NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                                R.W., Appellant.

                             No. 1 CA-CR 15-0680
                               FILED 2-2-2017


           Appeal from the Superior Court in Maricopa County
                      No. CR-2012-149XXX-XXX
          The Honorable James R. Rummage, Judge Pro Tempore
                  The Honorable Jeffrey Rueter, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                              STATE v. R.W.
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Donn Kessler joined.


J O N E S, Judge:

¶1            R.W. appeals his convictions and sentences for one count of
sale of a dangerous drug and two counts of misconduct involving weapons.
R.W. argues on appeal that the State offered evidence of three separate sales
of methamphetamine at trial to support the single charge of sale of
dangerous drugs, resulting in a duplicitous charge that violated his
constitutional right to a unanimous jury verdict. For the following reasons,
we affirm his convictions and sentences.

                FACTS1 AND PROCEDURAL HISTORY

¶2           The indictment charged R.W., in Count 1, with selling
methamphetamine, a dangerous drug, on or about September 14, 2012; in
Count 2, with possession of a deadly weapon during the commission of the
sale of dangerous drugs on or about September 14, 2012; and in Count 3,
with possession of a deadly weapon while being a prohibited possessor on
or about September 14, 2012. Before trial, the State successfully moved,
without objection, to amend Count 1 to correct the date of the sale to
“between the 12th and 14th days of September, 2012.”

¶3           On the eve of trial, the State moved to introduce evidence of
R.W.’s sale of methamphetamine on September 12 to J.W. and P.H., in
support of the charged offense in Count 1. The State explained that police
conducted a traffic stop on a vehicle that had left R.W.’s home on September
12 and found methamphetamine in the possession of J.W. and P.H., which
they claimed they had purchased from R.W. The State further explained
that on September 14, R.W. admitted to an officer executing a search
warrant on his home that he had sold the methamphetamine to J.W. and
P.H. on September 12, and had also just sold methamphetamine to M.A.
The State argued that the evidence of the sales to J.W. and P.H. on


1      We view the facts in the light most favorable to upholding the
verdicts. State v. Gipson, 229 Ariz. 484, 485 n.1, ¶ 2 (2012) (quoting State v.
Chappell, 225 Ariz. 229, 233 n.1, ¶ 2 (2010).


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                             STATE v. R.W.
                           Decision of the Court

September 12 was not “other act” evidence, but evidence of the charged
offense.

¶4             Defense counsel objected to introduction of the September 12
sales, arguing that any testimony that J.W. and P.H. told police that R.W.
sold them methamphetamine should be precluded because such testimony
would constitute hearsay and would violate his confrontation rights, and
those sales constituted “other act” evidence that would be highly
inflammatory and prejudice his right to a fair trial. At oral argument on the
first day of trial, defense counsel expressed concern that he did not know
how the State intended to present the evidence. The prosecutor explained
that he did not intend to introduce the statements of J.W. and P.H. at trial,
because they would not appear as witnesses. However, a police officer
would testify he found J.W. and P.H. in possession of methamphetamine
after leaving R.W.’s house on September 12, and R.W. later admitted he had
sold the methamphetamine to J.W. and P.H. on that date and to M.A. on
September 14. When asked to clarify his position, defense counsel
maintained this other act evidence was unfairly prejudicial.

¶5            The trial court ruled the evidence of the September 12 sales
was admissible, finding its probative value substantially outweighed the
resulting prejudice. However, the State could not introduce the statements
of any persons not testifying. The court then asked whether the issue was
fully resolved, to which defense counsel did not offer any alternative basis
for exclusion of the evidence, and he did not raise the issue again.

¶6            At trial, R.W. testified in his defense. He denied selling
methamphetamine to J.W., P.H., or M.A., explaining that J.W. and P.H. had
brought the methamphetamine to his house on September 12, and M.A. had
brought the methamphetamine to his house on September 14. Although he
testified he “may have” or “probably” told the investigating detective on
September 14 that he had just sold methamphetamine to M.A., he denied
telling the detective that he had sold methamphetamine to J.W. and P.H.
on September 12. R.W. agreed on re-direct, however, that he “eventually”
admitted to the detective he was “selling drugs” because he wanted to
prove to the detective he was a good candidate for serving as a confidential
informant, a role in which he had served a year earlier to resolve a separate
drug possession charge.

