Opinion
No. 2 CA-CR 2013-0265
06-17-2014
THE STATE OF ARIZONA, Appellee, v. SCOTT KENNETH CAMERON, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy Pignatella Cain, 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NOT FOR PUBLICATION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. CR20123281001
The Honorable Deborah Bernini, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy Pignatella Cain, 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 Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 After a jury trial, appellant Scott Cameron was convicted of aggravated assault with a deadly weapon and sentenced to ten years' imprisonment. On appeal, he argues his conviction should be reversed due to errors involving duplicity, jury instructions, and evidence of his prior convictions. We affirm for the reasons that follow.
Factual and Procedural Background
¶2 We generally view the evidence in the light most favorable to sustaining the verdict. See State v. Urquidez, 213 Ariz. 50, ¶ 2, 138 P.3d 1177, 1178 (App. 2006). On August 22, 2012, Cameron appeared angry and confrontational as he left a shopping center where he had been refused service. As he walked across the middle of a nearby road, he obstructed traffic and began screaming and yelling obscenities. The victim, who was attempting to enter the road in a pickup truck, briefly opened his door and said "[h]ey" to Cameron to prevent him from walking into the vehicle. Cameron proceeded to hit the truck and bang on its window. When the victim opened the driver's side door again, Cameron pulled out a knife and stabbed at the victim as he was still buckled into his seat. The attack frightened the victim and left a small injury on his abdomen. He immediately telephoned 9-1-1 and police arrested Cameron minutes later.
¶3 Cameron testified in his own defense. He admitted his emotional aggravation had influenced his actions during the encounter but claimed the victim had threatened him. Cameron maintained that he displayed his knife in self-defense only after the victim appeared to be exiting the vehicle with a weapon. Cameron variously described the victim's weapon as a club, "steering wheel club," tire iron, "PVC pipe," cane, or umbrella. Cameron denied stabbing the victim but admitted he would have done so had he been able. Cameron also admitted to banging on the window of the truck. He acknowledged saying things to the victim during the encounter such as "Let's get stupid," and "Yeah, that's what I thought." Cameron further acknowledged that the victim had remained in the truck during the entire episode.
¶4 A witness in a nearby vehicle testified that Cameron had moved in a threatening manner toward the truck, pulled out a knife as he approached it, and thrust the knife into the cab of the truck. In the witness's separate 9-1-1 call, he said he thought the victim had been stabbed. The witness testified that he never saw the victim leave the truck or produce any weapon.
¶5 The victim likewise denied having any weapon or personal property in the truck, which belonged to a car dealership that employed him. A police officer and a detective who responded to the scene similarly testified they did not see anything that appeared to be a weapon when they looked inside the truck.
Duplicity
Indictment
¶6 Cameron first contends his conviction should be reversed because his uncured "duplicitous indictment" created the risk of a nonunanimous jury verdict. Duplicity is a question of law we review de novo. See State v. Ramsey, 211 Ariz. 529, ¶ 5, 124 P.3d 756, 759 (App. 2005).
¶7 The indictment alleges Cameron "assaulted [the victim] with a deadly weapon or dangerous instrument, to wit: a knife, in violation of A.R.S. §[] 13-1204(A)(2)." To establish an aggravated assault under § 13-1204(A)(2), the state must prove a simple assault under A.R.S. § 13-1203 with a deadly weapon or dangerous instrument. See State v. James, 231 Ariz. 490, n.4, 297 P.3d 182, 185 n.4 (App. 2013). 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.
¶8 Before trial, Cameron filed a "motion to amend indictment for duplicity." In that motion, he maintained "[t]he prosecution should not be allowed to argue and present evidence of two different crimes in one indictment," referring to the two forms of simple assault provided in § 13-1203(A)(1) and (2) that could support the aggravated assault charge. At a pretrial hearing on the motion, he asked that the state be forced to "elect which theory of prosecution they're going to go with." The trial court properly denied the motion, given that the indictment technically is not duplicitous.
¶9 A duplicitous indictment "charges two or more distinct offenses in a single count." State v. Barber, 133 Ariz. 572, 576, 653 P.2d 29, 33 (App. 1982); accord State v. Anderson, 210 Ariz. 327, ¶ 13, 111 P.3d 369, 377 (2005). In order for an indictment to be duplicitous, the error must be apparent from the language of the charging document itself; it does not depend on the underlying facts of the case or the evidence admitted at trial. See State v. Butler, 230 Ariz. 465, ¶¶ 13-14, 286 P.3d 1074, 1079 (App. 2012). A duplicitous charge, by contrast, 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." State v. Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d 844, 847 (App. 2008); accord State v. Paredes-Solano, 223 Ariz. 284, ¶ 4, 222 P.3d 900, 903 (App. 2009).
