Opinion
No. 2 CA-CR 2017-0177
05-30-2018
THE STATE OF ARIZONA, Appellee, v. FRANCISCO RAMON RASCON, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee James Fullin, Pima County Legal Defender By Jeffrey Kautenburger, 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NOT FOR PUBLICATION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. CR20163576001
The Honorable Sean E. Brearcliffe, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee James Fullin, Pima County Legal Defender
By Jeffrey Kautenburger, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Following a jury trial, Francisco Rascon was convicted of unlawful use of a means of transportation and third-degree burglary. The trial court sentenced him to concurrent sentences, the longer of which is ten years. On appeal, Rascon argues the court erred by allowing the state to amend the indictment, resulting in duplicitous charges. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Rascon's convictions. See State v. Paredes-Solano, 223 Ariz. 284, ¶ 2 (App. 2009). On May 1, 2016, Rascon and E.L. were having lunch at a restaurant in Phoenix. E.L. went to the restroom and, when she returned, Rascon had left, her car keys were missing, and her vehicle was no longer in the parking lot. She called Rascon several times, but he did not answer his phone or return her calls. She contacted the police later that day and reported her vehicle had been stolen.
¶3 On May 10, a Tucson Police Department officer saw E.L.'s vehicle being driven down a street in Tucson. After it "accelerated" and "made [an] abrupt turn . . . without signaling," the officer conducted a records check of the license plate and discovered the vehicle had been reported stolen. The vehicle then abruptly stopped in the roadway "at about a 45 degree angle," and the officer activated his emergency lights. A female passenger began exiting the rear driver-side door, and the officer could see Rascon in the driver's seat. After the officer instructed Rascon to turn the engine off, the woman got back into the vehicle, and Rascon quickly drove away. The officer followed but eventually lost sight of the vehicle. It was found shortly after, with a woman hiding inside. She told police officers that Rascon had been the driver when the vehicle had fled earlier.
¶4 The state charged Rascon with theft of a means of transportation, burglary in the third degree, and fleeing from a law enforcement vehicle. As to the theft and burglary charges, the indictment originally alleged that they occurred "[o]n or about the 1st day of May, 2016." At the end of the state's case, it moved "to amend the indictment to reflect the date range of May 1st to May 10th" as a "factual correction" under Rule 13.5(b), Ariz. R. Crim. P. The trial court granted the motion over Rascon's objections.
¶5 The jury convicted Rascon of unlawful use of a means of transportation as a lesser-included offense and burglary in the third degree. It could not reach a verdict on the fleeing from a law enforcement vehicle charge, and the trial court declared a mistrial as to that count. The court sentenced Rascon as described above. We have jurisdiction over his timely appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
The trial court later granted the state's motion to dismiss without prejudice the charge of fleeing from a law enforcement vehicle.
Discussion
¶6 Rascon argues the indictment, as amended, was duplicitous, thus creating the risk of nonunanimous jury verdicts. Because he failed to raise this argument below, Rascon has forfeited review for all but fundamental, prejudicial error. See Paredes-Solano, 223 Ariz. 284, ¶¶ 5-8; see also State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005). Duplicity issues constitute fundamental error insofar as they violate a defendant's right to a unanimous jury verdict. See State v. Davis, 206 Ariz. 377, ¶ 64 (2003); see also State v. Klokic, 219 Ariz. 241, ¶ 12 (App. 2008).
Rascon appears to suggest that his failure to timely object to the indictment is excused because the duplicity error here is based on the evidence presented at trial. But such an allegation at trial must be raised once the basis for the objection arises. See State v. Butler, 230 Ariz. 465, n.4 (App. 2012); see also State v. Klokic, 219 Ariz. 241, ¶¶ 12-13 (App. 2008). Because Rascon never objected on duplicity grounds at any time, he has forfeited review of any duplicity issue except for fundamental, prejudicial error. See Butler, 230 Ariz. 465, ¶¶ 14-15.
