Opinion
1 CA-CR 12-0467
06-04-2013
STATE OF ARIZONA, Appellee, v. GLEN JAMES COOPER, Appellant.
Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section And Alice Jones, Assistant Attorney General Attorneys for Appellee Jill L. Evans, Mohave County Appellate Defender Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Mohave County
Cause No. S8015CR201000681
The Honorable Steven F. Conn, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Joseph T. Maziarz, Chief Counsel,
Criminal Appeals Section
And Alice Jones, Assistant Attorney General
Attorneys for Appellee
Phoenix Jill L. Evans, Mohave County Appellate Defender
Attorney for Appellant
Kingman THOMPSON, Judge ¶1 Glen James Cooper (defendant) appeals from his conviction on one count of molestation of his stepdaughter, S.P., a child under fifteen years of age, a Class 2 felony and dangerous crime against children. He argues on appeal that the trial court abused its discretion by permitting the state to amend the indictment prior to trial. For reasons set forth below, we affirm.
The caption has been amended to safeguard the identity of the juvenile pursuant to Administrative Order 2013-001.
The jury acquitted defendant of two other charges involving the same victim.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to sustaining the conviction and resolve all reasonable inferences against defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005).
¶2 On June 27, 2010, S.P. informed her mother that in October 2008, while the family was on a camping/quail-hunting trip in Hackberry, Arizona, defendant placed his hand down her pants and touched her genitals. S.P. told mother about the incident after defendant entered S.P.'s bedroom and asked her to "come lay [sic] with [him] . . . when everybody else [was] asleep." S.P. did not previously inform mother of the incident because mother had dismissed S.P. after reporting another incident during which defendant placed his hand inside her bra and touched her nipple, stating that "maybe it was [S.P.]" and that "it didn't matter" and that S.P. was "overplaying it." S.P. decided to disclose the 2008 incident because she was "just filled up with it . . . it had happened enough" and she thought that her mother would do something about it "that time." ¶3 S.P. eventually told Detective Earl Chalfant about what happened during the camping trip in 2008. She told Detective Chalfant that, while the family usually went quail hunting on her grandfather's property in Yucca, Arizona, the family went instead to Hackberry, to her Aunt Kelly and Uncle Wade's property. The molestation occurred while the family was sleeping in a trailer located on the property. All of the family members - mother, defendant, S.P., and S.P.'s three siblings - all slept "in a very small bed" in the "fold out travel trailer." ¶4 S.P. woke up because she "felt something" and realized that defendant had "switched" places to where he was lying next to her. She felt defendant "walking his hand down" in her pants. She was scared and did not know how to confront him, so she pretended to be asleep but kept slapping defendant's hand away, "trying to make it look like a gesture that I was still sleeping and it wasn't like I was awake doing that." This behavior continued "for about an hour or so;" and, while S.P. would "smack his hand out before he did anything," each time defendant would put his hand back "faster." Although defendant never got "inside" her vagina, one time, when she did not have time to slap fast enough, defendant "touched the lips." After that, defendant "kept trying" to put his hand down her pants, but she smacked him away and "he never touched the lips again." S.P. then saw defendant go out the door of the trailer, and she seized the opportunity to put her sister next to her. When defendant returned to bed, he reached over her sister and tried once again to put his hand down her pants, but S.P. "smacked his hand away once more" and defendant eventually stopped trying. ¶5 On July 6, 2010, Detective Chalfant interviewed defendant about the October 2008 camping incident and S.P.'s allegations. During the course of a three-hour interview, Detective Chalfant asked defendant three times about the 2008 camping trip and S.P.'s contention that he had put his hand down her pants, but defendant stated that he "didn't know anything about that" and all three times denied any wrongdoing or inappropriate touching. ¶6 It was not until Detective Chalfant asked defendant whether defendant might have "touched [S.P.] accidentally" or had an erection that defendant "felt inappropriate about," that defendant recalled an incident involving S.P. Defendant first stated that when S.P. was five years old, "he picked her up one time and his thumb accidentally went into her vagina." Defendant then went on to describe for Detective Chalfant "one time" in October 2008 when he and his family were on a quail-hunting/camping trip and he and his wife and son were sleeping in one bed. At some point during