dissenting.
¶ 70 Rather than analyze this case from the perspective of whether the amendment prejudiced the defendant, the majority effectively holds that a criminal defendant’s entitlement to notice of the charged crime necessarily includes a right to pretrial notice of the precise theory upon which the state will rely at trial. This holding is contrary to well-established Arizona case law. See, e.g., State v. West, 176 Ariz. 432, 442-43, 862 P.2d 192, 202-03 (1993). Further, I disagree with the majority’s apparent conclusion that anything other than a minor variance between the original charge and the proof at trial is prejudicial per se.5
¶ 71 In Bruce, 125 Ariz. at 423, 610 P.2d at 57, our supreme court broadly defined a formal or technical defect under Arizona Rule of Criminal Procedure 13.5(b) as one that “does not operate to change the nature of the offense charged or to prejudice the defendant in any way.” Rule 13.5(b) additionally provides that “[t]he charging document shall be deemed amended to conform to the evidence adduced at any court proceeding.” This provision applies automatically when the nature of the underlying crime is not changed. State v. Eastlack, 180 Ariz. 243, 258, 883 P.2d 999, 1014 (1994). Before count one was amended at the conclusion of the state’s case-in-chief, defendant was charged with committing aggravated assault on Officer Bingaman on November 14, 1999, a class six felony, in violation of A.R.S. § 13-1204(A)(5) (1999). After the amendment, defendant was still charged with committing aggravated assault on Officer Bingaman on November 14, 1999, a class six felony, in violation of § 13-1204(A)(5). Because count one as amended did not charge a new or different offense, but merely constituted a change in the state’s theory of the case, defendant was required to demonstrate actual prejudice caused by the amendment. State v. Jones, 188 Ariz. 534, 544, 937 P.2d *2241182, 1192 (App.1996). I am unable to conclude that the trial court abused its considerable discretion in finding that defendant suffered no prejudice. See State v. Sammons, 156 Ariz. 51, 55, 749 P.2d 1372, 1376 (1988) (trial court's ruling on a motion to amend made pursuant to Rule 13.5(b) is reviewed for an abuse of discretion); State v. Williams, 108 Ariz. 382, 387, 499 P.2d 97, 102 (1972) (“Arizona courts have been liberal in allowing amendments, providing that the amendment does not lead to a charge of a different crime.”). Therefore, I respectfully dissent.
I. Nature of the Offense Charged
¶ 72 The majority’s conclusion that defendant is not required to show any prejudice is premised on its mistaken belief that aggravated assault on a peace officer involving “knowing touching,” A.R.S. § 13-1203(A)(3), is a different offense than aggravated assault on a peace officer involving “reasonable apprehension,” § 13-1203(A)(2). Because my colleagues’ premise is flawed, their analysis misses the mark.6
¶ 73 Pursuant to § 13-1204(A)(5), a person is guilty of aggravated assault “if the person commits assault as defined in § 13-1203 ... [while] knowing or having reason to know that the victim is a peace officer.” As defined in the statute, an aggravated assault on a particular peace officer is a single offense, regardless of the manner in which the assault occurs. Count one of the information would have been sufficient had it simply accused defendant of assaulting Officer Bingaman in violation of § 13-1204(A)(5) and not specified the particular subsection of § 13-1203 under which the state was proceeding. See Ariz. R.Crim. P. 13.2. Thus, the issue on appeal should be whether defendant was actually prejudiced by the amendment to the information. See Jones, 188 Ariz. at 544, 937 P.2d at 1192 (“When the amendment results in no change in the underlying offense or actual prejudice to the defendant, the indictment is automatically deemed amended to conform to the evidence adduced at trial”).
¶ 74 However, because a person may commit the misdemeanor offense of assault in any of three ways, § 12-1203(A)(l)-(3), the majority interprets § 13-1204(A)(5) as creating at least two, and presumably three, separate and distinct offenses. This interpretation is irreconcilable with the conclusion we reached in Winter, 146 Ariz. at 464-65, 706 P.2d at 1231-32, that the various subsections of A.R.S. § 13-1802 (1982) simply set forth alternative means of committing the unitary offense of theft. Instead, my colleagues break with settled precedent by asserting that pursuant to the Sixth Amendment “the state must tell a defendant in advance under which of the two [subsections] he is being prosecuted,” notwithstanding any inconvenient “statutory nomenclature” to the contrary. Supra ¶ 44.
