The State Of Ariz. v. Rodriguez

• Decision Date: 18 February 2011
• Docket Number: 2 CA-CR 2010-0028
• Citation: State v. Rodriguez, 2 CA-CR 2010-0028 (Ariz. App. Feb 18, 2011)
• Parties: THE STATE OF ARIZONA, Appellee, v. GEORGE UZARGA RODRIGUEZ, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee,

v.GEORGE UZARGA RODRIGUEZ, Appellant.

2 CA-CR 2010-0028

COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

Filed: February 18, 2011

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

MEMORANDUM DECISION

Not for Publication

Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20090713-001

Honorable Howard Fell, Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART AND REMANDED

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani and Laura P. Chiasson

Tucson

Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender

By David J. Euchner

Tucson

Attorneys for Appellant

ESPINOSA, Judge.

¶1 After a jury trial, George Rodriguez was convicted of aggravated assault with a deadly weapon or dangerous instrument, two counts of aggravated assault of a peace officer, possession of a narcotic drug, and possession of drug paraphernalia. In a subsequent bench trial, he was also convicted of possession of a weapon by a prohibited possessor. The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling thirty-one years. Rodriguez raises a number of issues on appeal. For the following reasons, we affirm in part, vacate in part, and remand this matter for further proceedings.

Factual Background and Procedural History

¶2 "On appeal, we view the facts in the light most favorable to upholding the verdict and resolve all inferences against the defendant." State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845 n.1 (App. 2008). In February 2009, Tucson Police Officer Vanisi went to a local restaurant to investigate a report about two persons with a gun. Upon entering, a restaurant employee directed him to the restroom area. Vanisi waited outside the restroom and contacted another officer for assistance. When Officer Szelewski arrived, Vanisi began questioning a man who had just come out of the restroom, and Szelewski entered the restroom.

¶3 Szelewski saw Rodriguez washing his hands, identified himself as a police officer, asked to pat him down for weapons, and started touching him around his waistband. Rodriguez, still standing at the sink, swore at Szelewski and said to stop touching him. At that point, Szelewski attempted to grab Rodriguez's wrists in order tohandcuff him, but Rodriguez moved his arms away. Szelewski tried to push Rodriguez up against the wall and began yelling at him to put his hands behind his back and to stop resisting, but Rodriguez continued "[s]truggling and squirming," not allowing himself to be placed in handcuffs. Szelewski then attempted to control Rodriguez with "complying strikes," which included kicks and punches, and continued to yell commands at him.

¶4 Hearing the commotion, Vanisi entered the restroom and attempted to assist Szelewski in handcuffing Rodriguez. Vanisi saw a gun in Rodriguez's hand and struggled for control of it with his left hand while punching Rodriguez in the face with his right hand. During the struggle, Rodriguez waved the gun at the officers' heads while repeatedly trying to pull the trigger, but the gun did not fire. All three men ended up on the floor, with Vanisi and Rodriguez struggling for the gun until Vanisi was able to take it away and handcuff him. Szelewski never saw the gun during the struggle, never saw Rodriguez holding it, and saw it for the first time in Vanisi's possession. Vanisi later observed that the gun had a bullet stuck in its ejection port.

¶5 After the struggle, Vanisi's hand was swollen and his right middle finger was bleeding, and Szelewski had an abrasion on his forehead and minor injuries to his knee. Officers later found a bag of cocaine in one of Rodriguez's pockets. Rodriguez subsequently was charged with one count of attempted first-degree murder, one count of aggravated assault based on the use or threatened use of a deadly weapon or dangerous instrument, two counts of aggravated assault of a peace officer, one count of possession of a deadly weapon by a prohibited possessor, possession of a narcotic drug, andpossession of drug paraphernalia. He was convicted and sentenced as outlined above.¹ We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

Duplicitous Indictment and Charges

¶6 Rodriguez argues both the indictment and the charges concerning counts three and four were duplicitous, resulting in fundamental, reversible error due to the danger of a nonunanimous jury verdict. A duplicitous indictment charges two or more offenses in a single count. State v. Paredes-Solano, 223 Ariz. 284, ¶ 4, 222 P.3d 900, 903 (App. 2009). A duplicitous charge occurs "[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). The potential problems posed by either error include the risk of a nonunanimous jury verdict. See id.

