                               IN THE
             ARIZONA COURT OF APPEALS
                            DIVISION TWO


                        THE STATE OF ARIZONA,
                               Appellee,

                                  v.

                          DAVID J. WALLER,
                             Appellant.

                        No. 2 CA-CR 2013-0315
                         Filed August 29, 2014

         Appeal from the Superior Court in Pima County
                      No. CR20113873001
            The Honorable Jane L. Eikleberry, Judge
            The Honorable Sarah R. Simmons, Judge

                             AFFIRMED


                             COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee

Natasha Wrae, Tucson
Counsel for Appellant


                              OPINION

Judge Espinosa authored the opinion of the Court, in which Chief
Judge Eckerstrom and Judge Howard concurred.
                          STATE v. WALLER
                          Opinion of the Court

E S P I N O S A, Judge:

¶1           After a jury trial, appellant David Waller was convicted
of aggravated assault with a deadly weapon or dangerous
instrument and was sentenced to a mitigated prison term of five
years. On appeal, he argues the trial court erred by failing to
suppress his pretrial statements and his in-court identification, and
by denying his motion for new trial. He also contends the court
committed fundamental error by precluding evidence of the nature
of the victim’s prior felony conviction and denying his motion for
change of judge.

                Factual and Procedural Background

¶2           “We view the facts in the light most favorable to
sustaining the conviction[].” State v. Robles, 213 Ariz. 268, ¶ 2, 141
P.3d 748, 750 (App. 2006). One evening in October 2011, J.C. was
working on transforming his residence into a “haunted house” for
Halloween. To add to the effect, he set up three outside speakers
and played rock music. Waller, a neighbor, walked to J.C.’s home to
request that the music be turned down. He also brought a handgun,
intending to “scare” J.C. “because he did not believe that he was
going to turn down the music.”

¶3           J.C. was standing in the driveway of his residence when
Waller approached him from behind, tapped him on the shoulder,
and asked him to turn down the music. J.C. responded, “Sure, not a
problem,” and “started to turn around and go into the garage to turn
the music down.” As he turned, Waller again tapped him and
repeated his request. J.C. said, “Yes, I was going to turn the music
down.” Waller “glared” at J.C., and with the back of his hand hit
him in the face and “flicked” his ball cap off his head. J.C. picked up
his cap and protested, saying: “Sir, you don’t have to come over
here acting like that. I was going to turn the music down.” As J.C.
spoke, Waller pressed a black handgun “straight in [his] gut.”

¶4           J.C. raised his hand and backed up, saying, “I will just
turn the music off. I will . . . just kill the music period.” He went
into his garage and did so. Waller then left, and J.C. called 9-1-1.
Waller was subsequently arrested, convicted, and sentenced as


                                   2
                         STATE v. WALLER
                         Opinion of the Court

described above. We have jurisdiction over his appeal pursuant to
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

                      Suppression of Statements

¶5           Waller first argues the trial court should have
suppressed statements he made to sheriff’s deputies at his residence
the day following the incident because they were made as part of a
two-stage custodial interrogation technique prohibited under
Missouri v. Seibert, 542 U.S. 600, 611-13 (2004). We review the denial
of a motion to suppress evidence for an abuse of discretion. State v.
Peterson, 228 Ariz. 405, ¶ 6, 267 P.3d 1197, 1199 (App. 2011). In our
review, we look only to the evidence presented at the suppression
hearing and view it in the light most favorable to sustaining the
court’s ruling, State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App.
2007), deferring to the court’s determination of facts and witness
credibility but reviewing de novo its legal conclusions, State v.
Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).

¶6           The sole witness at the suppression hearing was Pima
County Sheriff’s Deputy Hernandez. He testified that the day
following the incident, he and another deputy, both in uniform,
went to Waller’s residence. After Waller answered his front door,
the officers stood outside his doorway and explained they were
investigating a “loud-music incident” and “wanted to get more
information as far as his side of the story, to what happened.”

¶7          After first denying that any “incident” had occurred,
Waller told the deputies he would apologize to J.C. for what had
happened. He explained he had been drinking and upon hearing
loud music, “had gone over there . . . and asked him to turn the
music down.” Not believing J.C. “was going to listen to him,”
Waller admitted displaying a handgun but denied pointing it at J.C.
Hernandez testified the conversation at the doorway lasted about
seven minutes. Following Waller’s admission, Hernandez read him
the Miranda1 warnings, asked if he understood his rights, and placed



      1Miranda   v. Arizona, 384 U.S. 436 (1966).


                                    3
                        STATE v. WALLER
                        Opinion of the Court

him in the back seat of a patrol car where he asked more questions
about the incident and recorded the interview.

