Cite as

ARKANSAS COURT OF APPEALS DIVISION II No. CR-24-293

DAION MOREHEAD APPELLANT Opinion Delivered December 11, 2024

V. APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-21-860]

STATE OF ARKANSAS HONORABLE RALPH C. OHM, APPELLEE JUDGE

AFFIRMED

MIKE MURPHY, Judge A Garland County Circuit Court jury found appellant Daion Morehead guilty of two

counts of rape and two counts of second-degree sexual assault. Morehead was sentenced to

thirty years on each rape conviction, to be served consecutively; and twenty years on each

sexual-assault conviction, to be served concurrently with the other sentences, for a total of

sixty years’ imprisonment. In challenging his conviction on appeal, Morehead contends the

trial court erred in allowing the State to file an amended information two business days

before trial and in allowing the introduction of photographs found on Morehead’s phone

that were in the possession of the State for more than two years but were not produced until

two business days before trial. We affirm. Morehead was arrested on October 7, 2021, and charged with separate incidents of

raping two children: M.C.1, who was eight years old at the time, and M.C.2, who was ten.

The incidents were alleged to have happened between October 2020 and October 2021.

Originally filed as separate cases, the rape charges were joined for a jury trial.

On January 5, 2024, two business days before trial, the State amended the

information to add a count of second-degree sexual assault as to each minor victim.

Morehead moved to quash the amended information on the basis that it was unfair because

it was untimely. He alleged the State was aware of the evidence supporting the charges but

had waited two years to file the amended information just prior to trial. In the alternative,

he moved to sever the new counts.

During a pretrial hearing on the morning of trial, the prosecuting attorney argued

that the State had the right to amend the information. The State contended that the new

charges stemmed from the same facts and that Morehead could not claim surprise because

the original probable-cause affidavits and 2021 victim interviews had disclosed this

information. The trial court permitted the State to proceed to trial on the amended charges

and denied the motion to sever.

Morehead also filed a pretrial motion to exclude a collection of photographs from a

police “phone dump” of his cell phone, which was mostly screenshots of young boys in

swimsuits. In his pretrial motion, Morehead asserted that there was nothing sexual or

otherwise improper depicted in the photographs, which, he claimed, were all comparable to

photographs from mainstream publications and advertising. Pursuant to Arkansas Rules of

2 Evidence 401 and 403, Morehead argued lack of relevance and a prejudicial impact that far

outweighed any probative value as well as impermissible character evidence under Arkansas

Rule of Evidence 404. The trial court excluded the State’s use of the photographs during the

guilt phase of the trial while reserving its ruling regarding their admissibility for purposes of

sentencing.

Following the guilt phase of the trial, the jury found Morehead guilty on all counts.

During the sentencing phase, the State sought again to present the photographs obtained

from Morehead’s phone. The court admitted the photographs over Morehead’s renewed

objection that the photographs were inadmissible character evidence. Morehead now timely

appeals.

I. Amended Information

The State is entitled to amend an information at any time prior to the case being

submitted to the jury as long as the amendment does not change the nature or the degree of

the offense charged or create an unfair surprise.

(b) (Repl. 2005);

Carter v. State,

,

. Even if there is a change in the

nature or degree of the offense, this court will analyze whether there was adequate notice

and whether the defendant was prejudiced. Adkins v. State,

,

, 601.

Morehead was charged with rape in violation of Arkansas Code Annotated section 5-

14-103(a)(3) (Supp. 2023) and second-degree sexual assault in violation of Arkansas Code

Annotated section 5-14-125 (Supp. 2023). Section 5-14-103 provides that a person commits

3 rape if he engages in sexual intercourse or deviate sexual activity with another person who is

less than fourteen years of age. By definition, both “sexual intercourse” and “deviate sexual

activity” require the element of penetration.

(Supp. 2023).

Section 5-14-125 states that a person commits second-degree sexual assault if the person,

being eighteen years of age or older, engages in sexual contact with another person who is

less than fourteen years of age. “Sexual contact” means an act of sexual gratification involving

the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person

or the breast of a female.

.

Morehead argues that he was unfairly surprised by the amendment because his entire

trial strategy was to defend on the basis of lack of penetration, which was an element of the

rape charge but not of the sexual-assault charge. Morehead compares his case to Martinez v.

State,

,

.

In Martinez, Martinez was similarly charged with rape of another person who was less

than fourteen. Martinez was tried by a jury, and the trial court allowed the State to amend

the charge to second-degree sexual assault after it had put on all of its proof but had failed

to prove penetration. The sexual-assault statute to which the court reduced the charge

required only sexual contact (excluding penetration) with a victim under the age of fourteen.

In Martinez, the common element of the two charges was the age of the victim, which

was not in dispute. The only issue in dispute was whether penetration had occurred. We

held that the amendment changed the nature of the offense charged because the elements

of the crimes were different, and appellant essentially had to defend a different charge.

4 Additionally, we held that the court erred in reducing the charge after the State had rested

and not proved the essential element of penetration that differentiated the two charges. We

reasoned that this resulted in an unfair surprise to Martinez.

Turning to the facts at hand, the common element was also the age of the victim. As

in Martinez, the amendment changed the nature of the offense charged because the issue in

dispute is whether penetration occurred. However, Martinez is distinguishable because

Morehead was not unfairly surprised. Here, the State did not amend in an effort to remedy

any deficiency in the proof. Instead, the State amended prior to trial because it had the

evidence to prove all the counts alleged. The rapes and the sexual assaults arose from a

common set of facts, and both were discussed in the probable-cause affidavit. Instead, these

facts are more akin to those in

In Adkins, we held, among other things, that

the appellant could not show surprise or prejudice from an amendment made a few days

before trial when the probable-cause affidavit discussed multiple sexual encounters, and the

major factual allegations remained unchanged.

Nor was Morehead prejudiced from the amendment. We will not reverse a conviction

in the absence of some showing of prejudice. See Curl v. State,

,

. Morehead did not move for a continuance and has not argued that he did

not have adequate time to prepare due to the amendment. Prejudice will not be presumed

when a defendant fails to move for a continuance or claims surprise after the defendant is

put on notice that the State plans to amend an information. Hoover v. State,

,

429–30,

.

5 Accordingly, even though there was a change in the nature of the offense, under these

facts, Morehead cannot establish he was unfairly surprised or prejudiced by the amendment.

It was not reversible error for the court to allow the State to add the charges.

II. Photographs

Morehead claims that the trial court erred by refusing to exclude the photographs of

young boys from his phone, which he contends was an unfair surprise and a discovery

violation because the photos were in the State’s possession and were not produced until two

business days before trial. This argument is not preserved for our review. Not once prior to

or during trial did Morehead object to the photos’ admission because of when they were

provided to him. Instead, his arguments below focused on their relevancy, prejudicial effect,

and probative value. Objections to discovery violations must be made at the first opportunity

in order to preserve them for appeal. Barrow v. State,

,

. Because Morehead did not object to the alleged discovery violation at his first

opportunity, his argument is procedurally barred.

Affirmed.

WOOD and BROWN, JJ., agree.

Rebekah J. Kennedy, for appellant.

Tim Griffin, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.

6