Cited by

¶ 16 (App. 2003), abrogated on other grounds by State.

¶ 16 (App. 2003), –15, ¶¶ 21–28 (2009).

¶ 16 (App. 2003), overruled on other ground by Freeney

Because these three types of aggravated assault “are distinct offenses with different elements, not merely different manners of committing the same offense,” ¶ 29 (App. 2014) (citations omitted); ¶¶ 31-33 (App. 2003) (concluding A.R.S.

217, ¶¶ 9-10, 37, 443 (App. 2003) (reversing mid-trial amendment to indictment “to conform to the evidence” that a crime different than that originally charged was committed and noting “[a] defendant does not suffer a constitutionally diminished entitlement to notice from the state simply becaus

¶¶ 16–17, (“[S]ubsections of 13–1203(A) are not simply variants of a single, unified offense; they are different crimes.”); (“[T]hese two types of assault [‘knowing touching’ and ‘reasonable apprehension’] are in fact distinctly different crimes.”).

Arizona case law has established the three subsections of § 13-1203(A) “are not simply variants of a single, unified offense; they are different crimes.” ¶¶ 32-33

(Sixth Amendment notice issue in case charging simple assault; “subsections of 12-1203(A) are not simply variants of a single, unified offense; they are different crimes”); (same).

¶8 On appeal, 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 ear

278 (1937) (“Conviction upon a charge not made would be sheer denial of due process.”); ¶ 20 , (an amendment to the indictment that changes the nature of the offense violates the Sixth Amendment).

Pursuant to Rule 13.5(b), a trial court may amend an indictment to “correct 18 mistakes of fact or remedy formal or technical defects.” An amendment corrects a formal or technical defect, and is therefore permissible, if it does not change “the nature of the offense charged or prejudice[] the defendant in any way.”

he argues that amending the indictment changed the nature of the offense with which he was charged, and prejudice must therefore be presumed.

8 permissible interpretation of the double jeopardy clause,” 3 ¶14 However, as the state points out, when a particular offense can be committed in multiple ways, “it is impossible to tell just by looking at the statute itself which of the [ways] is .

2849 , 125 L.Ed.2d 556 (1993) (rejecting view that, after finding no double jeopardy violation under Blockburger test, court should nevertheless analyze “whether the nature of the acts as alleged supported such a claim”); see also Lemke, n. 2 , 141 P.3d at 412 n. 2 (Arizona and federal double jeopardy protections "coextensive”); , V 65, (stating Supreme Court in Dixon held Blockburger test "is the only permissible interpretation of the double jeopardy clause”).

to be informed of the nature and cause of the accusation.’” , quoting U.S. Const, amend.

§ 13-1304, but acknowledges that, “having chosen to allege only first degree burglary as the predicate offense, the State was limited to that theory when the case was submitted to the jury.” ¶¶ 16-21, -40 (App. 2003).

(the two types of assault under § 13-1203(A)(2) and (A)(3) are “distinctly different crimes[;] .

113 S. Ct. 2849, 2856, 125 L. Ed. 2d 556, 568 (1993) (confirming for double jeopardy purposes a “same elements” test, as promulgated in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932), and overruling Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), that had promulgated a broader, “same conduct” test); (“Th[e] test [under Dixon] inquires whether each of two offenses contains an element not contained in the other.

en a case is reversed for trial error, the state is not foreclosed from a retrial or from presenting evidence at a new trial in response to that error.” Id.; see also Moody, 94 P.3d at 1134 (Double Jeopardy Clause does not preclude retrial of defendant who successfully obtains reversal of conviction on appeal on grounds other than insufficient evidence); (same).

P.3d 434 (App. 2003) (due process violated when trial court permitted mid-trial amendment of indictment charging aggravated assault based on A.R.S.