¶10 Here, the text of the indictment refers to only one criminal act—a single aggravated assault against an individual victim. Whether the charge implicates more than one subsection of our simple assault statute cannot be resolved through an analysis of the indictment alone. That question instead depends on the evidence and legal theories presented at trial, as Cameron's motion implicitly recognizes. In other words, the charge here does not allege two distinct offenses; it describes a single offense without specifying how it was committed or what its particular elements are. Thus, the indictment is not duplicitous. Cf. Klokic, 219 Ariz. 241, ¶ 10, 196 P.3d at 846 (indictment not duplicitous simply for "leaving unspecified the precise act . . . that constituted the alleged assault").
¶11 Although the indictment here might be insufficient for failing to specify which type of simple assault supports the aggravated assault charge, see State v. Sanders, 205 Ariz. 208, ¶ 48, 68 P.3d 434, 445 (App. 2003), overruled in part on other grounds by Freeney, 223 Ariz. 110, ¶ 26, 219 P.3d at 1043, Cameron did not challenge the indictment specifically on that basis in his motion. On appeal, Cameron similarly does not challenge the sufficiency of the indictment and the need to amend it; hence, we do not address that distinct legal issue. See McKaney v. Foreman ex rel. Cnty. of Maricopa, 209 Ariz. 268, ¶¶ 12, 14, 20, 100 P.3d 18, 21, 22 (2004) (noting challenge to indictment's sufficiency depends on adequacy of notice). To the extent a duplicity problem existed here, the trial court implicitly recognized it as a potentially duplicitous charge, not a duplicitous indictment, and the court properly denied Cameron the requested relief based on the alleged duplicity. Cf. State v. Whitney, 159 Ariz. 476, 480, 768 P.2d 638, 642 (1989) (single count proper when "count in question is predicated on a single act").
Charge
¶12 To the extent Cameron also suggests on appeal that his charge was duplicitous, he did not preserve that issue below. Cameron's pretrial motion concerning the allegedly duplicitous "indictment" did not raise a timely challenge to the duplicitous charge, given that these are related yet distinct legal issues. See State v. Rutledge, 205 Ariz. 7, ¶¶ 29-30, 66 P.3d 50, 56 (2003) (requiring objection on specific legal ground to preserve issue for appeal). A potentially duplicitous charge need not be remedied before trial. See Klokic, 219 Ariz. 241, ¶ 14, 196 P.3d at 847. When drafting a charging document, the state has discretion to create a single charge that might refer to separate criminal acts. See id. If the evidence at trial in fact renders the charge duplicitous, however, then the appropriate remedy is to "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.'" Id., quoting State v. Schroeder, 167 Ariz. 47, 54, 804 P.2d 776, 783 (1990) (Kleinschmidt, J., concurring).
¶13 In opposing Cameron's pretrial motion, the state acknowledged the need to avoid the possibility of a nonunanimous verdict. As a remedy, the state therefore proposed instructing the jury on all three forms of simple assault and providing a special interrogatory for the jurors to indicate which type of assault they unanimously found to be the basis of their verdict. The court essentially agreed with this proposed course of action, observing:
[U]ntil I hear the evidence I don't know what theory the jury needs to be instructed on. My plan is to instruct them on all three versions [of simple assault] at the very beginning as part of my substantive preliminaries, listen to the evidence.
If in fact all three of them are supported by the evidence I'll be happy to give an interrogatory on the verdict to make it clear. But the motion . . . at this time is denied.
¶14 At trial, the court gave preliminary instructions only on physical injury assault and reasonable apprehension assault. During closing argument, the prosecutor argued the jury could find Cameron guilty either based on the victim's injury or apprehension. The jury received final instructions on both forms of simple assault. However, the jury received and returned a general verdict form that did not specify the type of simple assault supporting the aggravated assault conviction.
¶15 Despite the pretrial discussions here, Cameron did not object to the instructions or verdict form provided, as required to preserve the issue for appeal under Rule 21.3(c), Ariz. R. Crim. P. He also failed to propose any jury instructions or forms of verdict pursuant to Rule 21.2 to remedy the alleged duplicity. By failing to object or cure this trial error in a timely fashion, he has forfeited review for all but fundamental error. See State v. Payne, 233 Ariz. 484, ¶ 80, 314 P.3d 1239, 1262-63 (2013); State v. Dann, 220 Ariz. 351, ¶ 76, 207 P.3d 604, 619-20 (2009). To be entitled to appellate relief under this standard, a defendant carries the burden of showing an error occurred, the error was fundamental, and it resulted in prejudice. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005).
