State v. Laws

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

MALIK JALEEL LAWS, Appellant.

No. 1 CA-CR 19-0518
FILED 10-6-2020

Appeal from the Superior Court in Maricopa County
No. CR 2018-156744-001
The Honorable Marvin L. Davis, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Maurice Portley1 joined.

C A M P B E L L, Judge:

¶1 Malik Jaleel Laws appeals from his convictions and sentences
for disorderly conduct, resisting arrest, and aggravated assault. For the
following reasons, we modify the sentences in part and affirm the
convictions and sentences as modified.

BACKGROUND2

¶2 Responding to a reported disturbance at a convenience store,
an officer spoke with the store clerk who contacted the police. After the
store clerk identified Laws as one of the individuals involved in a physical
altercation, the police officer approached him, and Laws walked away. The
officer followed Laws and repeatedly instructed him to stop, but Laws
continued walking toward an intersection. When he entered the
intersection, Laws turned toward the officer and yelled that he would not
stop.

¶3 Moments later, the officer caught up to Laws and grabbed
him in the intersection. As Laws struggled to break free from the officer’s
grasp, the officer kneed his leg repeatedly, trying to push him to the
ground. When he eventually fell to the ground, Laws continued struggling
and began kicking. To gain control, the officer attempted to roll Laws over,
but during the maneuver, Laws bit four of the officer’s fingers.

¶4 While the officer struggled to restrain Laws, another officer
parked her patrol car in the street to prevent traffic from hitting Laws or

1 The Honorable Maurice Portley, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
6, Section 3, of the Arizona Constitution.

2We view the facts in the light most favorable to sustaining the verdicts.
State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

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any of the officers. Soon thereafter, other officers deployed their tasers to
stun Laws, and he was handcuffed and taken into custody.

¶5 The State charged Laws with disorderly conduct, a class 1
misdemeanor (Count 1); resisting arrest, a class 6 felony (Count 2); and
aggravated assault, a class 5 felony (Count 3). After a five-day trial, a jury
convicted Laws as charged. The superior court sentenced him as a category
3 repetitive offender to a terminal disposition on Count 1, a presumptive
term of 3.75 years’ imprisonment on Count 2, and a concurrent,
presumptive term of 5 years’ imprisonment on Count 3. Laws timely
appealed.

DISCUSSION

I. Constitutional Right to Notice

¶6 Laws asserts the superior court impermissibly amended the
indictment through its jury instruction on the resisting-arrest charge. He
argues the instruction violated due process by changing the charge against
him without proper notice.

¶7 In relevant part, A.R.S. § 13-2508 provides:

A. A person commits resisting arrest by intentionally
preventing or attempting to prevent a person reasonably
known to him to be a peace officer, acting under color of such
peace officer’s official authority, from effecting an arrest by:

1. Using or threatening to use physical force against the peace
officer or another.

2. Using any other means creating a substantial risk of causing
physical injury to the peace officer or another.

The resisting-arrest charge in the indictment generally cited A.R.S.
§ 13-2508 without referencing a subsection. The language describing the
offense, however, tracked only subsection (A)(1).

¶8 During the settling of final jury instructions, Laws objected to
the superior court’s proposal to instruct the jurors on subsection (A)(2).
Representing himself, Laws argued the instruction was improper because
“the indictment doesn’t charge me with that. That’s not what it says on the
indictment and that shouldn’t be here in the instructions.” The prosecutor,
on the other hand, contended the jurors should be instructed on subsection

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(A)(2) because the “means of resistance” involved a substantial risk of
physical injury.

¶9 Overruling Laws’ objection, the superior court noted “the
instructions do have to conform to the facts of the case,” and ultimately
instructed the jurors on both subsections. During closing argument, the
prosecutor cited Laws’ refusal to listen to the officers’ commands, his
attempts to physically evade restraint, and the injuries he inflicted on the
officer’s hand as sufficient evidence to support a conviction for resisting
arrest. In addition, the prosecutor argued that Laws had endangered the
officer’s safety by resisting arrest in an intersection.

¶10 As an initial matter, the State contends Laws did not
adequately preserve the constitutional issue he raises on appeal, asserting
he objected only to the form of the jury instruction. Although Laws did not
explicitly use the terms “notice” or “due process” in making his objection,
his explanation provided the superior court with the opportunity to correct
a possible notice error, thereby preserving the issue for appeal. See State v.
Foshay, 239 Ariz. 271, 277, ¶ 27 (App. 2016). We therefore review his
constitutional challenge de novo. See State v. Dann, 220 Ariz. 351, 360, ¶ 27
(2009).

