STATE v. PAUL

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. KENNETH WILLIAM PAUL, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 9/19/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0400 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-144799-001 The Honorable Robert E. Miles, Judge AFFIRMED Thomas C. Horne, Attorney General by Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section and Andrew Reilly, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Peg Green, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 Defendant Kenneth William Paul appeals his conviction for robbery. He contends the trial court erred by allowing the State to amend the indictment on the first day of trial to reflect the victim s correct name. He also contends that the State committed prosecutorial misconduct during closing argument by referring to his failure to call a witness. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Paul was hired by the victim through CraigsList to work on demanded a roofing payment physically project. before assaulted victim Paul him indicted for robbery. The had to obtain alleged completed the the payment. that Paul project and Paul was A jury found Paul guilty and he was subsequently sentenced to a mitigated prison term of three years and given credit for sixty-one days of presentence incarceration. DISCUSSION ¶3 to Paul raises two issues on appeal. raise the issues fundamental error. at trial and our He, however, failed review is limited to State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). We note, however, that before engaging in fundamental error analysis, we must first find that 2 the trial court committed some error. State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991). I. Amending the Indictment ¶4 Paul contends that the court erred when it allowed the State to amend the indictment to reflect the legal name of the victim on the first day of trial. 1 ¶5 We disagree. An indictment may only be amended to conform to the evidence without a defendant s consent to correct mistakes of fact or remedy formal or technical defects. 13.5(b). Ariz. R. Crim. P. An amendment is formal or technical if it does not change the nature of the offense charged or . . . prejudice the defendant in any way. State v. Barber, 133 Ariz. 572, 577, 653 P.2d 29, 34 (App. 1982) (holding that at the close of evidence, correcting a name in the indictment did not change the nature of the substantive (1982). charge), aff d, 133 Ariz. 549, 653 P.2d 6 And, so long as the amendment does not change the nature of the offense or create prejudice it is permissible. State v. Fimbres, 222 Ariz. 293, 303, 213 P.3d 1020, 1030 (App. 2009). 1 The State contends that Paul cannot challenge the amendment because he failed to timely challenge the indictment pursuant to Arizona Rule of Criminal Procedure 16.1. We disagree with the State s position because it caused the issue by not ensuring that victim s name was properly in the indictment and then only discovering the error just before jury selection. 3 ¶6 Here, we find no error. the charge. Paul clearly had notice of Although the victim s name was not correctly listed in the indictment, the victim was properly identified in the police reports and discovery by the State. Moreover, the record establishes that Paul had opportunity to prepare his defense; in fact, Paul used the victim s true name in his pretrial request for rule 608 hearing, and was prepared to attempt to impeach the victim on various topics under his true name, including his business dealings, driving record, and child support payments. 2 ¶7 Moreover, the amendment to the indictment preclude or limit any defense Paul could assert. did not The amendment did not create a double jeopardy problem because he cannot again be prosecuted for the facts prosecution and conviction. giving rise to the indictment, See Barber, 133 Ariz. at 577-78, 653 P.2d at 34-35 (holding that a double jeopardy defense is not limited to the four corners of the indictment ). Consequently, because the amendment was a technical one that did not prevent Paul from preparing and presenting a defense, we find no error. II. Prosecutorial Misconduct ¶8 Paul next contends that he is entitled to a new trial because the State committed prosecutorial misconduct. 2 He claims While Paul was prepared to impeach the victim, the court precluded the impeachment because the topics did not tend to show the victim s character for untruthfulness. 4 the misconduct occurred during closing argument when the State referred to his failure to call a witness. ¶9 Generally, closing argument the and reasonable inferences. State may is comment given on wide the latitude evidence during and any State v. Hughes, 193 Ariz. 72, 85, ¶ 59, 969 P.2d 1184, 1197 (1998). Moreover, prosecutorial misconduct does not occur if the State comments on the defense s failure to call a witness who would substantiate his defense. State v. Condry, 114 Ariz. 499, 500, 562 P.2d 379, 380 (1977); see State v. Herrera, 203 Ariz. 131, 137, ¶ 19, 51 P.3d 353, 359 (App. 2002). In fact, so long as the comment is not phrased to call attention to the defendant s own failure to testify or if it appears that the defendant is the only one who could explain or contradict the state s evidence there is no misconduct. State v. Bracy, 145 Ariz. 520, 535, 703 P.2d 464, 479 (1985) (holding that the prosecution s reference to defendant s failure to produce exculpatory evidence did not violate defendant s Fifth Amendment rights). ¶10 Here, the State s comments during the closing argument were not improper. In its closing argument, after noting that Paul had testified, the prosecutor stated that the defendant brought up the fact that this person Glenn was there, that this person Glenn happened. saw everything, and could testify about what And could confirm that [Paul] did not do any of this, 5 yet, where is Glenn[?] The rhetorical Where s Waldo statement properly focused on the fact that Paul testified that Glenn would support his version of the events but he did not call Glenn to testify. at 380; Herrera, 203 See Condry, 114 Ariz. at 500, 562 P.2d Ariz. at 137, ¶ 19, 51 P.3d at 359. Consequently, we find no error, fundamental or otherwise. CONCLUSION ¶11 Based on the foregoing, we affirm Paul s conviction and sentence. /s/ ____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ______________________________ DONN KESSLER, Presiding Judge /s/ ______________________________ PETER B. SWANN, Judge 6

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