Opinion
No. 2 CA-CR 2014-0448
11-06-2015
THE STATE OF ARIZONA, Appellee, v. MICHAEL LEE SCHAFER JR., Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee The Law Offices of Stephanie K. Bond, P.C., Tucson By Stephanie K. Bond 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NOT FOR PUBLICATION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. 31.24.
Appeal from the Superior Court in Pima County
No. CR20132744001
The Honorable Jane L. Eikleberry, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
The Law Offices of Stephanie K. Bond, P.C., Tucson
By Stephanie K. Bond
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly concurred. VÁSQUEZ, Presiding Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 After a jury trial, Michael Schafer Jr. was convicted of conspiracy, second-degree burglary, aggravated robbery, and aggravated assault. The trial court sentenced him to concurrent, presumptive prison terms, the longest of which are 11.25 years. On appeal, Schafer challenges several of the court's jury instructions. He also contends that the charges for conspiracy and aggravated assault were duplicitous, potentially resulting in a non-unanimous jury verdict. Lastly, he argues there was insufficient evidence to support his convictions. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Schafer's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). In June 2013, after dating for eight years, Schafer and J.W. ended their relationship. J.W. tried to arrange a meeting to give Schafer his belongings, including a basket of unwashed clothes and a box of NASCAR cards, which he had left at her house. Instead, Schafer approached Shannon Adkins and asked her to "go collect [his belongings]." He also said he wanted J.W.'s cell phone because "she kept calling him and wouldn't stop" and he wanted Adkins to "whip [J.W.'s] ass." Schafer offered Adkins $150: $50 for his belongings, $50 for the cell phone, and $50 for the "ass whipping." After Schafer showed Adkins a photo of J.W., Adkins recognized J.W. from when they used to live in the same housing complex. Adkins agreed to Schafer's plan and solicited the assistance of Yvonne Lizama.
¶3 At approximately 1:00 p.m. on June 15, Adkins and Lizama knocked on J.W.'s door. Recognizing Adkins, J.W. opened the door, and Adkins asked, "Hey, do you want to get high?" After J.W. refused, Adkins punched her in the eye and pushed her into the house. The two struggled, and Adkins pinned J.W. to the ground and continued to hit her in the head. Meanwhile, Lizama searched for Schafer's belongings. Lizama asked J.W. for "a wicker basket and dirty clothes," and, after realizing that she wanted Schafer's belongings, J.W. told her where to find the clothes and NASCAR cards. Lizama grabbed the items, as well as J.W.'s purse, which contained her cell phone, car keys, credit cards, and blank checks.
¶4 Adkins and Lizama later met up with Schafer and gave him the clothes, NASCAR cards, and cell phone in exchange for $150, which the two women divided equally. Adkins kept the other items from J.W.'s purse, and, later that day, she used J.W.'s credit cards and forged checks to make purchases. A few days later, an acquaintance of Adkins used J.W.'s car keys to steal her car from her house.
¶5 J.W. reported the incident to the Tucson Police Department. During a subsequent interview with investigating officers, Schafer admitted saying "out loud" to a group of people that he would "pay somebody to go down there and . . . take care of this." He said J.W. "had [him] so upset that [he] just . . . wan[ted to] be done with her." Schafer also acknowledged paying Adkins and Lizama $150 when they gave him his clothes and NASCAR cards.
¶6 A grand jury indicted Schafer, Adkins, and Lizama with one count each of: conspiracy to commit burglary in the second degree and/or aggravated robbery and/or aggravated assault; second-degree burglary; aggravated robbery; and aggravated assault after entering a private home. In exchange for testifying at Schafer's trial, Adkins pled guilty to aggravated robbery. A jury found Schafer guilty as charged, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Pursuant to her plea agreement, Adkins also pled guilty to forgery under a different cause number, stemming from her use of J.W.'s checks. Lizama pled guilty to one count of robbery.
Jury Instructions
¶7 Schafer contends the trial court "failed to properly and completely instruct the jury." He challenges the conspiracy, second-degree burglary, and aggravated assault instructions on several grounds. He concedes that he failed to object to the jury instructions below. Accordingly, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); see also Ariz. R. Crim. P. 21.3(c) (party may not "assign as error on appeal the court's giving or failing to give any instruction or portion thereof" absent specific, timely objection). Under this standard, a defendant must show: (1) error exists, (2) the error is fundamental, and (3) the error caused him or her prejudice. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. "To prove prejudice, [a defendant] must show that a reasonable, properly instructed jury 'could have reached a different result.'" State v. Dickinson, 233 Ariz. 527, ¶ 13, 314 P.3d 1282, 1286 (App. 2013), quoting State v. James, 231 Ariz. 490, ¶ 15, 297 P.3d 182, 186 (App. 2013). A defendant cannot rely on speculation to meet this burden. Id.