¶8          Although Waller sought to suppress both his pre- and
post-Miranda statements, the trial court ruled them admissible,
finding he was not in custody when he spoke to the deputies prior
to the Miranda warning and that he had waived his rights as to the
statements made afterwards.

¶9           Miranda warnings serve to “protect a suspect’s Fifth
Amendment right from the ‘inherently compelling pressures’ of
custodial interrogation.” Maryland v. Shatzer, 559 U.S. 98, 103 (2010),
quoting Miranda, 384 U.S. at 467. The advisement is intended to
“preserve the privilege during ‘incommunicado interrogation of
individuals in a police-dominated atmosphere,’” Illinois v. Perkins,
496 U.S. 292, 297 (1990), quoting Miranda, 384 U.S. at 445, and is
aimed at protecting against the “danger of coercion [that] results
from the interaction of custody and official interrogation.” Id.
Miranda’s protections, however, “apply only to custodial
interrogation.” State v. Smith, 193 Ariz. 452, ¶ 18, 974 P.2d 431, 436
(1999); State v. Zamora, 220 Ariz. 63, ¶ 9, 202 P.3d 528, 532 (App.
2009) (“Police are free to ask questions of a person who is not in
custody without having to give the person any warnings under
Miranda.”). “Custody” as used in Miranda “is a term of art that
specifies circumstances that are thought generally to present a
serious danger of coercion.” Howes v. Fields, 132 S. Ct. 1181, 1189
(2012).

¶10          In determining whether an interrogation is custodial,
we look to “the objective circumstances of the interrogation, not . . .
the subjective views harbored by either the interrogating officers or
the person being questioned.” Stansbury v. California, 511 U.S. 318,
323 (1994). Relevant factors include the location of the questioning,
its duration, statements made during the interview, the presence or
absence of physical restraints during the questioning, and whether
the interviewee was released at the end of the questioning. Howes,
132 S. Ct. at 1181, 1189. “‘[T]he ultimate inquiry is simply whether
there [was] a formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest.’” Stansbury, 511 U.S. at
322, quoting California v. Beheler, 463 U.S. 1121, 1125 (1983).

                                  4
                         STATE v. WALLER
                         Opinion of the Court

¶11          Here, two uniformed deputies contacted Waller at his
residence, stood outside his front door, and inquired generally about
the incident. See State v. Thompson, 146 Ariz. 552, 556, 707 P.2d 956,
960 (App. 1985) (normally no custodial interrogation when person
questioned at home); cf. United States v. Craighead, 539 F.3d 1073,
1085-89 (9th Cir. 2008) (custodial interrogation where eight armed
law enforcement officers, some in protective gear, entered
defendant’s house and commenced searching his home, putting him
in an unfurnished storage room in back of his house where an
armed detective leaned against the closed door that was the only
exit). Deputy Hernandez never directly accused Waller of any
crime, nor did he suggest he was doing more than investigating the
incident.2 See State v. Mathis, 110 Ariz. 254, 255, 517 P.2d 1250, 1251
(1974) (Miranda not applicable to officer’s “clearly neutral,
nonaccusatory” questions “in furtherance of proper preliminary
investigation”).

¶12            The resulting interview lasted only seven minutes. See
Thompson, 146 Ariz. at 556, 707 P.2d at 960 (police interview that was
not protracted and was “investigatory rather than accusatory”
tended to show that the defendant was not in custody). The
deputies did not seek to enter Waller’s home, draw their weapons,
or in any way restrain him. See State v. Cruz-Mata, 138 Ariz. 370, 373,
674 P.2d 1368, 1371 (1983) (objective indicia of arrest included
whether officers had handcuffed defendant or drawn a weapon);
State v. Riffle, 131 Ariz. 65, 67, 638 P.2d 732, 734 (App. 1981) (Miranda
warnings not required where “none of the usual indicia of arrest—
no handcuffs, no locked doors, no drawn guns, no search of
appellant’s person or belongings”).

¶13          As Waller points out, Deputy Hernandez testified that
he did not consider Waller “free to leave” during the encounter, and
that Waller “had already been identified . . . [and there was] enough

      2Waller   relies heavily on State v. Mayes, 110 Ariz. 318, 518 P.2d
568 (1974), in asserting he was not free to leave during the interview.
In Mayes, however, the defendant was accused of the crime at the
outset when police asked what he was “high on,” prior to further
questioning. 110 Ariz. at 319, 518 P.2d at 569.


