State v. MacIas

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

GABRIEL MACIAS, Petitioner.

No. 1 CA-CR 19-0408 PRPC
FILED 6-25-2020

Petition for Review from the Superior Court in Yuma County
No. S1400CR201400522
The Honorable Stephen J. Rouff, Judge Pro Tempore
The Honorable John Neff Nelson, Judge (retired)

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yuma County Attorney’s Office, Yuma
By Charles Platt
Counsel for Respondent

Perkins Coie LLP, Phoenix
By Jean-Jacques Cabou, Thomas D. Ryerson, and Matthew R. Koerner
Counsel for Petitioner
 STATE v. MACIAS
Opinion of the Court

OPINION

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in
which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani
joined.

M c M U R D I E, Judge:

¶1 Petitioner Gabriel Macias seeks review from the superior
court’s dismissal of his petition for post-conviction relief under Arizona
Rule of Criminal Procedure (“Rule”) 32.1 We grant review but deny relief.
We hold: (1) the superior court did not abuse its discretion by denying an
evidentiary hearing on Macias’ claim of juror misconduct after interviews
with jurors revealed that jurors prematurely deliberated; (2) appellate
counsel did not render ineffective assistance by failing to anticipate future
developments in the law; (3) the doctrine of spoliation does not relieve a
defendant of the obligation to allege a colorable claim of ineffective
assistance of counsel; and (4) appellate counsel did not render ineffective
assistance by failing to raise a technical violation in the charging document
or a vagueness challenge to the crime of providing harmful items to minors.

FACTS AND PROCEDURAL BACKGROUND

¶2 Macias taught fourth, fifth, and sixth grades and sex
education classes from 2003 to 2006. In 2013, one of Macias’ former students
(E.V.) reported to the police that when he was a student, Macias touched
him inappropriately. During the subsequent investigation, the police
located other former students who also claimed that Macias
inappropriately touched them. Several of these victims claimed Macias
showed them pornographic material at his home.

1
Effective January 1, 2020, our supreme court amended the
post-conviction relief rules. See State v. Botello-Rangel, 248 Ariz. 429, 430, n.1
(App. 2020). The amended rules apply to all cases pending on the effective
date unless a court determines that “applying the rule or amendment
would be infeasible or work an injustice.” Id. Because there were no
substantive changes to the respective rules related to this decision, we apply
and cite to the current rules.

2
 STATE v. MACIAS
Opinion of the Court

¶3 The police executed a search warrant on Macias’ home and
seized adult pornographic videotapes; compact discs containing both adult
and child pornography; adult magazines; and a college paper written by
Macias that discussed, in a positive light, sex between older and younger
men in ancient Greek society. The police also found a computer that
contained: (1) nude videos of Macias and E.V. as a young teenager;
(2) inappropriate chat messages between Macias and E.V.; and (3) two
computer diary entries, both titled “Losing [E.V.],” detailing Macias’
emotional turmoil after E.V.’s parents prohibited contact between them.
Following his arrest, Macias granted the police access to his phone, which
contained videos of E.V. masturbating and a video of Macias masturbating
while whispering, “I love you [E.V.]. This is only for you.”

¶4 The jurors convicted Macias of various counts and acquitted
him of one count of sexual exploitation of a minor. State v. Macias, 1 CA-CR
15-0505, 2017 WL 1458723, *1, ¶ 1, n.1 (Ariz. App. April 25, 2017) (mem.
decision). The superior court sentenced Macias to life imprisonment
without the possibility of release for thirty-five years for sexual conduct
with a minor and to consecutive and concurrent presumptive prison terms
totaling an additional 114.25 years for all remaining counts.

¶5 Macias appealed. This court vacated Macias’ convictions and
sentences for sexual assault and sexual abuse based on an erroneous jury
instruction relating to those two charges, Macias, 2017 WL 1458723, at *5,
¶ 21, and the conviction and sentence for one count of furnishing harmful
items to a minor, id. at *12, ¶ 59. We affirmed the remaining convictions and
sentences.