Although we make no assumption about defense counsel's motives here, fundamental-error review is especially appropriate in circumstances such as these, where the record creates a concern that a defendant seeks to "benefit from [a] gamble," Paredes-Solano, 223 Ariz. 284, ¶ 7, 222 P.3d at 903, using a curable trial error as a "'hole card'" to be played after he has taken his chance at a favorable verdict, State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005), quoting State v. Valdez, 160 Ariz. 9, 13-14, 770 P.2d 313, 317-18 (1989).
¶16 Although Cameron does not squarely present an appellate argument that the charge here was duplicitous, he does allege that the error was fundamental and prejudicial because it might have deprived him of a unanimous finding of guilt. We have recognized that a duplicitous charge is an error of a fundamental nature and that a defendant can show prejudice "by demonstrating that the jury may have reached a nonunanimous verdict." State v. Delgado, 232 Ariz. 182, ¶ 19, 303 P.3d 76, 82 (App. 2013). Cameron has not succeeded in showing such prejudice here.
In addition to possible problems with jury unanimity, a duplicitous charge might result in a lack of notice impairing a defense, or it could thwart a future plea of double jeopardy. State v. Davis, 206 Ariz. 377, ¶ 54, 79 P.3d 64, 76 (2003). A further problem might arise in sentencing, for example, if a court is uncertain about either the elements of the offense or the precise criminal conduct established by a jury's verdict. See A.R.S. § 13-701(D)(1) (threat of serious physical injury may aggravate sentence if not essential element of offense). But we focus our analysis exclusively on the prejudice argument Cameron presents on appeal.
¶17 He first argues the jury might not have found that the victim experienced any fear under § 13-1203(A)(2), relying primarily on the victim's 9-1-1 call after the incident. In the call, the victim repeatedly denied that he needed a paramedic for his stab wound, at one point stating it was "no big deal." In context, however, those comments clearly concerned the victim's need for emergency medical treatment; they did not address his emotional reaction to the attack. At trial, the victim testified he was scared when he saw the knife, and he said he was lucky to have moved out of the way in order to avoid greater injury. He also explained that he had called 9-1-1 because he thought Cameron "was going to hurt somebody." Nothing in the 9-1-1 call contradicted this testimony or otherwise suggested the victim was not frightened by the attack.
¶18 Cameron alternatively claims some jurors might have found the minor injury was not a knife wound, given that the victim testified the knife "didn't tear [his] shirt." Cameron also contends that some jurors might have concluded the putative wound did not meet the definition of a "physical injury" under § 13-1203(A)(1). We disagree. The victim testified he was "poked" or "stabbed" with the knife. The other witness to the attack, who had no motive to fabricate or lie, testified he had a clear view of Cameron thrusting the knife into the victim's truck. Upon seeing this, the witness became distressed and believed the victim had been stabbed, explaining, "I thought for sure the guy in that truck was not in good shape."
¶19 A photograph taken at the scene further confirms that the victim suffered a physical injury from the knife. Physical injury is defined as "the impairment of physical condition." A.R.S. § 13-105(33). The injury depicted in the photograph is an admittedly minor but nonetheless visible "[p]uncture wound" to the skin that would require healing. The harm suffered, in other words, was greater than a mere "touching" under § 13-1203(A)(3), and fell within the plain meaning of a "physical injury" under §§ 13-1203(A)(1) and 13-105(33). Cf. § 13-105(39) (distinguishing "[s]erious physical injury").
¶20 Given this evidence, Cameron has not demonstrated that a reasonable jury could have reached a nonunanimous verdict either on a theory of reasonable apprehension assault under § 13-1203(A)(2) or physical injury assault under § 13-1203(A)(1). Cameron's theory of the case—that the victim was the aggressor and was neither frightened nor touched by Cameron's knife— was supported only by his own implausible and self-serving testimony, which was contradicted by more reliable evidence. Accordingly, he has failed to show the jury may have reached a nonunanimous verdict on the record before us. See Delgado, 232 Ariz. 182, ¶ 19, 303 P.3d at 82.
Jury Instructions
¶21 Cameron raises three additional issues concerning the trial court's instructions to the jury. First, he claims the court improperly instructed the jury on the definition of "physical injury" by combining the definition found in § 13-105(33) with that in A.R.S. § 13-3623(F)(4), where the same phrase also appears. Second, he contends the court erred by failing to specify that "self-defense is justified by the apparent use of unlawful physical force." Third, he argues reversal is required because the court did not give an instruction on the burden of proof for self-defense.
¶22 Cameron concedes that he did not object to any of the trial court's instructions below. See Ariz. R. Crim. P. 21.3(c). Thus, we review for fundamental error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. To prevail under this standard, he "must show there was error that went to the foundation of his case and denied him a fair trial, and that he was, in fact, prejudiced by the error." State v. VanWinkle, 230 Ariz. 387, ¶ 25, 285 P.3d 308, 314 (2012).
