Renfro v. State, CR

• Decision Date: 29 January 1998
• Docket Number: No. CR,CR
• Citation: 331 Ark. 253,962 S.W.2d 745
• Parties: Ray RENFRO, Appellant, v. STATE of Arkansas, Appellee. 97-547.
• Court: Arkansas Supreme Court

Page 745

962 S.W.2d 745

331 Ark. 253

Ray RENFRO, Appellant, v. STATE of Arkansas, Appellee.

No. CR 97-547.

Supreme Court of Arkansas.

Jan. 29, 1998.

William L. Howard, Jonesboro, for appellant.

Winston Bryant, Atty Gen. by Kelly Terry, Asst. Atty Gen., Little Rock, for appellee.

BROWN, Justice.

Appellant Ray Renfro was charged with the illegal disposal of waste under Ark.Code Ann. § 8-6-205 (Supp.1995), after he was observed with other men dumping rotten potatoes at a site near connecting waterways in Craighead County. After a jury trial, Renfro was found guilty and fined $2,000.00. He brings this appeal, asserting three points for reversal. We hold that one point raised has merit, and we reverse and remand for a new trial.

In its criminal information, the State specifically charged that on June 19, 1996, Renfro illegally disposed of solid waste on property owned by another person without the written permission of the owner or occupant of the property. The State's charge tracked the language set out in § 8-6-205(a)(4).

The operative criminal statute for the illegal disposal of waste can be violated in alternative ways in addition to that specified under subsection (a)(4). It is a violation of the statute, for example, to dispose of solid waste at a site for which a permit has not been issued by the Arkansas Department of Pollution Control and Ecology. Ark.Code Ann. § 8-6-205(a)(3) (Supp.1995). The criminal statute can also be violated if the disposal of solid waste creates a public nuisance or health hazard or constitutes water or air pollution. Ark.Code Ann. § 8-6-205(a)(5) (Supp.1995).

Renfro was not charged with the illegal conduct set out under subsections (a)(3) or (a)(5), although the State submitted an instruction that included alternative violations under subsections (a)(3), (a)(4), and (a)(5). Renfro objected to the inclusion of subsections (a)(3) and (a)(5) in the instruction but the trial court overruled the objection on the basis that the alternative violations were not separate offenses but alternative means of committing one offense. ¹ The jury was then instructed that if it found Renfro guilty of conduct under any one of the three subsections, it could find him guilty of the crime of illegal disposal of waste.

We conclude that this was error. The jury was so instructed by the trial court even though the prosecutor never amended the criminal information to include other prohibited conduct under § 8-6-205. The jury returned a verdict of guilty without specifying which category of conduct amounted to a violation. Thus, we have no way of knowing whether the jury found Renfro guilty of disposal of waste on another's property [ (a)(4) ], or disposal without a permit [ (a)(3) ], or creating a public nuisance, hazard, or polluted condition [ (a)(5) ].

In Williams v. State, 302 Ark. 234, 788 S.W.2d 241 (1990), this court emphasized that a criminal information must contain the elements of the crime so that a defendant can adequately prepare the case against him or her. We held, as a result, that the language of the information in that case limited the State to proof of those specific elements set out in the information and that proof of other elements constituting separate crimes constituted a fatal variance. The facts in Williams are somewhat different from the facts in the instant case in that no proof of the charged offense under subsection (a)(4) was forthcoming in that case, while in the instant case proof of the charged offense was presented by the State. Nevertheless, the Williams decision relied in part on Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), and that case has facts analogous to the facts in the instant case.

In Stirone, the defendant was indicted for interference with interstate commerce and extortion related to a contract to supply sand for ready-mixed concrete. The district court allowed evidence to come in relating to extortion and contracts to supply steel, conduct for which the defendant was not indicted. The district court then charged the jury that either the conduct relating to the sand or the steel might constitute a violation, and the defendant was convicted without specification of which activity resulted in the guilty verdict. The Supreme Court reversed the conviction and first underscored the fact that it was the grand jury and not the district court that could change the charge. The Court went on to say that the district court impermissibly allowed the defendant to be tried on charges not brought in the indictment against him. The Court stated:

And it cannot be said with certainty that with a new basis for conviction added, Stirone (the defendant) was convicted solely on the charge made in the indictment the grand jury returned. Although the trial court did not permit a formal amendment of the indictment, the effect of what it did was the same.