¶7 Because Rodriguez failed to raise these arguments below, he has forfeited the right to seek relief for all but fundamental error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). "'To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice.'" Paredes-Solano, 223 Ariz. 284, ¶ 8, 222 P.3d at 904, quoting Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. A defendant has the right to a unanimous jury verdict in a criminal case, see Ariz. Const. art. II, § 23, and "[a] violation of that right constitutes fundamental error," State v. Davis, 206 Ariz. 377, ¶ 64, 79 P.3d 64, 77 (2003). A defendant establishes prejudice by demonstrating that the jury may have reached a nonunanimous verdict. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607; Paredes-Solano, 223 Ariz. 284, ¶ 22, 222 P.3d at 907-08.

¶8 Counts three and four of the amended indictment both generally alleged counts of aggravated assault of a peace officer "resulting in any physical injury," with the third count listing Szelewski and the fourth count, Vanisi.² Rodriguez argues these counts are duplicitous because, although one element of this offense is an "assault" as defined by A.R.S. § 13-1203, neither count specified the type of criminal assault the state was charging.

¶9 Rodriguez is correct that an element of the offense of aggravated assault of a peace officer is an "assault as prescribed by § 13-1203." A.R.S. § 13-1204(A)(8)(a).³

Section 13-1203 provides three different methods of committing assault: "[i]ntentionally, knowingly or recklessly causing any physical injury to another person," "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury," or "[k]nowingly touching another person with the intent to injure, insult or provoke such person." § 13-1203(A). Significantly, these three types of assault are separate offenses. See In re Jeremiah T., 212 Ariz. 30, ¶ 12, 126 P.3d 177, 181 (App. 2006) ("[T]he three subsections of § 13-1203(A) are not simply variants of a single, unified offense; they are different crimes."). Therefore, the state must allege the specific type of assault under § 13-1203(A). See State v. Sanders, 205 Ariz. 208, ¶ 48, 68 P.3d 434, 445 (App. 2003), overruled in part on other grounds by State v. Freeney, 223 Ariz. 110, 219 P.3d 1039 (2009); see also State v. Kelly, 149 Ariz. 115, 116-17, 716 P.2d 1052, 1053-54 (App. 1986) (holding indictment duplicitous because it charged defendant with committing single aggravated assault by both pointing rifle at victim and by causing physical injury to victim with knife). Accordingly, because the indictment failed to identify which type of assault formed the predicate for counts three and four, we conclude these counts are duplicitous.

¶10 Although a duplicitous indictment does not necessarily require reversal, see Paredes-Solano, 223 Ariz. 284, ¶ 17, 222 P.3d at 906, Rodriguez argues the jury instructions "compounded the error," creating a duplicitous charge. He points out the trial court instructed the jury on all three forms of assault. It also failed to give an instruction regarding the elements of aggravated assault of a peace officer. Rodriguezargues that because "[t]he three methods of committing assault were given in the disjunctive, with no instruction that the jury had to be unanimous as to which method of assault [he had] committed," there was a "real danger of a nonunanimous verdict."

¶11 The state counters there was no such risk because the trial court's instruction on count two, aggravated assault with a deadly weapon, included only one method of committing assault: "intentionally put[ting] another person in reasonable apprehension of immediate physical injury." It also points to the fact that the three definitions of assault were given as a lesser-included offense to count two and argues "[t]he jury could not have considered the simple assault instruction in reaching its verdict on [counts three and four] because no lesser offenses were alleged for those counts."

¶12 The state ignores, however, that even though the instruction for count two identified only one type of assault, it was not applicable to counts three and four, and there was no similar instruction for the offenses in these counts. Moreover, the jury was instructed not only on all three types of assault, but also was instructed to "consider all of these instructions" and not to "pick out one instruction or part of one and disregard the others." In addition, in closing argument, the prosecutor stated that "for both types of aggravated assault, the first thing you have to have is an assault," which "can [be] commit[ted]... in a number of different ways," and then proceeded to describe all three types of assault.⁴ Thus, the charges did not cure any...