State v. Hawkins

• Decision Date: 22 February 2012
• Docket Number: 2 CA-CR 2010-0387,2 CA-CR 2010-0388
• Parties: THE STATE OF ARIZONA, Appellee, v. MICHAEL ALLEN HAWKINS, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. MICHAEL ALLEN HAWKINS, Appellant.

2 CA-CR 2010-0387

2 CA-CR 2010-0388

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Dated: February 22, 2012

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

(Consolidated)

MEMORANDUM DECISION

Not for Publication

Rule 111, Rules of

the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

Cause Nos. CR200800685 and CR200900848

Honorable James L. Conlogue, Judge

Honorable Donna Beumler, Judge Pro Tempore

AFFIRMED

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani and Alan L. Amann

Tucson

Attorneys for Appellee

Joel Larson, Cochise County Legal Defender

By Bethany Graham

Bisbee

Attorneys for Appellant

ESPINOSA, Judge.

¶1 Following a consolidated jury trial, Michael Hawkins was convicted of six felonies and one misdemeanor.¹ The trial court sentenced him to concurrent and consecutive prison terms totaling eleven years. On appeal, Hawkins contends the court erred in granting the state's motion to amend the indictment as to two counts of aggravated assault, instead of granting Hawkins's motion for judgment of acquittal on those charges. He also argues the court abused its discretion by not excluding other-acts evidence. Finally, Hawkins contests the court's denial of his post-trial motion to vacate judgment based upon newly discovered evidence. For the reasons set forth below, we affirm Hawkins's convictions and sentences.

Factual Background and Procedural History

¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Bearup, 221 Ariz. 163, ¶ 16, 211 P.3d 684, 688 (2009). Hawkins lived with the victim, C.K., from fall 2007 until C.K. ended the relationship in August 2008 and began seeing another man. In late August 2008, Hawkins telephoned C.K. to "try[] to keep [the] relationship together." C.K. could hear the sound of a pistol "clicking" in the background as he asked her "what a week of [her] life was worth" and "what ten days of [her] life was worth." Hawkins told C.K. "[h]e was going to blow his head off because he couldn't live without [her]," and he needed "closure." She agreed to meet him at eighto'clock the next morning. That night, C.K. wrote a farewell letter to her family and friends.

¶3 The next morning, Hawkins drove C.K. to the base of a nearby mountain "to talk." The couple had sexual intercourse,² after which Hawkins took C.K. home to shower and change; the two later went to a restaurant, and then to a park. At the park, Hawkins attempted to have intercourse with C.K. again, but she refused. While driving back to C.K.'s house, Hawkins produced a pistol, cocked it, and pointed it at his temple and then at C.K.'s head. She testified she had a "white blackout" from fear. Hawkins moved the gun to five or six inches from C.K.'s face and fired the gun through the open window. He then threw the gun out of the truck and told C.K. "not to say anything to anybody, otherwise [she] would regret it." Hawkins later told his mother he had fired the gun in front of C.K.'s face and he could "burn down [C.K.'s family's] house," "mak[ing] it look like an accident."

¶4 Two days later, Hawkins went to C.K.'s home, and when she answered her front door, threatened to commit suicide. C.K. obtained an order of protection against him later that day. Between August 26 and September 8, 2008, sheriff deputies unsuccessfully attempted to serve Hawkins with the order of protection. On September 7, Hawkins and his daughter came to C.K.'s house at night, and she called the sheriff.

¶5 The following day, Hawkins's mother called 9-1-1, worried he was going to commit suicide or hurt someone. She reported he had a gun, carried a razor blade, had red marks on his wrists, had been drinking, and had stated he wished C.K.'s family was dead. Deputies responded and attempted to contact Hawkins but were unable to approach him as he had "barricaded" himself in his house. He reportedly threatened to commit suicide or to shoot and kill anyone who approached. Meanwhile, a deputy recorded statements from Hawkins's mother, pastor, and brother about Hawkins's previous threats and involvement with C.K. After an hour, police and medical responders decided to leave the scene rather than risk exacerbating the situation.

¶6 On September 10, Hawkins was arrested, and deputies served the restraining order and executed a search warrant at his residence, finding a shotgun and bullets. Hawkins had previously retrieved his pistol and turned it over to his mother, who gave it to police. During his pretrial release, Hawkins followed and contacted C.K. on multiple occasions, in violation of the restraining order. Hawkins eventually was convicted and sentenced as described above. We have jurisdiction over this appeal pursuant to Ariz. Const. art. II, § 24; A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033.