                                   5
                        STATE v. WALLER
                        Opinion of the Court

probable cause to arrest him at that moment.” The deputy’s
unexpressed, subjective views, however, were not determinative of
whether Waller was in custody. See Stansbury, 511 U.S. at 324
(officer’s “evolving but unarticulated suspicions do not affect the
objective circumstances of an interrogation or interview, and thus
cannot affect the Miranda custody inquiry”); see also Cruz–Mata, 138
Ariz. at 373, 674 P.2d at 1371 (“[C]onfronting an accused with
evidence of guilt does not necessarily require administering Miranda
warnings.”). Nor did the existence of probable cause for Waller’s
arrest automatically necessitate the advisements. See State v.
Kennedy, 116 Ariz. 566, 569, 570 P.2d 508, 511 (App. 1977).

¶14          Waller argues, however, that both his pre- and post-
Miranda statements ought to have been suppressed pursuant to
Seibert, 542 U.S. at 611-13 (pre- and post-Miranda statements
suppressed where police elicited custodial confession before
providing Miranda warnings as such warnings “ineffective in
preparing a suspect for successive interrogation, close in time and
similar in content”). He maintains: “The manner in which the
officer obtained the first statement followed by the immediate
request post-Miranda for the same statement so the officer could
make sure he got the story straight was nothing more than an
attempt to undermine the warnings.” But because we have
concluded the trial court properly found Waller was not in custody
and thus not entitled to Miranda warnings, we need not address this
argument. See Zamora, 220 Ariz. 63, ¶ 15, 202 P.3d at 534 (Siebert test
applicable to extent defendant made statements in response to
“custodial interrogation” prior to Miranda warnings).

                       In-Court Identification

¶15           Waller next contends the trial court abused its
discretion by failing to suppress an in-court identification he asserts
was “tainted” by an “unduly suggestive” out-of-court identification.
In reviewing a denial of a motion to suppress, we again consider
only evidence from the suppression hearing and defer to the trial
court’s findings of fact unless clearly erroneous. State v. Garcia, 224
Ariz. 1, ¶ 6, 226 P.3d 370, 376 (2010). The “ultimate question of the
constitutionality of a pretrial identification is, however, a mixed



                                  6
                         STATE v. WALLER
                         Opinion of the Court

question of law and fact,” for which review is de novo. State v.
Moore, 222 Ariz. 1, ¶ 17, 213 P.3d 150, 156 (2009).

¶16          Due process requires that any pretrial identification
procedures be conducted in a fundamentally fair manner that
secures the suspect’s right to a fair trial. State v. Lehr, 201 Ariz. 509,
¶ 46, 38 P.3d 1172, 1183 (2002). “Single person identifications are
inherently suggestive,” State v. Canez, 202 Ariz. 133, ¶ 47, 42 P.3d 564,
581 (2002), but are nevertheless admissible “if the identification is
reliable notwithstanding the suggestiveness,” State v. Tresize, 127
Ariz. 571, 574, 623 P.2d 1, 4 (1980). To determine reliability, Arizona
courts consider the factors laid out in Neil v. Biggers, 409 U.S. 188,
199–200 (1972). See Lehr, 201 Ariz. 509, ¶ 46, 38 P.3d at 1183.

              [T]he factors to be considered [in
              evaluating       the      likelihood      of
              misidentification] include the opportunity
              of the witness to view the criminal at the
              time of the crime, the witness’[s] degree of
              attention, the accuracy of his prior
              description of the criminal, the level of
              certainty      demonstrated       at     the
              confrontation, and the time between the
              crime and the confrontation.

Id. ¶ 48 (alterations in original), quoting Manson v. Brathwaite, 432
U.S. 98, 114 (1977).

¶17          At the suppression hearing, Deputy Hernandez testified
that the evening of the incident, J.C. had told him he had spoken
with the suspect “in close proximity . . . approximately about a foot
and a half away from him.” 3 J.C. described his assailant as “an
elderly male, approximately in his sixties or seventies, . . . he had
lighter-colored hair, [and wore] a dark jacket.”             Deputies
attempted—but were unable—to locate the suspect at that time.


      3J.C.was present to testify at the suppression hearing, but the
court determined it “ha[d] enough information even without that
testimony.”


                                    7
                           STATE v. WALLER
                           Opinion of the Court

¶18           The following day, Deputy Hernandez received a call
from J.C., who said some of his neighbors had identified an
individual from his description and indicated where that person
lived. Based on the neighbors’ information, the deputy obtained
two photographs of Waller, and J.C. identified him as the man who
had accosted him the night before. Hernandez and another deputy
then proceeded to Waller’s residence to speak with him. Hernandez
testified that on contact, he found that Waller matched the physical
description given.

