Opinion
No. 2 CA-CR 2016-0405
01-16-2018
THE STATE OF ARIZONA, Appellee, v. DAVID CHARLES HENRY, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee Dean Brault, Pima County Legal Defender By Anne Elsberry, Assistant Legal Defender, Tucson Counsel for Appellant
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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20161041001
The Honorable Richard D. Nichols, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee Dean Brault, Pima County Legal Defender
By Anne Elsberry, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred. EPPICH, Judge:
¶1 After a bench trial, David Henry was convicted of failure to give notice of a change of address or change of name by a person required to register as a sex offender. The trial court found he had one historical prior felony conviction and sentenced him to an enhanced, minimum, three-year prison term.
¶2 Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), asserting she has reviewed the record but found no arguable issues to raise on appeal. She asks this court to search the record for fundamental error.
¶3 In a supplemental pro se brief, Henry challenges the adequacy of the indictment, the imposition of registration requirements based on his 1974 conviction for rape, and the sufficiency of evidence to support his sentence as a repetitive offender. We concluded Henry raised a non-frivolous issue related to the adequacy of his indictment and conviction and, in accordance with Penson v. Ohio, 488 U.S. 75, 83-84 (1988), we directed his attorney and the state to file briefs addressing this issue. For the reasons below, we now affirm Henry's conviction and sentence.
Factual and Procedural Background
¶4 We view the evidence in the light most favorable to sustaining Henry's conviction. See State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999). In 1974, Henry was convicted of first-degree, armed rape. State v. Henry, 224 Ariz. 164, ¶ 2 (App. 2010). In 2009, he was convicted of failing to obtain an identification card or driver's license "as a person previously convicted of a sex offense," in violation of A.R.S. §§ 13-3821 and 13-3824. Id. ¶¶ 1, 3. He was sentenced to 3.75 years in prison and ordered to register as a sex offender. Id. ¶ 1. On appeal, we rejected arguments that his conviction violated principles of double jeopardy and resulted in an ex post facto application of the law, and we affirmed his conviction and sentence. Id. ¶¶ 1, 24, 27, 31.
¶5 In March 2016, Henry was indicted for "failure to give notice of change of address or change of name, a class four felony," based on the following allegation:
On or about the 1st day of November, 2015 through the 4th day of March, 2016, David Charles Henry, who was required by law to register as a sex offender in Arizona, failed to give notice of a change of address or a name change, as required by A.R.S. § 13-3821, in violation of A.R.S. § 13-3822.
¶6 At a trial to the court, the state presented evidence that Henry was required to register as a sex offender and had last updated his registration on June 24, 2014, when he reported he was homeless and provided a description and physical location of his "temporary residence," as required by § 13-3821(I). Henry's 2014 registration form stated he was required to inform the sheriff within seventy-two hours of "changing [his] residence and/or [his] name" and also provided that, if he had no address or permanent residence, he "must register [his] physical location (i.e. crossroads) every 90 days with the Sheriff." Henry had initialed separate paragraphs on the registration form to indicate he understood each of those provisions. The trial court found Henry guilty as charged and, after a subsequent evidentiary hearing, found the state had proven its allegation that Henry's 2009 conviction for a registration violation was a historical prior felony conviction for sentence enhancement purposes. See A.R.S. §§ 13-105(22)(d), 13-703(B). This appeal followed.
Above his signature, Henry noted that he signed the registration document "[u]nder threat of imprisonment."
Discussion
¶7 In Henry's pro se supplemental brief, he asserts that, for a number of reasons, he should not be required to register as a sex-offender based on his 1974 conviction for rape. In addition, he argues (a) the indictment against him provided insufficient notice "of what he would face at trial or defend against," (b) the prosecutor engaged in misconduct when he argued "a different charge or the[or]y" at trial than that presented to the grand jury and on which he received notice, and (c) the trial court erred in convicting him of failure to give notice of a change of address "as oppose[d] to failure to register or update his homeless location." Finally, he contends the court erred in sentencing him as a category two repetitive offender based on a conviction that has been vacated.