¶ 75 I disagree with the majority’s argument, which hinges on its claim that an indictment charging a defendant with one count of aggravated assault pursuant to § 13-1204(A)(5) is defective as duplicitous, i.e., charging multiple offenses in one count, unless limited to only one of the three theories of assault enumerated in § 13-1203. Although separate offenses must be stated in separate counts, see Rule 13.3(a), “[a] count is not considered duplicitous merely because it charges alternate ways of violating the same statute.” State v. O’Brien, 123 Ariz. 578, 583, 601 P.2d 341, 346 (App.1979). Generally, “where an offense may be committed by different means, an indictment or information may charge in one count all means that are not repugnant to each other.” State v. Parmenter, 74 Wash.2d 343, 444 P.2d 680, 686 (1968). Thus, I am unable to join my colleagues in their willingness to dispense with the legislature’s definition of aggravated assault as mere “statutory nomenclature.” See State v. Miranda, 200 Ariz. 67, 69, ¶ 5, 22 *225P.3d 506, 508 (2001) (“Defining crimes and fixing punishments are functions of the legislature.”).7
¶76 The majority’s construction of § 13-1204(A)(5) is inconsistent with a long line of Arizona cases that have interpreted analogous statutes as simply enumerating alternative means of satisfying one element of a single offense. See, e.g., State v. Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982) (“[Fjirst degree murder is only one crime regardless whether it occurs as a premeditated murder or a felony murder.”); State v. Klem, 108 Ariz. 349, 350, 498 P.2d 216, 217 (1972) (The various subsections of A.R.S. § 13-611 “merely state[] the different circumstances under which sexual intercourse constitutes the crime of rape.”); State v. Martin, 105 Ariz. 265, 266, 463 P.2d 63, 64 (1970) (Statute prohibiting sale, furnishing, administering, or giving away marijuana merely states different ways in which the same crime could be committed.); Winter, 146 Ariz. at 464, 706 P.2d at 1231 (“[Tjheft in A.R.S. § 13-1802 is [ ] a single offense even though it has multiple subsections.”); State v. Bruni, 129 Ariz. 312, 317, 630 P.2d 1044, 1049 (App.1981) (Kidnapping is one crime that may be committed in different ways.).
¶77 Similarly, in Schad v. Arizona, 501 U.S. 624, 645, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), in which the defendant claimed that the United States Constitution required juror unanimity in capital cases, id. at 630, 111 S.Ct. 2491, the United States Supreme Court rejected Schad’s argument that premeditated murder and felony murder in Aizona are separate crimes for which the jury must return separate verdicts. In its plurality opinion upholding the constitutionality of allowing a jury to return a general verdict, the Court noted that “legislatures frequently enumerate alternative means of committing a ciime without intending to define separate elements or separate crimes.” Id. at 636, 111 S.Ct. 2491. Further, “it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission.” Id. at 649, 111 S.Ct. 2491 (Scalia, J., concurring).
¶78 Clearly, Aizona’s legislature has defined one ciime of aggravated assault on a peace officer pursuant to § 13-1204(A)(5). The fact that one of the elements of this offense may be satisfied by alternative means does not create three separate and distinct offenses. In holding to the contrary, the majority has effectively rewritten § 13-1204(A)(5).
¶ 79 The implications of the majority opinion extend far beyond the aggravated assault statute. Presumably, for example, the majority would find duplicitous an indictment charging a felony murder count that alleged more than one predicate offense. Indeed, not only would the logic of the majority’s “separate offense” analysis impose a limit of one predicate offense per felony murder count, it would require that any additional theory of liability for each predicate felony be set forth in a separate count and that the jury be required to return a unanimous verdict as to each count.
II. Reversible Per Se Rule
¶ 80 Because the amendment did not change the nature of the offense, the proper inquiry is whether the defendant was prejudiced by the amendment. Jones, 188 Aiz. at 544, 937 P.2d at 1192. However, instead of deciding whether the trial court abused its discretion under Rule 13.5(b) in finding that the amendment did not prejudice defendant, the majority formulates and applies a stringent reversible per se rule, under which any but the most minor variance between the charge and the proof at trial would be found to violate a defendant’s Sixth Amendment right “to be informed of the nature and cause of the accusation.” In addition to being contrary to Aizona case law, the majority’s approach is an unwise step in the direction of *226returning Arizona to a bygone era in which technical precision was a trap for the unwary. See, e.g., Territory v. Marinez, 5 Ariz. 55, 55-56, 44 P. 1089, 1089 (1896) (finding a fatal variance between indictment charging larceny of a steer and evidence showing that the animal was a spayed cow).