¶19          Prior to trial, Waller requested a Dessureault4 hearing,
arguing J.C.’s in-court identification was tainted by an “unduly
suggestive” pretrial identification process. The trial court granted
the hearing but ultimately denied Waller’s motion, finding that
showing the victim two photos was not unduly suggestive and
noting J.C. “had plenty of opportunity to observe [Waller].”

¶20           We agree with the state that “[J.C.’s] identification of
Waller was reliable under the totality of the circumstances.” Biggers,
409 U.S. at 199 (whether pretrial identification reliable based on
“totality of the circumstances”). J.C. had stood in close proximity to
Waller and provided a detailed description of him to Deputy
Hernandez and to his neighbors. 5 And he identified Waller’s
photograph the day following the incident without hesitation. Thus
the trial court did not err in denying Waller’s motion to preclude
J.C.’s in-court identification.



      4State   v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969).
      5In  his reply brief, Waller emphasizes that J.C.’s “description
of his assailant changed from the time he called 911 to the time he
[met] with the Deputy.” He points out J.C. first described his
assailant as “a Caucasian male, approximately 55-67 years old, about
five-foot-nine, average build, wearing a long-sleeved, blue, denim-
type shirt,” but later described him as “a Caucasian male, probably
in his sixties or early seventies, with light hair, wearing a dark
colored jacket.” The differences between the descriptions are slight
and unremarkable given the circumstances.


                                      8
                         STATE v. WALLER
                         Opinion of the Court

¶21          Furthermore, as posited by the state, any error in
admitting the in-court identification would have been harmless.
Dessureault, 104 Ariz. at 384, 453 P.2d at 955 (“[I]f it can be
determined from the record on clear and convincing evidence that
the in-court identification was not tainted by the prior identification
procedures or from evidence beyond a reasonable doubt that it was
harmless, and there is otherwise no error, the conviction will be
affirmed.”). To determine whether error is harmless, we evaluate
whether the tainted evidence supports a fact otherwise established
by existing evidence. See State v. Bass, 198 Ariz. 571, ¶ 40, 12 P.3d
796, 806 (2000). Here, Waller admitted going to J.C.’s residence to
complain about the music, taking a gun, and displaying it to J.C.
Consequently, J.C.’s identification was all but superfluous, and had
no effect on the verdict.

                        Motion for New Trial

¶22          Waller next argues the trial court erred by denying his
motion for new trial.6 We review such a denial utilizing the abuse of
discretion standard. State v. Hoskins, 199 Ariz. 127, ¶ 52, 14 P.3d 997,
1012 (2000). Waller presented two bases for his motion, first, that
the court acted improperly towards defense counsel by twice
interrupting her opening statement, instructing the jury during her
closing argument, and setting an order to show cause (OSC) hearing
concerning contempt; and, second, that the jury was improperly
instructed.

Court Conduct towards Defense Counsel

¶23         Waller asserts the trial court’s “interactions with
defense counsel warrant reversal.” In support, he points to two
interruptions of his counsel’s opening statement:

             COUNSEL: But the evidence will show
             that that gun never got pointed at [J.C.].

      6It appears from the record that Waller’s motion for new trial
was timely; we therefore do not address the state’s contention that
the motion was filed late, particularly since the state did not raise
this issue below where it could have been resolved.


                                   9
           STATE v. WALLER
           Opinion of the Court

And I will get into that in a little bit about
the difference between using a gun to
commit a crime or just having a gun as
protection for yourself. And as normal
citizens, those of us who own weapons, we
want to have it so in the event we need it,
we have it.

THE COURT: Ms. Wrae, this is opening
statement. This is a time for you to explain
to the jury what you expect the evidence
will show rather than to argue the law to
them.

COUNSEL: Okay, Judge.

THE COURT: That’s closing.

COUNSEL:       May I finish this particular
concept?

THE COURT: Yes.

....

COUNSEL: . . . I talked to you a little bit
about the standard of proof. It’s beyond a
reasonable doubt. It’s --

THE COURT:             Ms. Wrae, that’s
appropriate for closing but not for opening.
Confine your comments to what you expect
the evidence will show.

COUNSEL: Okay, Judge. But I think --
Can I tell them that the State has to prove
things beyond a reasonable doubt?

THE COURT: They have been told that,
and that’s appropriate argument for




                     10
                         STATE v. WALLER
                         Opinion of the Court

             closing. But, no, that’s not appropriate for
             opening.

Waller notes that neither time had the state lodged an objection, and
asserts that “the opening statement [defense counsel] was giving
w[as] consistent with the way she has always done her opening
statements.”

