Cite as 2017 Ark. App. 496
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-16-857
Opinion Delivered: October 4, 2017
BILLY JOE DAVIS
APPELLANT
APPEAL FROM THE JEFFERSON
V. COUNTY CIRCUIT COURT
[NO. 35CR-14-410]
STATE OF ARKANSAS
APPELLEE
HONORABLE JODI RAINES
DENNIS, JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
A Jefferson County jury convicted Billy Joe Davis of aggravated robbery, first-degree
battery, and theft of property. He appeals his convictions, arguing that the circuit court (1)
abused its discretion by denying his request to continue the trial to procure a witness and
(2) erred by permitting the State to amend the felony charges at trial. We affirm.
On August 14, 2014, the State charged Davis with aggravated robbery, first-degree
battery, and theft of property against Calvin Jiles. The charges related to a June 24, 2014
incident in which Davis, Aaron Lovelace, Anphernie Harris, and an unknown fourth
individual allegedly followed Jiles home from a fast-food restaurant, shot him, and took his
money. The State also charged Lovelace and Harris with crimes related to the incident, but
their charges were severed from Davis’s case. The court set Davis’s trial for February 29,
2016. As of the trial date, the State had not charged the alleged fourth individual.
Cite as 2017 Ark. App. 496
On the day of trial, Davis’s counsel requested a continuance because his witness,
Chris McGee, had failed to appear. He asserted that McGee would testify that he was the
fourth individual; that Davis drove him, Harris, and Lovelace to Jiles’s home to sell drugs,
not to rob Jiles; that Davis never exited the vehicle; that Lovelace shot and robbed Jiles; and
that Davis did not intend to rob Jiles. Davis’s counsel explained that Davis had not
remembered McGee’s legal name prior to March 2015, 1 but that month, he saw McGee in
the Dub Brassell Detention Center in Pine Bluff and obtained his name and birthdate. With
this information, Davis’s counsel subpoenaed McGee as a witness. Davis’s counsel admitted
that Davis had spoken with McGee only briefly at the detention center and also
acknowledged that he believed McGee may plead the Fifth Amendment rather than testify.
Davis’s counsel filed an affidavit stating the facts to which he believed McGee would testify
at trial.
The State objected to the continuance, and the court denied Davis’s request. In
making its ruling, the court noted,
You have no evidence or proof from Mr. McGee that this is what he would testify
[to] and that he will not plead the Fifth because, if he does [the State is] going to
charge him with aggravated robbery . . . and battery first.
Thereafter, the case proceeded to trial.
Jiles testified that he operates a barbeque-catering business. He stated that on June
24, 2014, he was walking into his home following a trip to Church’s Chicken when three
males approached him. He explained that two of them appeared to be lookouts, while a
third individual shot him three times and demanded money. Jiles gave him cash from his
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Before that time, Davis knew McGee only by his street name.
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pocket along with a check that he had received from a customer, and the men ran away.
He identified Davis as one of the lookouts.
During the State’s case, the State moved to amend the criminal charges. In the
original charges, as to the first-degree-battery charge, the State alleged that Davis, “[w]ith
the purpose of causing physical injury to Calvin Jiles, caused physical injury to Calvin Jiles
by means of a firearm.” At trial, the State asked to amend the first-degree-battery charge to
allege that Davis, “acting alone or with one or more other persons, [Davis] commit[ed] or
attempt[ed] to commit a felony, and in the course and furtherance of that felony or flight
immediately therefrom, [Davis] or [an] accomplice cause[d] serious physical injury to [Jiles]
under circumstances manifesting extreme indifference to the value of human life.”
Davis objected to the amendment, arguing that it fundamentally changed the nature
of the original charge, created an unfair surprise, and was extremely prejudicial to his
defense. The court disagreed with Davis and granted the State’s request to amend the first-
degree battery charge.
Thereafter, the jury convicted Davis of all charges and sentenced him to twenty years’
imprisonment for aggravated robbery, ten years’ imprisonment for first-degree battery, and
six months’ imprisonment for misdemeanor theft of property. Davis timely appealed his
conviction to this court.
Davis first argues that the circuit court abused its discretion by denying his request
for a continuance to secure McGee as a witness. Arkansas Rule of Criminal Procedure 27.3
(2016) provides that a circuit court shall grant a continuance only upon a showing of good
cause and shall take into account the request or consent of the prosecuting attorney or
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defense counsel, as well as the public interest in the prompt disposition of the case. In
deciding whether to grant or deny a motion for a continuance to secure the presence of a
witness, the circuit court considers (1) the diligence of the movant; (2) the probable effect
of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the
event of a postponement; and (4) the filing of an affidavit, stating not only what facts the
witness would prove but also that the affiant believes them to be true. H.C. v. State, 2013
Ark. App. 284.
