ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION III

MARVIN MORRIS

                                           APPELLANT

V.

STATE OF ARKANSAS

                                           APPELLEE

CACR 03-115

October 22, 2003

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION [CR2002-2636]

HONORABLE JOHN B. PLEGGE,

CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

           By felony information filed August 1, 2002, the State of Arkansas charged Marvin Morris with the offense of domestic battery in the third degree, second offense, for a June 16, 2002 altercation with his wife, Linda Morris. In the information, the State also included the following statement:

Defendant, MARVIN MORRIS, has, within the past five (5) years, committed a prior offense of Domestic Battering in the Third Degree, Ark. Code Ann. 5-26-305, or has violated an equivalent penal law of this state or of another state or foreign jurisdiction, against the peace and dignity of the State of Arkansas.

In a bench trial in Pulaski County Circuit Court, in addition to the testimony presented in its case-in-chief, the State introduced as “Exhibit 5” certified docket sheets and a judgment and commitment order from 1999 indicating that appellant had been convicted of

misdemeanor third-degree battery. Counsel for appellant made the following objection: “I would object. I’ve only just been shown that, Your Honor. It was not in the prosecutor’s file when I copied it.” The objection was overruled, and the exhibit was admitted. At the close of all of the evidence, the trial court found appellant guilty, sentenced him to five years’ probation, ordered him to pay a fine of $300 plus court costs, and ordered appellant to have no contact with the victim, who was now divorced from appellant.

           On appeal, appellant does not contest the sufficiency of the evidence. His sole point on appeal is that the trial judge erred in admitting the prosecution’s exhibit of his 1999 third-degree battery conviction because “the State failed to include copies of these documents in the prosecuting attorney’s case file even though the prosecuting attorney’s office follows an ‘open file’ policy to satisfy the State’s discovery obligations.”

           If a party fails to comply with discovery rules, the trial court may “order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances.” Ark. R. Crim. P. 19.7 (2003). The trial court’s decisions pertaining to discovery matters will not be second-guessed by the appellate court absent an abuse of discretion. Findley v. State, 64 Ark. App. 291, 984 S.W.2d 454 (1998).

           Appellant’s argument on appeal was not made at trial. The only objection made by appellant’s counsel at the time State’s Exhibit 5 was proffered and entered into evidence was that the certified copies were not in the file when she copied it. On appeal, appellant argues that he was prejudiced because he suffered “the loss of a fair opportunity for his trial counsel to move to dismiss the ‘second offense’ component of the offense at issue on the basis that State’s Exhibit No. 5 was not substantial evidence that the third degree battery Appellant Morris was convicted of in 1999 was the equivalent of third degree domestic battering.” Arguments not raised in the circuit court will not be addressed for the first time on appeal; furthermore, on appeal, a party is bound by the scope and nature of the arguments made in the circuit court. McClellan v. State, ___ Ark. App. ___, 101 S.W.3d 864 (April 2, 2003).

           Even if this court could reach this argument, we would affirm the trial court. Failure to disclose information will not warrant a reversal absent a showing of prejudice; it is appellant’s burden to show that the omission was “sufficient to undermine the confidence in the outcome of the trial.” Esmeyer v. State, 325 Ark. 491, 499, 930 S.W.2d 302, 307 (1996). However, a criminal defendant cannot rely upon discovery as a total substitute for his own investigation. Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000). Furthermore, prejudice “does not exist when the defendant already has access to the information that the State did not disclose.” Esmeyer, 325 Ark. at 499, 930 S.W.2d at 307.

           In the present case, no one was in a better position to know appellant’s prior criminal record than appellant himself. The State gave notice in the felony information that it intended to attempt to prove that this offense was a second offense of domestic battering or its equivalent, thus enhancing the penalty. Therefore, appellant should have known that the State would introduce evidence of a previous conviction. See, e.g., Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).

           Affirmed.

           Neal and Roaf, JJ., agree.