{
  "id": 298635,
  "name": "Sophocles LOVETT v. STATE of Arkansas",
  "name_abbreviation": "Lovett v. State",
  "decision_date": "1997-10-02",
  "docket_number": "CR 97-436",
  "first_page": "33",
  "last_page": "37",
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      "cite": "330 Ark. 33"
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      "cite": "952 S.W.2d 644"
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      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
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          "page": "(a)(2)(c)"
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    {
      "cite": "328 Ark. 442",
      "category": "reporters:state",
      "reporter": "Ark.",
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        50426
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      "year": 1997,
      "opinion_index": 0,
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        "/ark/328/0442-01"
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    {
      "cite": "329 Ark. 261",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        236208
      ],
      "weight": 2,
      "year": 1997,
      "opinion_index": 0,
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        "/ark/329/0261-01"
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  "last_updated": "2023-07-14T16:33:54.141445+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Sophocles LOVETT v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Tom Glaze, Justice.\nAppellant Sophocles Lovett by information was charged with the crimes of aggravated assault, second-degree battery, and with being a felon in possession of a firearm. He was convicted of all charges, and received respective sentences of fifteen years, fifteen years, and forty years to run concurrently. Sophocles testified in his own defense at trial, but on appeal, he does not challenge the sufficiency of the evidence. Instead, he argues only that the trial court erred by (1) allowing the State to amend its information the day before trial, and (2) denying him a continuance to permit his defense counsel more time to prepare for trial. We affirm.\nBefore addressing Sophocles\u2019s first point, a brief summary of the facts leading to his charges is necessary. The State\u2019s case showed that, on May 8, 1995, Deborah Williams had a medical appointment for her son in Pine Bluff, and asked her cousin, Patrece Gregory, to go with her. Patrece had been staying at Deborah\u2019s house in Fordyce to get away from Sophocles, who was Patrece\u2019s boyfriend. Sophocles saw Deborah and Patrece in a car driving to Pine Bluff and he followed them to the- parking lot at Deborah\u2019s doctor\u2019s office. After Deborah went into the office, Patrece remained outside and talked with Sophocles. Sophocles accused Patrece and her family members of having taken $10,000.00 of his money! An altercation ensued, and Sophocles struck Patrece in the head with a handgun, causing her serious injury. Patrece, bleeding from the head, ran into the doctor\u2019s office with Sophocles in pursuit. She ran to Deborah, screaming, \u201cHe is trying to kill me,\u201d and Sophocles, among other things, was heard saying, \u201cI\u2019m not going to put up with this anymore.\u201d Sophocles pulled his gun, told Deborah \u201cthis\u201d was her fault, and he was going to kill Deborah. He pointed the gun at Deborah\u2019s head and pulled its trigger four times. Although loaded, the gun misfired. Several witnesses who were present in the doctor\u2019s office testified they had seen Sophocles beat Patrece with a gun, and had observed blood flowing from her head.\nAs a result of the foregoing events, the State filed its information three days afterwards, on May 11, 1995, and charged Sophocles with the following three crimes:\nCount 1: Aggravated Assault \u2022 \u2014 \u2022 under circumstances manifesting extreme indifference to the value of human life, purposely engaged in conduct that created a substantial danger of death or serious physical injury to Debra (sic) Williams.\nCount 2: Battery in Second Degree \u2014 with the purpose of causing physical injury to another person, cause physical injury to Debra (sic) Williams by means of a deadly weapon.\nCount 3: Felon in Possession of a Firearm \u2014 having been previously convicted of a felony, possess a firearm, to-wit: .38 caliber revolver.\nApparently, on the day before trial, September 4, 1996, the State learned it had mistakenly named Deborah Williams instead of Patrece Gregory as the victim in count 2, and it requested the trial court to allow the State to correct its mistake by amending the information. The trial court granted the State\u2019s request. The next day, before trial, Sophocles moved to strike the State\u2019s amended information; alternatively, he asked for a continuance.\nIn support of his motion to strike the State\u2019s amended information, Sophocles argued the amended charge would require \u201can entire change in [his] defense, and that change would cause great prejudice to the defense.