¶8 "On appeal, we do not review a single sentence of jury instructions out of context." State v. Rutledge, 197 Ariz. 389, ¶ 15, 4 P.3d 444, 448 (App. 2000). Rather, "we read the jury instructions as a whole to ensure that the jury receives the information it needs to arrive at a legally correct decision." State ex rel. Thomas v. Granville, 211 Ariz. 468, ¶ 8, 123 P.3d 662, 665 (2005). In doing so, we may also consider the closing arguments. State v. Tarr, 235 Ariz. 288, ¶ 14, 331 P.3d 423, 428 (App. 2014). Jury instructions "need not be faultless." State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996).
Conspiracy Instructions
¶9 In this case, the jury instructions for conspiracy included the following:
The crime of conspiracy to commit burglary in the second degree, and/or aggravated robbery, and/or aggravated assault requires proof: One, the defendant agreed with one or more persons that one of them or another person would engage in certain conduct; and, two, the defendant intended to promote or assist in the commission of such conduct; and, three, the intended conduct would constitute a crime; and, four, an overt act was committed in furtherance of such conduct.
¶10 Schafer first argues these instructions "omitted an essential element, to wit: that the defendant knew that such conduct was a crime." In support of his argument, Schafer cites the Revised Arizona Jury Instructions (RAJI), which recommend the following language as the third element of the offense: "The intended conduct would constitute the crime charged, and the defendant knew that such conduct was a crime." State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) 10.031 (2012) ("RAJI (Criminal)").
¶11 However, the RAJI are not mandatory. See State v. Logan, 200 Ariz. 564, ¶ 12, 30 P.3d 631, 633 (2001). And, the instructions as a whole informed the jury that Schafer needed to know the conduct he conspired to commit constituted a crime. See Granville, 211 Ariz. 468, ¶ 8, 123 P.3d at 665. The jury was also instructed as follows:
Before you find that a defendant or any other person was a member of a conspiracy, the evidence must show beyond a reasonable doubt that the conspiracy was knowingly formed and that
the defendant or other person knowingly participated in the unlawful plan with the intent to promote or assist the carrying out of the conspiracy. . . .We therefore cannot say the trial court erred, let alone fundamentally erred, in omitting that portion of RAJI (Criminal) 10.031. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
A person understanding the unlawful character of a plan who knowingly encourages, advises, or assists the undertaking thereby also becomes a conspirator.
¶12 Schafer next asserts the trial court failed to instruct the jury that the charge of conspiracy to commit second-degree burglary and/or aggravated robbery and/or aggravated assault is independent of the charges for second-degree burglary, aggravated robbery, and aggravated assault. He maintains the court should have instructed the jury to consider the evidence separately for each charge pursuant to RAJI (Criminal) 10.0313.
¶13 Although the trial court did not specifically give RAJI (Criminal) 10.0313, it gave other instructions informing the jury that the four charges against Schafer were independent of each other. See Granville, 211 Ariz. 468, ¶ 8, 123 P.3d at 665; see also State v. Tyler, 149 Ariz. 312, 316, 718 P.2d 214, 218 (App. 1986) ("[A]n accused is not entitled to have an instruction given to the jury if other instructions given adequately express the same idea."). The court's instructions also included:
Each count charges a separate and distinct offense. You must decide each count separately on the evidence with the law applicable to it uninfluenced by your decision as to any other count. A defendant may be convicted or acquitted on any or all of the offenses charged. Your
findings as to each count must be stated in a separate verdict.The court therefore did not err by omitting RAJI (Criminal) 10.0313. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
¶14 Schafer next contends the trial court failed to provide a limiting instruction on the scope of the conspiracy. He maintains the court should have given the following instruction:
You have heard evidence that J.W.'s vehicle was stolen, her credit cards were used and checks were used without her permission. This evidence is admitted only for the limited purpose of assessing the reliability of Shannon Adkins' testimony and, therefore, you must consider it only for that limited purpose and not for any other purpose.See RAJI (Criminal) Std. 47.