the night, S.P. squeezed in-between him and his wife and startled him awake. He saw that it was S.P. and rolled over and went back to sleep. The "next thing he knew," he was "touching her inappropriately," but he thought she was his wife. During the course of the interview, defendant then modified his account and stated that he had "thought that it was his wife" who had awakened him coming into bed and that he had consequently rubbed S.P.'s vagina for 30-40 seconds thinking she was his wife. However, according to defendant, this incident happened at their Yucca property and not in Hackberry as S.P. alleged. ¶7 In July 2010, the state charged defendant with Count 1, molestation of a child, alleging that "[d]uring the month of October 2008, in the vicinity of 4025 East Mountain View Road, Yucca, Mohave County, Arizona," defendant "intentionally or knowingly engaged in sexual contact with S.P., a person under 15 years of age." On the day prior to the start of jury selection, defendant filed a motion in limine in which he moved to preclude the victim's statements regarding the molestation incident that she alleged occurred in Hackberry. According to defendant, "the alleged victim's statement and [defendant's] statement discuss[ed] two different acts which they claim occurred at two different locations." Therefore, because the victim's statements involved "an uncharged sex act" and because the state had not alleged an intent to use them as Arizona Rule of Evidence 404(c) propensity evidence, the victim's statements about the Hackberry incident were precluded by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012), because evidence of the Hackberry incident was not "intrinsic" to the actual offense charged. ¶8 The state responded that the evidence supported only "one incident" of molestation that occurred in October 2008 during a "camping/quail-hunting trip" when defendant touched S.P.'s genitals one time. The fact that the victim and defendant disputed the location where the incident occurred - with the victim being adamant that it occurred on her aunt's property in Hackberry, and defendant being equally adamant that it occurred in Yucca - did not "mean that two events were created." The state also noted that it need only have alleged that the incident occurred in Mohave County as all parties agreed. Consequently, the state simultaneously filed a motion to amend indictment to delete the specific address and indicate only that the offense "occurred in Mohave County." ¶9 At the hearing, the prosecutor explained that the state had decided to use the Yucca address based on its surmise that defendant, being older than the fourteen-year-old victim, "was able to describe the property better." Regardless, defendant could cross-examine witnesses and argue the inconsistencies to his advantage. Defense counsel maintained that changing the location in the indictment to Mohave County was "not sufficient notice . . . as to the location [of the offense] for [the defense] to form any sort of defense" to the charge. He also argued that, because defendant and the victim were each adamant as to the location, and because the evidence showed that the family went camping fifteen times in three different locations that year, it was important to identify precisely where the offense occurred. Consequently, defense counsel argued that amending the indictment to state simply "Mohave County" was not made to correct a mistake of fact because it was "entirely possible we're talking about two different incidents." ¶10 The trial court noted that the "only discrepancy" was where in Mohave County the offense had occurred because "everyone agrees that every one of these three locations is somewhere in Mohave County." The trial court also noted that the alleged date of the incident was the same and that "the description [of the incident] by the alleged victim and the defendant seem to be describing the same incident." The court granted the state's motion to amend the indictment pursuant to Rule 13.5(b) of the Arizona Rules of Criminal Procedure based on what it found to be a mistake of fact, striking "4025 East Mountain View Road, Yucca" and leaving only "Mohave County" as the designated location in the document. The trial court accordingly denied defendant's motion in limine, finding that the "two differing dueling versions of the camping trip incident" described an incident that only "happened once" with simply "a disagreement as to where it took place." ¶11 Both S.P. and defendant testified at trial. The jury found defendant guilty of the molestation offense as charged. The trial court sentenced defendant to a mitigated prison term of eleven years, and defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(1) (2010).
Testimony at trial established that the family sometimes hunted and camped in three locations: the aunt's property, the Yucca property, and a location "past Standard Wash." However, the evidence at trial only implicated the Hackberry and Yucca locations.
