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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JAY CHRISTOPHER GRADY, Appellant.

                             No. 1 CA-CR 14-0834
                              FILED 10-01-2015


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201200678
                 The Honorable David M. Haws, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles Braccio
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Edward F. McGee
Counsel for Appellant
                            STATE v. GRADY
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge John C. Gemmill joined.


C A T T A N I, Judge:

¶1            Jay Christopher Grady appeals his conviction of aggravated
assault. For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In mid-March 2012, the victim and his father-in-law drove to
Martinez Lake in Yuma County to pick up the victim’s boat. The victim
lived in California but for many years had vacationed at the lake. They
arrived around 10:30 p.m. on a Friday night and went to a nearby bar for
drinks.

¶3            The victim and his father-in-law sat by themselves at a table
across the bar from a large group. After about half an hour, the victim
bought a second round of drinks, and an inebriated woman named Lisa sat
down at the table across from them. Lisa was physically carried out of the
bar by her friends a short time later.

¶4            Within about a minute, Grady walked up behind the victim,
spun him around by the shoulder, and punched him in the throat while
saying “you dissed my buddy’s wife.” When the victim came to, he could
not talk, had difficulty breathing, and sought medical attention. His father-
in-law also had been knocked out, and the victim stayed with him while
waiting for an ambulance to arrive. After an EMT found no immediate life-
threatening injuries, the victim declined to go to the hospital.

¶5           The victim and his father-in-law drove home the next
morning, and the victim sought medical treatment there. According to the
victim, medical imaging two days later showed that he had fractured his
larynx and that, had the fracture shifted, it could have blocked his airway.

¶6           A Yuma County Sheriff’s deputy interviewed Grady several
weeks after the incident. Grady admitted striking the victim once and
seemed apologetic, but stated that he had walked over to talk and the victim



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                             STATE v. GRADY
                            Decision of the Court

had raised his elbow (albeit without striking him), and that he had
responded by striking the victim.

¶7            The State charged Grady with one count of aggravated
assault, and the jury convicted him of the offense. Grady timely appealed
after the court imposed 48 months of supervised probation. We have
jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 13-4033(A).1

                               DISCUSSION

I.     Amending the Indictment to Conform to the Evidence.

¶8            Grady argues the superior court erred by granting the State’s
motion during closing argument to amend the indictment to reflect that the
aggravated assault resulted in a “torn larynx” instead of a “fractured
thyroid.” We review an order amending the indictment for an abuse of
discretion. State v. Johnson, 198 Ariz. 245, 247, ¶ 4, 8 P.3d 1159, 1161 (App.
2000).

¶9             Arizona Rule of Criminal Procedure 13.5(b) permits
amendment of an indictment “to correct mistakes of fact or remedy formal
or technical defects,” and provides that the indictment “shall be deemed
amended to conform to the evidence adduced at any court proceeding.” A
defect is “formal or technical” if its correction “does not operate to change
the nature of the offense charged or to prejudice the defendant in any way.”
State v. Freeney, 223 Ariz. 110, 112, ¶ 11, 219 P.3d 1039, 1041 (2009) (citation
omitted).

¶10           Here, Grady was charged with one count of aggravated
assault “by any means of force which causes . . . temporary but substantial
loss or impairment of any body organ or part, or a fracture of any body part,
to-wit: defendant struck victim in the throat causing a fractured thyroid and
voice box.” At trial, the victim testified that he had suffered a fractured
larynx. But he also enumerated several ramifications of the injury,
including trouble breathing for a week, trouble speaking for three months,
and swelling of his neck for a year.

¶11           Defense counsel’s closing argument focused primarily on the
absence of medical testimony or records to substantiate the victim’s claimed
injury, but he also pointed out, in reference to the indictment, that he had
“not heard anything about a fractured thyroid at all in this whole hearing.”

1     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                       3
                            STATE v. GRADY
                           Decision of the Court

The court noted that the indictment could be amended to conform to the
evidence, and after defense counsel concluded his closing, the State moved
to amend the indictment to reflect that “the victim suffered a torn larynx
instead of the other portions.” The court allowed the amendment over a
defense objection that the amendment would alter the charges. Defense
counsel did not ask to reopen the evidence or for an opportunity to
supplement his closing argument in the wake of the amendment.