¶7 Preliminarily, we note that the amended indictment here is not duplicitous. A duplicitous indictment is "one that, on its face, alleges multiple crimes within one count." State v. Butler, 230 Ariz. 465, ¶ 13 (App. 2012). The original indictment alleged that Rascon committed the separate offenses of theft of a means of transportation and burglary in the third degree, both "[o]n or about the 1st day of May, 2016," involving a "2001 GMC Denali belonging to [E.L.]." The amendment expanded the indictment's date range, but otherwise made no changes. The indictment thus only alleged one theft and one burglary on the date the state believed Rascon had controlled and had remained in possession of E.L.'s vehicle. See A.R.S. §§ 13-1814(A)(5) (theft of means of transportation occurs when person, without lawful authority, "[c]ontrols" another's means of transportation with reason to know property is stolen), 13-1506(A)(1) (burglary in third degree occurs when person "[e]nter[s] or remain[s] unlawfully in or on" nonresidential structure with intent to commit felony); see also State v. Anderson, 210 Ariz. 327, ¶ 20 (2005) (indictment alleging defendant committed armed robbery at address on particular date not duplicitous despite failure to specify victim or property taken); cf. Butler, 230 Ariz. 465, ¶¶ 12-13 (indictment that identified three distinct weapons in single count for weapons misconduct duplicitous); Paredes-Solano, 223 Ariz. 284, ¶¶ 5, 9, 16 (challenge to indictment charging defendant with violating both A.R.S. § 13-3553(A)(1) and (2) in single count implicates duplicitous indictment).
¶8 Rascon argues the amendment of the indictment to conform to the evidence presented at trial expanded the date range from May 1 to May 10 and placed him "in jeopardy for any one of what could be multiple separate offenses over ten days based on the state's prosecution theory." Because his argument turns on the presentation of evidence, his contention is, in fact, that the charge was duplicitous, not the indictment. See Anderson, 210 Ariz. 327, ¶ 20 (argument that indictment's failure to identify "alleged victim or property . . . not really targeted at the indictment" but jury instructions and verdict forms). Both types of duplicity, however, "present similar problems with respect to jury unanimity and pleading double jeopardy." Butler, 230 Ariz. 465, ¶ 13; see also Klokic, 219 Ariz. 241, ¶ 12.
The two types of duplicity are often confused. See Butler, 230 Ariz. 465, ¶¶ 12-13 (defendant "mischaracterized" appeal as duplicitous charge when actually duplicitous indictment challenge); Paredes-Solano, 223 Ariz. 284, ¶¶ 4-5 (defendant argued indictment duplicitous, but characterized argument as duplicitous charge); Klokic, 219 Ariz. 241, ¶¶ 10-12 (defendant alleged duplicitous indictment, but argument raised duplicitous charge). Accordingly, we address Rascon's argument despite the mischaracterization. --------
¶9 If the state introduces multiple acts to prove a single charge, the trial court "must either 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.'" Klokic, 219 Ariz. 241, ¶ 14, quoting State v. Schroeder, 167 Ariz. 47, 54 (App. 1990) (Kleinschmidt, J., concurring). But those curative measures are not required if the allegedly separate acts "are part of a single criminal transaction." Id. ¶ 15; see also State v. Solano, 187 Ariz. 512, 520 (App. 1996). Separate acts "may be considered part of the same criminal transaction 'when the defendant offers essentially the same defense to each of the acts and there is no reasonable basis for the jury to distinguish between them.'" Id. ¶¶ 18, 25, 32, quoting People v. Stankewitz, 793 P.2d 23, 41 (Cal. 1990).
