concurring.
While I agree with the majority opinion, I am compelled to write separately. The dissent suggests that this case is decided on a technicality. The Due Process Clause of the Fourteenth Amendment of the United States Constitution is not a technicality. It is, in fact, one of the cornerstone principles that sets our injustice system apart from much of the rest of the world. The State must prove each and every element of the offense beyond a reasonable doubt. To do otherwise would be a violation of the Due Process Clause. See Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In Hagen v. State, 315 Ark. 20, 23, 864 S.W.2d 856, 857 (1993) (quoting Schad v. Arizona, 501 U.S. 624, 633, 111 S.Ct. 2491, 115 L.Ed.2d 555, (1991), and Speiser v. Randall, 357 U.S. 513, 524, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)), our supreme court reiterated, “Quite possibly one’s right to be informed of a charge is that type of fundamental right that cannot be reviewed for harmless error since the right to notice of a charge is ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ”
In the present case, the information filed by the State accused appellant of rape; specifically that he engaged in sexual intercourse and/or deviate sexual activity with L.H., a minor under the age of fourteen. Thus, the State had to prove that L.H. was under fourteen years of age and that appellant engaged in sexual intercourse or deviate sexual activity with her. The fact that L.H. was under fourteen is undisputed and was not an issue at trial. The sole element that appellant could defend was whether he engaged in sexual intercourse or deviate sexual activity with L.H. Sexual intercourse is defined by our legislature as “penetration, however slight, of the labia majora by a penis.” Ark.Code Ann. § 5-14-101(11) (Repl.2018). Deviate sexual activity is defined by our legislature as “any act of sexual gratification involving, (A) the penetration, however slight, of the anus or mouth of a person by the penis of another; or (B) the penetration, however slight of the labia majora or anus of a person by any body member or a foreign instrument manipulated by another Inperson.” Ark.Code Ann. § 5-14-101(1). Simply put, the State alleged and had to prove that L.H. had been penetrated by appellant, and appellant was required to defend this allegation.
After the State rested, the trial court allowed it to amend the information by adding the charge of sexual assault in the second degree. Our legislature has stated that all forms of sexual assault in the second degree include the element of sexual contact. Ark.Code Ann. § 5-14-125 (Repl.2018). Sexual contact is defined by our legislature as “any act of sexual gratification involving the touching, directly or through the clothing, of the sex organs, buttocks, or anus of a person or the breast of a female.” Ark.Code Ann. § 5-14-101(10). This offense has no required element of penetration. The dissent is incorrect when it states that rape and sexual assault in the second degree are the same because they are both illegal acts of a sexual nature. Simply stated, the proposition that “sex is sex” is not supported by the definitions prescribed by our legislature. Appellant was put on notice that he had to defend against penetration, not touching; not until after the State had rested was he informed that he would have to defend against touching. This is clearly unfair surprise and a violation of the Due Process Clause.
The dissent cites Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982), to support the proposition that the State could amend the information from rape to sexual assault in the second degree without changing the nature of the offense. That reliance is misplaced, as the charges filed against the defendant in Jones did not change. In Jones, the defendant was charged with aggravated robbery and kidnapping. The information that charged him with kidnapping alleged that the defendant had unlawfully restrained the victim so as to interfere | ^substantially with her liberty for the purpose of engaging in sexual intercourse or deviate sexual activity. Id. The information was amended at the close of the State’s case to include, in the words of the statute, specifically, that the defendant proposed to engage in “sexual contact” with the victim. Id. Here the amendment changed only the manner in which the offense had been committed and did not change the nature of the offense charged. Id. In Jones, the idea that “sex is sex” is appropriate because the charge was kidnapping, and that charge remained in place. The amendment did not change the nature of the crime, that being the unlawful restraint of the victim. It changed only the intended purpose of that restraint, to engage in some type of sexual act. Therefore, it made no difference if the defendant’s purpose had been to penetrate the victim or to touch her for sexual gratification, it was still kidnapping.
Based on the original rape charge, appellant was on notice that he had to be concerned about defending the element of penetration, not whether he had touched the victim. Inexplicably, the State chose to rely on the testimony of a four year old in the presentation of its case, with no apparent contingency, plan should this young child not be qualified to testify, as was the ultimate decision of the trial court. Had appellant known that he would have to defend a completely different offense with the element of touching, it is clear that his defense strategy would have been different. Much of the evidence that appellant allowed to be introduced without objection under the rape charge would likely have been thoroughly scrutinized had appellant known that the charge would be amended to sexual assault in the second degree. In no way can that type of surprise be cured once the State has rested.
| i3What the trial court did by allowing the State to amend the information went beyond allowing it to reopen the case to supply a missing piece of evidence as to one of the elements of the rape charge. It allowed the State to side-step its duty to meet its burden of proof on each and every element of the offense charged, to substitute a wholly different offense with different elements, and to benefit from testimony already in the record that appellant was not prepared to defend against.
The Due Process Clause of the Fourteenth Amendment protects every citizen of this nation from being summarily arrested and convicted. It is one of the great strengths of our criminal justice system. It is not a technicality. As difficult as the holding in this case may be, it would be far worse to disregard the United States Constitution.