State v. Freeney

Decision Date04 December 2009
Docket NumberNo. CR-08-0363-PR.,CR-08-0363-PR.
Citation219 P.3d 1039
PartiesSTATE of Arizona, Appellee, v. Mark Allen FREENEY, Appellant.
CourtArizona Supreme Court

Terry Goddard, Arizona Attorney General by Melissa Parham, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Kessler Law Offices by Eric W. Kessler, Mesa, Attorney for Mark Allen Freeney.


PELANDER, Justice.

¶ 1 Absent the defendant's consent, a criminal "charge may be amended only to correct mistakes of fact or remedy formal or technical defects." Ariz. R.Crim. P. 13.5(b). In this case, the State moved to amend the indictment on the first day of trial to change the theory of the assault underlying its sole charge of aggravated assault. See Ariz.Rev. Stat. (A.R.S.) §§ 13-1203(A), 13-1204(A) (Supp.2008). The trial court granted the motion, over Mark Allen Freeney's objection, and the jury found him guilty of the amended charge.

¶ 2 Because the elements of the amended charge differ from those of the original charge, we conclude the amendment changed the nature of the offense and therefore violated Rule 13.5(b). Although the trial court erred in granting the amendment, such error is not prejudicial per se but rather subject to harmless error review. We find the error here harmless beyond a reasonable doubt and affirm Freeney's conviction.


¶ 3 A neighbor saw Freeney beat the victim, his girlfriend, with a metal bar or pipe outside the couple's home and heard Freeney threaten to kill her. The neighbor called the police, but Freeney left before they arrived. The victim was treated for a four-inch laceration on her head and other injuries. She told police Freeney had hit her repeatedly with a metal pipe.

¶ 4 Freeney was indicted on a charge of aggravated assault using a deadly weapon or dangerous instrument, see A.R.S. § 13-1204(A)(2), and having "intentionally placed [the victim] in reasonable apprehension of imminent physical injury," see A.R.S. § 13-1203(A)(2). The indictment cited §§ 13-1203 and 13-1204 without specifying any subsections and included an allegation of dangerousness that stated:

[T]he offense charged in this count is a dangerous felony because the offense involved the discharge, use, or threatening exhibition of a METAL BAR or PIPE, a deadly weapon or dangerous instrument and/or the intentional or knowing infliction of serious physical injury upon [the victim], in violation of A.R.S. § 13-604(P).

(Emphasis added.)

¶ 5 The State also filed an Allegation of Aggravating Circumstances Other Than Prior Convictions, alleging "the offense(s) involved the infliction or threatened infliction of serious physical injury." In the parties' joint pretrial statement, the State listed the treating emergency room physician as a witness and alleged that Freeney had "hit the victim ... several times in the head and body with a metal bar while threatening to kill her," and that the victim had "received a head injury from the beating and was transported to the hospital."

¶ 6 Just before jury selection on the first day of trial, citing Rule 13.5(b), the State moved to amend the indictment to change the theory of the underlying assault to "intentionally, knowingly, or recklessly causing any physical injury to another person" under A.R.S. § 13-1203(A)(1).1 Freeney objected to the timing of the amendment but acknowledged knowing about the victim's injuries from pretrial disclosures. The prosecutor stated without contradiction that Freeney had received notice of those injuries from police reports, medical records, and photographs. The trial court granted the motion, concluding the amendment did not prejudice Freeney or violate the notice requirement of the Sixth Amendment.2

¶ 7 Freeney did not testify at trial or dispute the victim's injuries. He denied having assaulted the victim, however, contending another person had committed the crime. The victim testified that she and Freeney had been at home on the night of the incident, but that Freeney had left and someone else had assaulted her. The jury found Freeney guilty of aggravated assault and that the offense was dangerous.

¶ 8 On appeal, citing State v. Sanders, 205 Ariz. 208, 68 P.3d 434 (App.2003), Freeney argued that the amendment to the indictment was improper and that such error was prejudicial per se. State v. Freeney, 220 Ariz. 435, 440 ¶ 18, 207 P.3d 688, 693 (App. 2008). In affirming Freeney's conviction, the court of appeals distinguished Sanders by noting the amendment in that case occurred mid-trial, whereas the amendment here occurred before jury selection. Id. at 441-42 ¶¶ 27-28, 30, 207 P.3d at 694-95. On that basis, the court "decline[d] to impose the prejudice-per-se rule of Sanders, and instead conclude[d] that [Freeney] must show that he suffered actual prejudice from the amendment," which he failed to do. Id. at ¶¶ 28, 30.