¶6 After the appeal, Macias filed a petition for post-conviction
relief. The superior court denied relief, concluding that the petition failed
to present a colorable claim. See State v. Amaral, 239 Ariz. 217, 220, ¶ 11
(2016) (“The relevant inquiry for determining whether the petitioner is
entitled to an evidentiary hearing is whether he has alleged facts which, if
true, would probably have changed the verdict or sentence. If the alleged
facts would not have probably changed the verdict or sentence, then the
claim is subject to summary dismissal.”).

¶7 Macias filed a petition for review from the superior court’s
order. We have jurisdiction to consider Macias’ claims under Arizona
Revised Statutes (“A.R.S.”) section 13-4239(C) and Rule 32.16. We grant the
petition for review, but for the reasons discussed below, deny relief.

3
 STATE v. MACIAS
Opinion of the Court

DISCUSSION

¶8 We review the superior court’s denial of post-conviction relief
for an abuse of discretion, State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012),
but review the interpretation of the Arizona Rules of Criminal Procedure de
novo, State v. Mendoza, 248 Ariz. 6, 14–15, ¶ 12 (App. 2019). To be eligible for
post-conviction relief, a defendant must strictly comply with the
post-conviction rules. Canion v. Cole, 210 Ariz. 598, 600, ¶ 11 (2005); State v.
Carriger, 143 Ariz. 142, 146 (1984) (“Petitioners must strictly comply with
Rule 32 or be denied relief.”).

A. The Superior Court Did Not Abuse Its Discretion by Finding
Macias Failed to Present a Colorable Claim for Relief Regarding
Juror Misconduct.

¶9 Macias alleges he was deprived of an impartial jury because
some jurors committed misconduct by deliberating prematurely. See Ariz.
R. Crim. P. 32.1(a) (conviction obtained in violation of United States or
Arizona Constitution); State v. Dann, 220 Ariz. 351, 371, ¶ 115 (2009)
(“[J]uror misconduct warrants a new trial [only] if the defense shows actual
prejudice or if prejudice may be fairly presumed from the facts.” (alteration
in original) (quoting State v. Miller, 178 Ariz. 555, 558 (1994))); State v. Lehr, 227 Ariz. 140, 151, ¶ 49 (2011). We assume, without deciding, that Macias
could raise the juror misconduct claim in his first timely filed Rule 32
petition. But cf. State v. Kolmann, 239 Ariz. 157, 163, ¶ 25 (2016) (holding that
because the juror-misconduct claim, in that case, could have been raised in
a post-trial motion under Rule 24, the defendant was precluded from
raising it in the post-conviction petition).

¶10 Macias has failed to allege a colorable claim of juror
misconduct. Generally, defendants have the right to “an impartial jury.”
U.S. Const. amend. VI; Ariz. Const. art. 2, § 24. “[E]ven a single partial juror
violates a defendant’s constitutional right to a fair trial.” United States v.
Angulo, 4 F.3d 843, 848 (9th Cir. 1993).

¶11 It has long been the established practice that jurors in a
criminal case are not to discuss trial evidence amongst themselves until the
conclusion of the evidence. See, e.g., State v. Brady, 66 Ariz. 365, 372 (1948)
(admonishing jury not to discuss the matter with anyone or amongst
themselves “until the case is finally submitted to you”); State v. Rojas, 177
Ariz. 454, 457–58 (App. 1993) (fairness requires that jurors not form fixed
opinions on the merits until they retire to commence deliberations and the
superior court should instruct the jurors accordingly); see also United States
v. Resko, 3 F.3d 684, 688–89 (3d Cir. 1993) (discussing that it is a
4
 STATE v. MACIAS
Opinion of the Court

well-established practice in federal and state courts to admonish jurors at
the outset that they should not discuss the case before the conclusion of the
trial).

