Court of Appeals of Arizona, First Division, Department D
Not for Publication – Rule 111, Rules of the Arizona Supreme Court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.
Thomas C. Horne, Attorney General Phoenix by Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section and Andrew Reilly, Assistant Attorney General Attorneys for Appellee
James J. Haas, Maricopa County Public Defender Phoenix by Peg Green, Deputy Public Defender Attorneys for Appellant
¶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 a roofing project. The victim alleged that Paul demanded payment before Paul had completed the project and physically assaulted him to obtain the payment. Paul was indicted for robbery. 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.
¶3 Paul raises two issues on appeal. He, however, failed to raise the issues at trial and our review is limited to fundamental error. 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 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.We disagree.
¶5 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." Ariz. R. Crim. P. 13.5(b). 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 charge), aff'd, 133 Ariz. 549, 653 P.2d 6 (1982). 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).
¶6 Here, we find no error. Paul clearly had notice of the charge. 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 ...