Opinion
[32 Ark.App. 163-A] Chet Dunlap, Trumann, for appellant.
John D. Harris, Asst. Atty. Gen., Little Rock, for appellee.
COOPER, Judge.
In his petition for rehearing the appellant contends that we made an error on fact which justifies a rehearing because we erroneously stated in our opinion that "during the first day of trial the judge granted the appellant's motion in limine to exclude testimony of three young girls about other crimes, wrongs or acts allegedly committed by the appellant. On the second day of trial the court reversed that ruling and allowed the State to call one of the girls as a witness in its case in chief." 32 Ark.App. 160, 798 S.W.2d 127.
The appellant correctly points out that our opinion contains a misstatement of fact: the motion in limine was not granted on the first day of trial, as we stated, but was instead granted approximately two months beforehand. However, this misstatement of fact does not warrant rehearing because it was inconsequential to our analysis or to the outcome of the case. Our opinion [32 Ark.App. 163-B] did not turn on the time at which the circuit judge granted the motion and reversed his ruling.
The appellant claimed at trial that he was not prepared to defend against this testimony and argued that the evidence was inadmissible based on its prejudicial content. Because the appellant failed to move for a continuance at trial and because the appellant addressed the admissibility of the evidence in his brief, we viewed his argument as going to the admissibility of the evidence and we proceeded with our analysis accordingly.
The remedy for the appellant's lack of preparedness would not have been the exclusion of the evidence at the trial; rather, it would have been more time to prepare his defense. Therefore, he should have made a timely request for a continuance at trial. Arkansas courts have the discretion to grant continuances in criminal cases upon a showing of good cause. A.R.Cr.P. Rule 27.3. The motion for a continuance may be oral, See Walls v. State, 8 Ark.App. 315, 652 S.W.2d 37 (1983), and may be made during the trial. See Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990); Holbird v. State, 299 Ark. 245, 771 S.W.2d 775, (1989). The appellant did not move for a continuance at trial. His argument on appeal that he relied on the trial judge's earlier ruling was undeveloped in his brief and unsupported by citation to authority. Most significantly, any error which may have occurred was waived by the appellant's failure to move for a continuance. See Decker v. State, 255 Ark. 138, 499 S.W.2d 612 (1973). Therefore, rehearing is not warranted and the appellant's petition is denied.
Petition denied.