Stirone, 361 U.S. at 217, 80 S.Ct. at 273 The Court added that the defendant was deprived of a basic right to be tried only on charges presented against him and that the matter was "too serious" to be treated as nothing more than harmless error. Id.

The Court concluded:

Yet because of the court's admission of evidence and under its charge this (the conduct relating to steel) might have been the basis upon which the trial jury convicted petitioner. If so, he was convicted on a charge the grand jury never made against him. This is fatal error.

Id. at 219, 80 S.Ct. at 274 (citations omitted). See also State v. Elliott, 133 N.H. 759, 585 A.2d 304 (1990) (reversible error for jury instruction to alter the criminal indictment by instructing on a separate crime--that the defendant caused the death of the victim as opposed to the charged offense of shooting the victim); State v. Blankenship, 198 W.Va. 290, 480 S.E.2d 178 (1996) (reversible error for trial court to change the charge by instructing the jury on a charge not covered in indictment).

The instant case is comparable to Stirone. The trial court instructed the jury that violation of subsections (a)(3) and (a)(5) constituted illegal disposal of solid waste even though Renfro had not been charged with that conduct. In doing so, the trial court altered the criminal information, and the jury may well have returned a guilty verdict for activity that was not the subject of the criminal information filed against Renfro. Hence, as we noted in Williams v. State, supra, Renfro had no opportunity to prepare a defense to those separate charges.

We are aware that in this case Renfro did not object to the testimony of George Turner, an inspector with the Arkansas Department of Pollution Control and Ecology, that the dumping of solid waste was occurring without a permit [subsection (a)(3) ]. There apparently was no opportunity to object to evidence that the dumping constituted a public nuisance [subsection (a)(5) ], since no one specifically testified to that fact. In Stirone v. United States, supra, an objection to the evidence relating to the transportation of steel and extortion in connection therewith was made. Be that as it may, there was no indication from the court that the objection in Stirone was a prerequisite to appellate review of the jury instruction that constituted the fatal variance. Moreover, the presence or absence of an evidentiary objection was not even broached in State v. Elliott, supra, State v. Blankenship, supra, or this court's decision in Williams v. State, supra. We do not view the failure to object in this case as the pivotal point. It was, rather, the instruction by the trial court on uncharged crimes that was the fatal error, and in the Stirone case and the instant case objections were mounted by the defendants at the instruction stage. And, again, with regard to the instruction of dumping as a public nuisance [subsection (a)(5) ], there was no specific evidence introduced on this point.

Furthermore, we can easily see how Renfro might have concluded that the evidence of no permit was introduced against him in connection with the crime charged of dumping solid waste on another's property, and not as a separate offense. The only witness to testify to this point was George Turner, who described the condition of the area. He failed, though, to use the term "public nuisance" in his testimony and mentioned only once the requirement that a person obtain a permit to operate a dump site. This testimony, in our judgment, was not sufficient to alert Renfro to the fact that the jury would be instructed on two additional offenses.

Finally, the State urges that Renfro should have proffered the correct instruction and that he waived his objection by failing to do so. The State cites us to Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997), and Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996), as authority. Neither case, however, is apposite. In Dixon v. State, supra, the defendant wanted an instruction that contained an omitted element of the offense--"continuing criminal activity and/or gang related activity"--and failed to proffer one. In Wallace v. State, supra, the defendant wanted the jury instructed on the lesser-included offense of robbery but, likewise, failed to proffer the desired instruction. Here, Renfro did not want an additional instruction or an instruction with certain elements. Thus, there was no need for him to proffer an instruction. He objected only because he wanted the jury instructed on the crime charged and not on separate offenses. This did not warrant the proffer of a separate instruction.

We have made it clear that it is the prosecutors who can bring or amend a criminal charge and not the trial courts. See, e.g., State v. Vasquez-Aerreola, 327 Ark. 617, 940 S.W.2d 451 (1997); State v. Knight, 318 Ark. 158, 884 S.W.2d 258 (1994); State v. Pulaski County Circuit Court, 316 Ark. 514, 872 S.W.2d 414 (1994) (per curiam); State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993); Johnson v. State, ...