¶24          A trial court has discretion in controlling the scope and
extent of an opening statement. See State v. Burruell, 98 Ariz. 37, 40-
41, 401 P.2d 733, 736 (1965); State v. Islas, 119 Ariz. 559, 561, 582 P.2d
649, 651 (App. 1978) (“The extent to which counsel can go in
opening statement is within the discretion of the court.”). The
purpose of the opening statement is to:

             advise the jury of the facts relied upon and
             of the questions and issues involved, which
             the jury will have to determine, and to give
             them a general picture of the facts and the
             situations, so that they will be able to
             understand the evidence. Counsel should
             outline generally what he intends to prove,
             and should be allowed considerable
             latitude.

Burruell, 98 Ariz. at 40, 401 P.2d at 736. “Opening statements are
intended to inform the jury of what the party expects to prove and
prepare the jury for the evidence that is to be presented.” State v.
King, 180 Ariz. 268, 278, 883 P.2d 1024, 1034 (1994). They are not,
however, the proper forum to argue a case. Id.

¶25          The trial court did not hinder defense counsel’s ability
to make a fair statement regarding the evidence in the case. See
Burruell, 98 Ariz. at 40, 42, 401 P.2d at 735-37. Rather, it interrupted
defense counsel’s general assertion that “normal citizens” who own
guns did so for protection, a non-issue in this case, and her
explication of a legal standard, albeit a pertinent one in any criminal
prosecution. As noted by the state, Waller does not show prejudice;
“[h]e does not allege that his intended comment on gun ownership
was essential to the case or that the jury was inadequately informed


                                   11
                          STATE v. WALLER
                          Opinion of the Court

of the standard of proof.” Absent any prejudice, we cannot say the
court’s two interruptions of defense counsel’s opening statement
constituted reversible error and therefore we need not address
whether the trial court provided defense counsel adequate latitude
in presenting her opening statement.

¶26           Citing United States v. Carreon, 572 F.2d 683 (9th Cir.
1978), Waller further argues that the interruptions, together with the
court’s setting of an OSC hearing during the second day of trial and
its admonition to the jury during defense counsel’s closing resulted
in “an unfair trial warranting a mistrial.”7 The scheduling of the
OSC, which was held outside the presence of the jury, related to
defense counsel’s violation of an order that a prior conviction of the
victim be sanitized. The court’s comments during defense counsel’s
closing argument occurred when the court sustained the state’s
objection to defense counsel’s direction to the jury regarding
unanimity on the underlying assault, and gave a contrary
instruction.8

¶27          In Carreon, the trial court repeatedly interrupted defense
counsel although the prosecutor had not objected, made and
sustained its own objections to several of counsel’s questions, and
treated counsel in such a way that the jury could readily infer the
court had a low opinion of both counsel and Carreon’s defense,
“creat[ing] an atmosphere in which an objectively fair trial could not
be conducted.” 572 F.2d at 686. Here, we cannot say that by twice
interrupting counsel’s opening statement and by instructing the jury
during her closing, the trial court “overstepped the bounds of
judicial propriety by excessively interjecting [it]self into the
proceedings below.” Id. Further, because the OSC discussion was
held outside the jury’s presence, it could not have contributed to the



      7Waller asserts the state failed to address this argument in its
answering brief, thereby confessing error. But the argument was
made with significantly greater clarity in Waller’s reply brief and
therefore we do not fault the state for its omission.
      8This   instruction is discussed in detail in the following section.


                                    12
                          STATE v. WALLER
                          Opinion of the Court

jury’s perception of Waller or his counsel. See id. Accordingly, the
trial court’s actions were neither unfair nor grounds for a mistrial.

Unanimity of Jury Verdict

¶28           Waller next argues a new trial was warranted because
the trial court failed to properly instruct the jury that it was required
to reach a unanimous verdict on the underlying assault. He asserts
that double jeopardy is implicated when either a “duplicitous
indictment is charged” or “a criminal offense is alleged that may be
committed in more than one way.”

¶29         The indictment alleged Waller “assaulted [J.C.] with a
deadly weapon or dangerous instrument, to wit: a firearm, in
violation of A.R.S. []§ 13-1204(A)(2).” Aggravated assault under
§ 13–1204(A)(2) consists of the commission of an underlying assault
as defined by A.R.S. § 13-1203 with a deadly weapon or dangerous
instrument. See State v. James, 231 Ariz. 490, n.4, 297 P.3d 182, 185 n.4
(App. 2013). An assault occurs if a defendant:

             1. Intentionally, knowingly or recklessly
                caus[es] any physical injury to another
                person; or

             2. Intentionally plac[es] another person in
                reasonable apprehension of imminent
                physical injury; or

             3. Knowingly touch[es] another person
                with the intent to injure, insult or
                provoke such person.