¶7           The State argued in closing that the three separate sales to J.W.
and P.H. on September 12 and to M.A. on September 14 demonstrated that
R.W. had committed the offense of sale of methamphetamine charged in
Count 1. Defense counsel argued the state had failed to prove by chemical


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                             STATE v. R.W.
                           Decision of the Court

testing and corroborating evidence that the substance he purportedly sold
to J.W., P.H., or M.A. was methamphetamine, and was relying solely on
R.W.’s admissions, which were not enough to prove beyond a reasonable
doubt that R.W. committed the offenses.

¶8           The jury convicted R.W. as charged. The jury also found R.W.
committed the offense of sale of methamphetamine for pecuniary gain. At
sentencing, R.W. admitted to eight prior felony convictions. The trial court
sentenced R.W. to a mitigated term of twelve years’ imprisonment for sale
of a dangerous drug, and concurrent terms of seven years’ imprisonment
on each count of misconduct involving weapons. R.W. timely appealed.
We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections
12-120.21(A)(1),2 13-4031, and 13-4033(A)(1).

                              DISCUSSION

¶9            R.W. argues his conviction for sale of dangerous drugs should
be reversed because the State presented evidence of three sales to support
this conviction, rendering the single charge for sale of dangerous drugs
duplicitous and depriving him of his constitutional right to a unanimous
jury verdict. See Ariz. Const. art. 2, § 23 (“In all criminal cases the
unanimous consent of the jurors shall be necessary to render a verdict.”).

¶10          Our standard of review depends upon whether R.W. properly
preserved the issue in the trial court. R.W. contends this Court should
review the violation of his right to a unanimous jury verdict as objected-to
error, because the court had adequate opportunity to address duplicity
when the parties argued the State’s motion to admit evidence of the
September 12 sales the first day of trial. We disagree.

¶11            R.W. relies on State v. Petrak, 198 Ariz. 260 (App. 2000), to
support his argument that he adequately presented a duplicity claim to the
trial court. In Petrak, the defendant argued that his due process rights had
been violated because the State, mid-trial, introduced evidence of guns and
drugs in a house to support a weapons misconduct charge that it had
previously alleged related only to guns and drugs in a vehicle. Id. at 266-
68, ¶¶ 23-27. The Petrak court noted that, although defense counsel had not
used the word “duplicity,” the record reflected that he clearly argued that
the State was violating the defendant’s due process rights by requiring him
to defend a theory “quite opposite and contrary to what the State had


2     Absent material changes from the relevant date, we cite a statute’s
current version.


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                              STATE v. R.W.
                            Decision of the Court

represented.” Id. at 267-68, ¶¶ 26-27. Thus, the court concluded defense
counsel’s comments were sufficient to “provide[] the trial judge with an
opportunity to provide a remedy” and preserve the issue for appeal. Id. at
268, ¶ 27 (citing State v. Fulminante, 193 Ariz. 485, 503, ¶ 64 (1999)).

¶12            In contrast, here, R.W. was provided notice of the State’s
intention to amend the indictment and introduce evidence of the September
12 drug sales to support the charge for sale of a dangerous drug, but did
not, at any time, suggest admission of these events rendered the indictment
infirm or otherwise violated R.W.’s constitutional rights. Rather, defense
counsel limited his argument to the prejudicial nature of the events. He did
not later raise a claim of duplicity following the close of evidence, within
his Rule 20 motions, during the settling of jury instructions, or during
closing arguments. On this record, we conclude that R.W. failed to raise a
duplicity objection at trial, thereby depriving the trial court of an
opportunity to remedy a potential non-unanimous verdict. See State v.
Bolton, 182 Ariz. 290, 304 (1995) (noting that an objection on one ground
does not preserve a claim of error on another ground) (citing State v. Schaaf,
169 Ariz. 323, 332 (1991), and State v. Hernandez, 170 Ariz. 301, 306-07 (App.
1991)).