¶15 As the state points out, however, Schafer has failed to cite any authority for the proposition that the omission of this instruction was erroneous. His failure to do so constitutes a waiver of the argument. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (appellant's brief shall contain contentions of appellant with citations to authorities, statutes, and record); State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) ("Failure to argue a claim usually constitutes abandonment and waiver of that claim.").
¶16 But even assuming the argument were not waived, it is meritless. "The primary focus of the crime of conspiracy is the agreement . . . ." State v. Arredondo, 155 Ariz. 314, 317, 746 P.2d 484, 487 (1987); see also State v. Denman, 186 Ariz. 390, 392, 923 P.2d 856, 858 (App. 1996). Although the state must also generally prove "some overt act to effect the object of the conspiracy," State v. Verive, 128 Ariz. 570, 579, 627 P.2d 721, 730 (App. 1981), a conspiracy conviction must be supported by only one object, even if the state alleges several, State v. Willoughby, 181 Ariz. 530, 545, 892 P.2d 1319, 1334 (1995). Here, even assuming that the court should have given the limiting instruction, Schafer cannot show prejudice. The jury found beyond a reasonable doubt that Schafer had conspired to commit second-degree burglary, aggravated robbery, and aggravated assault. One of those offenses alone was sufficient to support Schafer's conspiracy conviction. We therefore cannot say the trial court committed fundamental, prejudicial error by omitting a limiting instruction on the scope of the conspiracy. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
¶17 Schafer also argues the trial court erred in failing to provide jury instructions defining "act." He maintains the court should have instructed the jury that "act" means "a bodily movement," pursuant to A.R.S. § 13-105(2). He reasons that, without this instruction, the jury may have used the common meaning or dictionary definition and, consequently, "it is impossible to know whether the jury applied the law appropriately."
¶18 Although RAJI (Criminal) Stat. 1.052 provides a definition for "act" consistent with § 13-105(2), Schafer has failed to cite any authority—and we have found none—requiring the trial court to provide that instruction here. The court's instructions using the term are consistent with the RAJI for conspiracy. See RAJI (Criminal) 10.038, 10.039. And, we see no reason why the jury could not rely on the common meaning or dictionary definition for the term.
¶19 When the statutory definition and the common definition of a term are "essentially the same," the trial court need not define the term. State v. Barnett, 142 Ariz. 592, 594-95, 691 P.2d 683, 685-86 (1984) ("Where terms used in an instruction have no technical meaning peculiar to the law . . . but are used in their ordinary sense and commonly understood by those familiar with the English language, the court need not define these terms."); see also State v. Bice, 127 Ariz. 312, 314, 620 P.2d 227, 229 (App. 1980) ("The trial court is not required to define a term in instructions when it is one of ordinary significance."). "Act" commonly means "[t]he process of doing or performing something." The American Heritage Dictionary 16 (5th ed. 2011). This definition is analogous to "a bodily movement" under § 13-105(2). Cf. State v. Harris, 151 Ariz. 236, 238, 727 P.2d 14, 16 (1986) ("armed" need not be defined because legal and ordinary meanings overlap). Consequently, the court did not fundamentally err by omitting a jury instruction defining "act." See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
¶20 Schafer lastly contends the trial court should not have given the following instruction: "In considering the evidence relating to the offense of conspiracy there may be liability even if the people involved do not succeed in accomplishing their common object. In order for a conspiracy to be proven, it is not necessary that the prosecution show that the conspirators succeeded." He maintains "[n]either counsel argued that the conspiracy did not succeed" and "the opposite was argued by the [prosecutor]."
¶21 As Schafer points out, the RAJI indicate that "care should be taken to avoid . . . collateral conspiracy instructions when there is no supporting evidence." RAJI (Criminal) 10.033 use note, 10.036 use note, 10.037 use note. But that note is not included with the "Consideration of Evidence of Success of Conspiracy" instruction of which Schafer complains. See RAJI (Criminal) 10.0310.
