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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                DINARR ANDREW WHITESIDE, Appellant.

                             No. 1 CA-CR 16-0270
                               FILED 6-6-2017


           Appeal from the Superior Court in Maricopa County
                      No. CR2010-110385-001 DT
                The Honorable Lisa Daniel Flores, Judge
                  The Honorable Daniel J. Kiley, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                          STATE v. WHITESIDE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Lawrence F. Winthrop
joined.


B E E N E, Judge:

¶1             Dinarr Andrew Whiteside appeals his conviction for resisting
arrest, a class 6 felony, and his subsequent 2.25-year prison sentence. For
the following reasons, we affirm.

              FACTUAL AND PROCEDURAL HISTORY

¶2           In 2010, officers sought to arrest Whiteside in connection with
an outstanding warrant for his arrest. Officers went to the home of
Whiteside’s niece, who invited the officers in and consented to a search.
During the search, Whiteside was discovered hiding under a bed.

¶3            Officers ordered Whiteside out from under the bed, but he
refused to comply. Officers grabbed Whiteside by his feet and dragged him
out from under the bed. Over a two-minute period, officers attempted to
handcuff Whiteside, but he “flopp[ed],” “thrash[ed],” “kicked” and
“rolled” to avoid arrest. Whiteside was eventually subdued and arrested.
The State charged Whiteside with one count of resisting arrest in violation
of Arizona Revised Statutes (“A.R.S.”) section 13-2508 (2010).1

¶4           After failing to appear at a 2010 pretrial conference, the
superior court issued a bench warrant for Whiteside’s arrest. Whiteside
remained a fugitive and was tried in abstentia in August 2010. The jury
convicted Whiteside, but he remained a fugitive until he was charged for
drug-related offenses in 2015.

¶5           Whiteside pleaded guilty to the drug-related offenses.
Whiteside’s plea agreement was contingent upon his admission at the time
of sentencing for his resisting arrest conviction that he had a prior felony
conviction. Whiteside admitted his prior felony conviction and based on

1     In 2012, the Arizona Legislature amended A.R.S. § 13-2508, adding
subsection (A)(3), which makes passive resistance to arrest unlawful. See
2012 Ariz. Sess. Laws, Ch. 265 (2nd Reg. Sess.).


                                     2
                           STATE v. WHITESIDE
                            Decision of the Court

his admission, the superior court sentenced him to the maximum term of
2.25-years in prison for his resisting arrest conviction.

¶6            Whiteside timely appealed his conviction.           We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and A.R.S. §§ 12-120.21(A)(1) (2017), 13-4031 (2017), and 13-4033(A) (2017).

                               DISCUSSION

¶7              Whiteside challenges his conviction on two grounds. First,
Whiteside argues that the jury instruction explaining the elements of
resisting arrest resulted in a duplicitous charge. The jury instruction given
mirrored the language found in the resisting arrest statute, A.R.S. § 13-
2508;2 therefore, this case raises an issue of statutory interpretation, which
we review de novo. State v. Gonzalez, 216 Ariz. 11, 12, ¶ 2 (App. 2007).
Because Whiteside failed to object to the jury instruction at trial, we review
only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19
(2005). Fundamental error is “error going to the foundation of the case,
error that takes from the defendant a right essential to his defense, and error
of such magnitude that the defendant could not possibly have received a
fair trial.” Id. (internal quotation omitted). To prevail under fundamental
error review, Whiteside “must establish that (1) error exists, (2) the error is
fundamental, and (3) the error caused him prejudice.” State v. Smith, 219
Ariz. 132, 136, ¶ 21 (2008).

¶8           A duplicitous charge occurs where “the text of an indictment
refers only to one criminal act, but multiple alleged criminal acts are
introduced to prove the charge.” State v. Klokic, 219 Ariz. 241, 244, ¶ 12


2      The final jury instruction given read:

       The crime of Resisting Arrest requires proof that:

       1. A peace officer, acting under official authority, sought to arrest
       either the defendant or some other person; and
       2. the defendant knew, or had reason to know, that the person
       seeking to make the arrest was a peace officer acting under color of
       such peace officer’s official authority; and
       3. The defendant intentionally prevented, or attempted to prevent,
       the peace officer from the making the arrest; and
       4. The means used by the defendant to prevent the arrest involved
       either the use or threat to use physical force or any other substantial
       risk of physical injury to either the peace officer or another.