§ 13–1203(A). The three types of assault are distinct offenses with
different elements, not merely different manners of committing the
same offense. See State v. Freeney, 223 Ariz. 110, ¶¶ 16–17, 219 P.3d
1039, 1042 (2009); see also In re Jeremiah T., 212 Ariz. 30, ¶ 12, 126 P.3d
177, 181 (App. 2006) (“[S]ubsections of 13–1203(A) are not simply
variants of a single, unified offense; they are different crimes.”); State
v. Sanders, 205 Ariz. 208, ¶ 33, 68 P.3d 434, 442 (App. 2003) (“[T]hese
two types of assault [‘knowing touching’ and ‘reasonable
apprehension’] are in fact distinctly different crimes.”).

                                    13
                         STATE v. WALLER
                         Opinion of the Court

¶30          During closing arguments, the state argued that Waller
could be found guilty of either the second or the third types of
assault. When defense counsel later told the jury that it must be
unanimous on at least one theory of assault to convict Waller, the
state objected, and the trial court sustained the objection. The court
then stated:

             Members of the jury, you are instructed
             that you do not have to be unanimous on
             which of the three descriptions under that
             assault. . . . And you don’t have to be
             unanimous—if you found that there’s an
             assault, you folks don’t have to be in
             unanimous agreement as to whether it’s
             paragraph 1, 2 or 3, . . . . [Y]ou don’t have
             to be unanimous as to whether it’s No. 2,
             that he intentionally put another person in
             reasonable apprehension of immediate
             physical injury, or whether it’s No. 3, that
             he knowingly touched another person with
             the intent to injure, insult or provoke that
             person.      That does not have to be
             unanimous.

The court further denied defense counsel’s request to use a special
verdict form to indicate which type of assault, if any, the jurors
could find Waller guilty of committing.

¶31           The state characterizes Waller’s argument as one of
duplicitous indictment and argues it has been forfeited for all but
fundamental, prejudicial error, citing State v. Paredes-Solano, 223
Ariz. 284, ¶ 6, 222 P.3d 900, 903 (App. 2009) (failure to object to
indictment at least twenty days before trial forfeits objection absent
fundamental error). A duplicitous indictment “charges two or more
distinct offenses in a single count.” State v. Barber, 133 Ariz. 572, 576,
653 P.2d 29, 33 (App. 1982); accord State v. Anderson, 210 Ariz. 327,
¶ 13, 111 P.3d 369, 377 (2005). For an indictment to be duplicitous,
the error must be apparent from the language of the charging
document itself; it does not depend on the evidence admitted at



                                   14
                         STATE v. WALLER
                         Opinion of the Court

trial. See State v. Butler, 230 Ariz. 465, ¶¶ 13–14, 286 P.3d 1074, 1079
(App. 2012).

¶32          Waller’s indictment referred to only one criminal act, a
single aggravated assault against an individual victim. Whether the
charge implicated more than one subsection of the assault statute
cannot be determined by analysis of the indictment alone, but rather
depends on the evidence and theories presented at trial. That is, the
indictment did not allege two distinct offenses; it described a single
offense, assault with a deadly weapon, without specifying how it
was committed or its particular elements. The indictment, therefore,
was not duplicitous.9 See State v. Klokic, 219 Ariz. 241, ¶ 11, 196 P.3d
844, 846 (App. 2008).

¶33           Waller appears to suggest, however, that his charge was
duplicitous, and he contends he was erroneously denied a special
verdict form because the trial court did not believe it was required.
A duplicitous charge exists “[w]hen the text of an indictment refers
only to one criminal act, but multiple alleged criminal acts are
introduced to prove the charge.” Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d
at 847. A potentially duplicitous charge need not be remedied
before trial. Id. ¶ 14; Anderson, 210 Ariz. 327, n.3, 111 P.3d at 378 n.3
(“When the basis for a duplicity objection is not learned until trial, a
prompt objection at that time is timely.”). If the evidence at trial
renders the charge duplicitous, the appropriate remedy is to
“require ‘the state to elect the act which it alleges constitutes the
crime, or instruct the jury that they must agree unanimously on a
specific act that constitutes the crime before the defendant can be

      9  Although not duplicitous, the indictment could be
characterized as vague or indefinite because it did not specify the
nature of the underlying assault. Consequently, the indictment
could have been challenged through a motion for a more definite
statement. See Ariz. R. Crim. P. 13.2(a). But because Waller did not
raise this issue by motion as required by Rule 16.1(b) (motions must
be made twenty days prior to trial), he has waived any claim for
relief based on any defect in the indictment. See Ariz. R. Crim. P.
13.5(e); State v. Puryear, 121 Ariz. 359, 362, 590 P.2d 475, 478 (App.
1979).