¶10 The state's theory throughout this case was that Rascon took E.L.'s vehicle on May 1 and then drove it while fleeing from the Tucson police officer on May 10. It did not allege any other acts during the intervening time that would separately fall under either §§ 13-1814(A)(5) or 13-1506(A)(1). Indeed, in his objection to the state's amendment, Rascon stated, "There has never been a question of how exactly these events were alleged to have occurred." Cf. Klokic, 219 Ariz. 241, ¶ 12 (potential problem of duplicitous charge is lack of adequate notice of charges). And to the extent Rascon's argument can be interpreted to mean that each day he retained possession of the car between May 1 and 10 constituted a new "crime," which could form the predicate for his convictions, we disagree. See §§ 13-1814(A)(5), 13-1506(A)(1); see also State v. Helmer, 203 Ariz. 309, ¶ 8 (App. 2002) (continuous offenses "endure[] over a period of time, and [their] commission is ongoing until cessation of the proscribed conduct"); People v. Zuniga, 80 P.3d 965, 969 (Colo. App. 2003) ("A defendant necessarily continues to commit any crime involving possession, including the offense of possession of stolen property, during the entire period he or she possesses the property."). Thus, under the state's theory, there was no reasonable basis to distinguish between the May 1 initial taking of the vehicle and the May 10 flight from a police officer. See Klokic, 219 Ariz. 241, ¶ 25.
¶11 Rascon argues, however, that he presented different defenses for the events of May 1 and May 10, and, therefore, like the situation in Davis, "there is a reasonable basis to conclude that the presented acts are not part of the same transaction." In Davis, our supreme court found a charge of sexual misconduct with a minor was duplicitous because the two acts relied upon by the state occurred eleven days apart and the defendant offered different defenses for each act. 206 Ariz. 377, ¶¶ 7, 58-59. The defendant denied having sex with the victim at all and, as to the latter date, offered an alibi defense. Id. ¶¶ 51, 58. Consequently, it was "possible that some jurors may have believed [the defendant's] alibi defense and convicted him for" the earlier offense, while others may have convicted him for the latter offense "based on the doctor's testimony that [the victim] had engaged in sex within the preceding week." Id. ¶ 59. The court therefore could not "be certain which offense served as the predicate for the conviction," thus raising "the real possibility of a non-unanimous jury verdict." Id.; see also Klokic, 219 Ariz. 241, ¶¶ 29, 37-38 (risk of nonunanimous verdict where defendant denied pointing handgun at victim and, alternatively, that he did so with justification).
¶12 Rascon testified that he, E.L., and a couple of friends had a plan in which his friends would take E.L.'s vehicle to Mexico, and E.L. would report it as stolen. According to Rascon, he was in E.L.'s vehicle on May 1 in Phoenix when he and E.L. picked up his friends but he never drove it at any time and was never in Tucson. He stated his friends did not follow the plan, and, instead of taking the vehicle to Mexico, "took off in the car" and "[were] riding around in Tucson." He further testified that although he had tried to get in touch with E.L. after his friends failed to take the vehicle to Mexico, she did not respond.
¶13 Rascon contends that some jurors may have "believed that the theft and burglary did not occur until . . . May 10th, when the plan to dispose [of] the [vehicle] was not going through, and [E.L.] was no longer permitting him to use her vehicle." Rascon never testified, however, that E.L. at any point had rescinded her permission. Unlike Davis, Rascon's defense did not involve two or more separate instances in which he could potentially have taken E.L.'s car unlawfully on May 1 or on May 10 (or any day in between for that matter). Essentially, Rascon offered an all-or-nothing defense, such that the jury's options were to either conclude that Rascon took the vehicle without E.L.'s permission on May 1, or that he took it with her permission on the same date. See State v. Wall, 212 Ariz. 1, ¶ 9 (2006) (all-or-nothing defense "such that [defendant] is either guilty of the charged offense or not guilty at all"). Consequently, both the evidence presented at trial and the parties' arguments show that the events of May 1 were the predicate for the theft and burglary convictions, and the trial court did not err by allowing the state to amend the indictment without taking any curative measures. See Solano, 187 Ariz. at 520.
Disposition
¶14 For the foregoing reasons, we affirm Rascon's convictions and sentences.