SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0363-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 07-0448
MARK ALLEN FREENEY, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2006-166886-002 DT
)
) O P I N I O N
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Colleen L. French, Judge Pro Tempore
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals, Division One
220 Ariz. 435, 207 P.3d 688 (App. 2008)
VACATED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Melissa Parham, Assistant Attorney General
Attorneys for State of Arizona
KESSLER LAW OFFICES Mesa
By Eric W. Kessler
Attorney for Mark Allen Freeney
________________________________________________________________
P E L A N D E R, Justice
¶1 Absent the defendant’s consent, a criminal “charge may
be amended only to correct mistakes of fact or remedy formal or
technical defects.” Ariz. R. Crim. P. 13.5(b). In this case,
the State moved to amend the indictment on the first day of
1
trial to change the theory of the assault underlying its sole
charge of aggravated assault. See Ariz. Rev. Stat. (A.R.S.)
§§ 13-1203(A), 13-1204(A) (Supp. 2008). The trial court granted
the motion, over Mark Allen Freeney’s objection, and the jury
found him guilty of the amended charge.
¶2 Because the elements of the amended charge differ from
those of the original charge, we conclude the amendment changed
the nature of the offense and therefore violated Rule 13.5(b).
Although the trial court erred in granting the amendment, such
error is not prejudicial per se but rather subject to harmless
error review. We find the error here harmless beyond a
reasonable doubt and affirm Freeney’s conviction.
I
¶3 A neighbor saw Freeney beat the victim, his
girlfriend, with a metal bar or pipe outside the couple’s home
and heard Freeney threaten to kill her. The neighbor called the
police, but Freeney left before they arrived. The victim was
treated for a four-inch laceration on her head and other
injuries. She told police Freeney had hit her repeatedly with a
metal pipe.
¶4 Freeney was indicted on a charge of aggravated assault
using a deadly weapon or dangerous instrument, see A.R.S. § 13-
1204(A)(2), and having “intentionally placed [the victim] in
reasonable apprehension of imminent physical injury,” see A.R.S.
2
§ 13-1203(A)(2). The indictment cited §§ 13-1203 and 13-1204
without specifying any subsections and included an allegation of
dangerousness that stated:
[T]he offense charged in this count is a
dangerous felony because the offense
involved the discharge, use, or threatening
exhibition of a METAL BAR or PIPE, a deadly
weapon or dangerous instrument and/or the
intentional or knowing infliction of serious
physical injury upon [the victim], in
violation of A.R.S. § 13-604(P).
(Emphasis added.)
¶5 The State also filed an Allegation of Aggravating
Circumstances Other Than Prior Convictions, alleging “the
offense(s) involved the infliction or threatened infliction of
serious physical injury.” In the parties’ joint pretrial
statement, the State listed the treating emergency room
physician as a witness and alleged that Freeney had “hit the
victim . . . several times in the head and body with a metal bar
while threatening to kill her,” and that the victim had
“received a head injury from the beating and was transported to
the hospital.”
¶6 Just before jury selection on the first day of trial,
citing Rule 13.5(b), the State moved to amend the indictment to
change the theory of the underlying assault to “intentionally,
knowingly, or recklessly causing any physical injury to another
3
person” under A.R.S. § 13-1203(A)(1).1 Freeney objected to the
timing of the amendment but acknowledged knowing about the
victim’s injuries from pretrial disclosures. The prosecutor
stated without contradiction that Freeney had received notice of
those injuries from police reports, medical records, and
photographs. The trial court granted the motion, concluding the
amendment did not prejudice Freeney or violate the notice
requirement of the Sixth Amendment.2
¶7 Freeney did not testify at trial or dispute the
victim’s injuries. He denied having assaulted the victim,
however, contending another person had committed the crime. The
victim testified that she and Freeney had been at home on the
night of the incident, but that Freeney had left and someone
else had assaulted her. The jury found Freeney guilty of
aggravated assault and that the offense was dangerous.
¶8 On appeal, citing State v. Sanders, 205 Ariz. 208, 68
P.3d 434 (App. 2003), Freeney argued that the amendment to the
indictment was improper and that such error was prejudicial per
1
That motion apparently was prompted by a newly assigned
prosecutor learning that the victim had recently recanted
earlier statements implicating Freeney.
