State v. Chambers

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

CHRISTOPHER WAYNE CHAMBERS, Appellant.

No. 1 CA-CR 20-0112
FILED 1-26-2021

Appeal from the Superior Court in Mohave County
No. S8015CR201800699
The Honorable Billy K. Sipe, Jr., Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
 STATE v. CHAMBERS
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig
joined.

W I L L I A M S, Judge:

¶1 Christopher Wayne Chambers appeals from his convictions
and sentences for burglary in the first degree, aggravated assault and
criminal damage. Chambers argues that the prosecutor’s withdrawal of a
plea offer was vindictive, there was insufficient trial evidence the burglary
was a dangerous offense, and the trial court erred by allowing the state to
amend the aggravated assault charge the day of trial. For reasons that
follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In April 2018, Bullhead City Police Officer Turnbull
responded to a burglary in progress. Upon entering the home through a
back door that had been kicked in, Officer Turnbull encountered
Chambers, who tried to walk past the officer and out of the home. Officer
Turnbull pushed Chambers and ordered him to the ground with his gun
drawn. Chambers stepped back, stared at Officer Turnbull, and then
pulled out a folding knife from his pocket. Chambers opened the knife
and told the officer, “You don’t know what I’m going through . . . you’re
going to have to kill me.” A second officer who had arrived on scene tazed
Chambers and arrested him. The officers found jewelry boxes, cash and
cigarettes in Chambers’ pockets.

¶3 Once indicted, the state extended a plea offer to Chambers.
Before the plea offer expired on August 1, 2018, the state assigned a
different prosecutor to the case. The newly-assigned prosecutor agreed to
honor the plea offer through the original expiration date. After that date,
the prosecutor and defense counsel continued plea discussions. Defense
counsel questioned Chambers’ competence to accept the plea offer, and
with the approval of the trial court, postponed multiple change of plea
hearings to obtain Chambers’ mental health records. In April 2019, the
state withdrew its plea offer. Defense counsel informed the court that
“another [plea] offer [] was made,” and asked that the matter be set for

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another change of plea hearing. Defense counsel stated that “one plea or
another will be entered” at the next hearing set in May. Soon after,
Chambers moved to dismiss the complaint, or in the alternative, sought an
order directing the prosecutor to reinstate the original plea offer, arguing
the withdrawal of the offer was vindictive and violated defendant’s Sixth
Amendment right to counsel. The court denied both requests.

¶4 The matter proceeded to a trial by jury in October 2019. On
the first day of trial, before the jury had been empaneled, Chambers
requested a jury instruction for disorderly conduct as a lesser-included
offense of the aggravated assault charge. The state, in response, moved to
amend the charge of aggravated assault from A.R.S. § 13-1203(A)(3) to
A.R.S. § 13-1203(A)(2). The court granted the amendment over Chambers’
objection.

¶5 The jury found Chambers guilty as charged. The court
sentenced him to nineteen years in prison with appropriate pre-sentence
incarceration credit and ordered Chambers to pay $7,370.27 in restitution.
This timely appeal followed. We have jurisdiction under Article 6, Section
9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1),
13-4031 and -4033(A)(1).

DISCUSSION

I. The Superior Court did not Abuse its Discretion in Denying Defendant’s
Motion to Dismiss and Request to Reinstate the Original Plea Offer

¶6 “We review rulings on motions to dismiss for vindictive
prosecution for an abuse of discretion.” State v. Mieg, 225 Ariz. 445, 447,
¶ 9 (App. 2010).

¶7 Chambers argues the prosecutor was vindictive in
withdrawing the initial plea offer. As a general matter, criminal
defendants have no constitutional right to a plea agreement. State v.
Draper, 162 Ariz. 433, 440 (1989); State v. Morse, 127 Ariz. 25, 31 (1980).
“The prosecution retains discretion to determine whether to make a plea
offer, the terms of any offer, the length of time an offer will remain open,
and the other particulars of plea bargaining.” Rivera-Longoria v. Slayton,
228 Ariz. 156, 159, ¶ 13 (2011). Despite this broad latitude afforded
prosecutors, constitutional guarantees of due process protect criminal
defendants against prosecutorial vindictiveness, State v. Tsosie, 171 Ariz.
683, 685 (App. 1992), which occurs when the state “retaliates against a
defendant for exercising a constitutional or statutory right,” State v. Brun,
190 Ariz. 505, 506 (App. 1997). A defendant may show prosecutorial

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vindictiveness by proving, objectively, that the prosecutor’s charging
decision was motivated by a desire to punish, or a defendant may rely on
a presumption of vindictiveness where actual vindictiveness is difficult to
prove. Id. A defendant may rely on this presumption if the circumstances
establish a realistic likelihood of vindictiveness. Mieg, 225 Ariz. at 448,
¶ 11.