¶22 Even assuming the trial court should not have given the instruction, Schafer has not met his burden of demonstrating prejudice. Schafer contends, "The jury may have considered this instruction as a cue from the trial court to speculate about evidence which was not offered at trial, in an attempt to make sense of why [he] would hire someone to take his belongings and assault his former girlfriend of eight years." But such speculation is insufficient. See Dickinson, 233 Ariz. 527, ¶ 13, 314 P.3d at 1286. Schafer does not explain how, absent the instruction, the jury could have reached a different result. See id. We therefore cannot say the court committed fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
Second-Degree Burglary Instructions
¶23 As to second-degree burglary, the trial court instructed the jury as follows:
The crime of burglary in the second degree requires proof that the defendant:The instructions also included the statutory definitions of "enter or remain unlawfully" and "residential structure."
1. Entered or remained unlawfully in or on a residential structure; and
2. Did so with the intent to commit any theft or felony therein.
¶24 Schafer asserts that the trial court erred by failing to instruct the jury on the definition of "felony." He argues the court should have told the jury that "felony," as defined in § 13-105(18), means "an offense for which a sentence to a term of imprisonment in the custody of the state department of corrections is authorized by any law of this state." And, he maintains he was prejudiced by the court's failure to do so "because the jury could have [convicted] him of this offense believing that a simple assault was a felony."
¶25 However, given the closing arguments, we cannot say the trial court fundamentally erred by not sua sponte instructing the jury on the statutory definition of "felony." See Tarr, 235 Ariz. 288, ¶ 14, 331 P.3d at 428. In his closing argument, the prosecutor stated: "And [the second-degree burglary] charge is going in, remaining unlawfully with the intent to commit a felony therein. They are intending to commit the robbery. They are intending to commit the aggravated assault. Okay? So [the second-degree burglary] charge is met when . . . [Adkins] and [Lizama] enter." Although the prosecutor did not define "felony," she implied that the term in this case was limited to robbery and aggravated assault, both of which fall within the scope of § 13-105(18). See A.R.S. §§ 13-702, 13-1204, 13-1902.
¶26 Moreover, Schafer has not established prejudice. Although he asserts the jury "could have" convicted him of second-degree burglary based on simple assault, that is speculation, which is not sufficient to meet his burden on appeal. See Dickinson, 233 Ariz. 527, ¶ 13, 314 P.3d at 1286. Schafer does not explain how the jury could have reached a different result. See id. The trial court therefore did not commit fundamental, prejudicial error by failing to instruct the jury on the meaning of "felony." See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
Aggravated Assault Instructions
¶27 The jury instructions for aggravated assault provided:
The crime of aggravated assault requires proof of the following:
1. The defendant committed an assault; and
2. The assault was aggravated by the following factor:
The defendant committed the assault after entering the private home of another with the intent to commit the assault.
The crime of assault requires proof that the defendant:
1. Intentionally, knowingly or recklessly caused a physical injury to another person; or
2. Intentionally put another person in reasonable apprehension of immediate physical injury; or
3. Knowingly touched another person with the intent to injure, insult or provoke that person.The instructions also included definitions for the three mental states of an assault.
¶28 Schafer maintains the trial court erred by failing to instruct the jury on the definition of "physical injury." He asserts the court should have informed the jury that "physical injury" means "the impairment of physical condition." See § 13-105(33). He cites J.W.'s testimony that Adkins had scratched her face and argues that scratches do not fall within this definition of "physical injury." Schafer further contends, "In the absence of a[n] instruction telling the jury the definition of 'physical injury,' it is impossible to know whether the jury applied the law appropriately."
¶29 However, Schafer has not directed us to any authority indicating the trial court must instruct the jury on the statutory definition of "physical injury" when explaining a charge of aggravated assault. We thus could deem the argument waived. See Ariz. R. Crim. P. 31.13(c)(1)(vi); Carver, 160 Ariz. at 175, 771 P.2d at 1390.
The RAJI for assault refer to the definition for "physical injury" in § 13-105(33). See RAJI (Criminal) 12.03 use note.
