                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                            ANTHONY DOSSEY,
                                Appellant.

                             No. 1 CA-CR 19-0140
                               FILED 2-27-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-148845-001
              The Honorable George H. Foster, Jr., Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee

Michael J. Dew, Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
                             STATE v. DOSSEY
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.


J O H N S E N, Judge:

¶1           Anthony Dossey appeals his convictions of two counts of
aggravated assault and the resulting imposition of probation. For the
following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Dossey arrived at a car-restoration business and knocked at
the front gate.1 The victim, who worked there and had met Dossey before,
let him in. Dossey soon began hurling insults at the victim, a transgender
woman, who cursed back at Dossey. Dossey punched the victim, causing
her to fall down. Dossey then bashed her head into the ground, choking
her and causing her to pass out briefly.

¶3            Dossey next took the victim by the shoulders, smashed her
head into the wall and threw her back to the ground, where he pinned her
down with his knee in her back and restrained her hands with his own,
rendering her unable to move. Dossey then bashed the victim's head into
the ground and bent her finger back as if trying to break it.

¶4           The victim was unable to fight back during the entire 16-
second altercation, which ended when the victim's friend chased Dossey
away. The victim suffered scratched and bloody hands, arms, face and
forehead, a red and swollen neck, and "brand marks" on her neck and
shoulder.

¶5          A grand jury indicted Dossey on two counts of aggravated
assault pursuant to Arizona Revised Statutes ("A.R.S.") sections 13-



1      We view the facts in the light most favorable to sustaining the jury's
verdicts and resolve all inferences against Dossey. State v. Gurrola, 219 Ariz.
438, 439, ¶ 2, n.1 (App. 2008).



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                            STATE v. DOSSEY
                           Decision of the Court

1203(A)(1) (2020) and -1204(A)(4) (2020).2 The superior court appointed
counsel for Dossey, then denied Dossey's pretrial motion for new counsel.
At trial, Dossey moved for acquittal pursuant to Arizona Rule of Criminal
Procedure 20, arguing that because the charges against him were
multiplicitous, the State or the court should elect only one on which to
proceed. The court denied the motion.

¶6           The jury found Dossey guilty as charged and the court
imposed two concurrent two-year terms of supervised probation, including
90 days in jail as a probation condition for Count 1. Dossey timely
appealed. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2020), 13-4031 (2020)
and -4033(A)(1) (2020).

                               DISCUSSION

A.     Multiplicity.

¶7            Dossey first argues the two aggravated-assault convictions
resulted in double jeopardy because both arose under § 13-1204(A)(4),
which he argues is an alternative-means statute, and his "manner of
assaulting [the] victim involved only a single offense."

¶8            "Multiplicity occurs when an indictment charges a single
offense in multiple counts and raises the potential for multiple
punishments, which implicates double jeopardy." State v. Brown, 217 Ariz.
617, 620, ¶ 7 (App. 2008) (citation omitted). "Whether charges are
multiplicitous is an issue of statutory interpretation, which we review de
novo." Id.

¶9             When a defendant is convicted of multiple charges based on
"a single transaction" under a statute that defines "different ways of
committing the same offense," the charges are multiplicitous and multiple
convictions may not stand. Id. at 620-21, ¶¶ 9-11 & n.2. Our inquiry is two-
fold: We first determine whether the statute under which Dossey was
convicted defines different ways to commit a single offense. See id. at ¶¶ 9-
10. If that is so, we then decide whether Dossey's two convictions arose
from a single transaction, or instead, from separate and distinct transactions
constituting two offenses. See id. If the convictions are under a statute that
defines different ways to commit a single offense and arose from a single


2      Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.


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                             Decision of the Court

transaction, a double-jeopardy violation has occurred, and one of the two
convictions must be vacated. See id. at 620-22, ¶¶ 7, 11, 16.

       1.     Alternative-means statute.

¶10            One category of criminal statute "defines a specific crime and
provides [different] ways in which the crime may be committed." Id. at 620,
¶ 7 (citation omitted). Another category of criminal statute "may set forth
several distinctive acts and make the commission of each a separate crime,
all in one statute." Id. (citation omitted). A statute in the first category is an
"alternative-means statute." State v. West, 238 Ariz. 482, 489, ¶ 19 (App.
2015). In deciding whether a statute is an alternative-means statute, we
consider "(1) the title of the statute, (2) whether there [is] a readily
perceivable connection between the various acts listed in the statute, (3)
whether those acts [are] consistent with and not repugnant to each other,
and (4) whether those acts might inhere in the same transaction." State v.
Manzanedo, 210 Ariz. 292, 294, ¶ 8 (App. 2005) (quotations omitted).

¶11            Here, Dossey was charged with two offenses under the same
subsection of § 13-1204, which states that a person commits aggravated
assault if "the person commits the assault while the victim is bound or
otherwise physically restrained or while the victim's capacity to resist is
substantially impaired." A.R.S. § 13-1204(A)(4) (emphasis added); see also
A.R.S. § 13-1203(A)(1) (defining "assault," as relevant here, as
"[i]ntentionally, knowingly or recklessly causing any physical injury to
another person").

¶12           As Dossey contends, and the State concedes, § 13-1204(A)(4)
is an alternative-means statute: (1) its title embraces a single subject –
aggravated assault; (2) there is a strong connection between (A)(4)'s two
prongs (physical restraint and impaired capacity to resist); (3) both prongs
are consistent and not repugnant to one another because "proof of one will
not disprove the other"; and (4) physically restraining a victim and
substantially impairing that victim's capacity to resist certainly may inhere
in the same transaction. Manzanedo, 210 Ariz. at 294, ¶¶ 8-9 (citation
omitted); see also A.R.S. § 13-1204(A)(4). Therefore, (A)(4) defines a single
offense and provides two alternative means by which to commit it.