Registration Requirements for 2009 Conviction
¶8 Henry's arguments that his 1974 rape conviction do not subject him to sex-offender registration requirements have been foreclosed by our decision on appeal from his 2009 conviction. See Henry, 224 Ariz. 164, ¶¶ 24, 27 (concluding "sex offender registration is a nonpunitive, regulatory scheme" that, as applied to Henry, violated neither ex post facto nor double jeopardy principles). Importantly, as the state asserted at trial in this case, Henry's 1974 rape conviction is not the only statutory basis for his registration requirement. He is also required to register, independent of his conviction in 1974, as a consequence of his 2009 conviction for violating § 13-3824. See § 13-3821(A)(19). That conviction has been affirmed on appeal and is now final. See Henry, 224 Ariz. 164, ¶ 1; State v. Febles, 210 Ariz. 589, ¶ 9 (App. 2005). Accordingly, Henry's argument that his 1974 rape conviction should not subject him to sex-offender registration requirements does not provide an arguable basis for relief.
Conviction for Charge as Alleged in Indictment
¶9 Evidence at trial established that Henry knew he was required to comply with sex-offender-registration requirements, including an obligation to re-register as a transient every ninety days, and that he had last registered as a transient in 2014. But there was no evidence that Henry had changed either his name or his address since then, and thus no evidence to prove the indictment's sole allegation that he had failed to report such a change.
¶10 Mindful that an indictment "limits the trial to the specific charge or charges stated," Ariz. R. Crim. P. 13.5(b), we asked the parties to address (1) whether the evidence was sufficient to prove the elements of the charge stated in the grand jury indictment, (2) whether his conviction affords adequate protection against double jeopardy in any subsequent prosecution, and (3) whether Henry received constitutionally adequate notice of the charge against him. We also asked the parties to address these issues in the context of fundamental error "as necessary" and to consider whether Henry's challenge to the indictment is subject to the waiver provision in Rule 13.5.
¶11 We review these issues, first raised in Henry's pro se brief, for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005) (defendant who fails to object at trial forfeits right to appellate relief for all but fundamental, prejudicial error). To prevail under this standard of review, Henry "must first prove error." Id. ¶ 23. To show the error complained of is fundamental, he must establish that it "goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." Id. ¶ 24. Finally, he must "demonstrate that the error caused him prejudice." Id. ¶ 26. We review questions of law, including constitutional issues, de novo. State v. Bolding, 227 Ariz. 82, ¶ 5 (App. 2011).
1. Waiver
¶12 Relying on Rule 13.5 and State v. Anderson, 210 Ariz. 327, ¶¶ 14-19 (2005), the state maintains Henry has waived any challenge to the indictment by failing to raise it in a timely, pretrial motion. And relying on State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008), the state contends Henry has waived our review for fundamental error.
Rule 13.5(d) provides, "A defendant may object to a defect in the charging document only by filing a motion under Rule 16." Rule 16.1(b), Ariz. R. Crim. P., provides that "[p]arties must make all motions," other than those challenging jurisdiction, "no later than 20 days before trial," and Rule 16.1(c) provides that an untimely motion may be precluded.
¶13 We decline to regard the issue as waived or forfeited. In Anderson, the court addressed a defendant's waiver in the context of a lack of specificity and duplicity, both defects that are apparent on the face of an indictment. 210 Ariz. 327, ¶¶ 14-20. In contrast here, Henry does not allege the indictment was insufficiently specific or duplicitous; instead, he maintains the specific facts alleged were not proven at trial. We find persuasive Henry's argument that Rule 13.5 did not require a pretrial challenge to this indictment, which, on its face, was not defective. See State v. Rivera, 226 Ariz. 325, ¶ 6 (App. 2011) ("If the state charges an offense it simply cannot prove, the indictment is neither defective nor subject to amendment."). And although Henry did not expressly develop his arguments in the context of fundamental error, as we had requested, he addresses the issue of prejudice in a manner sufficient to permit our review on the merits. Cf. Henderson, 210 Ariz. 561, n.6 (supplemental briefing on issue of prejudice appropriately ordered when appellate court identifies possible fundamental error not addressed by appellant).
2. Adequacy of the Indictment
¶14 An indictment is "a plain, concise statement of the facts sufficiently definite to inform the defendant of a charged offense." Ariz. R. Crim. P. 13.1(a). In addition, an indictment "must state the official or customary citation of the statute, rule, regulation or other provision of law the defendant allegedly violated," and specification of an offense is "a charge of that offense and all necessarily included offenses." Ariz. R. Crim. P. 13.1(d), (e). "[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974).
