                                 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


            1
                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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