¶ 81 More importantly, the majority’s reliance on federal case law for its assertion that the amendment to the charge violated defendant’s Sixth Amendment rights is misplaced. The automatic reversal rule in federal courts is generally limited to cases involving a substantial variance between the indictment and the proof that results in an implicit alteration in the charging document referred to as a “constructive” amendment. A “trial court constructively amends the indictment if it allows the Government to prove its ease in a fashion that creates a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.” United States v. Apodaca, 843 F.2d 421, 428 (10th Cir.1988) (internal quotations omitted). For example, in Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the defendant was indicted for obstructing an interstate shipment of sand, but the trial court’s instructions to the jury permitted a guilty verdict based on a finding that the defendant had interfered with a shipment of steel. The Supreme Court reversed the defendant’s conviction because the possibility that he had been convicted of a charge never made “destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury.” Id.
¶82 Although constructive amendments are reversible per se, mere variances between the indictment and proof are evaluated under a harmless error standard. United States v. Young, 730 F.2d 221, 223 (5th Cir. 1984). In such cases, the proper inquiry “is not whether there has been a variance in proof, but whether there has been a variance as to ‘affect the substantial’ rights of the accused.” Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (quoting 28 U.S.C. § 391); see also State v. Neese, 126 Ariz. 499, 504, 616 P.2d 959, 964 (App.1980) (“We have held that in order to constitute grounds for reversal, a variance between proof and indictment must affect the substantial rights of the defendant by preventing him from presenting his defense properly, taking him unfairly by surprise, or exposing him to double jeopardy.”) (quoting United States v. Lyman, 592 F.2d 496, 500-01 (9th Cir.1978)).
¶83 The federal cases relied on by the majority do not support its conclusion that defendant’s conviction is reversible per se. For example, in Gray, 662 F.2d at 572, 575, only one judge on the three-judge panel actually found a per se Sixth Amendment violation, and one judge dissented because he found no due process violation. (Duniway, J., concurring and dissenting). The deciding vote was cast by Judge Tang, who found no per se Sixth Amendment violation, but voted to reverse because he believed the defendant’s due process rights were violated because he was “taken by surprise” by the state’s request for a second degree statutory rape instruction after defendant had already testified to having consensual sexual intercourse with the victim. Id. at 574-75 (Tang, J., specially concurring). Thus, Gray is a “prejudice,” not a “prejudicial per se” case.
¶84 In Sheppard, 909 F.2d at 1236, the state conceded on appeal that the defendant’s Sixth Amendment rights to advance notice and an opportunity to prepare were violated when the state prosecuted the defendant on a theory of premeditated first degree murder and only advanced its theory of felony murder after the instructions had been settled and the case was ready for argument. Therefore, the issue before the Ninth Circuit was whether to apply the harmless-error doctrine, not whether a per se Sixth Amendment violation existed. Id. at 1237. The court declined to engage in a harmless-error analysis only because the defendant did not have the opportunity to present his own evidence in defense of felony murder.8 Id.
*227¶ 85 In Hunter, 916 F.2d at 597-98, the defendant was charged with first degree criminal sexual penetration by engaging in sexual intercourse with a minor female under the age of thirteen “between January 1, 1974, and October 23, 1977,” an offense for which life imprisonment was a potential punishment. After evidence that defendant penetrated the victim with his finger was presented at trial, the court “constructively” amended the information by instructing the jury that the state could also prove first degree criminal sexual penetration with evidence that defendant inserted his finger in the victim’s vagina during that same time frame, even though digital penetration was only a fourth degree felony until June 1975. Id. at 597. Thus, under the court’s instructions to the jury, the jury might have convicted defendant of first degree sexual penetration based on digital penetration occurring before June 1975. Id. at 598. If so, Hunter was only guilty of fourth degree sexual assault, an offense for which he was not charged and for which the maximum punishment was one to five years of imprisonment. Id. at 597-98. Under these circumstances, the court held that the amendment effectively altered the substance of the information and was reversible per se as a constructive amendment. Id. at 599.
¶ 86 The majority’s reliance on Joseph, 765 F.2d 394, is similarly misplaced because that court reversed defendant’s conviction based on a prejudice, and not a prejudicial per se, analysis. Joseph was charged with rape. His theory of defense was consent. Id. at 397. During trial, the victim testified she was fifteen-years-old when the assault occurred. Id. at 396 n. 3. At the close of all the evidence, the trial court instructed the jury on the additional offense of statutory rape to which lack of consent was not a defense. The jury convicted the defendant of the statutory rape offense. Id. at 396. Because the defendant did not object to the jury charge, the Third Circuit, employing a fundamental error analysis, held that the variance between the information and the verdict violated the defendant’s right to be notified of the charge against him because:
By permitting the jury to convict Joseph of [statutory rape] — a strict liability offense— the court rendered appellant’s theory of defense — consent—totally ineffective. Moreover, because age was not identified as an issue in the case prior to the jury charge, the only evidence of [the victim’s] age was her seemingly unimportant testimony that she was fifteen at the time the alleged rape took place. Although unlikely, it is certainly possible that [the victim] erred as to her age at the relevant time and that Joseph could have disputed her testimony had he been aware of its importance and given time to prepare an appropriate defense.