¶ 9 In a concurring opinion, Judge Hall, who had dissented in Sanders, found no "principled basis on which both Sanders and the lead opinion's analysis can co-exist." Id. at 443 ¶ 34, 207 P.3d at 696 (Hall, J., concurring in the result). Even assuming the amendment changed the nature of the offense, Judge Hall stated, "Sanders' prejudice-per-se analysis is theoretically flawed," and "the harmless-error doctrine should apply when a trial court erroneously overrules a defendant's objection to a prosecutor's motion to amend an indictment or information pursuant to Rule 13.5(b)." Id. at 443-44 ¶¶ 34, 36, 207 P.3d at 696-97.

¶ 10 We granted review to resolve a recurring issue of statewide importance pertaining to a rule of criminal procedure and to address the apparent tension between the court of appeals' opinion and Sanders. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. §§ 12-120.24 and 13-4033(A)(1).


¶ 11 Rule 13.5(b), Ariz. R.Crim. P., governs the process of amending an indictment. It provides:

The preliminary hearing or grand jury indictment limits the trial to the specific charge or charges stated in the magistrate's order or grand jury indictment. The charge may be amended only to correct mistakes of fact or remedy formal or technical defects, unless the defendant consents to the amendment. The charging document shall be deemed amended to conform to the evidence adduced at any court proceeding.

"A defect may be considered formal or technical when its amendment does not operate to change the nature of the offense charged or to prejudice the defendant in any way." State v. Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980).

¶ 12 In Sanders, the defendant was charged with aggravated assault in violation of § 13-1204(A)(5) (now § 13-1204(A)(8)(a)), based on a predicate assault under § 13-1203(A)(3) ("[k]nowingly touching another person with the intent to injure, insult or provoke"). 205 Ariz. at 212 ¶ 5, 68 P.3d at 438. At the conclusion of its case-in-chief, the state moved to amend the indictment pursuant to Rule 13.5(b) to allege a violation of § 13-1203(A)(2) ("[i]ntentionally placing another person in reasonable apprehension of imminent physical injury"). Sanders, 205 Ariz. at 212 ¶ 9, 68 P.3d at 438. The trial court granted the motion over the defendant's objection. Id. at ¶ 10.

¶ 13 Reversing the conviction, the court of appeals concluded that the "two types of assault [under subsections (A)(2) and (A)(3) of § 13-1203] are in fact distinctly different crimes" and that the amendment "changed the nature of the originally charged offense." Id. at 216-17 ¶ 33, 68 P.3d at 442-43. The court held that "an amendment proposed mid-trial that changes the nature of the original charge deprives an accused of the type of notice and opportunity to prepare a defense contemplated by the Sixth Amendment and is therefore not permitted by Rule 13.5(b)." Id. at 211 ¶ 1, 68 P.3d at 437. It concluded that "an amendment that changes the nature of the charged offense is prejudicial per se." Id. at 220 ¶ 50, 68 P.3d at 446; see also id. at 214-15 ¶¶ 20-24, 68 P.3d at 440-41.

¶ 14 In dissent, Judge Hall argued the nature of the offense had not changed because the overarching crime of aggravated assault remained the same, despite changing the theory of the underlying § 13-1203(A) assault charge. Id. at 224, 229 ¶¶ 73-74, 95, 68 P.3d at 450, 455 (Hall, J., dissenting). Consequently, he concluded, the defendant was required to show actual prejudice and had failed to do so. Id. at 223-29 ¶¶ 80-94, 68 P.3d at 451-55.

¶ 15 In this case, the court of appeals noted "the ultimate crime charged is the same," but found no need to decide "whether the nature of the offense [was] changed" by the amendment. Freeney, 220 Ariz. at 441-42 ¶ 28, 207 P.3d at 694-95. That issue, however, has a direct bearing on whether the amendment was authorized by Rule 13.5(b). See Bruce, 125 Ariz. at 423, 610 P.2d at 57. Freeney argues, and we agree, that the amendment here violated the rule by changing the nature of the offense.

¶ 16 When the elements of one offense materially differ from those of another—even if the two are defined in subsections of the same statutethey are distinct and separate crimes. E.g., State v. Leenhouts, 218 Ariz. 346, 349 ¶ 13, 185 P.3d 132, 135 (2008) ("Because the elements required to prove a violation of subsection A.1 [of A.R.S. § 13-1302] differ from those required to prove a violation of subsection A.3, the original and supervening indictments do not allege the same charge."); State v. Sustaita, 119 Ariz. 583, 591, 583 P.2d 239, 247 (1978) ("We have stated that `[a]n offense which requires different evidence or elements than the principal charge is a separate offense ....'") (quoting State v. Woody, 108 Ariz. 284, 287, 496 P.2d 584, 587 (1972)).

¶ 17 Here, the elements required to prove a violation of § 13-1203(A)(2) differ from those required to prove a violation of § 13-1203(A)(1). Because the amended indictment altered the elements of the charged offense, it constituted a change in the nature of...

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