Opinion
2 CA-JV 2023-0051
08-29-2023
In re Delinquency of R.D.
Laura Conover, Pima County Attorney By Dale Cardy, Deputy County Attorney, Tucson Counsel for State Megan Page, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, Tucson Counsel for Minor
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. JV20200147 The Honorable Cathleen Linn, Judge Pro Tempore
Laura Conover, Pima County Attorney
By Dale Cardy, Deputy County Attorney, Tucson
Counsel for State
Megan Page, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Minor
Judge Kelly authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge O'Neil concurred.
MEMORANDUM DECISION
KELLY, Judge:
¶1 R.D., born February 2007, appeals from the juvenile court's order adjudicating him delinquent for assault and placing him on a twelve-month probation term. He argues the assault charge was duplicitous. We affirm.
¶2 We view the evidence in the light most favorable to upholding the juvenile court's adjudication. See In re C.D., 240 Ariz. 239, ¶ 13 (App. 2016). In July 2022, R.D. put his hand down the shirt of another resident of the group home at which he lived and simultaneously licked and bit the victim's ear. The state filed a delinquency petition alleging R.D. had committed assault by knowingly touching the victim "with the intent to injure, insult or provoke" under A.R.S. § 13-1203(A)(3). After an adjudication hearing, the juvenile court found the state had proven the count beyond a reasonable doubt. It adjudicated R.D. delinquent and placed him on a twelve-month probation term. This appeal followed.
The state also alleged R.D. had assaulted another resident. The juvenile court determined the state did not prove that charge beyond a reasonable doubt.
¶3 On appeal, R.D. argues the assault charge was duplicitous because his conduct consisted of two separate assaults-the first occurring when he put his hand down the victim's shirt and the second occurring when he licked and bit the victim's ear. A charge is duplicitous "[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 (App. 2008). A duplicitous charge may not provide adequate notice to the defendant, risks an inconsistent jury verdict, and could make pleading prior jeopardy impossible in a later prosecution. State v. Davis, 206 Ariz. 377, ¶ 54 (2003).
¶4 In the criminal context, a duplicitous charge is remedied if the state elects which of the alleged acts constitutes the crime or if the court instructs the jury that it must unanimously agree on the act that constitutes the crime. State v. West, 238 Ariz. 482, ¶ 33 (App. 2015). No remediation is required, however, if the acts are part of a single transaction. Id. "[M]ultiple 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.'" Klokic, 219 Ariz. 241, ¶ 18 (quoting People v. Stankewitz, 793 P.2d 23, 41 (Cal. 1990).
¶5 R.D.'s conduct in placing his hand down the victim's shirt and biting and licking the victim's ear could have been charged as two counts of assault. But the state has discretion "to charge as one count separate criminal acts that occurred during the course of a single criminal undertaking even if those acts might otherwise provide a basis for charging multiple criminal violations." Id. ¶ 14. R.D. acknowledges his conduct was contemporaneous but argues those acts "were not a part of the same transaction because there is a reasonable basis to distinguish between them and different defenses were offered to rebut the allegations." He argues that the victim focused on the second act-the licking and biting-as "the ultimately offensive" touching and was "a separate and distinct harm." Similarly, he asserts the state treated the conduct separately, citing the state's closing argument.
Indeed, the state could have further divided his biting and licking into separate assault counts.
¶6 But, as R.D. recognizes, the victim testified all of R.D.'s unwanted touching made him "uncomfortable." R.D.'s acts occurred at the same time-his hand was still inside the victim's shirt when he licked and bit the victim's ear. See State v. Allen, 253 Ariz. 306, ¶ 106 (2022) (acts "occurring over the course of one evening" were part of "single criminal undertaking"). And the acts involved the same risk of injury. See id. ("no reasonable basis to distinguish" between acts with same risk of harm); see also § 13-1203(A)(3).
¶7 R.D.'s assessment of the state's closing argument is unsupported by the record. The state described both acts, noted the victim had objected when R.D. put his hand down his shirt, and argued the court could thus infer the victim "did not want [R.D.] to lick and bite his ear." The state further argued all of R.D.'s conduct evidenced "an intent to insult or provoke the other person." In short, the state's closing does not permit the inference that the state intended that the juvenile court view R.D.'s conduct as separate acts. Thus, we cannot agree with R.D. that there was a reasonable basis for the court to distinguish between his acts.
¶8 R.D. further argues that he raised separate defenses, namely that he was "simply engaging in horseplay" and that the victim had fabricated the assault. He suggests the juvenile court might have found the defenses applicable to one act and not the other. But the mere existence of alternative defenses is immaterial. Instead, the question is whether the defendant offered defenses to one act that would not apply to the other. See Klokic, 219 Ariz. 241, ¶ 29 (assault charge duplicitous when "the separate facts surrounding the two alleged acts of assault that were admitted into evidence against him gave rise to different defenses"). R.D.'s defenses to both acts were the same-that the conduct was mere horseplay not assault or, alternatively, that the victim was lying. He has not explained how his defense would have changed had the state elected one of the two acts R.D. identifies as the sole basis for the single assault charge. See State v. Ramsey, 211 Ariz. 529, ¶ 7 (App. 2005) (defendant must show "how his defense was impaired or prejudiced" by the duplicitous charge).
¶9 Even if R.D.'s conduct was not a single criminal transaction, he nonetheless has not shown he is entitled to relief. Because he did not object below, he must demonstrate any error was fundamental and prejudicial. See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018); State v. Payne, 233 Ariz. 484, ¶ 80 (2013). He has not demonstrated prejudice. There was no risk of a nonunanimous jury verdict because the judge was the trier of fact. R.D. has not asserted he lacked actual notice of the conduct the state was alleging constituted assault. And, although he generally contends a duplicitous charge could limit his ability to plead prior jeopardy in a later proceeding, he has not developed this argument in any meaningful way. See State v. Moody, 208 Ariz. 424, n.9 (2004) (insufficient argument constitutes abandonment and waiver of a claim).
¶10 We affirm the juvenile court's order adjudicating R.D. delinquent and its disposition.