Opinion
No. 2 CA-CR 2013-0317
07-09-2014
THE STATE OF ARIZONA, Appellee, v. RODNEY GLEN LAW, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Alan L. Amann, Assistant Attorney General, Tucson Counsel for Appellee Law Firm of Richard Luff, LLC, Tucson By Richard Luff 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NOT FOR PUBLICATION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 Pinal County
No. CR201100920
The Honorable Boyd T. Johnson, Judge
AFFIRMED AS CORRECTED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee
Law Firm of Richard Luff, LLC, Tucson
By Richard Luff
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Chief Judge:
¶1 Following a jury trial, appellant Rodney Law was convicted of possession of burglary tools and sentenced to 1.5 years' imprisonment. On appeal, he argues the trial court erred by permitting the state to amend his indictment on the first day of trial to change the alleged date and location of the offense. He also argues the court erred by failing to provide a jury instruction sua sponte to cure an alleged duplicity error. Although we correct the judgment to reflect the amended date of the offense, we otherwise affirm the judgment and sentence.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to upholding the verdict. See State v. Hinden, 224 Ariz. 508, ¶ 2, 233 P.3d 621, 622 (App. 2010). On April 1, 2011, witnesses observed suspicious activity in a vacant house near Apache Junction, Arizona, and reported the license plate of a pickup truck parked nearby. Officials from the Pinal County Sheriff's Office found pry marks on the doors of the house and observed that fixtures had been removed, including a faucet, an oven door, and a ceiling fan.
¶3 The officials located and impounded the pickup truck, which was registered to Law's wife, and later searched it pursuant to a search warrant. The truck contained property that had been removed from the house along with hand tools such as screwdrivers, a hammer, and a pry bar. In an interview with a detective in Gold Canyon, Arizona, on April 20, 2011, Law admitted he had driven the truck on the first of the month and had placed the property in it, but claimed he had found the items abandoned outside the house.
¶4 Law was indicted on one count of second-degree burglary and one count of possession of burglary tools. Both offenses were alleged to have occurred on April 20 "in or near Gold Canyon, Arizona." At the beginning of the trial, the court granted the state's motions to amend the indictment to allege the offenses instead were committed on April 1 "in or near [the] Apache Junction/Gold Canyon area." The jury subsequently acquitted Law of burglary but found him guilty of possessing burglary tools. This appeal followed the entry of judgment and sentence.
Amendments
¶5 Law first contends the amendments to the indictment were improper and deprived him of his Sixth Amendment right to adequate notice of the charge to be defended. A trial error, whether constitutional or otherwise, is subject to harmless error review. See State v. Anthony, 218 Ariz. 439, ¶ 39, 189 P.3d 366, 373 (2008). Under this standard, reversal is not warranted if the state can establish, beyond a reasonable doubt, that the error did not contribute to or affect the verdict. Id. "[T]he touchstone of the Sixth Amendment notice requirement is whether the defendant had actual notice of the charge, from either the indictment or other sources." State v. Freeney, 223 Ariz. 110, ¶ 29, 219 P.3d 1039, 1044 (2010).
¶6 The amendments here were either permitted under our rules of procedure or, alternatively, harmless in the context of the case. Rule 13.5(b), Ariz. R. Crim. P., provides that an indictment is automatically amended to correct "mistakes of fact or . . . technical defects" to conform to the evidence presented in court. The amendments here, which concerned the date and location of the offense, merely corrected factual mistakes; they affected neither the nature of the charge nor Law's defenses to it. Cf. State v. Buccheri-Bianca, 233 Ariz. 324, ¶¶ 18-19, 312 P.3d 123, 128-29 (App. 2013) (finding no error in amendment deleting alleged locations of offenses); State v. Self, 135 Ariz. 374, 380, 661 P.2d 224, 230 (App. 1983) (finding no error in amendment changing date of offense by one month); State v. Archer, 124 Ariz. 291, 292-93, 603 P.2d 918, 919-20 (App. 1979) (allowing amendment changing address of burglary).
¶7 Although Law formally objected to both amendments, he candidly admitted he was not surprised by the corrections. Law acknowledged he was "aware of the date being correctly April 1st" from the police reports he had received. He also stated he was "well aware of where the [victim's house] is," observing it was "an area, in my mind, between Apache Junction and Gold Canyon." His comment thus supported the state's assertion that the offense had occurred "in the unincorporated parts of Apache Junction . . . in an area . . . in or around Gold Canyon." In sum, because "[n]o contention was made at trial that the defendant[] lacked notice of the nature of the charge or that [he] w[as] harmed in preparing a defense thereto," State v. Sustaita, 119 Ariz. 583, 591, 583 P.2d 239, 247 (1978), we find no error and no prejudice from the amendments.
Instruction
¶8 Law next argues the trial court committed fundamental error by not instructing the jury sua sponte that the truck itself could not be considered a burglary tool. As the state points out, however, the indictment charged Law with possession of burglary tools based on his possession of "miscellaneous hand tools." This specific charge was read to the jury at the beginning of trial, and the jury's final verdict form reflects that it found Law guilty as alleged in the indictment. See State v. Reynolds, 125 Ariz. 530, 532, 611 P.2d 117, 119 (App. 1980) ("Jurors are presumed to do their duty," not "betray their trust").
¶9 Although a detective testified during cross-examination that he believed the truck was also a burglary tool, the state objected when Law proceeded to ask the detective whether the truck formed the basis of the charge. The state argued the detective "[wa]sn't in a position to make charging decisions on what's being charged," and the trial court properly sustained this objection. A jury is presumed to follow a court's instructions, State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006), and to "act[] upon what the court by its rulings regarded as competent evidence." State v. Guerrero, 58 Ariz. 421, 424, 120 P.2d 798, 800 (1942). Accordingly, Law has failed to establish any error on the record before us. See State v. Diaz, 223 Ariz. 358, ¶ 11, 224 P.3d 174, 176 (2010) (under any standard of review, appellant must first show error).
Later during cross-examination, the court overruled a similar objection and allowed the detective to testify about his own thoughts on the characterization of the truck when he applied for a search warrant. The detective's subjective beliefs on the topic, however, did not alter the nature of the charge here.
Disposition
¶10 For the foregoing reasons, the judgment and sentence are affirmed, except that page three of the trial court's sentencing minute entry is corrected to reflect that the date of the offense is April 1, 2011, not April 20, 2011.