DISCUSSION
¶12 Defendant argues that the trial court abused its discretion by granting the motion to amend the indictment because the amendment resulted in a violation of his "Fifth and Fourteenth Amendment rights to fair notice to prepare a defense." According to defendant, the victim's rendition of events was an "uncharged offense." Therefore, permitting the state to amend the indictment to simply indicate "Mohave County" violated his "right to notice to defend" because it "changed the crime alleged from a touching of S.P.'s genitalia at a Yucca cabin which [defendant] claimed was a mistake, and without any criminal intent, to an attempted touching on an arguably different camping trip near Valle Vista, Arizona, in a travel trailer." We disagree. ¶13 A trial court "has considerable discretion in resolving motions to amend an indictment." State v. Delgado, 174 Ariz. 252, 254, 848 P.2d 337, 339 (App. 1993) (citing State v. Sammons, 156 Ariz. 51, 54, 749 P.2d 1372, 1375 (1988)). We will not reverse the trial court's ruling on appeal absent such an abuse of discretion. State v. Johnson, 198 Ariz. 245, 247, ¶ 4, 8 P.3d 1159, 1161 (App. 2000). We find none here. ¶14 The trial court properly allowed the state to amend the indictment pursuant to Rule 13.5(b), Arizona Rules of Criminal Procedure, which provides:
The preliminary hearing or grand jury indictment limits the trial to the specific charge or charges stated in the magistrate's order or grand jury indictment. The charge may be amended only to correct mistakes of fact or remedy formal or technical defects, unless the defendant consents to the amendment. The charging document shall be deemed amended to conform to the evidence adduced at any court proceeding."A defect may be considered formal or technical when its amendment does not operate to change the nature of the offense charged or to prejudice the defendant in any way." State v. Freeney, 223 Ariz. 110, 112, ¶ 11, 219 P.3d 1039, 1041 (2009) (citation omitted). ¶15 First, we note that the location is not an element of the offense of molestation of a child. A.R.S. § 13-1410(A) (2010). Therefore, the nature of the offense charged was not changed by the court's deletion of the specific address in the indictment. See, e.g. , State v. Archer, 124 Ariz. 291, 293, 603 P.2d 918, 920 (App. 1979) (finding nature of offense not changed when only address was corrected to conform to evidence). Here, as the state noted, it need only have listed Mohave County in the charge, as all parties acknowledged that was where the incident occurred. The record establishes that the state listed the Yucca address over the victim's contrary statements because it believed that defendant might have the more accurate memory of the actual location. Because the deletion of the specific address did not change the nature of the offense charged but merely corrected a formal or technical defect, the trial court did not abuse its discretion by granting the state's motion. ¶16 Nor do we find that defendant has established that he was prejudiced by the amendment. The crucial question is whether defendant had adequate notice of the charge against him in order to mount a defense. See Freeney, 223 Ariz. at 115, ¶ 29, 219 P.3d at 1044 (touchstone of Sixth Amendment notice requirement is whether defendant had actual notice of charge from either indictment or other sources). ¶17 The state only charged defendant with the one count of molestation reported by S.P. that occurred in the trailer in October 2008 and only argued that one incident throughout the trial. Defendant was fully apprised of S.P.'s allegations and, therefore, the bases for the molestation charge, for two years leading up to trial. Furthermore, contrary to the normal scenario in such cases, defense counsel actually interviewed the victim about her allegations in January 2011, and then used the inconsistencies between her interview statements to him and to Detective Chalfant to impeach her testimony at trial. Defendant was also able to present testimony from his two daughters that called into question S.P.'s description of the family's sleeping arrangements on camping trips; in particular, the sleeping arrangements in the trailer on her aunt's property where she alleged the molestation occurred. It is thus clear that defendant was fully apprised of the actual crime charged and the facts that the state alleged supported it. ¶18 Defendant suggests that he was prejudiced in his defense because he had to prepare separate and different defenses to the "two incidents." Defendant's defense theory throughout trial, however, was that the victim was lying when she maintained that the incident happened in the trailer on her aunt's property in Hackberry, and that she invented the allegation on June 27 because she was unhappy with the strict rules her parents were imposing. As the state argued in its closing, defendant used his acknowledgment that he may have touched the victim while in bed in Yucca, when he allegedly mistook the victim for his wife, to attempt to undermine S.P.'s credibility and to call into question her memory of events. For example, defendant presented evidence concerning the sleeping arrangements in the two locations in order to refute S.P.'s testimony that the molestation occurred when the entire family slept in one bed in the trailer. ¶19 Based on the record before us, defendant had notice of the basis for the molestation charge and was thus