It is within the circuit court’s discretion to grant or deny a motion for continuance,
and the appellate courts of Arkansas will not reverse the circuit court’s decision absent a
clear abuse of discretion. See Haskins v. State, 2013 Ark. App. 613. An appellant must also
demonstrate that as a result of the ruling on the motion for a continuance, he suffered
prejudice that amounts to a denial of justice. Smith v. State, 2012 Ark. App. 613.
In this case, Davis argues that all the factors weighed in favor of granting the
continuance. He points out that he subpoenaed McGee before trial; McGee’s testimony
could show that Davis did not intend to commit robbery or battery; McGee had an
upcoming court date in Pulaski County so he could be procured for the next trial date; and
his counsel filed an affidavit.
We disagree and hold that the circuit court did not abuse its discretion by denying
Davis’s request for a continuance to secure McGee as a witness. All of the factors do not
weigh in favor of granting the continuance. Although Davis had diligently subpoenaed
McGee before trial, neither he nor his attorney had actually spoken to McGee regarding
the parameters of his testimony. Further, even though McGee had an upcoming court date
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and possibly could be detained for trial, his potential testimony would incriminate him, and
he well might avail himself of Fifth Amendment protections. Moreover, Davis offers no
argument on appeal about how he suffered prejudice that amounts to a denial of justice as a
result of the ruling on the continuance. Accordingly, we hold that the circuit court did not
abuse its discretion in denying Davis’s request for a continuance.
Davis next argues that the circuit court erred by permitting the State to amend the
battery charge at trial from first-degree battery under Arkansas Code Annotated section 5-
13-201(a)(8) (Repl. 2013) to first-degree battery under subsection 201(a)(4). He argues that
the amendment changed the nature of the charge because it shifted the mens rea element
from intent to commit battery to intent to commit the underlying felony of aggravated
robbery.
Section 5-13-201(a)(8) provides that a person commits first-degree battery if with
the purpose of causing physical injury to another person, the person causes physical injury
to any person by means of a firearm. Section 5-13-201(a)(4) provides that a person commits
first-degree battery if acting alone or with one or more other persons, the person commits
or attempts to commit a felony and in the course and in furtherance of the felony or in
immediate flight from the felony, the person or an accomplice causes serious physical injury
to any person under circumstances manifesting extreme indifference to the value of human
life.
It is well settled that the State is entitled to amend an information at any time before
the case is submitted to the jury so long as the amendment does not change the nature or
degree of the offense charged or create unfair surprise. Hill v. State, 370 Ark. 102, 105
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S.W.3d 534 (2007). In Hill, the defendant was originally charged with three counts of
kidnapping in violation of Arkansas Code Annotated section 5-11-102(a)(4) (Repl. 1997),
which provides that “[a] person commits the offense of kidnapping if, without consent, he
restrains another person so as to interfere substantially with his liberty with the purpose of .
. . [i]nflicting physical injury upon him.” Id. at 106, 257 S.W.3d at 537. After presenting its
case, the State amended its information to include the allegations that the kidnappings were
for the purpose of terrorizing another or facilitating the commission of a felony. Id. These
additional allegations conformed to Arkansas Code Annotated section 5-11-102(a)(3) and
(6). Id. The defendant objected, but the circuit court agreed that the State could properly
amend its information. Id.
On appeal, our supreme court rejected the defendant’s assertion that the amendment
changed the nature of the charge. Id. In both the original information and the amended
information, the defendant was charged with kidnapping. Id. The supreme court reasoned
that the amendment did not change the nature of the kidnapping charge; rather, it amended
the manner in which the alleged kidnapping had taken place. Id.
In this case, we hold that the circuit court did not err in allowing the State to amend
the first-degree-battery charge. As in Hill, the amendment here did not change the nature
of the charge. The State still proceeded with the charge of first-degree battery. The
amendment changed the manner in which the battery took place. As to Davis’s argument
that the amendment changed the mens rea element from intent to commit battery to intent
to commit aggravated robbery, the State had charged Davis with aggravated robbery in the
original criminal information, so Davis was clearly not surprised that he was required to
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defend against the elements of that felony. Further, Davis has not offered an argument on
appeal to demonstrate that he was prejudiced by the amendment. Accordingly, we find that
Davis has failed to establish a reversible error.
Affirmed.
VAUGHT and HIXSON, JJ., agree.
Short Law Firm, by: Lee D. Short, for appellant.
Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.
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