2
The Sixth Amendment to the United States Constitution,
applicable to the states via the Fourteenth Amendment, requires
that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be informed of the nature and cause of the
accusation.” E.g., Gray v. Raines, 662 F.2d 569, 571 (9th Cir.
1981).
4
se. State v. Freeney, 220 Ariz. 435, 440 ¶ 18, 207 P.3d 688,
693 (App. 2008). In affirming Freeney’s conviction, the court
of appeals distinguished Sanders by noting the amendment in that
case occurred mid-trial, whereas the amendment here occurred
before jury selection. Id. at 441-42 ¶¶ 27-28, 30, 207 P.3d at
694-95. On that basis, the court “decline[d] to impose the
prejudice-per-se rule of Sanders, and instead conclude[d] that
[Freeney] must show that he suffered actual prejudice from the
amendment,” which he failed to do. Id. at ¶¶ 28, 30.
¶9 In a concurring opinion, Judge Hall, who had dissented
in Sanders, found no “principled basis on which both Sanders and
the lead opinion’s analysis can co-exist.” Id. at 443 ¶ 34, 207
P.3d at 696 (Hall, J., concurring in the result). Even assuming
the amendment changed the nature of the offense, Judge Hall
stated, “Sanders’ prejudice-per-se analysis is theoretically
flawed,” and “the harmless-error doctrine should apply when a
trial court erroneously overrules a defendant’s objection to a
prosecutor’s motion to amend an indictment or information
pursuant to Rule 13.5(b).” Id. at 443-44 ¶¶ 34, 36, 207 P.3d at
696-97.
¶10 We granted review to resolve a recurring issue of
statewide importance pertaining to a rule of criminal procedure
and to address the apparent tension between the court of
appeals’ opinion and Sanders. We have jurisdiction pursuant to
5
Article 6, Section 5(3) of the Arizona Constitution and A.R.S.
§§ 12-120.24 and 13-4033(A)(1).
II
¶11 Rule 13.5(b), Ariz. R. Crim. P., governs the process
of amending an indictment. It 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.
Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980).
¶12 In Sanders, the defendant was charged with aggravated
assault in violation of § 13-1204(A)(5) (now § 13-
1204(A)(8)(a)), based on a predicate assault under § 13-
1203(A)(3) (“[k]nowingly touching another person with the intent
to injure, insult or provoke”). 205 Ariz. at 212 ¶ 5, 68 P.3d
at 438. At the conclusion of its case-in-chief, the state moved
to amend the indictment pursuant to Rule 13.5(b) to allege a
violation of § 13-1203(A)(2) (“[i]ntentionally placing another
person in reasonable apprehension of imminent physical injury”).
6
Sanders, 205 Ariz. at 212 ¶ 9, 68 P.3d at 438. The trial court
granted the motion over the defendant’s objection. Id. at ¶ 10.
¶13 Reversing the conviction, the court of appeals
concluded that the “two types of assault [under subsections
(A)(2) and (A)(3) of § 13-1203] are in fact distinctly different
crimes” and that the amendment “changed the nature of the
originally charged offense.” Id. at 216-17 ¶ 33, 68 P.3d at
442-43. The court held that “an amendment proposed mid-trial
that changes the nature of the original charge deprives an
accused of the type of notice and opportunity to prepare a
defense contemplated by the Sixth Amendment and is therefore not
permitted by Rule 13.5(b).” Id. at 211 ¶ 1, 68 P.3d at 437. It
concluded that “an amendment that changes the nature of the
charged offense is prejudicial per se.” Id. at 220 ¶ 50, 68
P.3d at 446; see also id. at 214-15 ¶¶ 20-24, 68 P.3d at 440-41.
¶14 In dissent, Judge Hall argued the nature of the
offense had not changed because the overarching crime of
aggravated assault remained the same, despite changing the
theory of the underlying § 13-1203(A) assault charge. Id. at
224, 229 ¶¶ 73-74, 95, 68 P.3d at 450, 455 (Hall, J.,
dissenting). Consequently, he concluded, the defendant was
required to show actual prejudice and had failed to do so. Id.
at 223-29 ¶¶ 80-94, 68 P.3d at 451-55.
