FROM THE WHITE COUNTY CIRCUIT COURT [NO. 73CR-17-31]
HONORABLE ROBERT EDWARDS, JUDGE
G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
W. GRUBER, CHIEF JUDGE
Joshua Curl appeals from his conviction by a jury of
first-degree murder with a firearm enhancement for which he
was sentenced to twenty years' imprisonment for
first-degree murder and an additional fifteen years for the
enhancement. For reversal, appellant argues that the State
failed to negate justification and the amended information
should have been quashed. We affirm.
January 3, 2017, appellant and his fiancée, Ashley
Medlock (Ashley), went to his uncle's funeral in McCrory,
Arkansas. Ty Curl (Ty) and the victim, Michael Gimondo
(Michael) rode back to Bald Knob with appellant and Ashley.
Appellant dropped Ty in Searcy for a job interview on the
way. Once in Bald Knob, appellant pulled into Derrek
Curl's (Derrek's) driveway and went inside
appellant's camper to get medicine before dropping off
Michael. Derrek called appellant to ask why he was parked in
his driveway, and Michael answered the phone. Michael was the
boyfriend of Derrek's ex-wife, Jessica Curl. Michael
asked Derrek with whom Jessica was cheating on him. Derrek
said he didn't know. While still on the phone, Michael
said, "I'm going to fu***** kill you," and then
exited the truck and ran toward Derrek's house.
yelled for Michael to stop, but he did not. Appellant
retrieved his gun from the center console of his vehicle and
fired a warning shot in the air. Michael turned around and
said, "I'll just come fu***** kill you and your
bitch," and started coming toward appellant. Appellant
then shot Michael multiple times.
first point on appeal, appellant contends that the evidence
is insufficient to support his conviction of first-degree
murder because the State failed to negate his defense of
justification. The State responds that appellant's
sufficiency argument is not preserved, and we agree.
been consistently held that Arkansas Rule of Criminal
Procedure 33.1 requires that an appellant move for a directed
verdict at the close of the State's evidence and again at
the close of all the evidence and that the failure to do so
waives a challenge to the sufficiency of the evidence on
appeal. Dickey v. State, 2016 Ark. 66, at 3, 483
S.W.3d 287, 288-89; see also Draft v. State, 2016
Ark.App. 216, 489 S.W.3d 712. While appellant moved for a
directed verdict at the close of the State's case, he
failed to renew his motion for a directed verdict at the
close of all the evidence. Therefore, we hold that
appellant's challenge to the sufficiency of the evidence
is not preserved for review on appeal.
second point, appellant contends that the trial court erred
in denying his motion to quash the amended information. On
January 24, 2017, appellant was charged with second-degree
murder. An amended information was filed on October 27, 2017,
charging appellant with first-degree murder and adding a
firearm enhancement under Ark. Code Ann. § 16-90-120
(Repl. 2016). Appellant filed a motion to quash the amended
information, alleging in part that it was in violation of
Ark. Code Ann. § 16-85-407 (Repl. 2005). The trial court
denied the motion at a pretrial hearing on November 6, 2017.
The court found that although the amended information
violated the statute, it was filed forty-five days before
trial, which was sufficient notice, and that appellant was
acknowledges in his argument that the only issue is one of
prejudice. He contends that the "11th hour"
amendment was prejudicial because his counsel had been
preparing for a second-degree-murder trial for five months.
Prejudice will not be presumed when a defendant fails to move
for a continuance or claims surprise after the defendant is
put on notice that the State plans to amend an information.
Hoover v. State, 353 Ark. 424, 429-30, 108 S.W.3d
618, 621 (2003). We see no prejudice resulting from the
amendment and will not reverse a conviction in the absence of
some showing of prejudice. Holloway v. State, 312
Ark. 306, 313, 849 S.W.2d 473, 477 (1993).
has not argued that he did not have adequate time to prepare
due to the amendment. While appellant's motion to quash
requested a continuance in the event the State's motion
was based on new evidence, the State revealed at the hearing
that the motion was not based on newly discovered evidence.
Besides the request in the motion to quash, there is nothing
to suggest that appellant made any additional request for a
continuance. Because appellant has not shown that he was
prejudiced, we affirm on this point.