Id. at 397-98 (footnotes omitted).
¶87 In contrast, here the information against defendant was not “constructively” amended after the close of all the evidence. Thus, there was no “variance” between the information and proof as that concept is commonly understood. More importantly, because the amendment did not result in a change in the nature of the offense, see State v. Van Vliet, 108 Ariz. 162, 164, 494 P.2d 34, 36 (1972) (amendment to information substituting name of actual victim of armed robbery did not change nature of offense), the prejudicial per se rule is inapplicable.
III. Prejudice
¶88 Defendant also claims that he was prejudiced by the amendment because (1) an acquittal on the amended charge would not have barred a subsequent prosecution on the original count one and (2) the change in the state’s theory surprised him.
A. Double Jeopardy
¶ 89 A defendant is prejudiced when an acquittal of the amended charge would not bar prosecution on the original charge. See Bruce, 125 Ariz. at 423-24, 610 P.2d at 57-58. The double jeopardy clauses of both the federal and Arizona constitutions prohibit a person from being put in jeopardy twice for the “same offense.” U.S. Const. amend. V; Ariz. Const. art. 2, § 10. In determining whether multiple prosecutions violate the federal double jeopardy clause, the United States Supreme Court applies the “same-*228elements” test. Dixon, 509 U.S. at 696, 113 S.Ct. 2849. Under this test, if each offense contains an element the other does not, then the two violations do not constitute the same offense, and a subsequent prosecution is not barred. See State v. Eagle, 196 Ariz. 27, 31-32, ¶ 21, 992 P.2d 1122, 1126-27 (App.1998) (“[I]f each criminal statute requires ‘proof of a fact which the other does not,’ the statutes do not govern the same offense.”) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).
¶ 90 The Achilles’ heel of the majority’s approach is exposed by its corollary assertion that the double jeopardy clause does not bar the state from retrying a defendant multiple times for the crime of aggravated assault on a peace officer. Notwithstanding its contrary claim, this implausible conclusion is compelled not by Dixon’s same-elements test but by the majority’s insistence that a single episode of assaultive conduct on a peace officer may result in three “distinctly different crimes” under § 13-1204(A)(5). However, if I am correct that § 13-1203(A)(l)-(3) merely provides the state alternative means to prove the same element of “assault” in a prosecution for aggravated assault pursuant to § 13-1204(A)(5), a defendant who is acquitted of the charge of aggravated assault on a peace officer may not be retried on that “same offense.” Thus, in addition to being consistent with cases interpreting analogous statutory frameworks, supm ¶76, the “alternative means” interpretation of § 13-1204(A)(5) possesses the advantage of protecting a defendant from a subsequent prosecution for the same offense. See Williams, 108 Ariz. at 387, 499 P.2d at 102 (“[Wjhen there was only one robbery of the service station in question, it would seem clear that the acquittal on the amended information would bar prosecution on the original information.”). Based on my analysis, defendant could have pled an acquittal on the amended charge as a defense to the original charge. Therefore, he was not prejudiced by the amendment.
B. Surprise
¶ 91 Alternatively, defendant claims he was unprepared to defend against the amended count. The majority’s contrary characterization notwithstanding, the trial court’s finding that defendant should not have been “surprised” by the prosecutor’s motion to amend finds ample support in the record. From the outset, the evidence clearly reflected that any “knowing touching” of the officer by defendant occurred within the broader context of the officer’s “apprehension” of physical injury-
¶ 92 At the preliminary hearing, Officer Bingaman, whom the defendant outweighed by approximately eighty-five pounds, testified that: (1) defendant was already out of his vehicle when the officer pulled into the parking lot to make the stop and “was walking quickly towards me, and he was obviously upset;” (2) he asked dispatch to send another unit because defendant was “yelling” at him and was “upset;” (3) defendant refused several requests by the officer to produce his driver’s license, remained “argumentative” and tried to leave when informed by the officer that he would be arrested if he failed to provide identification; (4) defendant spun around, struck the officer’s arm away, and clenched his fists; (5) the officer grabbed both of defendant’s arms to avoid being struck again; (6) defendant struggled with the officer all the way back to the patrol car as the officer was attempting to get him under control; and (7) defendant’s “belligerent and cursing” behavior “from the initial contact ... led me to believe that I was in a potential situation of being injured.” Further, as noted by the trial court, defendant also received additional notice of the facts that formed the basis of the charge from the departmental reports of the incident, and statements made by Officer Bingaman at both defendant’s traffic hearing and during an internal investigation conducted by the police department after defendant filed a complaint alleging excessive force by Officer Bingaman. See Sheppard, 909 F.2d at 1236 n. 2 (in determining whether a defendant has adequate notice of the nature and cause of an accusation, “[t]he Constitution itself speaks not of form, but of substance.”).
