State v. Cameron
| Decision Date | 17 June 2014 |
| Docket Number | No. 2 CA-CR 2013-0265,2 CA-CR 2013-0265 |
| Parties | THE STATE OF ARIZONA, Appellee, v. SCOTT KENNETH CAMERON, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Deborah Bernini, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.
¶1 After a jury trial, appellant Scott Cameron was convicted of aggravated assault with a deadly weapon and sentenced to ten years' imprisonment. On appeal, he argues his conviction should be reversed due to errors involving duplicity, jury instructions, and evidence of his prior convictions. We affirm for the reasons that follow.
¶2 We generally view the evidence in the light most favorable to sustaining the verdict. See State v. Urquidez, 213 Ariz. 50, ¶ 2, 138 P.3d 1177, 1178 (App. 2006). On August 22, 2012, Cameron appeared angry and confrontational as he left a shopping center where he had been refused service. As he walked across the middle of a nearby road, he obstructed traffic and began screaming and yelling obscenities. The victim, who was attempting to enter the road in a pickup truck, briefly opened his door and said "[h]ey" to Cameron to prevent him from walking into the vehicle. Cameron proceeded to hit the truck and bang on its window. When the victim opened the driver's side door again, Cameron pulled out a knife and stabbed at the victim as he was still buckled into his seat. The attack frightened the victim and left a small injury on his abdomen. He immediately telephoned 9-1-1 and police arrested Cameron minutes later.
¶3 Cameron testified in his own defense. He admitted his emotional aggravation had influenced his actions during the encounter but claimed the victim had threatened him. Cameron maintained that he displayed his knife in self-defense only after the victim appeared to be exiting the vehicle with a weapon. Cameronvariously described the victim's weapon as a club, "steering wheel club," tire iron, "PVC pipe," cane, or umbrella. Cameron denied stabbing the victim but admitted he would have done so had he been able. Cameron also admitted to banging on the window of the truck. He acknowledged saying things to the victim during the encounter such as "Let's get stupid," and "Yeah, that's what I thought." Cameron further acknowledged that the victim had remained in the truck during the entire episode.
¶4 A witness in a nearby vehicle testified that Cameron had moved in a threatening manner toward the truck, pulled out a knife as he approached it, and thrust the knife into the cab of the truck. In the witness's separate 9-1-1 call, he said he thought the victim had been stabbed. The witness testified that he never saw the victim leave the truck or produce any weapon.
¶5 The victim likewise denied having any weapon or personal property in the truck, which belonged to a car dealership that employed him. A police officer and a detective who responded to the scene similarly testified they did not see anything that appeared to be a weapon when they looked inside the truck.
¶6 Cameron first contends his conviction should be reversed because his uncured "duplicitous indictment" created the risk of a nonunanimous jury verdict. Duplicity is a question of law we review de novo. See State v. Ramsey, 211 Ariz. 529, ¶ 5, 124 P.3d 756, 759 (App. 2005).
¶7 The indictment alleges Cameron "assaulted [the victim] with a deadly weapon or dangerous instrument, to wit: a knife, in violation of A.R.S. §[] 13-1204(A)(2)." To establish an aggravated assault under § 13-1204(A)(2), the state must prove a simple assault under A.R.S. § 13-1203 with a deadly weapon or dangerous instrument. See State v. James, 231 Ariz. 490, n.4, 297 P.3d 182, 185 n.4 (App. 2013). A simple assault occurs if a defendant:
1. Intentionally, knowingly or recklessly caus[es] any physical injury to another person; or
2. Intentionally plac[es] another person in reasonable apprehension of imminent physical injury; or
3. Knowingly touch[es] another person with the intent to injure, insult or provoke such person.
§ 13-1203(A). These three types of simple assault are distinct offenses with different elements, not merely different manners of committing the same offense. See State v. Freeney, 223 Ariz. 110, ¶¶ 16-17, 219 P.3d 1039, 1042 (2009); In re Jeremiah T., 212 Ariz. 30, ¶ 12, 126 P.3d 177, 181 (App. 2006).