Notwithstanding this test of an indictment's sufficiency, we note that any future defense of double jeopardy "is not limited to the four corners of the indictment"; rather, "the entire record is available to bar any subsequent action." State v. Phelps, 125 Ariz. 114, 119 (App. 1979).
¶15 Asserting that § 13-3822(A) identifies "a single offense that can be committed by alternative means," the state appears to argue Henry's conviction was consistent with the indictment and, therefore, no error occurred. Relying on State v. Arnett, 158 Ariz. 15, 18-19 (1988), and State v. Rivera, 207 Ariz. 69, ¶ 12 (App. 2004), the state maintains that, because it "was not required to list any of the potential theories of culpability in the indictment" for such an offense, it did not err by failing "to expressly list in the indictment every alternative theory on which it intended to rely."
Section 13-3822(A) provides, in relevant part,
Within seventy-two hours . . . after moving from the person's residence within a county or after changing the person's name, a person who is required to register under this article shall inform the sheriff in person and in writing of the person's new residence, address or new name . . . . If the person has more than one residence or does not have an address or a permanent place of residence, the person shall register as a transient not less than every ninety days with the sheriff in whose jurisdiction the transient is physically present.
¶16 We cannot agree. We recognize that Arizona courts have concluded some criminal statutes proscribe a single offense that may be committed by alternative means, rather than identifying separate offenses. Compare, e.g., State v. Paredes-Solano, 223 Ariz. 284, ¶ 14 (App. 2009) (collecting cases; recognizing first-degree murder, kidnapping, and theft as unitary offenses), with State v. Freeney, 223 Ariz. 110, ¶¶ 16-17 (2009) (subsections of A.R.S. § 13-1203 identify separate crimes; when "elements of one offense materially differ from those of another—even if the two are defined in subsections of the same statute—they are distinct and separate crimes"). And when a defendant is charged under such an alternative-means statute, an indictment "need not inform the defendant of the theory by which the state intends to prove that charge so long as the defendant receives sufficient notice to reasonably rebut the allegation." Rivera, 207 Ariz. 69, ¶¶ 10, 12-13 (concluding "'driving' and 'actual physical control,' [A.R.S. § 28-1381(A)]" are "alternative (and not mutually exclusive) ways of violating the DUI laws"; no violation of due process when defendant had adequate notice of prosecution based on alternative theories).
¶17 For example, in Arnett, our supreme court concluded a defendant's right to a unanimous jury verdict was not violated by the indictment's reliance on the first-degree murder statute, which provided multiple ways of committing that offense, or by a prosecution that proceeded on those multiple theories. 158 Ariz. at 20. According to the court, although the defendant was "entitled to a unanimous jury verdict on whether murder ha[d] been committed," it was unnecessary "to know which of the three theories," alone or in combination, "the jury relied upon." Id.
¶18 But even if the state is correct that a violation of § 13-3822(A) is best characterized as a unitary, alternative-means offense, the issue here does not rest on the state's statutory theories of culpability, but on the single factual basis alleged but not proven at trial. See United States v. Cruikshank, 92 U.S. 542, 558 (1875) (indictment must set forth facts "with reasonable particularity of time, place, and circumstances," "not conclusions of law alone"). This case is distinguishable from Rivera, in which the state alleged in the indictment that the defendant "drove or was in actual physical control of [the] vehicle," thus identifying the alternative ways in which he could be found guilty of violating A.R.S. § 28-1381(A). 207 Ariz. 69, ¶ 3 (emphasis omitted). And in Arnett, the indictment not only identified the elements of the charge by citing the relevant statute, but it specifically alleged the facts that supported the charge: That the defendant committed murder by shooting a named victim with an identified weapon at a specified time and place. 158 Ariz. at 18.
The indictment had also charged Arnett with "grand theft auto," a charge that was dismissed after the jury was impaneled. Arnett, 158 Ariz. at 18.
¶19 Here, the indictment not only limited its description of § 13-3822, but, as facts to support that charge, it alleged only that Henry "failed to give notice of a change of address or a name change" between November 1, 2015 and March 4, 2016. "Undoubtedly the language of [a] statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged." Hamling, 418 U.S. at 117-18, quoting United States v. Hess, 124 U.S. 483, 487 (1888). Thus, even if we concluded a reference to § 13-3822 would provide notice of alternative means of its violation, the factual allegations limited the charges in the indictment, and those allegations were not proven at trial. See Stirone v. United States, 361 U.S. 212, 215-18 (1960) (charges in indictment "may not be broadened through amendment except by the grand jury itself"; "even though it be assumed that under an indictment drawn in general terms a conviction might rest upon a showing" of alternative violations, "when only one particular" violation is charged, "a conviction must rest on that charge and not another").
