  Therefore, Renfro
suffered no harm by the prosecutor having proved that Renfro also
committed the same offense in the two other ways defined in  8-6-
205(a)(3) and (5).
     Finally, I underscore that the prosecutor, without objection
by Renfro, introduced the testimony of George Turner, an employee
with the Arkansas Department of Pollution Control and Ecology. 
That testimony bore on Renfro's conduct and how that conduct
violated the other two subsections set out in the illegal-disposal-
of-waste statute.  Again, since the State's evidence already
clearly showed Renfro had committed the offense under  8-6-
205(a)(4), the question is what harm could Renfro have suffered
merely by the State's offering other evidence of his guilt of the
same offense.  None.  Again, no variance existed between the
information and the State's proof showing Renfro's culpability
under  8-6-205(a)(4).  
     In addition, it is worthy to repeat that the State, without
objection, presented evidence bearing on the two other ways Renfro
violated  8-6-205.  The information filed against Renfro set out
 8-6-205, and Renfro cannot claim surprise of its content. 
Arkansas law is settled that a party is entitled to a jury
instruction if there is some evidence to support it.  Yocum v.
State, 325 Ark. 180, 925 S.W.2d 385 (1996).  The trial court was
correct by instructing the jury on the law contained in  8-6-
205(a)(3) and (5), as well as (a)(4).   
     Because Renfro suffered no prejudicial harm, this case should
not be reversed.  Renfro violated the law, and it is a waste of
judicial time to require the State to prove the same case against
Renfro again.  In fact, if the majority was correct in its analysis
(it is not), the matter should be reversed and dismissed, not
remanded.  I would affirm.  
     Arnold, C.J., and Corbin, J., join this dissent.