Aрpellant, Earl Baumgarner, was arrested December 30, 1991, and charged with the kidnapping and first degree battery of Brenda Dixon. He abducted the victim at knifepoint from a convenience store in Fisher, cut her, and caused her to suffer a broken kneecap. Appellant was convicted of both charges and, as a habitual offender, received consecutive sеntences of life imprisonment and forty years. We affirm the judgment of convictions.
Six of appellant’s seven assignments of error involve the denial of various motions made at trial. He does not question the sufficiency of the evidence, so we recite only the facts related to the motions. On March 31,1992, appellant filed a motion requesting a psychiatric examination. The trial court promptly ordered an examination. See Ark. Code Ann. § 5-2-305(a)(2) (Repl. 1993). Dr. Thomas Heissler, a forensic psychologist, went to the jail to conduct the examination, but appellant stated that he would not talk to him until he conferred with his attorney. Dr. Heissler could do nothing further and left without conducting the examination. Neither appellant nor his attorney made an effort to contact Dr. Heissler and let him know thát appellant was ready to proceed with the examination. On August 27, Dr. Heissler wrote the deputy prosecuting attorney that he had been unable to complete the examination.
The case was set for jury trial on November 23. A pre-trial hearing was held on November 16, 1992, and, at that time, appellant’s attorney stated that appellant had never been examined. The next day, November 17, another pre-trial hearing was held. Appellant’s sister testified that appellant was not competent to stand trial. The trial court ordered that a mental examination be conducted forthwith. Dr. Heissler returned to the jail and conducted a clinical interview, administered a Wechsler Adult Intelligence Scale-Revised test, rеviewed statements of the victim, a deputy sheriff, and a friend of appellant’s, and looked at appellant’s “rap sheet.” Shortly thereafter, Dr. Heissler told the deputy prosecu-' tor that his preliminary evaluation was that appellant was competent to stand trial and knew the difference between right and wrong at the time he committed the crimes. The deputy prosеcutor passed this information on to appellant’s attorney. Meanwhile, on November 18, yet another pre-trial hearing was conducted, this time to determine whether appellant should be granted a change of venue. The trial court denied the motion. At this same hearing the State sought, and was granted, permission to amend the information to allege that the kidnapping wаs done to “terrorize another” and to allege that appellant was a habitual offender.
By November 20, appellant’s attorney had not received a copy of Dr. Heissler’s written report, and he moved for a continuance on the ground that he had not received a copy of the report. Dr. Heissler called the deputy prosecutor on Novembеr 22 and told him the written report was completed. The deputy prosecutor drove to Dr. Heissler’s office in Wynne, got the report, drove back to Harrisburg, called appellant’s lawyer, and gave him a copy of the report at 6:00 that evening. The report was filed the next morning, the first day of appellant’s trial. Appellant again moved for a continuance, this time on the ground that he did not have adequate time to prepare his affirmative defense of lack of mental capacity. The trial court denied the motion.
Appellant’s first assignment is that the trial court erred in refusing to grant a continuance because the written psychiatric report was given to the defense attorney only fourteen hours before the trial began. The trial court’s ruling was based, in part, on facts stated by counsel in their argument on the motion, and those facts, along with the others shown by the pleadings, are as follows. As soon as appellant’s counsel mentioned the possibility of defense of mental disease the trial court ordered the examination. The forensic psychologist immediately attempted to conduct the examination, but was thwarted by the refusal of appellant to cooperate. This was on March 31. Appellant’s attorney did not notify the trial court that the examination had not been conducted until November 20, or just three days before the trial was set. When the trial court learned there had not been an examination, it ordered one conducted forthwith. The psychologist comрleted the examination the next day, and, by phone, told the deputy prosecutor the preliminary result. The deputy prosecutor immediately told appellant’s attorney of the preliminary report. The written report was received on November 22 and given to appellant’s attorney at 6 p.m. The written report conformed with the earlier preliminary statements thаt appellant was competent to stand trial. From this it is clear that, while the appellant’s attorney only received the written report fourteen hours before the trial commenced, he knew in advance what it would provide. In addition, the difficulties were caused by appellant’s refusal to submit to the tests at an earlier time and his failure to notify the trial court that the examination had not been conducted.
Appellant failed to exercise due diligence in obtaining the examination. Failure to exercise due diligence alone can be the basis to deny a motion for a continuance. Walls v. State,
Appellant’s next two assignments are that the court erred in allowing the State to amend the information to allege that he was a habitual offender and that the kidnapping was done to “terrorize another.” The habitual offender act is based on the concept that one who is a persistent offender warrants an increased punishment for the protection of the community. Finch v. State,
It is well settled that an information may be amended up to a point after a jury has been sworn if it does not change the nature of a crime, or create unfair surprise. See Kilgore v. State,
The sole question for the triаl court to resolve is whether the defendant is unfairly surprised by such an amendment. We addressed an argument similar to the one at bar in Kilgore, in which the appellant urged reversal because the State was allowed to amend on the day of the trial, charging him as a habitual offender, and he did not “fully know the charges against him until the day of the trial.”