¶12 The prohibition against premature deliberations in criminal
proceedings helps to ensure that a defendant’s due-process rights are
protected against particular human characteristics: (1) when the jury
deliberates before the defendant has had a chance to present his case, the
prosecution has an “unfair influence” on the jurors’ initial impressions;
(2) once a juror establishes a particular view on an issue, that juror may
have a “stake” in that viewpoint and give undue weight to evidence that
supports rather than undercuts it; (3) individual conversations thwart the
goal of a collective deliberative process by the jurors as a group; and
(4) when premature deliberations occur before the jurors are instructed on
the reasonable-doubt standard, jurors may reach a result based on an
unconstitutional standard of proof. United States v. Bertoli, 40 F.3d 1384, 1393
(3d Cir. 1994).

¶13 However, courts considering premature deliberations
distinguish between improper intra-jury communications and extra-jury
communications, finding the latter far more likely to undermine due
process because extraneous information provided to jurors or influences
imposed on them “completely evade[] the safeguards of the judicial
process.” Resko, 3 F.3d at 690. When premature intra-jury communications
occur, although the proper process for jury decision-making may have been
violated, “there is no reason to doubt that the jury based its ultimate
decision only on evidence formally presented at trial.” Id.

¶14 Two federal cases addressing nearly identical facts
demonstrate how difficult it is to obtain a reversal when the claim is raised
after a verdict is rendered. In United States v. Gianakos, during the
government’s presentation of evidence, one juror mouthed to another, “he’s
guilty.” 415 F.3d 912, 921 (8th Cir. 2005). Given the presumption that jurors
impartially apply the law to the evidence and given that Gianakos offered
“no allegations of external influence on the jury” rebutting the
presumption, the court of appeals affirmed Gianakos’ conviction. Id. at
921-22. The Eighth Circuit likewise did not disturb the conviction in United
States v. Caldwell, where during the trial, one juror said, “I’ve heard all of
this I need to hear,” and another said, “this is just a bunch of crap.” 83 F.3d
954, 956 (8th Cir. 1996). Caldwell offered no reason to doubt that the jury
came to its verdict based on anything but the trial evidence. Id.

5
 STATE v. MACIAS
Opinion of the Court

¶15 In this case, Macias did not offer evidence of any extra-jury
communications. Regarding intra-jury communications, Macias provided
interviews from jurors J.B. (an alternate juror) and B.R. Juror J.B. claimed
that several jurors deliberated prematurely about the evidence and the
witnesses and started to make decisions before the close of the case. Juror
B.R. stated that some jurors engaged in premature deliberations, with one
juror saying that “he did this” and “he needs to go.” Neither affidavit shows
that the jury came to its verdict based on anything but the trial evidence.
Accordingly, Macias has failed to establish a colorable claim for relief.
Gianakos, 415 F.3d at 921–22; Caldwell, 83 F.3d at 956.2

B. Macias Failed to Present a Colorable Claim of Ineffective
Assistance of Counsel.

¶16 We review for an abuse of discretion the superior court’s
denial of post-conviction relief based on lack of a colorable claim. State v.
Bennett, 213 Ariz. 562, 566, ¶ 17 (2006); State v. Krum, 183 Ariz. 288, 293
(1995). Ordinarily, “[t]o state a colorable claim of ineffective assistance of
counsel, a defendant must show both that counsel’s performance fell below
objectively reasonable standards and that this deficiency prejudiced the
defendant.” Bennett, 213 Ariz. at 567, ¶ 21; see also Strickland v. Washington, 466 U.S. 668, 687 (1984). Ultimately, however, whether Macias’ attorney
rendered ineffective assistance “is a mixed question of fact and law,” with
the superior court’s legal conclusions subject to de novo review. State v.

