State v. Epperson
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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 DIVISION ONE FILED: 11/03/2011 RUTH A. WILLINGHAM, CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) GARY PATRICK EPPERSON, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 10-0920 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR2009-00756 The Honorable Lawrence C. Kenworthy, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Katia Méhu, Assistant Attorney General Attorneys for Appellee Phoenix Yuma County Public Defender By Edward F. McGee, Deputy Public Defender Attorneys for Appellant Yuma T H O M P S O N, Judge ¶1 Gary conviction Patrick for Epperson possession of (defendant) the appeals dangerous drug his psilocyn, arguing the trial court erred in allowing the state to amend the indictment on the first day of trial. For the reasons set forth below, we affirm defendant s conviction and sentence. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Defendant was indicted for five counts of drug related charges following checkpoint. 1 patrol Among agent dangerous canine the found hallucinogenic. the a alert contraband some in mushrooms at a border the vehicle, a he suspected patrol border to be Count 2 charged defendant with possession of drug, to-wit: PSILOCYBIN. Chemical tests performed on the substance approximately a year before trial established that it was actually psilocyn. 2 The state provided defendant with the DPS scientific examination report and the criminalist s laboratory notes approximately a year before trial. ¶3 One month before trial, on September 1, 2010, the state moved to amend count 2 to instead read to-wit: PSILOCYN 1 Because defendant challenges only the amendment to count 2 of the indictment, we confine our discussion to the facts and proceedings relevant to that issue. 2 Both psilocybin and psilocyn are chemicals that can be found in mushrooms. The substances are closely related and may be chemically synthesized. State v. Justice, 704 P.2d 1012, 1014 (Kan. Ct. App. 1985) (noting testimony of botanist specializing in mycology). 2 (mushrooms) in order to conform the indictment to the evidence. At the final trial management conference on September 17, the court made note of the motion to amend count 2, but did not rule on the motion. The motion was again discussed, but not ruled upon, at a second final trial management conference on September 22. ¶4 On the first day of trial, October 5, the prosecutor explained that the motion to amend was requested because the indictment identified laboratory testing Defendant opposed the dangerous indicated the the motion drug drug as was contending psilocybin, actually that the but psilocyn. amendment alleged a different drug, requiring the grand jury to issue a new indictment. the indictment After further argument, the trial court amended finding that defendant had received adequate notice and would not be prejudiced by the amendment. ¶5 Following a three-day trial, the jury found defendant guilty of all charges. Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) section 12120.21 (2010). DISCUSSION ¶6 On appeal, defendant argues that the court improperly granted the motion to amend the indictment and deprived him of his notice and due process rights. 3 We review the court s decision for an abuse of discretion. State v. Johnson, 198 Ariz. 245, 247, ¶ 4, 8 P.3d 1159, 1161 (App. 2000). ¶7 Criminal trials are limited to the specific charge or charges stated in the grand jury indictment. 13.5(b). Ariz. R. Crim. P. Due process requires that a charging document fairly indicate the crime charged, state the essential elements of the alleged crime, and be sufficiently definite that the accused may prepare a defense. McKaney v. Foreman ex rel. County of Maricopa, 209 Ariz. 268, 271, ¶ 14, 100 P.3d 18, 21 (2004). Absent a defendant s consent, a charge may only be amended to correct mistakes of fact or remedy P. 13.5(b). defects. Ariz. R. Crim. considered formal or technical operate to change the nature when of formal its the prejudice the defendant in any way. A or defect amendment offense technical may does charged be not or to State v. Freeney, 223 Ariz. 110, 112, ¶ 11, 219 P.3d 1039, 1041 (2009) (quoting State v. Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980)). In determining whether the nature of a charge was changed by an amendment, we consider two rights of the defendant: (1) a defendant must have been put on notice of the charge against him with an ample opportunity to prepare to defend against it, and (2) a defendant must have a right to double jeopardy protection from the original charge. Johnson, 198 Ariz. at 248, ¶ 8, 8 P.3d at 1162. 4 ¶8 The Sixth Amendment notice requirement is met when the defendant has actual notice of the indictment or from another source. 29, 219 P.3d at 1044. charge, whether from the Freeney, 223 Ariz. at 115, ¶ Defendant contends the amendment prejudiced him because he had no notice prior to the amendment that he charge would rather have than to defend against psilocybin. To a the psilocyn contrary, possession the record demonstrates defendant had abundant notice the state intended to prove possession of psilocyn. Defendant had notice that the state was alleging possession of the hallucinogenic mushrooms seized from the vehicle. Over a year before trial, defendant received drug notice indictment to of the reflect the test true results. chemical Amending composition of the the mushrooms did not allege a different and separate crime with materially different elements, but merely corrected a technical error. Considering hallucinogenic that substances both found psilocyn in and mushrooms, psilocybin are the was error understandable. ¶9 Furthermore, this is not the situation where the state waited to request the amendment until the first day of trial. A motion to amend must be made no later than twenty days prior to trial. Ariz. R. Crim. P. 13.5(a). Although the trial court did not rule on the motion until the first day of trial, the state 5 filed the motion over a month before trial easily meeting the twenty day deadline. ¶10 We next consider defendant s right to double jeopardy protection. 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. Freeney, 223 Ariz. at 113, ¶ 16, 219 P.3d at 1042. Such a situation would exist where the elements and evidence required to prove the original violation differ from those required to prove the amended violation. State v. Leenhouts, 218 Ariz. 346, 349, ¶ 13, 185 P.3d 132, 135 (2008); State v. Sustaita, 119 Ariz. 583, 591, 583 P.2d 239, 247 (1978). We have found permissible amendments to include those that change a charge of theft by control of property valued at $1000 or greater to the charge of theft of a motor vehicle, State v. Eastlack, 180 Ariz. 243, 883 P.2d 999 (1994), a correction of one digit of a fourdigit address, State v. Suarez, 106 Ariz. 62, 470 P.2d 675 (1970), to correct the name of a victim corporation, State v. Barber, 133 substitute Ariz. the name 572, of 653 the P.2d 29 brokerage (App. firm 1982), for that and to of the stockbroker, State v. Phelps, 125 Ariz. 114, 608 P.2d 51 (App. 1979). ¶11 Here, because the entire record of the case would be available to a subsequent court, the amendment granted would not 6 limit defendant s defense of double jeopardy to bar subsequent prosecution. jeopardy Phelps, 125 Ariz. at 119, 608 P.2d at 56 (double defense indictment). is not limited to the four corners of the The factual amendment to the indictment reflecting the correct name of the drug did not change the nature of the substantive charge prove that charge. or the elements and evidence required to We find no prejudice to the defendant in the amendment granted by the trial court. CONCLUSION ¶12 For the foregoing reasons, we affirm conviction and sentence. /s/ JON W. THOMPSON, Presiding Judge CONCURRING: /s/ MAURICE PORTLEY, Judge /s/ JOHN C. GEMMILL, Judge 7 defendant s
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