In Re Jeremiah T.

FILED BY CLERK
JAN -9 2006
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
) 2 CA-JV 2005-0021
) DEPARTMENT B
)
IN RE JEREMIAH T. ) OPINION
)
)
)
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. JV04000288
Honorable Ann R. Littrell, Judge
VACATED
Edward G. Rheinheimer, Cochise County Attorney
By Nancy J. Galey Sierra Vista
Attorneys for State
Mark A. Suagee, Cochise County Public Defender
By Kelly A. K. Smith Bisbee
Attorneys for Minor
P E L A N D E R, Chief Judge.
¶1 After a contested hearing, the minor, Jeremiah T., born October 10, 1990, was
found responsible for assault pursuant to A.R.S. § 13-1203(A)(3), a class three
misdemeanor. See § 13-1203(B). He was adjudicated delinquent and placed on six months’
probation. On appeal, he contends the juvenile court erred as a matter of law in ruling that
assault under § 13-1203(A)(3) is a lesser-included offense of assault under § 13-1203(A)(1),
the offense charged in the delinquency petition. We agree and therefore vacate the
adjudication.
¶2 The charges against Jeremiah (also known as Jeremy) arose from an incident
that occurred in the boys’ locker room of a Sierra Vista middle school. The victim, C.,
testified that he had just finished dressing for his physical education class when he was
accosted by Jeremiah and another male student, Nikko, both of whom were older and bigger
than C. According to C., “Nikko and Jeremy came up to me, and Jeremy said [‘]let’s rape
him,[’] and Jeremy stood in front of me and Nikko stood behind me and they bumped into
me with their pelvis area.” C. immediately reported the incident to the physical education
teacher and subsequently described the event to the school principal, his mother, and an
investigating police officer.1
¶3 The delinquency petition charged Jeremiah with committing two class one
misdemeanors: “knowingly, intentionally and recklessly assault[ing C.], in violation of
1
In addition to C., the four other witnesses who testified at the adjudication hearing
were the investigating officer, Jeremiah, Nikko, and Charles, a student who had also been
present in the locker room. Charles testified he had seen Jeremiah and Nikko approaching
C. and C. backing away from them. Although there were a number of conflicts and
inconsistencies in the five witnesses’ testimony for the trial court to resolve, see In re
Maricopa County Juvenile Action No. JS-8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142
(1994) (fact-finder assesses credibility and resolves evidentiary conflicts), their existence and
resolution are irrelevant to the purely legal issue presented on appeal.
2
A.R.S. § 13-1203(A)(1),”2 and “threatening by word or conduct to cause physical injury to
[C.], in violation of A.R.S. § 13-1202(A)(1).” At the conclusion of the adjudication hearing,
the juvenile court found the state had not proved either charge beyond a reasonable doubt
but had proved the elements of § 13-1203(A)(3), which the court deemed a lesser-included
offense of § 13-1203(A)(1).
¶4 Section 13-1203(A) provides:
A person commits assault by:
1. Intentionally, knowingly or recklessly causing any
physical injury to another person; or
2. Intentionally placing another person in reasonable
apprehension of imminent physical injury; or
3. Knowingly touching another person with the intent
to injure, insult or provoke such person.
¶5 To be a lesser-included offense, “the offense must be composed solely of some
but not all of the elements of the greater crime so that it is impossible to have committed the
crime charged without having committed the lesser one.” State v. Celaya, 135 Ariz. 248,
251, 660 P.2d 849, 852 (1983); accord State v. Cisneroz, 190 Ariz. 315, 317, 947 P.2d
889, 891 (App. 1997). “Put another way, the greater offense contains each element of the
lesser offense plus one or more elements not found in the lesser.” Cisneroz, 190 Ariz. at
317, 947 P.2d at 891; see also State v. Foster, 191 Ariz. 355, ¶ 8, 955 P.2d 993, 995 (App.
2
Although count one of the delinquency petition cited A.R.S. § 13-1203(A)(1), it did
not accurately mirror the language of the statute. See ¶ 4, infra.
3
1998). “The elements test requires that commission of the greater offense always result in
commission of the lesser offense.” State v. Cutright, 196 Ariz. 567, ¶ 2, 2 P.3d 657, 662
(App. 1999), disapproved on other grounds by State v. Miranda, 200 Ariz. 67, 69, 22 P.3d
506, 508 (2001).3 In applying the elements test, “we focus on the elements of each
provision” without regard to the facts of the case before us. State v. Siddle, 202 Ariz. 512,
¶ 10, 47 P.3d 1150, 1154 (App. 2002).
¶6 It is readily evident from comparing § 13-1203(A)(1) and (A)(3) that the
elements of the two offenses differ and that a person can commit either offense without
necessarily committing the other. Subsection (A)(1) requires that a person cause physical
injury to another person but does not require “touching,” while subsection (A)(3) requires
touching but not resultant injury. “Touching” for purposes of § 13-1203(A)(3) does not
require direct, person-to-person physical contact. It is sufficient if the defendant sets in
motion a force or process that produces some sort of contact with the victim. State v.
Mathews, 130 Ariz. 46, 49, 622 P.2d 1039, 1042 (App. 1981). Examples discussed or
suggested by Mathews include throwing urine from a container onto a person, spitting on
3
As this court has noted, “[i]n the context of lesser-included offenses, the test has
been articulated as ‘whether [the purported lesser-included offense] is, by its very nature,
always a constituent part of the greater offense, or whether the charging document describes
the lesser offense even though it does not always make up a constituent part of the greater
offense.’” State v. Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d 1150, 1154 (App. 2002), quoting
State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d 94, 97 (App. 1998) (emphasis
and alteration in Siddle). As discussed below, neither of these alternative tests is satisfied
here.