2 Moreover, Macias cannot offer evidence of premature
deliberations at a post-conviction evidentiary hearing. Rule 24.1(d) controls
the admissibility of juror evidence to impeach a verdict. See Ariz. R. Evid.
606(b)(1) (Subject to certain exceptions, “[d]uring an inquiry into the
validity of a verdict . . . a juror may not testify about any statement made or
incident that occurred during the jury’s deliberations; the effect of anything
on that juror’s or another juror’s vote; or any juror’s mental processes
concerning the verdict or indictment. The court may not receive a juror’s
affidavit or evidence of a juror’s statement on these matters.”); see also Ariz.
R. Evid. 606 cmt. (amendment conforms to Federal Rule of Evidence 606 but
does not list criminal cases “because the matter is covered by Arizona Rule
of Criminal Procedure 24.1(d)”). Rule 24.1(d) provides: “[T]he court may
not receive testimony or an affidavit that relates to the subjective motives
or mental processes leading a juror to agree or disagree with the verdict.”
It would be pointless to conduct a hearing regarding premature
deliberations when the jurors could not testify regarding the deliberative
process.

6
 STATE v. MACIAS
Opinion of the Court

Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017) (quoting State v. Denz, 232 Ariz. 441,
443–44, ¶ 6 (App. 2013)).

1. Macias Failed to Present a Colorable Claim That
Appellate Counsel Was Ineffective When She Did
Not Challenge the Child Molestation Statutes.

¶17 A strong presumption exists that appellate counsel provided
effective assistance. Bennett, 213 Ariz. at 567, ¶ 22; State v. Valdez, 167 Ariz.
328, 329–30 (1991). Appellate counsel is responsible for reviewing the
record and selecting the most promising issues to raise in an appeal. State
v. Herrera, 183 Ariz. 642, 647 (App. 1995). Generally, “[a]ppellate counsel is
not ineffective for selecting some issues and rejecting others.” Id.; Jones v.
Barnes, 463 U.S. 745, 752–53 (1983) (“There can hardly be any question about
the importance of having the appellate advocate examine the record with a
view to selecting the most promising issues for review. . . . A brief that
raises every colorable issue runs the risk of burying good arguments . . . .”)
Nevertheless, if counsel ignores issues that are stronger than those selected
for the appeal, a defendant can overcome the presumption of effective
assistance of counsel. See Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing
Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).

¶18 A decision by counsel that was arguably correct at the time
will not be “second-guessed.” Greer, 800 F.2d at 646. Counsel’s failure to
predict future changes in the law is not ineffectiveness because
“clairvoyance” is not a required attribute of effective representation. State
v. Febles, 210 Ariz. 589, 597, ¶ 24 (App. 2005). There is a difference between
ignorance of controlling authority and the failure of an attorney to foresee
future developments in the law. Id. “[W]e have rejected ineffective
assistance claims where a defendant faults his former counsel . . . for failing
to predict future law and have warned that clairvoyance is not a required
attribute of effective representation.” Bullock v. Carver, 297 F.3d 1036, 1052
(10th Cir. 2002) (quotations omitted).

¶19 Macias contends that A.R.S. §§ 13-1401, -1410, and -1407(E)
(“child-molestation statutes”) were unconstitutional and argues that trial
and appellate counsel were ineffective for not challenging the statutes. For
his contention that the statutes were unconstitutional, he relies on May v.
Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017), rev’d, Nos. 17-15603 and -15704,

7
 STATE v. MACIAS
Opinion of the Court

2020 WL 1492747, at *1–2 (9th Cir. Mar. 27, 2020) (mem. decision), and rev’d,
954 F.3d 1194, 1208 (9th Cir. 2020).3

¶20 Macias waived the right to challenge the constitutionality of
the statutes in this proceeding by failing to raise the argument at trial or on
his direct appeal. A.R.S. § 13-4232(A)(3); Ariz. R. Crim. P. 32.2(a)(3). Macias
is not entitled to relief by claiming ineffective assistance of appellate
counsel.