                                   15
                         STATE v. WALLER
                         Opinion of the Court

found guilty.’” Klokic, 219 Ariz. 241, ¶ 14, 196 P.3d at 847, quoting
State v. Schroeder, 167 Ariz. 47, 54, 804 P.2d 776, 783 (App. 1990)
(Kleinschmidt, J., concurring). The failure to take such measures to
eliminate the risk of a non-unanimous verdict constitutes error.
State v. Kelly, 149 Ariz. 115, 117, 716 P.2d 1052, 1054 (App. 1986); see
also State v. Davis, 206 Ariz. 377, 390, ¶ 61, 79 P.3d 64, 77 (2003)
(holding that “the resulting risk that the jury returned a non-
unanimous verdict constituted error”).

¶34          Because a defendant has the right to a unanimous jury
verdict in a criminal case, see Ariz. Const. art. II, § 23, “[a] violation
of that right constitutes fundamental error,” Davis, 206 Ariz. 377,
¶ 64, 79 P.3d at 77. Thus, the trial court erred here by not requiring a
unanimous verdict on the underlying assault. But not every error
requires reversal. Kelly, 149 Ariz. at 117, 716 P.2d at 1054. “To
constitute reversible error, the defendant must have been prejudiced
by it when considered in conjunction with all the evidence in the
case.” Id. If the defendant suffers no prejudice from the duplicitous
charging, his conviction need not be reversed. See State v. Petrak, 198
Ariz. 260, ¶ 28, 8 P.3d 1174, 1182 (App. 2000).

¶35           At trial, Deputy Hernandez testified Waller said he had
gone to J.C.’s residence because “he wanted the music turned
down,” and had taken the handgun with him “because he did not
believe [J.C.] was going to listen to him.” J.C. testified that after
Waller asked for the music to be turned down, Waller hit him in the
face, knocking off his ball cap, and pushed a gun “in[to his] gut.”
J.C.’s testimony was corroborated by his son, who testified he saw
Waller “stick something in [his] dad’s gut.” Another neighbor who
witnessed the incident from his car, testified he saw one man “put
[his] hand . . . out toward the gentleman’s abdomen area, kind of in
the center” and “at that point . . . walk[] away.”

¶36           Waller’s defense was that he had just “showed” or
“presented” the gun to J.C. and did not point it at him. He asserted
at trial, and now on appeal, that he had not intended to scare J.C.,
but only wanted the music turned down. The evidence shows,
however, that Waller confronted J.C. about the music; displayed a
gun to coerce J.C. to acquiesce; struck J.C.’s face; and threatened him
by pressing the gun to J.C.’s body. These facts amply support a jury

                                   16
                         STATE v. WALLER
                         Opinion of the Court

finding that Waller “[i]ntentionally plac[ed] another person in
reasonable apprehension of imminent physical injury” pursuant to
§ 13-1203(A)(2). Moreover, the nature of the charge ensured that no
juror who convicted Waller based on a belief that he had touched
J.C. with a gun could reasonably have acquitted him of intentionally
placing J.C. in reasonable fear of imminent physical injury under the
circumstances. In other words, any juror who believed Waller
pressed the barrel of his gun to J.C.’s body, committing assault by
touching under § 13–1203(A)(3), logically must have found Waller
caused J.C. “reasonable apprehension of imminent physical injury,”
pursuant to § 13–1203(A)(2). Thus, even had the trial court provided
the requested special verdict form, the jury would have found
Waller guilty of assault under § 13-1203(A)(2); and he therefore was
not prejudiced by the duplicative charging. See State v. Payne, 233
Ariz. 484, ¶ 90, 314 P.3d 1239, 1264 (2013) (defendant not prejudiced
by duplicative charges of child abuse, failing to feed and failing to
seek medical attention, when no reasonable jury could have found
defendant not guilty of failing to seek medical attention).

       Preclusion of Evidence of Victim’s Prior Convictions

¶37          Waller contends the trial court committed fundamental
error by denying him the right to impeach J.C. with the nature of a
prior conviction. Before trial, the state moved to preclude J.C.’s
three prior felony convictions, two that occurred in the 1980s and a
third from 2003.

¶38           At a hearing, the trial court permitted only the 2003
conviction to be introduced at trial if “sanitized,” finding the “others
. . . too old.” It stated: “So the only question that can be asked is
whether the victim has been convicted of a felony. But that can be
asked.” The court then asked defense counsel if she had “any
objection to that,” and counsel responded, “No, Judge. I believe that
was exactly what I was looking for.”