¶8 Chambers concedes the lack of evidence supporting actual
vindictiveness, but claims because the second prosecutor admitted to
disagreeing with the first prosecutor’s initial plea offer, a presumption of
vindictiveness exists. However, Chambers is required to make a prima
facie showing that withdrawing a plea offer is “more likely than not
attributable to vindictiveness by the prosecutor” before the burden shifts
to the prosecutor to overcome the presumption. Id. at 448, ¶ 12 (quoting
Alabama v. Smith, 490 U.S. 794, 801 (1989)). Chambers has failed to show
how withdrawing a plea offer, well after it would have expired given its
deadline in August 2018, indicates vindictive behavior. Though the
second prosecutor admitted to disagreeing with the initial plea offer, she
held the offer open, honoring the original deadline. And, as noted by the
trial court, the prosecutor continued to negotiate with defense counsel.
This behavior does nothing to indicate a likelihood of vindictiveness.

¶9 Chambers relies on State v. Draper to argue that the
prosecutor’s action in revoking the initial offer, while defense counsel was
investigating the defendant’s mental capacity to enter into a plea
agreement, impaired the defendant’s ability to enter a voluntary, knowing
and intelligent guilty plea. 162 Ariz. at 436. However, Draper deals with
the determination of whether a plea agreement was valid, not whether a
plea offer was properly revoked. Id. At any rate, Chambers has no
constitutional right to a plea agreement, Morse, 127 Ariz. at 31, and it is
within the state’s discretion to withdraw a plea offer which the court has
not accepted, Arizona Rule of Criminal Procedure 17.4(b) (even if a plea is
offered by the state and accepted by a defendant, “any party may
withdraw from an agreement before the court accepts it”).

¶10 Chambers also argues that withdrawing the plea offer
violated his right to effective assistance of counsel. An ineffective
assistance of counsel claim, however, cannot be brought on direct appeal
but must be raised in a post-conviction proceeding. State ex rel. Thomas v.
Rayes, 214 Ariz. 411, 415, ¶ 20 (2007) (“We therefore hold . . . that a
defendant may bring ineffective assistance of counsel claims only in a Rule
32 post-conviction proceeding—not before trial, at trial, or on direct
review.”); State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002) (“[I]neffective assistance

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of counsel claims are to be brought in Rule 32 proceedings. Any such
claims improvidently raised in a direct appeal, henceforth, will not be
addressed by appellate courts regardless of merit.”).

¶11 Chambers has shown no error in the trial court’s denial of
his motion to dismiss or to reinstate the original plea offer.

II. Sufficient Evidence Established that First-Degree Burglary was a
Dangerous Offense

¶12 This court reviews sufficiency of the evidence claims de
novo. State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014). We resolve “any conflicts
in the evidence against the defendant” and view the facts in the light most
favorable to supporting the verdict. Id. We will only reverse the jury’s
decision if the verdict is not supported by substantial evidence. State v.
Tucker, 231 Ariz. 125, 138, ¶ 27 (App. 2012). “Substantial evidence is
evidence that reasonable persons could accept as sufficient to support a
guilty verdict beyond a reasonable doubt.” Pena, 235 Ariz. at 279, ¶ 5
(internal quotations omitted).

¶13 First-degree burglary requires the defendant “knowingly
possess[] explosives, a deadly weapon or a dangerous instrument in the
course of committing any theft or any felony” while also violating either
A.R.S. § 13-1506 or -1507. A.R.S. § 13-1508. Relevant here is A.R.S.
§ 13-1507, which requires a person enter or remain “unlawfully in or on a
residential structure with the intent to commit any theft or any felony
therein.” Although first-degree burglary is not an inherently dangerous
offense, State v. Larin, 233 Ariz. 202, 213, ¶ 40 (App. 2013), it may become
so if it “involv[es] the discharge, use or threatening exhibition of a deadly
weapon or dangerous instrument,” A.R.S. § 13-105(13). “An allegation of
dangerousness essentially adds to the underlying offense an element that
subjects the defendant to increased penalties.” Larin, 233 Ariz. at 211, ¶ 30
(internal quotations omitted).