fully able to defend against it. He has therefore shown no prejudice. See Freeney, 223 Ariz. at 115, ¶ 29, 219 P.3d at 1044. ¶20 Defendant also argues that because the indictment was duplicitous, he was deprived of a unanimous jury verdict. Defendant concedes, however, that he did not raise this issue before the trial court and that he is therefore restricted to a fundamental error review on this argument. To prevail under a fundamental error review standard, the onus is on defendant to prove, first, that fundamental error exists and, second, that the error in his case caused him prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005). Defendant does neither in this case. ¶21 First, there is no duplicitous charge here. Each offense in an indictment or complaint must be charged in a separate count. State v. Davis, 206 Ariz. 377, 389, ¶ 54, 79 P.3d 64, 76 (2003). A "duplicitous charge" is shorthand for the situation in which the text of the indictment refers only to one criminal act, but multiple criminal acts are then introduced to prove that charge. State v. Klokic, 219 Ariz. 241, 244, ¶ 12, 196 P.3d 844, 847 (App. 2008). Such a charge is forbidden because it does not provide a defendant with "adequate notice of the charge to be defended." Davis, 206 Ariz. at 389, ¶ 54, 79 P.3d at 76 (citation omitted). ¶22 As noted above, the molestation charge was not duplicitous because the state and the victim presented evidence of only one single act of sexual contact to support that charge. The fact that defendant chose to counter the state's evidence with a differing version of how and where that contact occurred does not turn the charged offense into a duplicitous one. Furthermore, the state did not argue that defendant's version of the offense was actually a separate offense from the one that S.P. reported, but only that defendant was "changing the story" in order to make his contention that the contact was due to a mistake more plausible. Thus, the state argued, "the defendant agrees with everything that she says but the location[;] [s]o somehow, she's being called a liar; but yet he did it, he did it [on] the date she said, he did it in the year she said, he did it on a camping trip, and he did it while they were quail hunting; but yet somehow she's lying." Defendant therefore fails to prove that any error, let alone fundamental error, occurred in his case, and has not met his burden under Henderson. 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. ¶23 The trial court instructed the jurors that all twelve of them had to agree on the verdict in this case. We presume that the jurors followed that instruction. State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996). As the state argued, the only issue before the jury was whether or not it believed defendant's story that "it was an accident when he touched his daughter's vagina" during their October 2008 camping/hunting trip as charged. ¶24 Based on our review of the record, we conclude that the trial court did not abuse its discretion when it granted the state's motion to amend the indictment pursuant to Rule 13.5(b). Delgado, 174 Ariz. at 254, 848 P.2d at 339. Consequently, it also did not abuse its discretion by denying defendant's motion to preclude the victim's testimony regarding the molestation charge. See State v. Tucker, 205 Ariz. 157, 165, ¶ 41, 68 P.3d 110, 118 (2003) (trial court's evidentiary rulings generally reviewed for abuse of discretion).
Section 13-1410(A) provides in relevant part that a person commits molestation of a child by "intentionally or knowingly engaging in . . . sexual contact . . . with a child who is under fifteen years of age."
In support of his argument that the court violated his "Fifth and Fourteenth Amendment rights" to notice and a fair trial when it amended the indictment, defendant cites United States v. Tsinhnahijinnie, 112 F.3d 988 (9th Cir.) and Johnson, (supra). Those cases are inapposite. In Tsinhnahijinnie, the court found that the defendant's defense was prejudiced by the disparity between the date charged and the evidence at trial, and also that there was insufficient evidence at trial to prove the crime for which he was indicted. 112 F.3d at 991-992. Therefore, he had no "fair notice" of the crime charged. Id. Here, defendant had notice of the offense with which he was charged, and the evidence at trial supported conviction of the charged offense. In Johnson, the state amended the indictment prior to trial to state that the defendant penetrated the victim's vagina with his finger instead of his penis as originally charged. 198 Ariz. at 247, ¶ 2, 8 P.3d at 1161. At trial, the victim testified instead in accordance with the original charge that defendant had penetrated her vagina with his penis. Id. at ¶ 3. On appeal, we reasoned that once the indictment was amended, defendant could not expect that the victim would testify in accordance with the original charge and was thus "taken by surprise" by the evidence at trial. Id. at 248, ¶ 9, 8 P.3d at 1162. Here, defendant knew well in advance of trial what S.P. alleged had occurred and S.P.'s trial testimony was consistent with the allegation.
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CONCLUSION
¶25 For the foregoing reasons, we affirm defendant's conviction and sentence.
_________________
JON W. THOMPSON, Presiding Judge
CONCURRING: _________________
PHILIP HALL, Judge
_________________
KENT E. CATTANI, Judge