¶20 Moreover, as this court explained in State v. Forrester, "[i]f a statute describes a single offense which may be committed in more than one way, it is unnecessary for there to be unanimity as to the means by which the crime is committed provided there is substantial evidence to support each of the means charged." 134 Ariz. 444, 447 (App. 1982) (emphasis added); see also Arnett, 158 Ariz. at 20 (conviction affirmed where reviewing court found "ample evidence to support each theory" of first-degree murder alleged). Although unanimity is not at issue in a case tried to the court, and the state did present substantial evidence that Henry had violated § 13-3822(A) by failing to register as a transient every ninety days, there was no substantial evidence, or any evidence, to support a conviction based on the factual allegations in the indictment. Accordingly, absent an amendment of the indictment, the trial was not "limit[ed] . . . to the specific charge or charges stated" as required by Rule 13.5(b).
3. Amendment of Indictment to Conform to the Evidence
¶21 "When [an] amendment results in no change in the underlying offense or actual prejudice to the defendant, the indictment is automatically deemed amended to conform to the evidence adduced at trial." State v. Jones, 188 Ariz. 534, 544 (App. 1996), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239 (2012). For reasons similar to those addressed above, we conclude any implicit amendment of the indictment to conform to the evidence at trial would not cure the error.
¶22 Rule 13.5(b) provides an indictment "may be amended only to correct mistakes of fact or remedy formal or technical defects," unless the defendant consents to the amendment. In addition, an indictment "is deemed amended to conform to the evidence admitted during any court proceeding," Ariz. R. Crim. P. 13.5(b), but only when necessary to "correct a mistake of fact or remedy a formal or technical defect in the indictment," Freeney, 223 Ariz. 110, ¶¶ 18-19 ("[P]roper application of Rule 13.5(b) hinges on the existence of some mistake or defect in the indictment for which a corrective amendment is needed."); see also State v. Sanders, 205 Ariz. 208, ¶ 19 (App. 2003) ("common theme" in cases upholding amendments based on trial evidence "is that the defect is minor and correcting it does no harm to the defendant's ability to defend himself"), overruled in part on other grounds by Freeney, 223 Ariz. 110. Thus, Rule 13.5(b) does not authorize an amendment that "chang[es] the nature of the offense." Freeney, 223 Ariz. 110, ¶ 15; see also State v. Bruce, 125 Ariz. 421, 423 (1980).
¶23 Henry maintains that "allowing the State to [e]ffect a deemed amendment to the Indictment would alter the elements of the charged offense and would result in a violation of both Rule 13.5 and the Sixth Amendment of the [United States] Constitution." In contrast, in arguing that § 13-3822 provides alternative means of committing the same offense, the state implicitly contends an amendment to conform to proof at trial would not change the nature of the offense. Cf. State v. Winter, 146 Ariz. 461, 464-65 (App. 1985) (because theft is "unitary" offense, amendment of indictment to allege specific subsection did not alter nature of offense), questioned in Sanders, 205 Ariz. 208, and abrogated on other grounds by State v. Kamai, 184 Ariz. 620 (App. 1995).
¶24 Again, we find it unnecessary to address whether § 13-3822 defines multiple offenses or a single offense by multiple means. We have stated that an amendment changes the nature of an offense, and thus violates Rule 13.5, "either by proposing a change in factual allegations or a change in the legal description of the elements of the offense." Sanders, 205 Ariz. 208, ¶ 25; see also State v. Rivera, 226 Ariz. 325, ¶¶ 4, 8 (App. 2011) (no amendment to conform to evidence when new factual allegations changed nature of offense; "[s]hooting at a house or other persons is distinct from shooting at [person named in indictment]"); State v. Fimbres, 222 Ariz. 293, ¶ 40 (App. 2009) (amendment to conform to evidence erroneous; amending factual allegation from forgery to manufacturing or altering credit card changed nature of offense charged). As addressed above, the challenge to the indictment in this case is not dependent on how the elements of the offense were delineated, but on the state's failure to prove, or even present evidence of, the facts alleged in violation of § 13-3822.