¶ 93 At trial, the prosecutor gave a mini-opening statement, during which she told *229prospective jurors that defendant “straggled with the officer to a point where the officer was physically injured” and “was in fear he was going to be injured more,” and that he released the dog because “he was in fear for his own life____” In his trial testimony, Officer Bingaman reiterated his preliminary hearing testimony in greater detail, and was extensively cross-examined by defendant, including questions regarding any verbal threats made by defendant and what there was about the situation and defendant’s actions that caused the officer to be “concerned” for his safety.
¶ 94 Given this background, I believe that the trial court acted within its discretion in determining that defendant was not ambushed by the state’s motion to amend at the conclusion of its case-in-chief. The only specific claim of prejudice made by trial counsel was that the state’s change in theory deprived defendant from relying on self-defense, the “whole theory of the defense.” However, as later determined by the trial court during settlement of jury instructions, justification was not a viable defense for the aggravated assault charge in any event because “the assault on the officer, if any, had already been completed prior to the time that any justification might have arisen because of the alleged use of excessive force[,]” i.e., the dog. Defendant’s claim of surprise is further belied because after the court granted the state’s motion to amend, defendant neither asked for a continuance nor recalled Officer Bingaman for additional cross-examination.9
IV. Conclusion
¶ 95 The state’s change in theory for the assault did not constitute a change in the nature of the offense because aggravated assault on a peace officer is one offense pursuant to § 13-1204(A)(5) for which a defendant may only be placed in jeopardy one time, regardless of the manner in which it is committed. Further, the defendant was not prejudiced. Therefore, I would affirm.
. The majority claims this characterization is inaccurate. Yet, as examples of constitutionally permissible amendments, the majority cites cases permitting a one-digit change in the serial numher of a stolen television set, a corporate name change in a securities fraud proceeding, and a one-day change in the date of an offense. Supra ¶ 19.
. The majority sets up a "strawman” argument by inaccurately attributing to the slate "the position that if evidence of another offense is admitted during trial it may amend to charge that offense,” supra 11 36, and then suggests that such an approach would permit the state to amend an indictment mid-trial to charge a defendant with uncharged crimes. I agree with the majority’s comment that such an interpretation of Rule 13.5(b) would indeed be "implausible.” Supra II 37. But the state simply argues, notwithstanding the majority’s contrary characterization, that the amendment in this case neither changed the nature of the offense nor prejudiced defendant.
. The majority seemingly (and incorrectly) attributes to me the belief that a charge of simple assault pursuant to one subsection of § 13-1203 constitutes adequate notice to the defendant that he may also be convicted under the two remaining subsections. Supra ¶¶ 45, 46. Defendant is not charged with misdemeanor assault. Rather, as framed by the majority, the issue is whether an information charging a person with aggravated assault on a peace officer pursuant to A.R.S. § 13-1204(A)(5) is necessarily deficient if it does not specify the underlying theory of the assault.
. Sheppard was cited by our supreme court in State v. Blakley, 204 Ariz. 429, ¶¶ 57-58, 65 P.3d 77 (2003), which reversed defendant’s felony murder conviction because he was actually prejudiced by an instruction based on an undisclosed predicate felony.
. The majority takes me to (ask for unfairly criticizing defense counsel in her handling of tire case. To the contrary, I believe defense counsel did the best she could given the facts of the case. However, it is defendant who is claiming that the trial court abused its discretion and it is defendant who bears the burden of showing that he suffered actual prejudice from the amendment. Jones, 188 Ariz. at 544, 937 P.2d at 1192. Defendant made no offer of proof in the trial court nor has he urged on appeal how he would have tried the case differently if given earlier notice of the (A)(2) theory. That defense counsel made no effort to recall witnesses and that she did not request a continuance is not evidence of counsel’s inadequacy. Rather, I think it fair to conclude from this record that counsel believed the justification defense — albeit later rejected by the trial court — -was unaffected by the amendment.