¶21 Appellate counsel filed Macias’ opening brief in the direct
appeal on August 2, 2016. The district court did not issue May v. Ryan until
March 28, 2017. As noted by the Ninth Circuit in reversing the district
court’s judgment,

[W]e conclude that May’s trial counsel was not ineffective for
failing to object to the constitutionality of the child
molestation statute. Given the long-standing Arizona rule
that the State is not required to prove sexual intent to
successfully prosecute a defendant for child molestation, see
State v. Sanderson, 898 P.2d 483, 491 (Ariz. Ct. App. 1995),
which provided the background for the “prevailing
professional practice at the time of the trial,” see Bobby v. Van
Hook, 558 U.S. 4, 8 (2009) (per curiam), we cannot conclude
that trial counsel’s failure to object to the constitutionality of
the statute’s placing the burden of proving lack of intent on
the defendant “fell below an objective standard of
reasonableness,” see Strickland, 466 U.S. at 688.

May v. Ryan, 2020 WL 1492747, at *1 (footnote omitted). Appellate counsel
did not render ineffective assistance by selecting more viable issues to press
on appeal. Having determined that appellate counsel did not provide
ineffective assistance on this issue, we need not address the claim regarding

3 The legislature has amended the child-molestation statutes to
eliminate the issue raised in May. See H.B. 2283, 2018 Ariz. Sess. Laws, ch.
266, §§ 1–3 (2d Reg. Sess.) (effective August 3, 2018).

8
 STATE v. MACIAS
Opinion of the Court

trial counsel. The superior court did not abuse its discretion by concluding
that Macias did not present a colorable claim on this issue.4

2. Macias Failed to Present a Colorable Claim That Trial
Counsel Failed to Investigate Whether the Magistrate
Who Issued a Stale Search Warrant Impartially
Scrutinized the Warrant Application.

¶22 Generally, we presume that a judicial officer is impartial, and
the party challenging the officer’s impartiality “must prove bias or
prejudice by a preponderance of the evidence.” In re Aubuchon, 233 Ariz. 62,
66, ¶ 14 (2013) (quoting State v. Carver, 160 Ariz. 167, 172 (1989)); Simon v.
Maricopa Med. Ctr., 225 Ariz. 55, 63, ¶ 29 (App. 2010) (a party challenging a
judicial officer’s impartiality must overcome the presumption that such
officers are “free of bias and prejudice” (quoting State v. Rossi, 154 Ariz. 245,
247 (1987))). Judicial rulings alone do not support a finding of bias or
partiality without a showing of an extrajudicial source of bias or
deep-seated favoritism. See Simon, 225 Ariz. at 63, ¶ 29; see also Aubuchon,
233 Ariz. at 66, ¶ 14. To rebut the presumption of judicial impartiality, “the
challenging party must show actual bias; mere speculation about bias is not
sufficient.” Emmett McLoughlin Realty, Inc. v. Pima County, 212 Ariz. 351, 357,
¶ 24 (App. 2006).

¶23 In the direct appeal, this court determined that the issuing
magistrate lacked “sufficient information to establish a substantial basis for
finding probable cause existed to search Macias’ residence for otherwise
unspecified pornographic materials more than seven years after the alleged
offenses occurred.” Macias, 2017 WL 1458723, at *3, ¶ 12. This court did not
exclude the evidence seized under the search warrant because the
good-faith exception to the exclusionary rule applied. Id. at *4, ¶¶ 13–18; see
State v. Hyde, 186 Ariz. 252, 272–75 (1996) (good-faith exception applies even
if the issuing magistrate does not fulfill his or her constitutional duty to
inquire into the basis of the complaint before finding probable cause).

4 On the merits, our supreme court in State v. Holle expressly rejected
the argument Macias raises. 240 Ariz. 300, 308, ¶ 40 (2016) (“Treating lack
of sexual motivation under [A.R.S.] § 13-1407(E) as an affirmative defense
which a defendant must prove does not offend due process.”); State v.
Chavez, 243 Ariz. 313, 314, ¶ 4, n.2, 318–19, ¶ 17 (App. 2017) (declining to
follow district court decision that disagreed with Arizona Supreme Court
authority).