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                            STATE v. WHITESIDE
                             Decision of the Court

(App. 2008). A duplicitous charge can constitute fundamental error. State
v. Davis, 206 Ariz. 377, 390, ¶¶ 63–64 (2003). However, “[a] count is not
considered duplicitous merely because it charges alternate ways of
violating the same statute.” State v. O’Brien, 123 Ariz. 578, 583 (App. 1979).
Rather, a single unified offense, or alternative-means statute, “identif[ies] a
single crime and provide[s] more than one means of committing the crime.”
State v. West, 238 Ariz. 482, 489, ¶ 19 (App. 2015) (internal quotations
omitted). Single unified offense statutes do not deprive the defendant of
his constitutional rights to a unanimous jury verdict. O’Brien, 123 Ariz. at
583.

¶9            In order to determine whether a statute is a single unified
offense or duplicitous, we must “ascertain and give effect to the intent of
our legislature.” West, 238 Ariz. at 489–90, ¶ 20 (internal quotations
omitted). The plain language of the statute is the best indicator of legislative
intent, but we may also consider the title of the statute, whether there was
a perceivable connection between the acts listed in the statute, whether
those acts were consistent with each other, and whether those acts might
inhere in the same transaction. Id.

¶10           In relevant part, A.R.S. § 13-2508 provides that:

       A. A person commits resisting arrest by intentionally
       preventing or attempting to prevent a person reasonably
       known to him to be a peace officer, acting under color of such
       peace officer’s official authority, from effecting an arrest by:

       1. Using or threatening to use physical force against the peace
       officer or another; or

       2. Using any other means creating a substantial risk of causing
       physical injury to the peace officer or another.

¶11            The elements the State must show to prove a violation of § 13-
2508 are clear and unambiguous. The title, resisting arrest, “summarizes
the statute as dealing with a single offense.” State v. Forrester, 134 Ariz. 444,
448 (App. 1982). The statutory language enumerates two ways, or means,
a person can violate the statute—using or threatening physical force, or
creating a substantial risk of physical injury. The two alternative means of
violating § 13-2508 are not repugnant to each other because proof of one
“does not disprove the other” and these acts could occur in the “same
transaction.” State v. Manzanedo, 210 Ariz. 292, 294, ¶¶ 8–9 (App. 2005).
Contrary to Whiteside’s argument, § 13-2508 “identif[ies] a single crime and



                                       4
                             STATE v. WHITESIDE
                              Decision of the Court

provide[s] more than one means of committing the crime.” West, 238 Ariz.
at 489, ¶ 19 (internal quotations omitted).

¶12           Whiteside contends that the jury instruction here was
duplicitous and deprived him of a unanimous jury verdict because it cannot
be determined which subsection of § 13-2508 he violated. However, it is
well established in Arizona that a jury need not unanimously agree upon
the manner in which the charged offense was committed, only that the
defendant committed the crime. An instruction that defines alternate ways
by which the crime charged could be committed, and follows the statutory
language in doing so, is not duplicitous. See State v. Herrera, 176 Ariz. 9, 16
(1993); West, 238 Ariz. at 494, ¶ 38. Here, after the presentation of the
evidence and instruction by the court that followed the statutory language,
the jury unanimously convicted Whiteside of one count of resisting arrest.
We conclude that § 13-2508 is a single unified offense, the proffered jury
instruction was not duplicitous and did not deprive Whiteside of a
unanimous verdict.

¶13           Whiteside’s second argument is that the court improperly
aggravated his sentence in violation of Blakely v. Washington, 542 U.S. 296,
314 (2004), because the jury did not make a finding of fact that Whiteside
had prior felony convictions. Because Whiteside failed to object to the
court’s aggravation factors, we review for fundamental error. See
Henderson, 210 Ariz. at 567, ¶ 19.

¶14              As part of his plea agreement with the State, Whiteside
admitted to a prior felony conviction for sentencing purposes. The superior
court did not commit fundamental error by using the prior felony
conviction to enhance Whiteside’s sentence, because a jury finding of the
prior felony conviction was not necessary. Blakely, 542 U.S. at 301 (“Other
than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”) (emphasis added) (internal quotation
omitted).

¶15          Additionally, the superior court did not err in considering
Whiteside’s prior felony conviction as an aggravating factor when it
imposed the maximum prison sentence. State v. Bonfiglio, 228 Ariz. 349, 354,
¶ 21 (App. 2011) (“A trial court may use the same convictions to enhance or
increase the sentencing range and to aggravate a defendant’s sentence
within the enhanced range.”).




                                         5
                         STATE v. WHITESIDE
                          Decision of the Court

                             CONCLUSION

¶16           For the foregoing reasons, we affirm Whiteside’s conviction
and sentence.




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




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