¶8 Before trial, Cameron filed a "motion to amend indictment for duplicity." In that motion, he maintained "[t]he prosecution should not be allowed to argue and present evidence of two different crimes in one indictment," referring to the two forms of simple assault provided in § 13-1203(A)(1) and (2) that could support the aggravated assault charge. At a pretrial hearing on the motion, he asked that the state be forced to "elect which theory of prosecution they're going to go with." The trial court properly denied the motion, given that the indictment technically is not duplicitous.
¶9 A duplicitous indictment "charges two or more distinct offenses in a single count." State v. Barber, 133 Ariz. 572, 576, 653 P.2d 29, 33 (App. 1982); accord State v. Anderson, 210 Ariz. 327, ¶ 13, 111 P.3d 369, 377 (2005). In order for an indictment to be duplicitous, the error must be apparent from the language of the charging document itself; it does not depend on the underlying facts of the case or the evidence admitted at trial. See State v. Butler, 230 Ariz. 465, ¶¶ 13-14, 286 P.3d 1074, 1079 (App. 2012). A duplicitous charge, by contrast, exists "[w]hen the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge." State v. Klokic, 219 Ariz. 241, ¶ 12,196 P.3d 844, 847 (App. 2008); accord State v. Paredes-Solano, 223 Ariz. 284, ¶ 4, 222 P.3d 900, 903 (App. 2009).
¶10 Here, the text of the indictment refers to only one criminal act—a single aggravated assault against an individual victim. Whether the charge implicates more than one subsection of our simple assault statute cannot be resolved through an analysis of the indictment alone. That question instead depends on the evidence and legal theories presented at trial, as Cameron's motion implicitly recognizes. In other words, the charge here does not allege two distinct offenses; it describes a single offense without specifying how it was committed or what its particular elements are. Thus, the indictment is not duplicitous. Cf. Klokic, 219 Ariz. 241, ¶ 10, 196 P.3d at 846 ().
¶11 Although the indictment here might be insufficient for failing to specify which type of simple assault supports the aggravated assault charge, see State v. Sanders, 205 Ariz. 208, ¶ 48, 68 P.3d 434, 445 (App. 2003), overruled in part on other grounds by Freeney, 223 Ariz. 110, ¶ 26, 219 P.3d at 1043, Cameron did not challenge the indictment specifically on that basis in his motion. On appeal, Cameron similarly does not challenge the sufficiency of the indictment and the need to amend it; hence, we do not address that distinct legal issue. See McKaney v. Foreman ex rel. Cnty. of Maricopa, 209 Ariz. 268, ¶¶ 12, 14, 20, 100 P.3d 18, 21, 22 (2004) (). To the extent a duplicity problem existed here, the trial court implicitly recognized it as a potentially duplicitous charge, not a duplicitous indictment, and the court properly denied Cameron the requested relief based on the alleged duplicity. Cf. State v. Whitney, 159 Ariz. 476, 480, 768 P.2d 638, 642 (1989) ().
¶12 To the extent Cameron also suggests on appeal that his charge was duplicitous, he did not preserve that issue below. Cameron's pretrial motion concerning the allegedly duplicitous "indictment" did not raise a timely challenge to the duplicitouscharge, given that these are related yet distinct legal issues. See State v. Rutledge, 205 Ariz. 7, ¶¶ 29-30, 66 P.3d 50, 56 (2003) (). A potentially duplicitous charge need not be remedied before trial. See Klokic, 219 Ariz. 241, ¶ 14, 196 P.3d at 847. When drafting a charging document, the state has discretion to create a single charge that might refer to separate criminal acts. See id. If the evidence at trial in fact renders the charge duplicitous, however, then the appropriate remedy is to "require 'the state to elect the act which it alleges constitutes the crime, or instruct the jury that they must agree unanimously on a specific act that constitutes the crime before the defendant can be found guilty.'" Id., quoting State v. Schroeder, 167 Ariz. 47, 54, 804 P.2d 776, 783 (1990) (Kleinschmidt, J., concurring).
¶13 In opposing Cameron's pretrial motion, the state acknowledged the need to avoid the possibility of a nonunanimous verdict. As a remedy, the state therefore proposed instructing the jury on all three forms of simple assault and providing a special interrogatory for the jurors to indicate which type of assault they unanimously found to be the basis of their verdict. The court essentially agreed with this proposed course of action, observing:
[U]ntil I hear the evidence I don't know what theory the jury...
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