¶14 Chambers argues he did not use the knife during the
burglary, but instead only pulled it out after confronted by Officer
Turnbull. Chambers pulled out, opened, and displayed the knife to the
officer while he was in the home and still in the act of the burglary. See
A.R.S. § 13-1507(A). He had not yet left the residence and had stolen items
in his pockets. Officer Turnbull testified Chambers failed to comply with
requests to get on the ground and drop the knife, and that Chambers held
the knife in a threatening posture. On this record, substantial evidence
existed for a jury to reasonably conclude this first-degree burglary was a

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dangerous offense because it involved the threatening exhibition of a
deadly weapon.

III. The Superior Court Abused its Discretion in Granting the Amendment to
the Indictment, however, the Error was Harmless

¶15 We review a trial court’s amendment of a charge for an
abuse of discretion. State v. Johnson, 198 Ariz. 245, 247, ¶ 4 (App. 2000).
Arizona Rule of Criminal Procedure 13.5(b) provides “a charge may be
amended only to correct mistakes of fact or remedy formal or technical
defects.” Further, “[t]he charging document is deemed amended to
conform to the evidence admitted during any court proceeding.” Ariz. R.
Crim. P. 13.5(b). “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. Bruce, 125 Ariz. 421, 423
(1980). When elements of one offense materially differ from those of
another, even when the two are defined in different subsections of the
same statute, they are distinct and separate crimes. State v. Freeney, 223
Ariz. 110, 113, ¶ 16 (2009).

¶16 Here, the indictment references A.R.S. § 13-1203(A)(3),
reflecting that a person commits assault by knowingly touching another
individual with the intent to injure, insult or provoke. The charge was
amended on the first day of trial to instead reference A.R.S.
§ 13-1203(A)(2), which provides that assault consists of the intentional
placing of another person in reasonable apprehension of imminent
physical injury. These offenses, though under the same statute, have
different elements where one requires a physical touching and the other
requires placing another in apprehension of imminent physical injury.
“Because the amended indictment altered the elements of the charged
offense, it constituted a change in the nature of the offense” violating Rule
13.5(b). Freeney, 223 Ariz. at 113, ¶ 17.

¶17 However, a violation of Rule 13.5(b) does not require
automatic reversal. Id. at 113, ¶ 21. Instead, such a violation is “neither
prejudicial per se nor structural error.” Id. at 114, ¶ 26. “[B]ecause
[Chambers] objected to the amendment, we review for harmless error”
requiring the state show that the error was harmless beyond a reasonable
doubt. Id.

¶18 Chambers had notice the state was alleging and intending to
prove aggravated assault under the reasonable apprehension theory,
A.R.S. § 13-1203(A)(2), rather than the theory requiring a touching, A.R.S.

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§ 13-1203(A)(3). No evidence, either pre-trial or during trial, showed that
Chambers touched Officer Turnbull, let alone touched him with his knife.1
Further, Defense counsel’s own request for a jury instruction on felonious
disorderly conduct, as a lesser-included offense of the aggravated assault
charge, indicates Chambers was on notice because disorderly conduct, as
a felony, could only be a lesser-included offense under the amended
charge of A.R.S. § 13-1203(A)(2), not the originally charged A.R.S.
§ 13-1203(A)(3). See A.R.S. § 13-2904(A)(6), (B).

¶19 Though Chambers objected to the amendment, he “never
suggested that the amendment affected, let alone prejudiced, his litigation
strategy, trial preparation, examination of witnesses, or argument; nor did
he request a trial continuance or recess.” Freeney, 223 Ariz. at 115, ¶ 28.
Thus, although it was error for the trial court to amend the charge the day
of trial contrary to Freeney’s directive “that Rule 13.5(b) should not be
carelessly invoked,” id. at 115, ¶ 28 n.3, the error was harmless because
Chambers had notice of the state’s theory of aggravated assault.

¶20 Finally, Chambers contends the amended indictment
violated the Sixth Amendment. “A Sixth Amendment violation occurs
when the defendant received insufficient notice and is therefore actually
prejudiced by a new or amended charge.” Id. at 115, ¶ 29. For the same
reasons noted supra ¶ 18, Chambers had notice and was not prejudiced.

CONCLUSION

¶21 For the forgoing reasons, we affirm Chambers’ convictions
and sentences.

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

1 An aggravated assault occurs when an individual commits assault, as
prescribed in A.R.S. § 13-1203, aggravated by some additional element,
here using a deadly weapon or dangerous instrument. A.R.S.
§ 13-1204(A)(2).

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