Opinion
No. 2 CA-CR 2013-0436
07-22-2014
THE STATE OF ARIZONA, Appellee, v. ANTHONY BRANDEN SIPES, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Michael J. Miller, Assistant Public 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20123526001
The Honorable Christopher C. Browning, Judge
VACATED AND REMANDED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 After a jury trial, appellant Anthony Sipes was convicted of aggravated assault on a peace officer. On appeal, he argues that he was charged with a duplicitous indictment and therefore suffered the risk of a non-unanimous jury verdict, he was erroneously sentenced, and, the trial court erred in denying his request for a competency evaluation. Because we find that a risk of a non-unanimous verdict constituting fundamental, prejudicial error occurred, which the state concedes, we vacate Sipes's conviction.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Sipes's conviction. See State v. Haverstick, 234 Ariz. 161, ¶ 2, 318 P.3d 877, 880 (App. 2014). In September 2012, S.G., a detective with the Tucson Police Department, along with another officer, went to an apartment to talk to Sipes in connection with an unrelated investigation. A resident of the apartment permitted the officers to enter. When Sipes learned of their presence, he cloistered himself in the bathroom. He eventually came out, but when approached by S.G., Sipes brought his arm up to S.G.'s neck, attempting to put him in a choke hold. S.G. and the other officer eventually subdued and handcuffed Sipes.
¶3 Sipes was convicted as detailed above and sentenced to a slightly mitigated prison term of one and a half years. We have jurisdiction of Sipes's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Discussion
¶4 Sipes argued in his opening brief that his conviction should be reversed because his "duplicitous indictment" created "a real danger of a non-unanimous verdict." The indictment alleged that Sipes "assaulted [the victim], a peace officer . . . in violation of A.R.S. §[] 13-1204(A)(8)." To establish aggravated assault under § 13-1204(A)(8), the state must prove the defendant committed simple assault under A.R.S. § 13-1203 while "knowing or having reason to know that the victim is . . . [a] peace officer, or a person summoned and directed by the officer while engaged in the execution of any official duties." A simple assault occurs if a defendant:
1. Intentionally, knowingly or recklessly caus[es] any physical injury to another person; or§ 13-1203(A). These three types of simple assault are distinct offenses with different elements, not merely different manners of committing the same offense. See State v. Freeney, 223 Ariz. 110, ¶¶ 16-17, 219 P.3d 1039, 1042 (2009); In re Jeremiah T., 212 Ariz. 30, ¶ 12, 126 P.3d 177, 181 (App. 2006).
2. Intentionally plac[es] another person in reasonable apprehension of imminent physical injury; or
3. Knowingly touch[es] another person with the intent to injure, insult or provoke such person.
¶5 At trial, the trial court instructed the jury on all three forms of simple assault, but did not instruct that it had to be unanimous on the type of simple assault Sipes had committed. During closing arguments, the state argued that Sipes had committed all three forms of assault. The jury returned a guilty verdict on the aggravated assault charge, but there was nothing in the verdict form that established which type or types of simple assault it unanimously agreed Sipes had committed. "Therefore, on appeal, we must assume that the verdict is based, at least in part, on a finding of" all three forms of simple assault. See State v. Detrich, 178 Ariz. 380, 383, 873 P.2d 1302, 1305 (1994).
¶6 In its answering brief, the state conceded that, based on the evidence at trial, "[n]o jurors could have reasonably concluded that [Sipes] had violated § 13-1203(A)(2)." Although Sipes did not address the state's concession in his reply brief, this court requested supplemental briefing on whether, given the state's concession, we must vacate the conviction under State v. Lopez, 158 Ariz. 258, 762 P.2d 545 (1988). In its supplemental brief, the state concedes Lopez requires that we vacate Sipes's conviction and remand the matter for a new trial.
¶7 We will not ignore fundamental error if we find it. See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007). Under article II, § 23 of the Arizona Constitution, a defendant has the right to a unanimous jury verdict in a criminal case. Thus, "'[a] violation of that right constitutes fundamental error.'" State v. Delgado, 232 Ariz. 182, ¶ 19, 303 P.3d 76, 82 (App. 2013), quoting State v. Davis, 206 Ariz. 377, ¶ 64, 79 P.3d 64, 77 (2003).
¶8 In Lopez, the defendant was convicted of first-degree murder after the jurors were instructed they need not agree whether it was premeditated murder or felony murder so long as they agreed the defendant had committed first-degree murder. 158 Ariz. at 266, 762 P.2d at 553. On appeal, our supreme court determined there was insufficient evidence to support the felony-murder conviction. Id. at 264, 762 P.2d at 551. Consequently, the court concluded, "since the jury's verdict may have been based, in whole or in part, on the impermissible felony murder theory," it had to reverse the defendant's conviction for first-degree murder, specifying that he be retried only on a premeditation theory. Id. at 266, 762 P.2d at 553; see also State v. Alvarado, 178 Ariz. 539, 542, 543-44, 875 P.2d 198, 201, 202-03 (App. 1994) (reversal and remand required where general jury verdict form did not indicate if verdict based upon state's theory which misstated mens rea requirement).
To the extent that Lopez could be interpreted to require that a jury be unanimous as to either a felony murder theory or premeditated theory of first-degree murder, we note that this proposition has been overruled. State v. Schad, 163 Ariz. 411, 417, 788 P.2d 1162, 1168 (1989) (noting that "'first degree murder is only one crime'" and "'the defendant is not entitled to a unanimous jury verdict on the precise manner in which the act was committed'"), quoting State v. Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982), aff'd, 501 U.S. 624 (1991). However, the general proposition that fundamental error occurs where a jury's verdict may have been based on an impermissible theory remains good law. See State v. Hardy, 230 Ariz. 281, ¶ 29, 283 P.3d 12, 19 (2012) (reconciling Shad and Lopez); see also State v. Alvarado, 178 Ariz. 539, 542, 543-44, 875 P.2d 198, 201, 202-03 (App. 1994); c.f. State v. Anderson, 210 Ariz. 327, ¶¶ 125, 129-30, 111 P.3d 369, 398 (2005) (court would not consider capital punishment aggravator where unclear if jury's finding based on impermissible "heinous/depraved prong").
¶9 Here, as the state conceded, insufficient evidence supported the verdict based on one of the types of simple assault. Because the jury was given a general verdict form, we are unable to determine whether "the jury's verdict may have been based, in whole or in part, on the impermissible [simple assault] theory." See Lopez, 158 Ariz. at 266, 762 P.2d at 553. Thus, as the state concedes, fundamental, prejudicial error occurred based on its failure to choose an underlying theory of simple assault to submit to the jury.
¶10 Consequently, "the proper resolution here is to give each party the opportunity to have a second trial, one in which there is no confusion about" the underlying type of simple assault upon which the jury must be unanimous. See Alvarado, 178 Ariz. at 544, 875 P.2d at 203.
Because we are vacating Sipes's conviction and sentence, we need not address the other issues he has raised on appeal.
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Disposition
¶11 For the foregoing reasons, we vacate Sipes's conviction and sentence and remand the case for a new trial.