¶13             We do not agree with the State, however, that because R.W.
failed to object based on duplicity, he has waived any review of that claim.
Count 1 was not duplicitous on its face; rather, the introduction of evidence
of the three sales in support of Count 1 made this a duplicitous charge. See
State v. Klokic, 219 Ariz. 241, 244, ¶ 12 (App. 2008). Where an indictment is
not duplicitous on its face and a defendant fails to raise a claim of duplicity
in the trial court, we review for fundamental, prejudicial error. See State v.
Payne, 233 Ariz. 484, 507-08, ¶ 80 (2013) (citing State v. Dann, 220 Ariz. 351,
367, ¶ 76 (2009)); see also State v. Waller, 235 Ariz. 479, 489, ¶¶ 33-34 (App.
2014). To establish fundamental error, R.W. must show the error goes to
the foundation of his case, takes away a right that is essential to his defense,
and is of such magnitude that he could not have received a fair trial. State
v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (citing State v. Hunter, 142 Ariz.
88, 90 (1984), and State v. Gendron, 168 Ariz. 153, 155 (1991)). If R.W.
establishes fundamental error, he must further show the error caused him
prejudice. See id. at ¶ 20 (citing Gendron, 168 Ariz. at 155, and Hunter, 142
Ariz. at 90).

¶14            A criminal defendant is entitled to a unanimous jury verdict.
Ariz. Const. art. 2, § 23. When the indictment refers to only one criminal
act, but the State offers evidence of multiple criminal acts that each satisfy
the definition of the charged crime, the circumstance is considered a


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                              STATE v. R.W.
                            Decision of the Court

duplicitous charge. See Klokic, 219 Ariz. at 244, ¶ 12. By offering evidence
of three separate sales to support one charge of sale of a dangerous drug,
the State created a duplicitous charge. Duplicitous charges are prohibited
in part because of the risk of a non-unanimous jury verdict. Id. (quoting
State v. Davis, 206 Ariz. 377, 389, ¶ 54 (2003)). Violation of the right to a
unanimous verdict constitutes fundamental error. Davis, 206 Ariz. at 390,
¶ 64 (citing State v. Woods, 141 Ariz. 446, 456 (1984), State v. Counterman, 8
Ariz. App. 526, 531 (1968), and United States v. Ullah, 976 F.2d 509, 512 (9th
Cir. 1992)).

¶15             Notwithstanding the fundamental error, a defendant does not
suffer prejudice from a duplicitous charge if he presents the same defense
to each of the incidents supporting the charge. See Klokic, 219 Ariz. at 246-
48, ¶¶ 26-27, 31-34 (discussing Davis, 206 Ariz. 377, State v. Schroeder, 167
Ariz. 47 (App. 1991), Counterman, 8 Ariz. App. 526, and State v. Solano, 187
Ariz. 512 (App. 1996)); see also State v. West, 238 Ariz. 482, 495, ¶¶ 41-42
(App. 2015) (rejecting the defendant’s claim of duplicity after finding her
“defenses are inextricably intertwined . . . [and] can be distilled to a denial
of liability or a claim of actual innocence”) (citation omitted). This is such
a case.

¶16           At trial, R.W. denied selling methamphetamine to J.W., P.H.,
or M.A. He denied admitting to police that he had sold methamphetamine
to J.W. and P.H. on September 12. Although he admitted he may have told
the investigating detective he had sold drugs to M.A. on September 14,
either to prove he could still be a reliable confidential informant or to
protect his brother from prosecution, he still provided the same global
defense that none of the three alleged sales occurred. In his closing, defense
counsel likewise offered a single defense to all three incidents and made no
distinction between the sales to J.W., P.H., and M.A. He simply argued the
State had offered insufficient evidence of the offense because it relied solely
upon R.W.’s admissions, which were not truthful but made to impress the
investigating detective. The record reflects R.W.’s defense to all claims was
one of actual innocence.

¶17           Moreover, given the competing version of events, the jury
was primarily charged with evaluating the credibility of the witnesses. The
jury’s verdict indicated it found the investigating detective credible in his
testimony that R.W. admitted the three sales and rejected R.W.’s
explanation that he had lied about selling drugs to either gain favor with
the police or protect his brother. Thus, there is no real possibility of a non-
unanimous jury verdict, and R.W. has failed to prove prejudice resulting
from the duplicitous charge. See Schroeder, 167 Ariz. at 53 (concluding


                                      6
                           STATE v. R.W.
                         Decision of the Court

defendant did not suffer prejudice from duplicitous charge where he
denied committing the charged acts and the jury “was left with only one
issue — who was the more credible of the only two witnesses”).

                            CONCLUSION

¶18         R.W.’s convictions and sentences are affirmed.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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