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ARKANSAS COURT OF APPEALS DIVISION III No. CR-23-131

JASON ADKINS Opinion Delivered March 13, 2024 APPELLANT APPEAL FROM THE WASHINGTON V. COUNTY CIRCUIT COURT [NO. 72CR-20-282] STATE OF ARKANSAS HONORABLE MARK LINDSAY, APPELLEE JUDGE

AFFIRMED

MIKE MURPHY, Judge

Appellant Jason Adkins was convicted of four counts of first-degree sexual assault in

the Washington County Circuit Court. He was sentenced to twenty years’ imprisonment for

each of the four counts, totaling eighty consecutive years. On appeal, he argues that the trial

court erred by denying his motion for continuance and allowing the State to amend the

information from rape to first-degree sexual assault six days before trial. We affirm.

Only a brief procedural history is necessary. On February 3, 2020, the State filed a

criminal information charging Adkins with one count of rape, pursuant to Arkansas Code

Annotated section 5-14-103(a)(4)(A)(i) (Supp. 2023). That specific subsection charged

Adkins with engaging in sexual intercourse or deviate sexual activity with M.C. while he was

her guardian. Adkins was married to M.C.’s mother from 2011 to 2018. M.C. asserted that Adkins had raped her multiple times while she was between the ages of fourteen and

seventeen.

On April 28, 2022, an amended felony information was filed charging Adkins with

six counts of rape. On May 5, the State filed a second amended information charging Adkins

with two counts of rape and four counts of first-degree sexual assault in violation of Arkansas

Code Ann section 5-14-124(a)(1)(D) (Supp. 2023 (effective until Jan. 1, 2024)). That specific

subdivision states that the defendant engaged in sexual intercourse or deviate sexual activity

with another person who was a minor and he was in a position of trust or authority over the

minor.

That same day Adkins moved to strike the information or, alternatively, for a

continuance, arguing that the amended information filed less than a week before trial failed

to provide him with adequate notice to properly mount a defense. In response, the State

asserted that it amended the charges after Adkins divorced M.C.’s mother and moved out of

the residence, which changed the nature of the relationship. The State argued this was a fact

known to the defense since the pendency of the case. The court denied the motion, and the

case proceeded to trial on May 11, 2022.

Adkins was acquitted on the two counts of rape but was found guilty of the four

counts of first-degree sexual assault. He now appeals. On appeal, Adkins argues that the court

abused its discretion by denying his motion to strike or, alternatively, for a continuance

because he suffered unfair surprise and prejudice by the amendment of the criminal

information six days prior to trial.

2 A circuit court shall grant a continuance only upon a showing of good cause and only

for as long as is necessary, taking into account not only the request or consent of the

prosecuting attorney or defense counsel, but also the public interest in prompt disposition

of the case. Ark. R. Crim. P. 27.3 (2011). The standard of review for alleged error resulting

from the denial of a motion for continuance is abuse of discretion. Green v. State,

,

. Absent a showing of prejudice by the defendant, we will not

reverse the decision of the circuit court.

When a motion to continue is based on a lack of

time to prepare, we will consider the totality of the circumstances.

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. 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 makes no convincing argument that he was prejudiced or surprised, and our

review of the record confirms that there is no prejudice or surprise in this case. Here, both

“rape” and “first degree sexual assault” are found within the chapter setting out sex offenses.

Both before and after the amendment, Adkins was charged with engaging in “sexual

intercourse or deviate sexual activity.” While first-degree sexual assault is not a lesser included

offense of rape, the only variation was that the rape counts required proof that Adkins was

M.C.’s guardian, and the sexual-assault charges only demanded proof that he fell in the

3 broader category of “position of trust or authority” over M.C. Additionally, rape is a Class Y

felony, which carries with it a possibility of a life sentence, while first-degree sexual assault is

a Class A felony, which carries a lesser sentence of up to thirty years.

-

401(a)(1), (2) (Repl. 2013) (sentences for Class Y and Class A felonies);

-

14-103(c)(1) (classifying rape);

(d) (classifying sexual assault).

Given that the probable-cause affidavit discussed multiple sexual encounters and Adkins

knew his relationship with M.C., it is difficult to imagine how Adkins would be surprised.

The sort of amendment that creates prejudice was discussed in Martinez v. State,

,

. Martinez was charged with rape under Arkansas Code

Annotated section 5-14-103(a)(3)(A) (Supp. 2011), which provides that a person commits

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 penetration.

. Martinez was tried to a jury,

and the trial court allowed the State to amend the charge to sexual assault in the second

degree 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 court erred in reducing the charge to be submitted to the jury after the State

had rested and not proved the essential element of penetration that differentiated the two

4 charges. We reasoned that the amendment changed the nature of the offense charged and

resulted in unfair surprise because Martinez was on notice to defend against a charge that

included only the element of penetration.

Unlike the amendment in Martinez, the amendment in the case at bar occurred six

days before trial, and the common element was the action of whether he engaged in “sexual

intercourse or deviate sexual activity.” Additionally, the relationship aspect effectively

remained unchanged because, even after the divorce, M.C. and Adkins had remained close.

Further, the amendment did not impair Adkins in putting on his defense since he

generally denied all the allegations. On appeal, he fails to articulate how his defense would

have changed or how it was affected.

Consider Green v. State,

,

. In Green, the day before trial,

the court found no prejudice in allowing the State to amend the charges from rape with a

victim under fourteen to rape by forcible compulsion. On appeal, the appellant argued that

he was prejudiced by the late amendment because it did not give him enough time to prepare

his defense—specifically, whether he would testify in his own defense to refute the additional

element of “forcible compulsion.” In affirming the conviction, the supreme court found “it

highly unlikely that [the appellant] would have chosen to defend himself by testifying that

the victim, a seven-year-old girl, consented to engaging in sexual acts with him.”

, at 5–6,

. Similarly, Adkins could not articulate a defense strategy,

considering the major factual allegations remained unchanged.

5 Moreover, Adkins cannot demonstrate he was prejudiced by the denial of his

continuance request because he did not receive the maximum sentence. A sexual-assault

charge carries a sentencing range of six to thirty years’ imprisonment. The jury sentenced

Adkins to twenty years on each count, eighty years in total. The circuit court ordered that

these terms run consecutively. A defendant who receives a sentence within the statutory

range, short of the maximum sentence, cannot show prejudice from the sentence itself. Ward

v. State,

,

(2007).

Under these facts, we cannot say Adkins was unfairly surprised or prejudiced by the

amendment. Accordingly, it was not reversible error for the court to allow the State to add

the charges of first-degree sexual assault and deny his motion for a continuance.

Affirmed.

HARRISON, C.J., and WOOD, J., agree.

Graves Law Firm, by: Josie N. Graves, for appellant.

Tim Griffin, Att’y Gen., by: A. Evangeline Bacon, Ass’t Att’y Gen., for appellee.

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