¶15 In this case, the court of appeals noted “the ultimate
7
crime charged is the same,” but found no need to decide “whether
the nature of the offense [was] changed” by the amendment.
Freeney, 220 Ariz. at 441-42 ¶ 28, 207 P.3d at 694-95. That
issue, however, has a direct bearing on whether the amendment
was authorized by Rule 13.5(b). See Bruce, 125 Ariz. at 423,
610 P.2d at 57. Freeney argues, and we agree, that the
amendment here violated the rule by changing the nature of the
offense.
¶16 When 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. E.g., State v. Leenhouts, 218 Ariz. 346, 349 ¶ 13, 185
P.3d 132, 135 (2008) (“Because the elements required to prove a
violation of subsection A.1 [of A.R.S. § 13-1302] differ from
those required to prove a violation of subsection A.3, the
original and supervening indictments do not allege the same
charge.”); State v. Sustaita, 119 Ariz. 583, 591, 583 P.2d 239,
247 (1978) (“We have stated that ‘[a]n offense which requires
different evidence or elements than the principal charge is a
separate offense . . . .’”) (quoting State v. Woody, 108 Ariz.
284, 287, 496 P.2d 584, 587 (1972)).
¶17 Here, the elements required to prove a violation of
§ 13-1203(A)(2) differ from those required to prove a violation
of § 13-1203(A)(1). Because the amended indictment altered the
8
elements of the charged offense, it constituted a change in the
nature of the offense.
¶18 Further, proper application of Rule 13.5(b) hinges on
the existence of some mistake or defect in the indictment for
which a corrective amendment is needed. Permissible Rule
13.5(b) amendments, for example, have corrected dates, names,
addresses, and even a statutory section number, when the
defendants had adequate notice of the intended charge and the
typographical error was first discovered shortly before trial.
See, e.g., Sustaita, 119 Ariz. at 591, 583 P.2d at 247; State v.
Johnson, 198 Ariz. 245, 247 ¶ 7, 8 P.3d 1159, 1161 (App. 2000)
(citing examples of permissible and impermissible amendments
under Rule 13.5(b)); see also Sanders, 205 Ariz. at 214 ¶ 19, 68
P.3d at 440 (“common theme” of cases permitting amendments
pursuant to Rule 13.5(b) “is that the defect is minor and
correcting it does no harm to the defendant’s ability to defend
himself”).
¶19 Here, however, as in Sanders, 205 Ariz. at 214 ¶ 20,
68 P.3d at 440, the amendment did not correct a mistake of fact
or remedy a formal or technical defect in the indictment. In
fact, the indictment was not defective at all. It simply
charged Freeney with an offense the State later determined might
be difficult to prove, given the victim’s recantation of her
earlier statements.
9
¶20 In sum, not only did the amendment change the nature
of the offense, but also the original indictment was not
defective. Therefore, the amendment was not authorized under
Rule 13.5(b) and the trial court erred in granting the State’s
motion.
III
¶21 Relying on Sanders, Freeney next argues a violation of
Rule 13.5(b) is prejudicial per se, requiring automatic
reversal. We disagree.
¶22 Although Bruce neither addressed nor decided any Sixth
Amendment issues, the Sanders court viewed Bruce as establishing
a disjunctive “test for a Sixth Amendment violation,” concluding
that a violation of Rule 13.5(b) equates to a denial of
constitutional rights. Sanders, 205 Ariz. at 214 ¶¶ 19-20, 68
P.3d at 440. The court in Sanders found that, when an amendment
changes the nature of the offense, Rule 13.5(b) is violated and
prejudice is “conclusively presumed.” Id. at 214 ¶ 20, 68 P.3d
at 440. By labeling the error “prejudicial per se,” id. at 220
¶ 50, 68 P.2d at 446, the court essentially equated it to
structural error. See, e.g., State v. Valverde, 220 Ariz. 582,
584-85 ¶ 10, 208 P.3d 233, 235-36 (2009).
¶23 As we have previously noted, however, most errors,
even constitutional errors, are not structural. State v. Ring,
204 Ariz. 534, 552 ¶ 45, 65 P.3d 915, 933 (2003). Structural
10
error arises in a very limited set of circumstances — those in
which “defendants [are deprived] of basic protections without
which a criminal trial cannot reliably serve its function as a
vehicle for [determination of] guilt or innocence.” State v.