¶30 Even assuming the argument were not waived, Schafer has not met his burden of demonstrating prejudice. Again, he relies on mere speculation that the jury may have misconstrued the meaning of "physical injury." See Dickinson, 233 Ariz. 527, ¶ 13, 314 P.3d at 1286. Moreover, as the state points out, the evidence presented at trial established that Adkins did more than scratch J.W. J.W. testified that Adkins had "punched" her repeatedly, "knock[ed her] to the ground," and "gouged" her skin. Adkins also testified that she had "beat[en] the shit out of [J.W.]." We thus fail to see how a jury could have concluded that Adkins did not physically injure J.W. See id. Accordingly, the trial court did not commit fundamental, prejudicial error by failing to instruct the jury on the meaning of "physical injury." See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
Cumulative Error
¶31 Schafer also contends that "the cumulative effect of the omitted, erroneous and improper jury instructions violated [his] right to due process and a fair trial." He cites State v. Hughes, 193 Ariz. 72, 969 P.2d 1184 (1998), and State v. Payne, 233 Ariz. 484, 314 P.3d 1239 (2013), for the proposition that the cumulative effect of faulty jury instructions may result in a denial of due process. However, both of those cases involved the cumulative effect of prosecutorial misconduct. See Payne, 233 Ariz. 484, ¶ 134, 314 P.3d at 1270; Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d at 1191. As the state points out, other than with prosecutorial misconduct, Arizona "'does not recognize the so-called cumulative error doctrine.'" Hughes, 193 Ariz. 72, ¶ 25, 969 P.2d at 1190, quoting State v. Dickens, 187 Ariz. 1, 21, 926 P.2d 468, 488 (1996), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012). Schafer nevertheless urges us to "adopt the legal doctrine given the unique circumstances of this case." But we are bound by the decisions of the Arizona Supreme Court. State v. Smyers, 207 Ariz. 314, n.4, 86 P.3d 370, 374 n.4 (2004). We therefore reject Schafer's argument.
Duplicity
¶32 Schafer next contends that the charges for conspiracy and aggravated assault were duplicitous and that "the jury instructions and verdict form did not cure" the problem. He reasons that, as a result, the jury may have reached a non-unanimous verdict. Because Schafer failed to raise this argument below, he has forfeited review for all but fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. However, a violation of a defendant's right to a unanimous jury verdict constitutes such error. State v. Paredes-Solano, 223 Ariz. 284, ¶ 22, 222 P.3d 900, 908 (App. 2009).
¶33 In support of his argument, Schafer relies on State v. Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d 844, 847 (App. 2008), which explains that a duplicitous charge exists "[w]hen the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge." A duplicitous charge arises from "the evidence presented to prove a count of the indictment," not the indictment itself. Id. ¶ 13. However, like a duplicitous indictment, which charges more than one offense in a single count, a duplicitous charge can "create the 'hazard of a non-unanimous jury verdict.'" Id. ¶¶ 10, 12, quoting State v. Davis, 206 Ariz. 377, ¶ 54, 79 P.3d 64, 76 (2003).
¶34 To avoid that hazard, "the trial court is normally obliged to take one of two remedial measures to insure that the defendant receives a unanimous jury verdict": (1) require the state to elect which of the alleged acts constitutes the crime or (2) instruct the jury that they must unanimously agree on the act that constitutes the crime. Id. ¶ 14. However, Klokic provides an exception: it is not error for the court to fail to take such measures when the multiple criminal acts are part of a "single criminal transaction." Id. ¶ 15.
Conspiracy
¶35 Schafer argues that the conspiracy charge was duplicitous because the state presented "three separate and distinct acts" in support of it: second-degree burglary, aggravated robbery, and aggravated assault. Relying on Klokic, he maintains "[t]he trial court should have given an instruction to assure that the jury unanimously agreed upon which act was committed in furtherance of the conspiracy." He admits the court gave an interrogatory requiring the jury to indicate which "act" it had found proven beyond a reasonable doubt, but he argues that was "not sufficient."
¶36 Schafer's reliance on Klokic is misplaced. Schafer was charged with one count of conspiracy. As part of the indictment, the state alleged that Schafer conspired to commit second-degree burglary, aggravated robbery, and/or aggravated assault. The three alleged objects of the conspiracy are not "multiple acts" arising from the state's evidence at trial. Klokic, 219 Ariz. 241, ¶ 18, 196 P.3d at 848. Although the state presented evidence of those three offenses, it did so in order to show an overt act in furtherance of the conspiracy, Verive, 128 Ariz. at 579, 627 P.2d at 730, and to prove the substantive offenses with which Schafer was also charged.
¶37 As the state points out, a single agreement constitutes a single conspiracy, regardless of how many underlying offenses are planned as part of that agreement. Section 13-1003(C), A.R.S., provides: "A person who conspires to commit a number of offenses is guilty of only one conspiracy if the multiple offenses are the object of the same agreement or relationship and the degree of the conspiracy shall be determined by the most serious offense conspired to." And, as mentioned above, the focus of a conspiracy is the agreement, not the underlying offenses. Arredondo, 155 Ariz. at 317, 746 P.2d at 487; Denman, 186 Ariz. at 392, 923 P.2d at 858.