¶11 As guaranteed by the Sixth Amendment, a criminal
defendant has the right to notice of the nature of the charges against him to
enable him to prepare a defense. See State v. Sanders, 205 Ariz. 208, 213, ¶ 16
(App. 2003), overruled in part on other grounds by State v. Freeney, 223 Ariz.
110, 113–15, ¶¶ 21–28 (2009). Accordingly, a charging document must be “a
plain, concise statement of the facts sufficiently definite to inform the
defendant of a charged offense.” Ariz. R. Crim. P. (“Rule”) 13.1(a). To
determine whether a defendant received constitutionally sufficient notice,
we examine “whether the defendant had actual notice of the charges, from
either the indictment or other sources.” Freeney, 223 Ariz. at 115, ¶ 29. A
defendant who “does not receive constitutionally adequate notice of the
charges against him” is “necessarily and actually prejudiced.” Id. at 114,
¶ 26.

¶12 An indictment “limits the trial to the specific charge or
charges” alleged, but the charging document is “deemed amended to
conform to the evidence admitted during any court proceeding.” Rule
13.5(b). Absent the defendant’s consent, “a charge may be amended only to
correct mistakes of fact or remedy formal or technical defects.” Id. A defect
is formal or technical “when its amendment does not operate to change the

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nature of the offense charged or to prejudice the defendant in any way.”
State v. Johnson, 198 Ariz. 245, 247, ¶ 5 (App. 2000).

¶13 Citing Freeney, Laws contends the jury instruction on
subsection (A)(2) deprived him of constitutionally sufficient notice because
the instruction effectively changed the nature of the offense. But his reliance
on Freeney is misplaced.

¶14 In Freeney, the prosecution “moved to amend the indictment
on the first day of trial to change the theory” of the charged assault. 223
Ariz. at 111, ¶ 1. Our supreme court concluded that amending the assault
charge violated Rule 13.5(b) because “the amendment changed the nature
of the offense.” Id. at 115–16, ¶ 31. However, the supreme court rejected the
defendant’s argument that the amendment violated his constitutional right
to notice. Id. at 115, ¶¶ 29–30.

¶15 In finding a procedural violation, the supreme court
reasoned, “[w]hen the elements of one offense materially differ from those
of another – even if the two are defined in subsections of the same statute –
they are distinct and separate crimes.” Id. at 113, ¶ 16. The supreme court
further held that a violation of Rule 13.5(b) is subject to harmless error
review and determined that the superior court’s error was harmless beyond
a reasonable doubt. Id. at 111, 114–16, ¶¶ 2, 25–26, 31 (violating Rule 13.5(b)
does not “necessarily equate to an infringement of a defendant’s Sixth
Amendment rights”).

¶16 Unlike the assault statute in Freeney, the subsections of the
resisting-arrest statute do not define materially different offenses. Our
supreme court has explained that the subsections of A.R.S. § 13-2508(A) set
forth the “various ways to resist a single arrest,” and the statute “may be
reasonably read as defining the offense as intentionally preventing or
attempting to prevent an arrest.” State v. Jurden, 239 Ariz. 526, 530, ¶ 16
(2016); see State v. Lee, 217 Ariz. 514, 518, ¶ 15 (App. 2008) (stating a person
commits resisting arrest “if either (A)(1) or (A)(2) is satisfied”). The supreme
court further held that the statute “describes an event-directed unit of
prosecution that prohibits multiple convictions and punishments for
resisting arrest when, as here, the counts stem from one, uninterrupted
event.” Jurden, 239 Ariz. at 530, ¶ 17. Although the supreme court addressed
a different issue in Jurden, whether A.R.S. § 13-2508 allows a separate charge
for “each officer resisted,” the court’s description of the statute is
compelling for our purposes here. Id. at 527–28, 530, 532, ¶¶ 3, 16, 26.

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¶17 Section 13-2508(A) addresses a single harm of intentionally
preventing or attempting to prevent an arrest in defiance of state authority.
The three subsections merely provide alternative ways in which the crime
may be committed. Id. at 530–31, ¶¶ 16–21. By contrast, “[t]he three types
of assault are distinct offenses with different elements, not merely different
manners of committing the same offense,” State v. Waller, 235 Ariz. 479, 488,
¶ 29 (App. 2014), with each subsection addressing a different type of harm,
see A.R.S. § 13-1203. See State v. Paredes-Solano, 223 Ariz. 284, 289, ¶ 14 n.6
(App. 2009) (distinguishing unitary offenses from the subsections of the
assault statute, which define different crimes).

¶18 Because A.R.S. § 13-2508(A) identifies a single offense with
three different means of commission, the State was not required to specify
a specific subsection in the indictment. See State v. Kalauli, 243 Ariz. 521,
525–26, ¶¶ 11–13 (App. 2018) (explaining a charging document need not
specify a subsection when charging a unitary crime). Therefore, the
indictment’s general citation to A.R.S. § 13-2508 provided Laws
constitutionally sufficient notice that the State could attempt to prove he
violated either subsection (A)(1) or (A)(2). See id. A more specific pleading
was not required to charge a violation of the statute’s subsections, given
that the subsections do not create separate and distinct crimes. See id.; State
v. Winter, 146 Ariz. 461, 464 (App. 1985) (“[A] general citation of the theft
statute in the indictment suffices to charge a violation of its subparts”
because theft is a unitary crime), abrogated on other grounds by State v. Kamai,
184 Ariz. 620, 623 (App. 1996).