9
 STATE v. MACIAS
Opinion of the Court

¶24 In the appeal, Macias argued against the application of the
good-faith exception, claiming that the magistrate’s conduct showed he had
abandoned impartiality or was unable to act in a neutral and detached
manner. Macias, 2017 WL 1458723, at *4, ¶ 14; see United States v. Heffington,
952 F.2d 275, 277–78 (9th Cir. 1991). However, to warrant exclusion of the
evidence on this basis, the magistrate’s conduct must exhibit “systemic or
patent partiality” such that “the police knew or should have known that the
magistrate was acting as a ‘rubber stamp’ for a police investigation.” Hyde,
186 Ariz. at 275 (citing Aguilar v. Texas, 378 U.S. 108, 111 (1964), and United
States v. Breckenridge, 782 F.2d 1317, 1321 (5th Cir. 1986)). This court held
that Macias had proffered no evidence suggesting the issuing magistrate
displayed systemic partiality toward law enforcement that would justify
the application of the exclusionary rule. Macias, 2017 WL 1458723, at *4,
¶ 15.

¶25 In his petition for post-conviction relief, Macias argued that
trial counsel was ineffective by failing to investigate the issuing magistrate’s
impartiality. Macias claimed that had trial counsel investigated the
magistrate’s neutrality, he would have found that the Yuma Municipal
Court is not keeping records of search warrant applications that are denied.
Therefore, Macias claims it is impossible for anyone who has a search
warrant issued by that court to determine whether the magistrate
abandoned his or her impartial role. Macias suggests we should therefore
assume bias. We are not persuaded.

¶26 As noted above, we presume a judicial officer is free of bias
and prejudice, and a defendant challenging impartiality must prove it by a
preponderance of the evidence. A defendant does not overcome the
presumption and prove impartiality by claiming the proof is not there.
Whether the Yuma Municipal Court is maintaining the appropriate records
does not prove that the issuing magistrate, in this case, abandoned his role.
There is still no evidence that this magistrate displayed systemic partiality
such that the investigating officers should have known the warrant was
stale, and they could not rely on the magistrate’s determination. Hyde, 186
Ariz. at 275.

¶27 Macias argues that we should apply the doctrine of spoliation
to relieve him of his obligation to prove he was prejudiced by his lawyer’s
failure to investigate. We decline to expand the concept of spoliation to
criminal cases.

¶28 Spoliation is a civil cause of action. “When spoliation is
committed by a party to a lawsuit, it is referred to as first-party spoliation;

10
 STATE v. MACIAS
Opinion of the Court

when committed by a non-party, it is called third-party spoliation.” Lips v.
Scottsdale Healthcare Corp., 224 Ariz. 266, 267, ¶ 1 (2010). Arizona does not
recognize third-party negligent spoliation. Id. at ¶ 2. Although Arizona has
not explicitly recognized third-party intentional spoliation, “[e]very
jurisdiction that recognizes a third-party intentional spoliation tort requires
specific intent by the defendant to disrupt or injure the plaintiff’s lawsuit.”
Id. at 269, ¶ 15.

¶29 The Yuma Municipal Court is the entity that Macias contends
failed to preserve rejected search-warrant requests. The municipal court is
not a party to this criminal action, and Macias has not alleged that the court
intentionally adopted a record-management system to disrupt or injure
him. Even if the concept of spoliation applied in a criminal case, Macias
failed to allege a cognizable claim.

¶30 The superior court did not err by finding that Macias had
failed to present a colorable claim that trial counsel was ineffective for not
investigating the magistrate’s impartiality because Macias failed to allege
facts to show he was prejudiced. Bennett, 213 Ariz. at 567, ¶ 21.

3. Macias Failed to Present a Colorable Claim of
Ineffectiveness Relating to the Charges of Providing
Harmful Items to Minors.