Similarly, in Traylor v. State,
A similar situation exists in this case. There was ample evidence that appellant’s attorney knew he was a prior offender and that the attorney was not surprised by the amendment. At a pretrial hearing appellant’s sister testified that he had been incarcerated in Califоrnia on more than one occasion for various crimes, and appellant’s attorney acknowledged that the deputy prosecutor had given him a copy of appellant’s lengthy “rap sheet.” The deputy prosecutor previously stated that he would seek to amend the information if the certified copies of the convictions were received frоm the State of California before the trial commenced. In sum, there was no showing of unfair surprise by the amendment.
The trial court did not err in allowing the State to amend the charge of kidnapping to allege that it was done for the purpose of “terrorizing another.” An amendment may be made, with permission of the trial court, so long as it does not change the nature of the crimе charged or the degree of the crime charged. Ark. Code Ann. § 16-85-407 (1987); Prokos v. State,
Appellant additionally argues that the trial court erred in not grаnting a continuance after allowing the amendments, but since there was no surprise to appellant, there was no error in refusing to grant a continuance. Appellant contends that until the written report on competency was received, it was not necessary to prepare his defense of mental defect, and, by the time it was received, he needed morе time to secure witnesses for that affirmative defense. The argument is without foundation for either of two reasons. First, appellant did not exercise due diligence because he did not disclose that he planned to offer an affirmative defense even though he had been ordered to disclose the names of his witnesses. Sécond, while the court did not grant a continuance, it did grant a recess from November 24 until November 30, and, during that time, appellant employed Dr. William Wilkins, a neuropsychologist, who testified that appellant was unable to conform his behavior to the law. Thus, appellant has not shown any possible prejudice.
Appellant next contends that trial court erred in refusing to grant a change of venue. He testified that he is a distant relativе of an infamous convicted felon, and, because of the stigma attached to his name, it was impossible to assemble an impartial jury in Poinsett County. His motion was supported by affidavits of three disinterested residents of the county. However, the distant relative’s conviction was ten years earlier, and the witnesses did not state that they had a general knowledge of the state of mind of the county’s inhabitants, nor did they state that they were aware of prejudice throughout the county.
The defendant carries the burden of proof in showing that a court has abused its discretion in denying a change of venue. Gardner v. State,
We have also said that there is no error in refusing a change of venue if voir dire shows that an impartial jury has been selected. Perry v. State,
Appellant also contends the trial court erred in finding that he was mentally competent to stand trial. The trial court held a hearing on the matter, and Dr. Heissler testified that the Wechsler Adult Intelligence Scale-Revised test showed that appellant’s verbal intelligence quotient was 85 and that he had a good vocabulary. Based on this data, the interview of appellant, and other records, he concluded that appellant was able to understand the proceedings against him and was able to assist in his defense. Appellant put on the testimony of five lay witnesses who testified that appellant was not communicative, was withdrawn, and seemed to lack all emotion. Four of the lay witnesses, who were jail inmates, testified that he was “not right in the head.” The fifth witness, his sister, testified that he did not remember committing the crimes. The trial court concluded that appellant was competent to stand trial.
The test of competency to stand trial is whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational, as well as factual, understanding of the proceedings against him. Lipscomb v. State,
Appellant next argues that the trial court erred in refusing to direct a verdict for him on his affirmative defense of lack of mental capacity. The State proved the elements of both crimes. After the State met its burden of proving the elements of an offense beyond a reasonable doubt, the burden shifted to the defendant to prove the affirmative defense by a preponderance of the evidence. Mask,
To succeed on his affirmative dеfense, appellant had to show by a preponderance of the evidence that, at the time of the kidnapping and battery, “he lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of the law or to appreciate the criminality of his conduct.” Ark. Code Ann. § 5-2-312(a) (Repl. 1993). In his attempt to meet this burden, аppellant presented testimony from three fellow inmates, his sister, and Dr. William E. Wilkins, a neuropsychologist. The inmates each testified that they had concluded, upon observing appellant’s behavior while they were in jail with him, that he did not know right from wrong, and that something was “bad wrong” with him. His sister, Ms. Runyon, testified that, based on her observations of her brother’s noncommunicative and depressed behaviоr around the time of the crime, she believed he lacked capacity to obey the law. Dr. Wilkins, who had examined appellant during the time of the trial, testified that, although appellant knew right from wrong, it was his opinion that he was unable to control his behavior. He had concluded that appellant had some brain damage and an organic personality disorder, which, when coupled with the long-term effects of alcohol abuse, rendered appellant unable to conform his behavior to the law.
In rebuttal, the State presented testimony from Dr. Thomas Heissler, the forensic psychologist who had examined appellant in jail. Dr. Heissler disagreed with Dr. Wilkins that appellant had brain damage. He concluded that the actions, statements, and test results supported a finding of mental capacity to obey the law.
As is obvious, the above-recited testimony was disputed. Therefore, the trial court did not err in submitting it to the jury, and there was substantial evidence to support the jury’s decision that appellant was not mentally incompetent at the time of the kidnapping and battery. Traylor v. State,
Appellant’s final argument is that the convictions should be reversed because of cumulative error. We summarily dismiss the argument because there was no such motion made at the trial level. Even if such motion were made, we have said that we will entertain the argument of cumulative error only in rare and egregious cases. Vick v. State,
Because of the sentence in this case, an examination of the record has been made in conformity with Rule 4-3 (h) of the Rules of the Supreme Court, and we find no reversible error on other rulings that were adverse to appellant.