dissenting.
| uThe majority reverses a sexual-assault conviction on the basis that the circuit court erred by allowing the State to amend the information from rape to sexual assault, second degree, following the State resting its case. As the majority notes, the State can amend the information at any time prior to the case being submitted to the jury so long as the amendment does not change the nature or degree of the offense or create unfair surprise. Hill v. State, 370 Ark. 102, 257 S.W.3d 534 (2007). In my view, the State was permitted to amend because the amendment did not change the nature of the charge and did not create unfair surprise.
First, adding a charge of sexual-assault in the second degree to an existing rape charge does not change the nature of the charge. There is no precedent in case law that defines “nature” in this context. According to Black’s Law Dictionary, “nature” is the “fundamental quality that distinguished one thing from another; the essence of something.” Black’s Law Dictionary 1056 (8th ed.2004). The essence of a rape charge and a sexual-assault charge are the same — they are both illegal acts of a sexual nature. Further, in this instance, both involved sex crimes perpetrated by an adult on a minor child.
When considering the nature of the charge, our supreme court has distinguished between the manner the crime was committed and the nature of the crime itself. In Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982), the court permitted the State to amend a kidnapping charge from one that required proof that the victim was restrained for the purpose of “engaging in sexual intercourse or deviate sexual activity” to one with the purpose of engaging in “sexual contact” with the victim. The court held that the amendment changed only the manner in which the alleged offense was committed and did 11finot change the nature of the offense charged. As in Jones, this amendment altered the element requiring proof of “sexual intercourse or deviate sexual activity” (rape) to “sexual contact” (sexual assault), which only changed the manner in which the appellant had inappropriate sexual contact with his minor granddaughter. The amendment did not change the nature of the act.
In addition, there are a multitude of cases where our supreme court has allowed amendments where the nature of the charge changed more dramatically than in the present case. See, e.g., Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999) (allowing an amendment of aggravated robbery to a capital-murder charge); Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006) (affirming the amendment adding accomplice language); DeAsis v. State, 360 Ark. 286, 200 S.W.3d 911 (2005) (affirming the amendment adding the charge of arson to a capital-murder charge).
Despite the above eases, the majority cites Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982), to support its contention that the amendment changed the nature of the crime. In Harmon, the original charge was capital felony murder. The court reversed a decision allowing the State to amend the underlying felony from kidnapping to robbery. The court noted that it could not support that a defendant was being sentenced to death on a charge added the morning of trial. This is noticeably different from our current case: kidnapping and robbery are two vastly different crimes compared with rape and sexual assault.
Second, the amendment did not create unfair surprise. The majority contends that it was too late in the proceeding to amend because the State had already rested; however, |1(ithe law permits amendments up until the point that the case is submitted to the trier of fact. See Hill, supra. The past cases dealing with the issue of unfair surprise have concentrated on determining whether the evidence presented and the factual allegations related to the amended charge would have surprised the defendant with less focus on the timing of the amendment. See, e.g., DeAs-is, supra (affirming the amendment adding the charge of arson to a capital-murder charge when the record clearly referenced a fire); Stewart, supra (allowing an amendment of aggravated robbery to a capital-murder charge when the original information clearly set out facts supporting the charge).
Likewise, the allegations here were not new to appellant. The very first pleading in the file is the “Facts Constituting Probable Cause.” It contains the allegation and the facts presented at trial supporting appellant’s conviction of sexual assault. Appellant cannot in good conscience claim surprise that he would have to defend the allegation that he had sexual contact with L.H. when that was the allegation from the start of the case. There was no new evidence presented at trial to surprise appellant; rather, there was only the absence of an element supporting the charge of rape.
To conclude, the circuit court did not err by allowing the State to amend the charges in this case. Our supreme court has held that the purpose for allowing such amendments is to “simplify] procedure and eliminate some technical defenses by which an accused might escape punishment.” State v. Brown, 283 Ark. 304, 306, 675 S.W.2d 822, 824 (1984). The majority’s decision allows appellant to go free on a dubious “technical defense.” Id. This is precisely the type of case where an amendment is appropriate. Therefore, I dissent.
GRUBER, J., joins.