Harold Truax v. State of Arkansas

2022 Ark. App. 164

• Court: Court of Appeals of Arkansas
• Decided: April 13, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 164 ARKANSAS COURT OF APPEALS DIVISION II No. CR-21-519

Opinion Delivered April 13, 2022

HAROLD TRUAX APPEAL FROM THE OUACHITA APPELLANT COUNTY CIRCUIT COURT [NO. 52CR-20-37] V. HONORABLE ROBIN J. CARROLL, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED

PHILLIP T. WHITEAKER, Judge

Harold Truax appeals his Ouachita County Circuit Court conviction of first-degree

terroristic threatening, claiming that the trial court erred in allowing the State to amend the

charging information at the close of the evidence. We find no error and affirm.

Truax was originally charged with aggravated assault resulting from an incident with

his neighbor, Sara Robinson Medina. The incident occurred in January 2020, when Truax

yelled racial slurs at Medina and tried to run over her adult son, Charles Washington, with

his vehicle. Truax proceeded to a bench trial on June 25, 2021. 1 Approximately one week

before trial, the State amended the criminal information to add a charge of harassment.

At trial, the court heard from only two witnesses—Medina and Truax. A summary of

their testimony reflects that on the morning of the incident, Medina was outside feeding her

1 The trial delay was the result of several COVID-19 pandemic continuances. cats when Truax yelled a racial slur at her. Upset, she yelled back at him, and a verbal

altercation occurred. Truax got into his mother’s car and drove away.

Hearing the exchange, Medina’s neighbor, Willie Adair, and her son, Charles

Washington, walked over to speak with her. While the three of them were talking, Truax

returned, and Washington flipped him off. When Washington flipped off Truax, Truax

swerved and drove toward them at a high rate of speed. Medina pushed Washington out of

the way and stepped in front of him so he would not be hit by Truax’s vehicle. Although

Truax stopped the vehicle before hitting anyone, Medina claimed that she had been afraid

for her life and her son’s life. Truax denied he had a verbal altercation with Medina, 2 denied

swerving toward them, and denied terrorizing or threatening anyone.

At the conclusion of the testimony, the State moved to amend the information to

replace the aggravated-assault charge with a charge of first-degree terroristic threatening.

Defense counsel objected claiming surprise and trial by ambush. The trial court allowed the

amendment over defense counsel’s objections; found Truax guilty of terroristic threatening;

and sentenced him to two years in a community correction center. Truax was acquitted on

the charge of harassment.

On appeal, Truax argues that the trial court erred in allowing the State to amend the

charging information at the close of the evidence. To address this argument, we set forth

how the issue arose during the proceeding.

2 Truax claimed the verbal altercation that morning was with Adair, not Medina.

2 During the cross-examination of Medina, the trial court requested that counsel

approach and stated:

This is terroristic threatening. It’s not aggravated assault. I mean, it’s like pulling a gun on somebody and making them fear that they were going to shoot them and so is pulling a car up to somebody. . . . He got charged the wrong way.

During a lengthy colloquy, the State attempted to argue that Truax’s actions did not

constitute terroristic threatening, but the court insisted that the proper charge was terroristic

threatening, not aggravated assault. The circuit court explained, “I hate to acquit him on

something that’s [sic] he . . . didn’t really do. . . . I’d be happy to find him guilty of the thing

that he did do.”

Upon completion of the evidence, the State moved to amend the aggravated-assault

charge to first-degree terroristic threatening, and the court allowed the amendment over

defense counsel’s objection. Truax claims that the trial court erred in allowing the State to

amend the charges because the State’s amendment added the element of “terrorizing,” that

this added element is not present in the aggravated-assault statute, and that he was then

forced to defend an added element with no preparation time—thereby surprising the defense.

His argument fails.

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. Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006);

DeAsis v. State, 360 Ark. 286, 200 S.W.3d 911 (2005); Stewart v. State, 338 Ark. 608, 999

S.W.2d 684 (1999). We conclude it did not.

3 Here, the amendment did not change the nature of the offense charged. The facts,

the witnesses, and the evidence for the new charge of first-degree terroristic threatening were

identical to the original charge of aggravated assault. Nor did the amendment change the

degree of the offense charged. Both crimes are Class D felonies. Further, the amendment

did not create unfair surprise. Truax’s defense never changed, as he denied intentionally

swerving toward Medina with his vehicle in order to terrorize or assault her.

Admittedly, Truax argued below that the amendment was surprise and trial by

ambush. He, however, did not argue insufficient time to prepare an adequate defense due

to the amendment; nor did he seek a continuance. An appellant must show he was

prejudiced by the amendment in order to prevail, see Hill v. State, 370 Ark. 102, 257 S.W.3d

534, 537 (2007), and we have previously held that we will not presume prejudice when a

defendant fails to move for a continuance. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566

(1991); Harrison v. State, 287 Ark. 102, 696 S.W.2d 501 (1985); Wilson v. State, 286 Ark. 430,

692 S.W.2d 620 (1985). Thus, Truax cannot show prejudice from the court’s decision to

allow the amendment.

Affirmed.

HARRISON, C.J., and BARRETT, J., agree.

Potts Law Office, by: Gary W. Potts, for appellant.

Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.