Appeal from the Superior Court in Pima County No. CR20140970001 The Honorable Christopher C. Browning, Judge.
Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee
Steven R. Sonenberg, Pima County Public Defender By Katherine A. Estavillo, Assistant Public Defender, Tucson Counsel for Appellant.
Miller, Judge authored the opinion of the Court, in which Vásquez, Presiding Judge and Eckerstrom, Chief Judge concurred.
¶1 After a jury trial, Bruce Wayne O'Laughlin Jr. was convicted of burglary and possession of burglary tools, and sentenced to concurrent prison terms totaling nine years. On appeal, O'Laughlin contends the trial court erred by adding "and/or" to the list of burglary tools on the verdict form and, in the alternative, that the indictment was duplicitous. Although we discourage the omission of a conjunction in a charging document and the use of "and/or" in jury instructions to remedy the ambiguity caused by the missing conjunction, in this case we find no error and affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the jury's verdicts." State v. Guarino, 238 Ariz. 437, n.1, 362 P.3d 484, 486 n.1 (2015). In February 2014, a witness called 9-1-1 to report a burglary after she observed O'Laughlin and his codefendant, Sandy McClure, engaging in suspicious behavior at her neighbor's home. They were standing in the open door of her neighbor's truck and had bicycles nearby. They then rode away with O'Laughlin carrying a "briefcase . . . a box or something, " across his chest. The responding officer searched the neighborhood and found two bicycles on the sidewalk in front of a house a few blocks away. As the officer exited his vehicle, he saw O'Laughlin getting out of a truck parked in the driveway. McClure also stepped out from behind another truck in the driveway. The owner of the first truck gave the officer permission to look inside. The officer found a briefcase and a bone-handled knife that matched the items missing from the victim's truck.
¶3 Police found a flashlight and one latex glove in McClure's pockets. Additional latex gloves were located in the first truck underneath the middle console. O'Laughlin and McClure were arrested and charged with three counts of third-degree burglary and one count of possession of burglary tools, "to wit: flashlight, knife, gloves." McClure pleaded guilty and testified at O'Laughlin's trial. At the state's request, two of the burglary charges were dismissed as to O'Laughlin, and he was convicted and sentenced as described above. This appeal followed.
Possession of Burglary Tools
Indictment and Verdict Form
¶4 O'Laughlin argues the lack of a conjunction in the indictment's list of burglary tools - "flashlight, knife, gloves"-should have been read to mean "and"; therefore, the trial court erred by adding "and/or" before "gloves" on the verdict form. In the alternative, he argues that if "and/or" is the proper interpretation of the indictment, it is duplicitous because there was a danger the jurors were not unanimous as to which tool he possessed. We generally review the trial court's decisions regarding verdict forms for an abuse of discretion,  State v. Larin, 233 Ariz. 202, ¶ 29, 310 P.3d 990, 998-99 (App. 2013), and where, as here, no objection was made to the allegedly duplicitous indictment before trial, we review for fundamental, prejudicial error, see State v. Payne, 233 Ariz. 484, ¶ 80, 314 P.3d 1239, 1262-63 (2013). Ultimately, both issues raise a question of statutory interpretation, which we review de novo. State v. Brown, 217 Ariz. 617, ¶ 7, 177 P.3d 878, 881 (App. 2008).
¶5 We begin with the question of whether the indictment was duplicitous because it guides our analysis of the other arguments. A duplicitous indictment is one that on its face alleges multiple distinct and separate offenses in one count. State v. Klokic, 219 Ariz. 241, ¶ 10, 196 P.3d 844, 846 (App. 2008). Duplicitous indictments may prejudice a defendant by not providing adequate notice of the charge to be defended, presenting the risk of a non-unanimous jury verdict, and making impossible the precision needed to assert double jeopardy in a later prosecution. State v. Whitney, 159 Ariz. 476, 480, 768 P.2d 638, 642 (1989). An indictment is not duplicitous, however, if a count alleges only one offense, even if that offense may be committed in different ways. See State v. Cotten, 228 Ariz. 105, ¶ 6, 263 P.3d 654, 657 (App. 2011); State v. Paredes-Solano, 223 Ariz. 284, ¶¶ 5, 9, 222 P.3d 900, 903, 904 (App. 2009); State v. Winter, 146 Ariz. 461, 464-65, 706 P.2d 1228, 1231-32 (App. 1985), abrogated on other grounds by State v. Kamai, 184 ...