¶19 In addition, and even assuming A.R.S. § 13-2508(A) does not
create a unitary offense that may be committed by alternative means, Laws’
Sixth Amendment rights were not violated because he had sufficient notice
that he could be convicted under either subsection of the statute. See
Freeney, 223 Ariz. at 115, ¶¶ 29–30. In its pretrial disclosures, the State gave
Laws notice that it would use evidence that his altercation with the police
occurred in an intersection to prove he resisted arrest. See id. (citing pretrial
disclosures as a proper source of notice). And the trial evidence included
videos from the officers’ body cameras as well as a police-car camera that
showed Laws’ conduct in the intersection. This provided Laws with
sufficient notice that he was being prosecuted for a violation of subsection
(A)(2). See id.

¶20 Furthermore, Laws did not object when the superior court
instructed the jurors on both subsections (A)(1) and (A)(2) in the
preliminary jury instructions. See Johnson, 198 Ariz. at 249, ¶ 13 (“To be
meaningful, an ample opportunity to prepare to defend against amended

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charges generally must occur before the state has rested its case.”). After the
court read the preliminary instructions, the prosecutor recited, without
objection, the elements of both subsections in his opening statement.
Likewise, Laws did not object, or otherwise raise the notice issue, when an
officer later testified that she parked her car in the street to protect Laws
and the officers from oncoming traffic. Id.

¶21 In light of the preliminary instructions, opening statement,
and officer testimony, Laws knew, well before the State rested its case, the
factual allegations that supported a charge under subsection (A)(2), and he
had a fair opportunity to prepare his defense and address those facts. Id.;
see State v. Eastlack, 180 Ariz. 243, 258 (1994) (“Defendant is entitled to notice
of the crimes with which he may be convicted, not the manner in which the
state will prove his guilt.”). Accordingly, Laws received constitutionally
adequate notice of the resisting-arrest charge under both (A)(1) and (A)(2).
See Freeney, 223 Ariz. at 113, 115, ¶¶ 16–19, 29–31.

¶22 Laws’ sole defense to the resisting-arrest charge was that he
complied with the officer’s commands and repeatedly told the officers he
was not resisting arrest. In closing argument, after discussing both
resisting-arrest subsections, Laws summarized his defense to the jurors, “I
never actually resisted arrest. I had my hands up.” Given his defense
strategy, Laws failed to demonstrate prejudice from any purported error
under Rule 13.5(b). See id. at 114–16, ¶¶ 25–31.

¶23 Nonetheless, Laws contends the instruction prejudiced him
because he would have investigated the factual allegations supporting
subsection (A)(2) differently or filed pretrial motions to attack the charge,
had he received sufficient notice. But he offers only speculation that the
amendment affected his preparation, strategy, or examination of witnesses.
In his defense, he denied attempting to prevent his arrest under any theory,
despite the controverting video-recordings of the incident. See Freeney, 223
Ariz. at 115, ¶ 28 (noting the defendant’s “all or nothing” defense “did not
change as a result of the amended charge”). Laws, as a result, has failed to
satisfy his burden to show actual prejudice from the alleged Rule 13.5(b)
violation. See id.; Johnson, 198 Ariz. at 248, ¶ 8.

II. Presentence Incarceration Credit

¶24 Laws next argues the superior court fundamentally erred by
failing to grant him an additional 12 days of presentence incarceration
credit. The State confesses error, and we agree. See A.R.S. § 13-712(B); State
v. Cofield, 210 Ariz. 84, 86, ¶ 10 (App. 2005) (failing to award credit for

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presentence incarceration is fundamental error). The record reflects the
superior court did not include time Laws spent in custody from September
4 to September 17 after the sentencing hearing was rescheduled, resulting
in an improper calculation of 288 days of credit.

¶25 Accordingly, we modify the sentences on Count 2 and Count
3 to reflect a total of 300 days of presentence incarceration credit. See A.R.S.
§ 13-4037(A) (authorizing correction of sentence on appeal); see also Rule
31.19(c) (permitting appellate court to order modification of lower court’s
action); State v. Stevens, 173 Ariz. 494, 496 (App. 1992) (modifying sentence
to amend presentence incarceration credit without remand).

CONCLUSION

¶26 For the foregoing reasons, we affirm the convictions and
sentences as modified.

AMY M. WOOD • Clerk of the Court
FILED: AA

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