       2.     Single versus multiple transactions.

¶13          Though Dossey was convicted twice under the same
alternative-means statute, if each charge arose from a separate transaction,
no double-jeopardy violation occurred. See Brown, 217 Ariz. at 620-21, ¶¶
9-11 & n.2.


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                             STATE v. DOSSEY
                            Decision of the Court

¶14            In Brown, the defendant was convicted on six charges: One
count each of "sale" and "transfer" of a narcotic drug under the same
alternative-means statute in connection with the same three separate
events. Id. at 619, 621, ¶¶ 1, 10; see A.R.S. § 13-3408(A)(7) (2020). On each
of the three occasions, the defendant accepted money from an undercover
officer in return for narcotics. Id. at 619, ¶¶ 1-4. We held the three pairs of
"convictions for both sale and transfer based on the same conduct violated
[the defendant's] double jeopardy rights." Id. at 621-22, ¶ 13. The State
argued that one of the transactions should be treated differently because on
that occasion, the defendant first sold the officer a small amount of crack
cocaine; after the officer complained it was too little, the defendant
arranged to meet the officer an hour later to give him more. Id. at 619, 622,
¶¶ 4, 14. We rejected the State's argument that this amounted to two
transactions (an initial "sale" and a subsequent "transfer") because "both the
indictment and the state's presentation of the facts at trial establish that the
jury found [the defendant] guilty based on a total of three, not four,
transactions, only one of which took place on" the date in question, and
because the State referred to the third dealing as a single "incident,"
"transaction" or "situation" during both opening and closing arguments. Id.
at 622, ¶ 14 & n.5.

¶15           Here, in contrast to Brown, although the entire altercation
lasted only 16 seconds, based on the charges, the evidence regarding the
attacks, and the State's delineation during closing arguments of how each
charge corresponded to a discrete transaction, the jury found Dossey guilty
based on two separate transactions and, accordingly, permissibly convicted
him of two separate offenses.

¶16            First, the indictment charged Dossey with Count 1:
"intentionally, knowingly or recklessly [causing] physical injury to [the
victim] while [her] capacity to resist was substantially impaired to wit: while
being choked," and Count 2: "intentionally, knowingly or recklessly [causing]
physical injury to [the victim] while [she] was bound or otherwise physically
restrained, to wit: while [she] was held on the ground." (Emphasis added.)
The indictment made clear that Count 1, charged under (A)(4)'s substantial-
impairment prong, was based on Dossey injuring the victim while choking
her, and Count 2, charged under (A)(4)'s physical-restraint prong,
concerned a later, separate transaction: Dossey injuring the victim while
pinning her down and restraining her.

¶17           Second, the evidence presented at trial confirms that two
separate transactions occurred. The victim testified Dossey first bashed her
head into the ground and choked her, causing her to briefly pass out, which


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                             STATE v. DOSSEY
                            Decision of the Court

corresponded to Count 1. She testified that, after Dossey picked her up and
slammed her into the wall, he then threw her down, pinned her to the
ground and restrained her hands, where he further bashed her head and
bent her finger back; this second transaction corresponded to Count 2.
Further, evidence of distinct injuries supported each transaction: For
example, the jury reasonably could have found the victim's red and swollen
neck supported Count 1 (Dossey choking her), and that her scratched,
bloody hands supported Count 2 (Dossey restraining her hands while
holding her on the ground).

¶18          Third, in its closing arguments, the State delineated Counts 1
and 2 by separately explaining the legal and factual bases underlying each,
making clear to the jury which transactions supported each count. The
verdict forms likewise distinguished between the two transactions for both
counts.

¶19           In sum, because the State charged, presented evidence on, and
argued two discrete transactions to the jury by showing Dossey physically
injured the victim first while choking her and again while pinning her to
the ground and restraining her hands, the jury convicted Dossey of two
separate offenses under § 13-1204(A)(4). The charges therefore were not
multiplicitous and no double-jeopardy violation occurred.

B.     Motion for Change of Counsel.

¶20           Dossey argues the superior court erred by denying his motion
for new counsel without holding an evidentiary hearing. We review this
decision for an abuse of discretion. State v. Hidalgo, 241 Ariz. 543, 557, ¶ 59
(2017).

¶21           The court was not required to hold an evidentiary hearing on
the motion because Dossey failed to "allege specific facts suggesting an
irreconcilable conflict or a complete breakdown in communication." Id.
(citation omitted). In his motion, Dossey asserted his attorney's focus was
"unsatisfactory," his attorney told him repeatedly that "he basically has no
confidence in winning and his behavior shows to me that he isn't applying
a decent effort unless I take the plea bargain or testify," and that the two of
them could not "communicate in a way that create[d] any progress and
[were] incompatible."       These were not sufficiently specific factual
allegations to warrant an inquiry. Id.; see also id. at ¶ 61 ("[G]eneralized
complaints about differences in strategy do not necessitate a hearing."
(quotation omitted)). Dossey's only specific factual allegation was that
"[d]uring a consultation [Dossey's attorney] introduced his coworker for



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                           STATE v. DOSSEY
                          Decision of the Court

some 'additional counsel,'" touting the coworker as "one of the most
devious lawyers." Even if this were true, this isolated comment about a
third party does not suggest an irreconcilable conflict. The superior court
did not abuse its discretion by denying Dossey's motion for new counsel
without a hearing.

                              CONCLUSION

¶22          For the foregoing reasons, we affirm Dossey's convictions and
probation grants.




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




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