Henderson, 210 Ariz. 561, 565 ¶ 12, 115 P.3d 601, 605 (2005)
(quoting Neder v. United States, 527 U.S. 1, 8-9 (1999)); accord
Valverde, 220 Ariz. at 584-85 ¶ 10, 208 P.3d at 235-36. Rule
13.5(b) violations do not fall into that category.
¶24 Relying on federal case law, Sanders reached a
different conclusion by incorrectly conflating Rule 13.5(b) and
the Sixth Amendment notice requirement. Sanders, 205 Ariz. at
214 ¶¶ 20-21, 68 P.3d at 440. Both seek to assure that
defendants in criminal cases have the opportunity to prepare an
adequate defense and avail themselves of the protection against
double jeopardy. E.g., Gray v. Raines, 662 F.2d 569, 572 (9th
Cir. 1981); State v. Barber, 133 Ariz. 572, 577, 653 P.2d 29, 34
(App. 1982) (citing State v. Phelps, 125 Ariz. 114, 118, 608
P.2d 51, 55 (App. 1979)). But for Sixth Amendment purposes,
courts look beyond the indictment to determine whether
defendants received actual notice of charges, and the notice
requirement can be satisfied even when a charge was not included
in the indictment. See, e.g., Stephens v. Borg, 59 F.3d 932,
934-36 (9th Cir. 1995); Morrison v. Estelle, 981 F.2d 425, 428-
29 (9th Cir. 1992); McKaney v. Foreman, 209 Ariz. 268, 273 ¶ 23,
11
100 P.3d 18, 23 (2004).
¶25 In contrast, Rule 13.5(b) is limited to the procedural
requirements for amending indictments. Although it addresses
policy concerns similar to those of the Sixth Amendment, Rule
13.5(b) is a prophylactic rule of criminal procedure. It can be
violated even when the Sixth Amendment notice requirement has
been satisfied. Stated differently, a violation of Rule 13.5(b)
does not necessarily equate to an infringement of a defendant’s
Sixth Amendment rights.
¶26 For Sixth Amendment purposes, when a defendant does
not receive constitutionally adequate notice of the charges
against him, he is necessarily and actually prejudiced. See,
Sheppard v. Rees, 909 F.2d 1234, 1237 (9th Cir. 1989) (“A trial
cannot be fair unless the nature of the charges against a
defendant are adequately made known to him or her in a timely
fashion.”); see also Hunter v. New Mexico, 916 F.2d 595, 598-99
(10th Cir. 1990). Contrary to Sanders, however, we conclude
that a violation of Rule 13.5(b) is neither prejudicial per se
nor structural error. Therefore, because Freeney objected to
the amendment, we review for harmless error. See State v.
Hickman, 205 Ariz. 192, 198 ¶ 28, 68 P.3d 418, 424 (2003) (“most
trial error, and even most constitutional error, is reviewed for
harmless error”). Under that standard, we require the state to
show that the error was harmless beyond a reasonable doubt.
12
Valverde, 220 Ariz. at 585 ¶ 11, 208 P.3d at 236; see also State
v. Anthony, 218 Ariz. 439, 446 ¶ 39, 189 P.3d 366, 373 (2008).
¶27 The State has met its burden in this case. Freeney
had notice the State was alleging and intending to prove that
the victim had suffered serious physical injury. This notice
came from various pretrial disclosures, including photographs,
medical records, and the State’s expressed intent to call the
treating physician as a witness; the allegation of
dangerousness, which cited serious physical injury to the
victim; and the parties’ joint pretrial statement in which the
State alleged Freeney had beaten the victim and caused severe
injuries. In fact, when the State moved to amend the
indictment, Freeney acknowledged he had notice of the victim’s
injuries.
¶28 Unlike the situation in Sanders, Freeney has 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. Further, his “all or nothing” defense, based on his
assertion that someone other than he was the perpetrator, did
not change as a result of the amended charge. See State v.
