FROM THE ARKANSAS COUNTY CIRCUIT COURT, SOUTHERN DISTRICT
[NO. 01DCR-15-79], HONORABLE DAVID G. HENRY, JUDGE
C. Self, Fort Smith, for appellant.
Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y
Gen., for appellee.
D. VAUGHT, Judge
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, 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.
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.
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.
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.
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 ...