State v. Freeney

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