¶23 We find no prejudice from the allegedly erroneous instructions. For the reasons discussed above, any error in the trial court's instruction defining physical injury had no effect on the outcome of the case. Furthermore, contrary to Cameron's assertion, that instruction did not constitute an impermissible comment by the court on the evidence because it was not "an expression of an opinion on the evidence." State v. Britson, 130 Ariz. 380, 385, 636 P.2d 628, 633 (1981).
¶24 Cameron's proposed instruction regarding the "apparent attempted use" of unlawful force was an unnecessary elaboration or different phrasing of the self-defense instruction given by the trial court. The court's instruction provided that self-defense is justified if "a reasonable person would have believed that physical force was immediately necessary" and, further, that self-defense remains justified as long as "the apparent danger continues." Cf. State v. Postell, 20 Ariz. App. 119, 122, 510 P.2d 749, 752 (1973) (finding no error when court could have "expanded on its instructions" but, "as a whole[, they] fairly covered the issues before the jury"). Moreover, there was overwhelming evidence Cameron committed aggravated assault and did not act in self-defense here, but rather provoked the victim and acted as the first and only aggressor. See A.R.S. § 13-404(B)(3); cf. State v. Kelly, 149 Ariz. 115, 117-18, 716 P.2d 1052, 1054-55 (App. 1986) (finding defendant not prejudiced when overwhelming evidence established aggravated assaults and record did not support self-defense, notwithstanding defendant's testimony).
¶25 Although the trial court admittedly neglected to include an instruction specifying that the state bore the burden of disproving Cameron's claim of self-defense, see A.R.S. § 13-205(A), that omission did not affect the verdict. The court's general instructions provided: "The law does not require a defendant to prove his innocence or produce any evidence. The State has the burden of proving the defendant guilty beyond a reasonable doubt." Consistent with those instructions, Cameron argued the jury was required "to determine whether the prosecutor has convinced you beyond a reasonable doubt . . . that [Cameron] did not act in self defense." The state did not dispute this point but instead agreed the case was about self-defense and repeatedly emphasized that Cameron was "under no burden whatsoever to produce any evidence to you." Thus, despite Cameron's claim that "[t]he jury was . . . left without direction on how to weigh the justification evidence," the record suggests the jury properly understood the state's burden and simply rejected the possibility of self-defense. Cf. State v. Karr, 221 Ariz. 319, ¶ 16, 212 P.3d 11, 15 (App. 2008) (finding no prejudice when instructions and arguments informed jury that state had to prove defendant did not act in self-defense). In sum, Cameron has failed to establish any prejudice on the record before us. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
Cameron raised this issue in a motion for new trial, but the motion did not preserve the issue for appeal. See State v. Davis, 226 Ariz. 97, ¶ 12, 244 P.3d 101, 104 (App. 2010). And the court did not err or abuse its discretion in rejecting the motion for new trial based on the absence of the instruction, as Cameron now suggests.
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Prior Convictions
¶26 Last, Cameron argues the trial court erred by denying his pretrial motion and allowing the state to impeach his testimony with evidence of his prior felony convictions under Rule 609(a)(1)(B), Ariz. R. Evid. The court ruled that only the fact of these prior convictions could be admitted, not the underlying crimes. Consequently, the jury heard evidence that Cameron had been convicted of four offenses within the prior ten years. As he argued below, Cameron contends one prior felony conviction is sufficient for purposes of impeachment under this rule, and the fact that he had multiple convictions was unnecessary and prejudicial.
¶27 We review the trial court's ruling for an abuse of discretion. See State v. Bolton, 182 Ariz. 290, 303, 896 P.2d 830, 843 (1995). A court may admit multiple convictions under Rule 609 without abusing its discretion, State v. Harding, 141 Ariz. 492, 498-99, 687 P.2d 1247, 1253-54 (1984), and Cameron has cited no authority to the contrary. Thus, we find no abuse of discretion here. Moreover, even if the court did err, we would find the error harmless given that the evidence of guilt was overwhelming, the prior convictions were sanitized, see State v. White, 160 Ariz. 24, 31, 770 P.2d 328, 335 (1989), and the jury was properly instructed that the convictions could be considered for the limited purpose of assessing Cameron's credibility, see Ariz. R. Evid. 609(a); State v. Tucker, 157 Ariz. 433, 448, 759 P.2d 579, 594 (1988); see also State v. Newell, 212 Ariz. 389, ¶ 69, 132 P.3d 833, 847 (2006) (juries presumed to follow instructions).
Disposition
¶28 For the foregoing reasons, Cameron's conviction and sentence are affirmed.