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someone, poisoning food that the victim ingests, transmitting a disease, or placing caustic
chemicals on a surface touched by the victim. Causing physical injury for purposes of § 13-
1203(A)(1), however, can be accomplished without any touching at all—as, for example,
by withholding needed medication from a dependent or incapacitated victim.
¶7 In addition, the touching required under subsection (A)(3) must be knowing
while the necessary physical injury under subsection (A)(1) can be caused intentionally,
knowingly, or recklessly. And the knowing touch required under subsection (A)(3) must be
accompanied by a specific intent either “to injure, insult or provoke” the victim, which thus
may or may not overlap with subsection (A)(1)’s “intentionally, knowingly or recklessly
causing . . . physical injury.”
¶8 In short, the offense described in § 13-1203(A)(3) is a less serious offense than
the offense described in § 13-1203(A)(1) and a lower class of misdemeanor, see § 13-
1203(B), but it is not a lesser-included offense because the elements of the two offenses are
distinct. See State v. Sanders, 205 Ariz. 208, ¶ 33, 68 P.3d 434, 442 (App. 2003) (the two
types of assault under § 13-1203(A)(2) and (A)(3) are “distinctly different crimes[;] . . .
neither is a lesser-included offense of the other because each offense has elements that the
other does not”); State v. Foster, 191 Ariz. 355, ¶¶ 9-10, 955 P.2d 993, 995 (App. 1998)
(disorderly conduct is lesser-included offense of aggravated assault charged under § 13-
1203(A)(2) but not of assault under § 13-1203(A)(1)).
5
¶9 The state characterizes the juvenile court’s ruling as effectively amending the
delinquency petition to conform to the evidence presented at the adjudication hearing. Such
an amendment was permissible, the state contends, pursuant to Rule 29(D)(1), Ariz. R. P.
Juv. Ct., 17B A.R.S. Like its counterpart in the criminal rules, Rule 29(D)(1) provides:
“The charge may be amended only to correct mistakes of fact or remedy formal or technical
defects, unless the juvenile consents to the amendment. The charging document shall be
deemed amended to conform to the evidence presented at any court proceeding.” (Emphasis
added.) See Ariz. R. Crim. P. 13.5(b), 16A A.R.S. But, the juvenile court gave no
indication that it intended such an amendment; it stated only that it found the assault in §
13-1203(A)(3) to be a lesser-included offense of assault under subsection (A)(1).
¶10 Citing State v. Eastlack, 180 Ariz. 243, 258, 883 P.2d 999, 1014 (1994), and
State v. Winter, 146 Ariz. 461, 465, 706 P.2d 1228, 1232 (App. 1985), the state suggests
the delinquency petition was amended automatically, without a formal request by the state
or an express ruling by the court, and that the amendment was constitutionally permissible
because changing the offense from subsection (A)(1) to subsection (A)(3) did not change the
nature of the offense. The state argues that “[t]he nature of the offense charged in this case
was physical contact that resulted in actual injury” and that the nature of the “lesser-
included offense” under § 13-1203(A)(3) was likewise physical contact, that is, “touching.”
¶11 The argument suffers from several flaws. First, it overlooks the divergent
elements of the applicable subsections and instead focuses improperly on the particular facts
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of this case. See Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d at 1154; State v. Cook, 185 Ariz. 358,
361, 916 P.2d 1074, 1077 (App. 1996). Second, it ignores the fact that the delinquency
petition alleged only that Jeremiah had “knowingly, intentionally and [sic] recklessly
assaulted” C. in violation of § 13-1203(A)(1), mentioning neither physical contact nor
resulting injury. Third, it overlooks that “causing . . . physical injury” under subsection
(A)(1) does not inherently require “touching.”
¶12 Finally, unlike the theft offenses involved in Eastlack and Winter, the three
subsections of § 13-1203(A) are not simply variants of a single, unified offense; they are
different crimes. See Sanders, 205 Ariz. 208, ¶ 33, 68 P.3d at 442. As Division One of this
court observed in Sanders, “Whatever merit Winter’s unitary approach might have in the
context of Arizona’s theft statute, it does not transfer to Arizona’s assault statute.” 205
Ariz. 208, ¶ 44, 68 P.3d at 444. We agree with Division One’s reasoning and thus reject the
state’s contention that “the nature of the charge” is the same under either § 13-1203(A)(1)
or (A)(3), permitting an implicit revision of the charge during trial without prior notice or
a formal request by the state.
¶13 Because the elements of § 13-1203(A)(1) and (A)(3) differ, and because it is
possible to commit assault under (A)(1) without also violating (A)(3), assault under the
latter subsection is not a lesser-included offense of assault under the former. Consequently,
the juvenile court erred in adjudicating Jeremiah delinquent for a different offense from the
one with which he had been charged, in the absence of his consent to the change or prior
7
notice. See In re Maricopa County Juvenile Action No. J-75755, 111 Ariz. 103, 106, 523
P.2d 1304, 1307 (1974). Jeremiah was not required to demonstrate prejudice because, when
an amendment changes the nature of the offense charged, “prejudice inheres in the
amendment and is conclusively presumed.” Sanders, 205 Ariz. 208, ¶ 20, 68 P.3d at 440.
“[W]hen the Sixth Amendment is violated by an amendment that ‘actually modifies an
essential element of the offense charged . . . it is reversible per se.’” Id., quoting Hunter v.
New Mexico, 916 F.2d 595, 599 (10th Cir. 1990).
¶14 Accordingly, we vacate the juvenile court’s orders of adjudication and
disposition.
____________________________________
JOHN PELANDER, Chief Judge
CONCURRING:
____________________________________
PHILIP G. ESPINOSA, Presiding Judge
____________________________________
WILLIAM E. DRUKE, Judge*
*A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge
on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed
December 6, 2005.
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