Discussion

Amendment of Indictment on Aggravated-Assault Charges

¶7 During C.K.'s testimony, the trial court suggested that the indictment be amended so that instead of charging aggravated assault under A.R.S. § 13-1203(A)(1) ("[i]ntentionally, knowingly or recklessly causing any physical injury to another person"), it would charge Hawkins with a violation of § 13-1203(A)(2) ("[i]ntentionallyplacing another person in reasonable apprehension of imminent physical injury"), noting the state was proceeding under the (A)(2) non-injury theory, while the indictment reflected the (A)(1) theory, which requires some injury to the victim.³ The state acknowledged some confusion as to the charges, and Hawkins's counsel confirmed the indictment specified subsection (A)(1), physical injury. The court asked "if there was going to be an issue" with amending the charges and cited State v. Freeney, recognizing possible prejudice to Hawkins if the indictment were amended. 223 Ariz. 110, 219 P.3d 1039 (2009). Hawkins's counsel immediately stated he intended to move for a judgment of acquittal under Rule 20, Ariz. R. Crim. P., because no evidence of physical injury had been presented. In response, the prosecutor confessed she had not been aware the indictment charged Hawkins under (A)(1) instead of (A)(2), pointed out the disclosure to Hawkins reflected the victim's apprehension of imminent harm, and moved to amend. See Ariz. R. Crim. P. 13.5(b). The court granted the state's motion over Hawkins's objection, finding the indictment was only technically defective and the "substance of the charge" invoked subsection (A)(2). Hawkins twice moved for a judgment of acquittal on the amended indictment, and the court denied both motions.

¶8 Charges in a grand jury indictment "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." Ariz. R. Crim. P. 13.5(b). "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). An amendment that alters the elements of the charged offense and does not serve to correct a mistake of fact or remedy a formal or technical defect in the indictment is not authorized under Rule 13.5(b). Freeney, 223 Ariz. 110, ¶¶ 16-20, 219 P.3d at 1042. A trial court's grant of a motion to amend the indictment mid-trial is reviewed for harmless error. State v. Lehr, 227 Ariz. 140, ¶¶ 67-69, 254 P.3d 379, 393, cert. denied, __ U.S. __, 132 S. Ct. 403 (2011).

¶9 Citing State v. Johnson, 198 Ariz. 245, ¶ 10, 8 P.3d 1159, 1162 (App. 2000) and Freeney, 223 Ariz. 110, ¶ 20, 219 P.3d at 1042,⁴ Hawkins argues the trial court violated Rule 13.5(b) in granting the state's motion because the amendment changed the nature of the offense and prejudiced him by undermining his planned defense and denying him adequate notice to allow him to develop a new theory of the case. The state concedes the statutory subsections present different theories of culpability, the amendment operated to change the nature of the offenses charged, and the indictment wasamended in violation of Rule 13.5(b). See Freeney, 223 Ariz. 110, ¶ 17, 219 P.3d at 1042. We agree that the amendment was not authorized under Rule 13.5(b), because it changed the nature of the offense when the original indictment was not defective: it simply had charged Hawkins with an offense the state was unable to prove. See Freeney, 223 Ariz. 110, ¶¶ 19-20, 219 P.3d at 1042. However, a violation of Rule 13.5 does not automatically require reversal if the state can establish the error was harmless beyond a reasonable doubt. Lehr, 227 Ariz. 140, ¶¶ 67, 69, 254 P.3d at 393; Freeney, 223 Ariz. 110, ¶ 26, 219 P.3d at 1043.

¶10 Hawkins contends the amendment prejudiced him by hindering his defense against the charges and rendering moot the testimony of his expert witness. The state counters that the error was harmless because Hawkins was on notice the state was proceeding on the "reasonable apprehension of imminent physical injury" theory at trial, based on the evidence presented at the grand jury hearing, which had been disclosed to Hawkins in advance of trial, and because the indictment's factual descriptions underlying both aggravated-assault charges did not refer to any physical injury, but stated only that Hawkins committed aggravated assault by "point[ing] a handgun at [C.K.]'s head" and "firing a handgun in front of her face."

¶11 The state has met its burden of demonstrating harmless error in this case. Hawkins's counsel's opening statement made clear his defense was that the gun was never fired and that C.K. was not raped or harmed. During trial Hawkins pointed to the lack of any evidence of torn clothing, DNA, or hospital...