¶38 The trial court properly instructed the jury on § 13-1003(C). As Schafer concedes, the court also provided the jury with an interrogatory requiring it to indicate which of the three objects it found Schafer had conspired to commit. The jury found all three objects proven beyond a reasonable doubt. Schafer therefore received a unanimous jury verdict and cannot demonstrate fundamental, prejudicial error with respect to the conspiracy charge. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
Aggravated Assault
¶39 Schafer also challenges his aggravated assault conviction, arguing that the jury was potentially non-unanimous. Schafer was charged with aggravated assault after entering the private home of another in violation of A.R.S. § 13-1204(A)(5). A person commits aggravated assault under § 13-1204(A)(5) by committing an assault as defined in A.R.S. § 13-1203(A) after entering a private home with the intent to commit the assault. And, a person commits assault under § 13-1203(A) by:
The indictment alleged that Schafer had committed aggravated assault by "entering a private home" but cited § 13-1204(A)(3), dealing with "substantial disfigurement." Before trial, pursuant to the state's request, the trial court amended the indictment to cite § 13-1204(A)(5).
1. Intentionally, knowingly or recklessly causing any physical injury to another person; or
2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or
3. Knowingly touching another person with the intent to injure, insult or provoke such person.
¶40 First, Schafer argues that "the indictment was duplicitous because it failed to specify the type of assault." Second, he asserts that the charge was duplicitous because the state presented evidence of all three ways of committing assault, which he characterizes as multiple acts under Klokic. Also relying on Klokic, he argues that the trial court was required to provide an interrogatory to ensure that the jury unanimously agreed on the way the assault was committed.
Schafer similarly challenges his conspiracy conviction, arguing that the jury had to be unanimous on what type of aggravated assault they thought Schafer had conspired to commit. But for the reasons discussed above, we disagree. See also Willoughby, 181 Ariz. at 540, 892 P.2d at 1329 ("[E]lements of conspiracy are intent, an agreement, and, in some cases, an act in furtherance of a substantive offense . . . .").
¶41 State v. Waller, 235 Ariz. 479, 333 P.3d 806 (App. 2014), is instructive. In that case, the defendant was charged with one count of aggravated assault involving a deadly weapon or dangerous instrument under § 13-1204(A)(2). Id. ¶¶ 28-29. The state argued at trial that the defendant "could be found guilty of either the second or the third types of assault" in § 13-1203(A). Id. ¶ 30. The trial court instructed the jury that it did not need to unanimously agree on the way the underlying assault was committed and refused the defendant's request for a special verdict form. Id.
¶42 On appeal, the defendant argued "the trial court failed to properly instruct the jury that it was required to reach a unanimous verdict on the underlying assault." Id. ¶ 28. We addressed the issue from the perspective of both a duplicitous indictment and a duplicitous charge. Id. ¶¶ 28-36. We first concluded the indictment was not duplicitous because it "referred to only one criminal act, a single aggravated assault against an individual victim." Id. ¶ 32. We nevertheless acknowledged that "[w]hether the charge implicated more than one subsection of the assault statute . . . depends on the evidence and theories presented at trial." Id.
¶43 Given the state's argument at trial—that more than one subsection of the assault statute applied—we next concluded the charge was duplicitous and "the trial court erred . . . by not requiring a unanimous verdict on the underlying assault." Id. ¶¶ 30, 34. But we pointed out that "not every error requires reversal" and determined that the defendant's conviction did not need to be reversed because he suffered "no prejudice from the duplicitous charging." Id. We reasoned, based on the evidence presented at trial, "any juror who believed [the defendant] . . . committ[ed] assault by touching under § 13-1203(A)(3), logically must have found [the defendant] caused . . . 'reasonable apprehension of imminent physical injury,' pursuant to § 13-1203(A)(2)." Id. ¶¶ 35-36.
¶44 Similarly, Schafer's indictment was not duplicitous. It charged a single offense: aggravated assault against J.W. after entering a private home. See id. ¶ 32.
