Martinez v. State, 432 S.W.3d 689

Appellant Juan Martinez was charged by information with rape of his 4‑year‑old stepgranddaughter (penetration element required); bench trial held after defendant waived jury.
State presented testimony from the child’s mother, two detectives, and crime‑lab witnesses establishing the child reported touching, observed bleeding, and that semen/DNA consistent with appellant was found on rectal swabs and underwear; the child was found incompetent to testify and State rested.
After the State rested and defense moved to dismiss for lack of proof of penetration, the prosecutor moved to amend the information to add second‑degree sexual assault (sexual contact; no penetration element); the trial court allowed the amendment over defense objection for unfair surprise and change in nature/degree.
The court dismissed the rape count but denied dismissal of the added second‑degree sexual‑assault count; appellant declined to testify (invoked Fifth Amendment) and was convicted and sentenced to 20 years (max for Class B).
On appeal the court held the post‑rest amendment impermissibly changed the nature of the charged offense and unfairly surprised and prejudiced appellant; conviction reversed and dismissed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Martinez)	Held
Whether the State could amend the information after resting to add second‑degree sexual assault	Amendment merely altered the manner of the alleged sexual offense and conformed to proof; no surprise because facts were in the probable‑cause affidavit	Amendment changed the nature/required elements (penetration vs. contact) and was unfair surprise; defense prepared to contest penetration	Court: amendment impermissible; changed nature and unfairly surprised defendant — reversal and dismissal
Whether defendant showed prejudice from the late amendment	No undue prejudice because operative facts were known and amendment was within scope of proof	Prejudice shown: defense strategy focused on contesting penetration; amendment came only after State rested and caused defendant to invoke Fifth Amendment	Court: prejudice shown due to timing and element differences — contributed to reversal

Green v. State, 386 S.W.3d 413 (Ark. 2012) (amendment that changes manner but not nature may be permissible)
Phavixay v. State, 352 S.W.3d 311 (Ark. 2009) (statutory rule on when informations may be amended)
Hill v. State, 257 S.W.3d 534 (Ark. 2007) (defendant must show unfair surprise/prejudice from amendment)
Harmon v. State, 641 S.W.2d 21 (Ark. 1982) (amendment changing underlying felony supporting capital charge reversed for lack of notice)
Jones v. State, 627 S.W.2d 6 (Ark. 1982) (amendment changing manner of purpose in kidnapping charge did not change nature of kidnapping)
Stewart v. State, 999 S.W.2d 684 (Ark. 1999) (amendments to more serious charge upheld where original information supported it)
DeAsis v. State, 200 S.W.3d 911 (Ark. 2005) (post‑rest amendment affirmed where record supported added charge)
Flanagan v. State, 243 S.W.3d 866 (Ark. 2006) (amendment adding accomplice language affirmed)
Patterson v. New York, 432 U.S. 197 (U.S. 1977) (due‑process principles require prosecution to prove each element beyond reasonable doubt)
Mullaney v. Wilbur, 421 U.S. 684 (U.S. 1975) (due process requires prosecution’s proof of elements)
Schad v. Arizona, 501 U.S. 624 (U.S. 1991) (discussion of elements and notice principles under Due Process)
Speiser v. Randall, 357 U.S. 513 (U.S. 1958) (fundamental right to notice of the charge)