Ramsey, 211 Ariz. 529, 533 ¶ 7, 124 P.3d 756, 760 (App. 2005)
(no showing defense was prejudiced by allegedly duplicitous
indictment when defendant claimed he had not committed charged
13
acts); cf. Johnson, 198 Ariz. at 248-49 ¶ 12, 8 P.3d at 1162-63
(although defendant denied having engaged in any sexual acts
with victim, court found he was prejudiced by amendment of
information after state rested its case because the amendment’s
timing “seriously undercut [defendant’s] opportunity to attack
the victim’s inconsistent statements . . . and inhibited his
right to defend himself against her accusations”). On this
record, we conclude that the violation of Rule 13.5(b) was
harmless beyond a reasonable doubt.3
IV
¶29 Freeney also contends the amended indictment violated
the Sixth Amendment. As noted above, the touchstone of the
Sixth Amendment notice requirement is whether the defendant had
actual notice of the charge, from either the indictment or other
sources. See Stephens, 59 F.3d at 934-36; Calderon v. Prunty,
59 F.3d 1005, 1009-10 (9th Cir. 1995); Morrison, 981 F.2d at
428-29. A Sixth Amendment violation occurs when the defendant
received insufficient notice and is therefore actually
prejudiced by a new or amended charge. See, e.g., Stephens, 59
3
Although we conclude that the error in this case was
harmless, we caution prosecutors and trial courts that Rule
13.5(b) should not be carelessly invoked. As we note, the rule
implicates several important policy considerations and,
therefore, should be strictly limited to its terms and not used
to make substantive changes to the indictment on the assumption
that the resulting error will ultimately be found harmless.
14
F.3d at 934-36 (failure of indictment to charge felony murder
did not violate Sixth Amendment notice requirement when
defendant “had five days of actual notice [before closing
arguments] of the prosecution’s intention to rely on a felony-
murder theory”); see also Sheppard, 909 F.2d at 1237; cf. United
States v. Odam, 252 F.3d 1289, 1298 (11th Cir. 2001) (“Even an
inadequate indictment satisfies due process if the defendant has
actual notice, so that she suffers no prejudice.”).
¶30 The same factors that led us to find the Rule 13.5(b)
violation harmless support the conclusion that Freeney’s Sixth
Amendment rights were not violated. Although the original
indictment did not charge Freeney with aggravated assault based
on physically injuring the victim, see A.R.S. §§ 13-1203(A)(1),
13-1204(A)(1), he had abundant notice of her injuries — and the
State’s allegation that he had caused those injuries — from the
dangerousness allegation in the indictment, the State’s pretrial
disclosures, and the joint pretrial statement. He was not
prejudiced by the State’s motion to amend the indictment on the
first day of trial and, thus, was not deprived of his Sixth
Amendment right to adequate notice.4
4
An amended indictment that changes the nature of the
offense by alleging new or different elements raises another
constitutional issue: failure “to ensure that a neutral
intermediary – a grand jury comprised of ordinary citizens –
finds that probable cause exists before the State can bring
charges.” McKaney v. Foreman, 209 Ariz. 268, 274-75 ¶ 31, 100
15
V
¶31 We hold that the trial court erred in granting the
State’s motion to amend the indictment under Rule 13.5(b)
because the amendment changed the nature of the offense. We
reject Freeney’s arguments that the error is prejudicial per se,
equates to a Sixth Amendment violation, and requires automatic
reversal. Rather, violations of Rule 13.5(b) are subject to
harmless error review and we conclude the error here was
harmless beyond a reasonable doubt.
¶32 We vacate the opinion of the court of appeals and
affirm Freeney’s conviction.
_____________________________________
A. John Pelander, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
__________________________
P.3d 18, 24-25 (2004) (Hurwitz, J., dissenting in part and
concurring in part); see also Ariz. Const. art. 2, § 30 (“No
person shall be prosecuted criminally in any court of record for
felony or misdemeanor, otherwise than by information or
indictment.”). Thus, the analysis and result might well differ
when such issues are raised in a pretrial petition for special
action relief. Here, however, “any failure to have submitted an
element to the grand jury for a finding of probable cause is
perforce harmless error” because the jury found Freeney guilty
beyond a reasonable doubt. McKaney, 209 Ariz. at 275 ¶ 33, 100
P.3d at 25 (Hurwitz, J., dissenting in part and concurring in
part) (citing United States v. Mechanik, 475 U.S. 66, 73
(1986)).
16
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
Michael D. Ryan, Justice
_____________________________________
W. Scott Bales, Justice
17