4. Notice and Prejudice
¶25 Because we have determined error occurred, we next consider whether the error is fundamental and prejudicial. See Henderson, 210 Ariz. 561, ¶¶ 24, 26. In Freeney, our supreme court concluded an erroneously amended indictment "is neither prejudicial per se nor structural error." 223 Ariz. 110, ¶¶ 21, 24, 26. Noting that "the touchstone of the Sixth Amendment notice requirement is whether the defendant had actual notice of the charge, from either the indictment or other sources," the court found Freeney had "abundant notice" of the state's allegation that he had physically injured the victim, citing the state's allegation of dangerousness, pretrial disclosures, and the joint pretrial statement. Id. ¶¶ 29-30. Accordingly, although the indictment did not include the allegation and was erroneously amended, the court concluded the error was harmless beyond a reasonable doubt. Id. ¶¶ 30-31. As part of its analysis, the court also noted the defendant had not alleged, and could not show, that the state's amendment prejudiced his "litigation strategy" of an "'all or nothing'" defense. Id. ¶ 28.
The supreme court reviewed for harmless error because, unlike Henry, Freeney had objected to the state's proceeding by an amended indictment on a theory of culpability other than that originally alleged. Freeney, 223 Ariz. 110, ¶ 26. Under harmless error review, it is the state's burden to establish the error was harmless. Id. In contrast, Henry has the burden of establishing the error was fundamental and prejudicial. Henderson, 210 Ariz. 561, ¶¶ 24, 26. --------
¶26 Similarly, we conclude Henry has not met his burden of showing fundamental, prejudicial error. Rather, based on record evidence, Henry received "constitutionally adequate notice of the charges against him." Id. ¶ 26. Henry acknowledges he "[a]rguably" knew the state intended to prosecute him for a failure to register as a transient every ninety days based on "documents disclosed in the course of the case." Although he does not identify those documents, the transcript of grand jury proceedings and the interim complaint both support the state's argument that Henry knew, early on, that the state intended to proceed on the theory that he had failed to comply with the requirement, in § 13-3822(A), that he register as a transient every ninety days. In addition, Henry's only defense at trial was that he should not be required, based on his 1974 conviction, to comply with any sex-offender registration requirements. The erroneous factual allegations in the indictment had no effect on that defense. See Freeney, 223 Ariz. 110, ¶ 28. Because Henry has failed to establish fundamental, prejudicial error, he is not entitled to relief on this claim.
Sentence as Category Two Repetitive Offender
¶27 In his pro se brief, Henry maintains the trial court erred in sentencing him, pursuant to A.R.S. § 13-703(B) and (I), as a category two repetitive offender based on its determination that his 2009 conviction in Pima County Superior Court Cause No. CR20080857 was Henry's "third or more prior felony conviction." A.R.S. § 13-105(22)(d). We find no arguable merit to this claim, and further briefing is not warranted.
¶28 The trial court found Henry to be a repetitive offender in reliance, at least in part, on Henry's convictions in Pima County Superior Court Cause Nos. CR20022443 and CR20043740. Henry correctly notes his conviction for the 2002 offense was vacated on appeal, and so was not properly considered as a prior conviction for sentencing purposes. See State v. Henry, 2 CA-CR 2003-0064 (Ariz. App. Jan. 8, 2004) (mem. decision).
¶29 Henry did not object to the trial court's findings at the priors trial, and the court's statement that it was "also" finding these convictions, after the state had identified four other prior convictions, suggests those other convictions likely had been considered. In any event, the court had taken judicial notice of the case file in Pima County No. CR20080857. In that matter, the court sentenced Henry as a repetitive offender after finding his conviction in Pima County No. CR20043740 was his third or more prior felony conviction, without consideration of the 2002 conviction that had been vacated. Based on this determination, Henry's conviction in the 2008 matter was also, necessarily, a "third or more prior felony conviction," A.R.S. § 13-105(22)(d), subjecting Henry to sentencing as a category two repetitive offender. A.R.S. § 13-703(B).
Disposition
¶30 Having identified an arguable issue for appeal, we have considered supplemental briefs by counsel and have determined no error warrants reversal of Henry's conviction. In our examination of the record and our review of Henry's pro se brief, we have found no reversible error and no other arguable issue warranting further appellate review. See Anders, 386 U.S. at 744. Accordingly, we affirm Henry's conviction and sentence.