¶39          Waller asserts that “fundamental error occurred when
the nature of the alleged victim’s prior conviction and his ability to
properly cross-examine the alleged victim with that prior conviction
was precluded by the Trial Court.” Rule 609(b), Ariz. R. Evid., limits
the use of a conviction for impeachment if more than ten years have


                                  17
                         STATE v. WALLER
                         Opinion of the Court

passed since the witness’s conviction or release from confinement,
whichever is later. Such evidence is admissible, in relevant part,
only if “its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect.” Id.
Sanitizing prior convictions in connection with their introduction at
trial under Rule 609 is permitted. See, e.g., State v. Beasley, 205 Ariz.
334, ¶¶ 19-23, 70 P.3d 463, 467-68 (App. 2003).

¶40           As the state acknowledges, the trial court did not make
“specific findings under Rule 403[,] balancing the probative value of
the conviction against its prejudicial effect, as required by Rule 609.”
Waller, however, neither requested the court make specific findings
nor objected to its not doing so. A defendant who fails to request
express findings concerning a Rule 403 determination waives any
allegation on appeal that the court erred by not making such
findings. In re Commitment of Jaramillo, 217 Ariz. 460, ¶ 18, 176 P.3d
28, 33 (App. 2008). Further, reversal is not warranted based on lack
of findings when “it is clear the necessary factors were argued,
considered, and balanced by the trial court as part of its ruling.”
State v. Beasley, 205 Ariz. 334, ¶ 15, 70 P.3d 463, 466 (App. 2003); see
also Salt River Project Agric. Improvement & Power Dist. v. Miller Park,
L.L.C., 218 Ariz. 246, ¶¶ 17–18, 183 P.3d 497, 501 (2008) (although
record of Rule 403 determinations should be made, failure to do so
not necessarily reversible error). Here, the court considered both
parties’ arguments on the issue prior to trial. Given that the felony
was approximately ten years old10 and defense counsel stated she
was satisfied with the court’s ruling, we cannot say the court erred
in limiting evidence of J.C.’s 2003 conviction, much less that the
error was fundamental.

                     Motion for Change of Judge

¶41         Finally, Waller contends the denial of his motion for
change of judge constituted fundamental error necessitating
reversal. As noted above, during trial the court scheduled an OSC

      10J.C.  was arrested for second degree burglary of a residence
on May 12, 2003, and was sentenced August 19, 2003. The record is
silent as to any period of confinement.


                                   18
                        STATE v. WALLER
                        Opinion of the Court

hearing to address defense counsel’s disregard of the court’s ruling
concerning J.C.’s 2003 conviction. The following month, defense
counsel filed a Motion to Disqualify Judge in her contempt
proceedings and several days later Waller filed a Motion for Change
of Judge for Cause before a hearing on his motion for new trial. The
hearing on the motions was held in June 2013 before a different
judge. That judge granted the motion for change of judge for
purposes of the contempt hearing only and denied the motion for
change of judge with respect to Waller’s motion for new trial.

¶42          Waller acknowledges this issue was not raised in the
trial court and requests it be reviewed for fundamental error. He
argues the denial of his motion constitutes such error because his
motion pursuant to Rule 10, Ariz. R. Crim. P., involved a different
analysis than his counsel’s motion under Rule 33, Ariz. R. Crim. P.
And he asserts the “error was further aggravated by the fact that
[his] counsel . . . was not permitted to argue at the hearing.” He
maintains the errors “caused him prejudice in that he was denied his
right of effective cross-examination and he was denied his right to
effective assistance of counsel to argue his position to be granted a
change of judge.”

¶43          Error is fundamental only when it reaches the
foundation of a defendant’s case, takes from him a right essential to
his defense, and is error of such magnitude that he could not
possibly have received a fair trial. State v. Henderson, 210 Ariz. 561,
567, ¶ 19, 115 P.3d 601, 607 (2005). Under this standard, Waller
bears the dual burden of proving that fundamental error occurred
and that it prejudiced him. See id. ¶ 20. Waller asserts only that
“[w]ithout a change of judge[, defense] counsel was forced to
continue to appear before Judge Eikleberry in spite of the perceived
animosity.” But Waller presents no argument that had his motion
been granted, the outcome of his case would have been different.
See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995)
(insufficient argument waives claim on review). We therefore
consider this issue no further.




                                  19
                     STATE v. WALLER
                     Opinion of the Court

                         Disposition

¶44          For the foregoing reasons, Waller’s conviction and
sentence are affirmed.




                              20