\u201d The State rejoined that the requested amendment was consistent with the investigative material and was not a surprise to the defense. It added that both Patrece and Deborah had been called as witnesses to testify concerning what had transpired on May 8, 1995, the day of the alleged crimes.\nIn denying Sophocles\u2019s motions, the trial judge made a point of Sophocles\u2019s having failed to help his counsel in preparing for trial, even though the trial court had previously warned Sophocles that his case was about \u201cto get stale,\u201d since he had received earlier continuances. The judge also emphasized that Sophocles had made no efforts to contact his counsel to discuss his case or to prepare for trial. In fact, even though counsel tried to reach Sophocles at his last known residence and by contacting family members, the trial judge observed that Sophocles never made any attempt to contact or see his attorney until the morning of trial.\nWe hold the trial court correctly denied Sophocles\u2019s motions. While defense counsel on appeal claims the State\u2019s amended information changed the nature of the crime and prejudiced him, he fails to show how. First, we would note that Sophocles failed to specify at trial that the nature of the second-degree battery crime had been changed by the State\u2019s motion; but even if he had, he still never indicated how the change prejudiced his defense.\nThe court has held that an amendment of an information will be allowed by a court during trial so long as the nature and degree of the crime is not changed and the defendant is not prejudiced through surprise. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997). Here, the defense counsel\u2019s statements made in support of his motion to strike were conclusory, stating that he had not talked to Patrece concerning the amended information, that his entire defense had been changed by the amendment, and that he had been caused great prejudice by the change. As pointed out by the State, Sophocles\u2019s remarks ignored ,the fact that Patrece, Deborah, and other witnesses who had been involved or had seen the events of May 8, 1995, were known to Sophocles. They had been called and were present to testify on the date of trial. He had sixteen months to talk to Patrece and the other witnesses to learn what their stories would be at trial. In fact, Sophocles was living with Patrece at the time of trial. Moreover, Sophocles never suggested other witnesses or evidence that might be warranted as a result of the State\u2019s amendment. Undoubtedly, Sophocles could express little surprise in the State naming Patrece as the victim who was battered since he was well aware that Patrece was the one he had physically injured, not Deborah. In sum, Sophocles\u2019s argument falls short of showing he has sustained any surprise or prejudice.\nIn conclusion, we believe if Sophocles suffered any prejudice in presenting a defense, it was of his own doing. Again, Sophocles through his own actions was unavailable for four months prior to trial, making it impossible for his counsel to prepare his defense. He had had a number of continuances, and the trial court had every right to believe Sophocles was trying to stall. The decision to grant or deny a motion to continue is within the sound discretion of the trial court, and such a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997). The trial court was well within its discretion to deny Sophocles\u2019s continuance request in the circumstances found here.\nNo one but Deborah witnessed Sophocles\u2019s pointing his gun at Deborah, but an officer testified Sophocles admitted he \u201cpointed the gun at the two women below [their] waist.\u201d\nWe note that the General Assembly has enacted a statute, Ark. Code Ann. \u00a7 16-85-405(a)(2)(c) (1987) that purports to permit such amendment as the one here. Because Sophocles was not surprised or prejudiced by the State\u2019s amendment in this case, we need not rely on it here to sustain the trial judge\u2019s ruling. Nonetheless, that provision provides as follows:\n(c) Where an offense involves the commission of or an attempt to commit an injury to person or property and is described in other respects with sufficient certainty to identify the act, then an erroneous allegation as to the person injured, or attempted to be injured is not material. (Emphasis added.)\nSee Sutton v. State, 163 Ark. 468, 260 S.W.403 (1924).",
        "type": "majority",
        "author": "Tom Glaze, Justice."
      }
    ],
    "attorneys": [
      "Bramblett & Pratt, by: James M. Pratt, Jr., for appellant.",
      "Winston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Sophocles LOVETT v. STATE of Arkansas\nCR 97-436\n952 S.W.2d 644\nSupreme Court of Arkansas\nOpinion delivered October 2, 1997\nBramblett & Pratt, by: James M. Pratt, Jr., for appellant.\nWinston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0033-01",
  "first_page_order": 61,
  "last_page_order": 65
}