APPEAL
FROM THE ARKANSAS COUNTY CIRCUIT COURT, SOUTHERN DISTRICT
[NO. 01DCR-15-79] HONORABLE DAVID G. HENRY, JUDGE
Joseph
C. Self, for appellant.
Leslie
Rutledge, Att'y Gen., by: Karen Virginia Wallace,
Ass't Att'y Gen., for appellee.
LARRYD. VAUGHT, JUDGE.
Eric
Smith appeals his conviction by the Arkansas County Circuit
Court of rape and sexual indecency with a child. He has
appealed the sexual-indecency conviction, [1] arguing that the
circuit court erred in denying his motion to dismiss because
the amended information failed to provide sufficient notice
of the allegations against him. We disagree and affirm.
Smith
was accused by his girlfriend's two young daughters of
touching them inappropriately and engaging in anal and oral
sex with the younger daughter, age eight. The State filed an
information on October 20, 2015, and filed an amended
information on January 25, 2017, which alleged that Smith
committed the offense of sexual indecency with a child in
violation of Arkansas Code Annotated section 5-14-110 (Supp.
2017) when he
unlawfully and feloniously on or about May 27 and May 28,
2015 being eighteen (18) years of age or older, the person
solicits another person who is less than fifteen (15) years
of age or older, or who is represented to be less than
fifteen (15) years of age to engage in sexual intercourse
with the purpose to arouse or gratify a sexual desire of
himself or herself or a sexual desire of another person, the
person purposely exposes his or her sex organs to another
person who is less than fifteen (15) years of age.
At
trial, the State presented evidence that Smith exposed his
penis to both girls but no evidence that Smith solicited
either child for sex. At the close of the State's case,
Smith's counsel moved to dismiss, arguing that the State
had charged Smith with violating subsection 5-14-110(a)(1),
which prohibits soliciting a minor for sexual intercourse,
deviate sexual activity, or sexual contact and that the State
had introduced no evidence of solicitation. In response, the
State argued that the information, while imprecise, also
contained allegations that Smith had violated subsection
(a)(2)(A) of the statute, which prohibits exposing one's
genitals to a child for the purpose of sexual gratification.
Ark. Code Ann. § 5-14-110(a)(2)(A). Smith argued that
the State's amended information failed to properly notify
him of the allegations against him and that he was prejudiced
because he had been unable to prepare a defense to the
exposure allegation. The court denied the motion and
convicted Smith. This appeal follows.
Smith's
challenge to the sufficiency of the information is not
preserved for our review. Arkansas law allows a defendant to
request a bill of particulars setting out the act or acts
relied on by the State, and we have unequivocally held that
"the proper time to object to the sufficiency of the
information was before the trial." Barnes v.
State, 94 Ark.App. 321, 325-26, 230 S.W.3d 311, 315
(2006) (citing Meny v. State, 314 Ark. 158, 861
S.W.2d 303 (1993)). In Barnes, we held that a
similar challenge to the sufficiency of the information was
not preserved for appeal because Barnes failed to raise it
before trial. So, too, must we hold that Smith's argument
is not preserved here.
We also
note that Smith's argument is meritless on its face.
Pursuant to Arkansas law, an information need only allege
that the defendant committed a named offense and it is not
necessary to include a statement of the act or acts
constituting the offense unless the offense cannot be charged
without it. Ark. Code Ann. § 16-85-403(a)(1) (Supp.
2017). The amended information alleged that Smith had
violated both parts of the sexual-indecency statute by (1)
soliciting a minor for sex and (2) exposing his genitals to a
minor. The fact that the State then presented proof to
support the exposure allegation did not render the
information inaccurate or misleading. In Barnes, we
explained that "[w]e regard the additional language in
the information as being in the nature of explanatory text
that was superfluous and did not make it fatally defective
such as to warrant reversal." 94 Ark.App. at 325-26, 230
S.W.3d at 315 (citing Richard v. State, 286 Ark.
410, 691 S.W.2d 872 (1985); Jones v. State, 275 Ark.
12, 627 S.W.2d 6 (1982); Baker v. State, 200 Ark.
688, 140 S.W.2d 1008 (1940)). Moreover, Smith has not
demonstrated prejudice as required in order to obtain relief
on appeal. Meny, 314 Ark. 158, 861 S.W.2d 303.
Although Smith claimed prejudice in not being able to
adequately prepare a defense, the amended information clearly
put Smith on notice that he was accused of exposing his
genitals to a child. He has not demonstrated how he would
have proceeded differently at trial had the superfluous
language not been included in the amended information.
Affirmed.
Gladwin and Glover, JJ., agree.
---------