¶45 As to the potential for a duplicitous charge, however, this case is distinct from Waller because Schafer has not met his burden of showing that the trial court fundamentally erred by not providing an interrogatory on the way in which the underlying assault was committed. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. As in Waller, the prosecutor in this case seemed to suggest in closing argument that both § 13-1203(A)(1) and (3) applied. But Schafer has wholly failed to address the Klokic exception that applies when the multiple acts are part of a single criminal transaction. See Klokic, 219 Ariz. 241, ¶ 15, 196 P.3d at 847. Adkins's conduct in punching J.W. in the eye, pushing her into the house, pinning her to the ground, and repeatedly hitting her over a course of minutes—and J.W.'s reaction thereto—"'form part of one and the same transaction.'" See id. ¶ 17, quoting State v. Counterman, 8 Ariz. App. 526, 531, 448 P.2d 96, 101 (1968).
Although Schafer suggests the state also presented evidence of § 13-1203(A)(2), he directs us to no such testimony. See Ariz. R. Crim. P. 31.13(c)(1)(vi); Carver, 160 Ariz. at 175, 771 P.2d at 1390. --------
¶46 Moreover, Schafer has not sustained his burden of showing prejudice. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. As discussed above, Adkins admitted beating J.W., including pinning her to the ground and repeatedly punching her in the head, because Schafer had offered to pay her to do so. Photographs admitted at trial show numerous abrasions to J.W.'s neck and face, as well as bruising to the back of her neck. These facts amply support a jury finding that Adkins, based on her agreement with Schafer, "[i]ntentionally, knowingly or recklessly caus[ed] a[] physical injury to [J.W.]" and "[k]nowingly touch[ed J.W.] with the intent to injure, insult or provoke such person." § 13-1203(A)(1), (3); see also A.R.S. §§ 13-303(A)(3), 13-1003(A); cf. Waller, 235 Ariz. 479, ¶ 36, 333 P.3d at 817.
Sufficiency of the Evidence
¶47 Schafer lastly contends the state presented insufficient evidence to support his convictions. "The sufficiency of the evidence is a question of law we review de novo." State v. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d 656, 658 (App. 2013). "'[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. West, 226 Ariz. 559, ¶ 16, 250 P.3d 1188, 1191 (2011), quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). We will reverse only if no substantial evidence supports the convictions. State v. Sharma, 216 Ariz. 292, ¶ 7, 165 P.3d 693, 695 (App. 2007). "Substantial evidence is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of [a] defendant's guilt beyond a reasonable doubt.'" Id., quoting Mathers, 165 Ariz. at 67, 796 P.2d at 869.
¶48 Schafer contends that Adkins was "[t]he only person who testified that [he] was intentionally or knowingly involved in this crime." He maintains that "[h]er testimony was patently unbelievable and/or untrustworthy" because "it was the product of a plea agreement" and she "consistently lied." Without her testimony, Schafer asserts that "no rational trier of fact could have found the essential elements beyond a reasonable doubt."
¶49 "'The credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury.'" State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 38, 312 P.3d 123, 133 (App. 2013), quoting State v. Cox, 217 Ariz. 353, ¶ 27, 174 P.3d 265, 269 (2007). This court will not "reweigh evidence or reassess the witnesses' credibility" on appeal. Id.
¶50 Evidence calling Adkins's credibility into question was presented at trial. On direct examination, Adkins admitted that she was testifying as part of her plea agreement. On cross-examination, defense counsel thoroughly impeached Adkins based on her drug use and the various lies she had told, including those made to the police officers the first time she was interviewed before entering into the plea. It was for the jurors to determine whether to believe Adkins, and they apparently did. See id. We will not revisit that determination on appeal. See id.
¶51 The state presented sufficient evidence to support Schafer's convictions. See A.R.S. §§ 13-303(A)(3), 13-1003(A), 13-1204(A)(5), 13-1507(A), 13-1903(A). Adkins explained that Schafer had approached her and asked her to "go collect" his belongings from J.W., to take her cell phone, and to "whip her ass." Adkins agreed. She also described how she had pushed her way into J.W.'s house and had beaten J.W., while Lizama took Schafer's clothes and NASCAR cards, as well as J.W.'s purse. Adkins and Lizama fled the scene and returned Schafer's belongings in exchange for $150. A reasonable jury could accept this evidence as adequate support of Schafer's guilt beyond a reasonable doubt. See Snider, 233 Ariz. 243, ¶ 4, 311 P.3d at 658.
Disposition
¶52 For the reasons stated above, we affirm Schafer's convictions and sentences.