¶31 The State charged Macias with several counts of furnishing
harmful items to a minor under A.R.S. § 13-3506, which provides “[i]t is
unlawful for any person, with knowledge of the character of the item
involved, to recklessly furnish, present, provide, make available, give, lend,
show, advertise or distribute to minors any item that is harmful to minors.”
A.R.S. § 13-3501(1) defines the term “harmful to minors” for crimes listed
in chapter 35:

“Harmful to minors” means that quality of any description or
representation, in whatever form, of nudity, sexual activity,
sexual conduct, sexual excitement, or sadomasochistic abuse,
when both:
(a) To the average adult applying contemporary state
standards with respect to what is suitable for minors, it both:
(i) Appeals to the prurient interest, when taken as a
whole. In order for an item as a whole to be found or
intended to have an appeal to the prurient interest, it is
not necessary that the item be successful in arousing or
exciting any particular form of prurient interest either in

11
 STATE v. MACIAS
Opinion of the Court

the hypothetical average person, in a member of its
intended and probable recipient group or in the trier of
fact.
(ii) Portrays the description or representation in a
patently offensive way.
(b) Taken as a whole does not have serious literary,
artistic, political, or scientific value for minors.

The superior court instructed the jurors consistent with the statute, and
Macias did not object to the instructions as given. The jurors found Macias
guilty of the charged crimes.

¶32 On appeal, Macias argued, inter alia, that there was
insufficient evidence to support the convictions for furnishing harmful
items to a minor. Macias, 2017 WL 1458723, at *12, ¶ 54. This court agreed
with Macias on one of the charged counts. Id. at ¶ 59. While Macias raised
other issues concerning the indictment relating to furnishing harmful items
to a minor, he did not argue that the indictment failed to give him notice of
the definitions in A.R.S. § 13-3501. See id. at *5, ¶ 22.

¶33 Macias now claims that trial and appellate counsel were
ineffective by not challenging the harmful-to-minor counts on the basis that
(1) the indictment did not cite the definitional section of the statute, and
(2) the statute is unconstitutionally vague.

¶34 Rule 13.1(d) requires that a charging document cite the statute
that a defendant allegedly violated. Typically, this would include the
definitional sections of the code relating to the offense. The purpose of this
rule is to ensure that the defendant has adequate notice of the charges. State
v. Dungan, 149 Ariz. 357, 361 (App. 1985). Error in the charging document
regarding the citation of a statute does not invalidate a charge unless “the
error misleads the defendant to his prejudice.” Id. at 361–62 (citation was to
the wrong statute but no showing of prejudice); State v. Tresize, 127 Ariz.
571, 574 (1980) (indictment failed to cite an enhancement section but “no
resulting prejudice or surprise from the omission”); State v. Suarez, 137 Ariz.
368, 380 (App. 1983) (the error was a “technical defect . . . because it did not
change either the nature of the offense charged nor did it prejudice [the
defendant] in any way”); see also State v. Freeney, 223 Ariz. 110, 114, ¶ 24
(2009) (“[F]or 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.”).

12
 STATE v. MACIAS
Opinion of the Court

¶35 Here, there is nothing to suggest that trial counsel lacked
knowledge of the definitional section of the harmful-to-minor charges. He
participated in the discussion regarding the definitions, did not object to
the instructions, and referred to them in his closing argument. In the
petition for post-conviction relief, Macias argues that there was a technical
violation regarding the indictment but does not assert that he was
otherwise prejudiced. We find no error by trial counsel for failing to object
to the technical error in the charging document.

¶36 Likewise, appellate counsel did not render ineffective
assistance by choosing to press other issues on appeal instead of a
void-for-vagueness claim concerning the harmful-to-minor definition
given. We have previously rejected similar claims regarding
harmful-to-minor charges. See State v. Evenson, 201 Ariz. 209, 218, ¶¶ 34–38
(App. 2001) (furnishing material in vending machines); State v. Hummer, 184
Ariz. 603, 607–08 (App. 1995) (rejecting a claim that statute lacked a scienter
element); State v. Limpus, 128 Ariz. 371, 376 (App. 1981). Appellate counsel
was not ineffective by selecting more promising issues to pursue on the
appeal. Macias failed to present a colorable claim on this basis.

CONCLUSION

¶37 We grant the petition for review but deny relief.

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

13