¶12            The superior court did not abuse its discretion by permitting
what was at most a formal or technical amendment. Although the
indictment originally alleged that Grady’s punch to the victim’s throat
caused “a fractured thyroid and voice box,” “voice box” is a colloquial term
for the larynx. See American Heritage Dictionary 1940 (5th ed. 2011) (defining
“voice box” as “[t]he larynx”). Thus, the amendment to reflect a “torn
larynx” thus only narrowed the indictment by removing the reference to a
“fractured thyroid,” and substituting a synonym (“larynx”) for the
originally-alleged “voice box.”

¶13            The amendment after defense counsel had completed closing
argument did not deprive Grady of adequate notice of and opportunity to
defend against the newly asserted charges. See Johnson, 198 Ariz. at 249, ¶
13, 8 P.3d at 1163. Grady’s counsel in fact defended against the charges as
amended, focusing primarily on the lack of medical evidence to establish
any substantial injury to the victim, and he did not seek to supplement his
closing after the court granted the amendment.

¶14           Grady further asserts that the prosecutor’s characterization of
the injury as a “torn” rather than “fractured” larynx is fatal to the
amendment. But an allegation of a torn larynx did not change the conduct
alleged or modify the elements of the offense. Grady was still alleged to
have punched the victim in the throat, causing “temporary but substantial
loss or impairment of any body organ or part, or a fracture of any body
part.” A.R.S. § 13-1204(A)(3). Even assuming there is a difference between
a torn and a fractured larynx, the victim’s testimony that he suffered
breathing and speaking difficulties along with neck swelling established a
substantial impairment of his larynx, and a “temporary but substantial loss
or impairment of any body organ or part” and “a fracture of any body part”
under § 13-1204(A)(3) are not separate offenses but rather alternative
manners in which to commit the same offense. See State v. Manzanedo, 210
Ariz. 292, 294, ¶¶ 8–9, 110 P.3d 1026, 1028 (App. 2005) (indicating that
consistent or connected acts listed in a statute generally create a single
offense that may be committed in different ways, and noting that the
Legislature can readily indicate an intent to create multiple offenses “by


                                      4
                              STATE v. GRADY
                             Decision of the Court

enacting separate statutes or, at least, separate subsections”). Accordingly,
the superior court did not abuse its discretion by allowing the amendment.

II.    Prosecutorial Misconduct.

¶15           Grady argues that, by stating in closing that the victim had
suffered a torn larynx, the prosecutor referred to information not presented
to the jury and thus impermissibly vouched for evidence of the victim’s
injury. Because Grady did not object at trial, we review only for
fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567–68,
¶¶ 19–20, 115 P.3d 601, 607–08 (2005).

¶16              Prosecutorial vouching is a form of misconduct in which the
“prosecutor suggests that information not presented to the jury supports
the witness’s testimony,” State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150,
155 (1989), or the prosecutor asserts personal knowledge of facts in issue.
State v. Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204 (1993) (citation omitted).

¶17           Prosecutorial misconduct warrants reversal only if “(1)
misconduct is indeed present[,] and (2) a reasonable likelihood exists that
the misconduct could have affected the jury’s verdict, thereby denying
defendant a fair trial.” State v. Moody, 208 Ariz. 424, 459, ¶ 145, 94 P.3d 1119,
1154 (2004). We consider all instances of alleged misconduct cumulatively.
State v. Roque, 213 Ariz. 193, 230, ¶ 164, 141 P.3d 368, 405 (2006). A
defendant is not entitled to relief based on an assertion of prosecutorial
misconduct unless the misconduct is “so pronounced and persistent that it
permeates the entire atmosphere of the trial,” rendering “the resulting
conviction a denial of due process.” State v. Morris, 215 Ariz. 324, 335, ¶ 46,
160 P.3d 203, 214 (2007) (citations omitted).

¶18            During closing, the prosecutor twice referred to the victim’s
injury as a torn larynx rather than as a fracture (as the victim had testified).
Grady argues that these statements in effect constituted testimony by the
prosecutor that the victim’s medical files referred to a laryngeal tear.

¶19           Even assuming something more than a semantic difference
between a laryngeal tear and fracture, however, the prosecutor referred to
a torn larynx not as an assertion of personal knowledge, but rather in the
context of recounting the evidence presented at trial, including the victim’s
description of his injuries and the victim’s characterization of his doctor’s
diagnosis. Compare, e.g., State v. Newell, 212 Ariz. 389, 403, ¶¶ 64–65, 132
P.3d 833, 847 (2006) (concluding that, absent opinion testimony about the
primacy of DNA evidence, the prosecutor’s comment that “we all know
that DNA is . . . the most powerful investigative tool in law enforcement at


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                            STATE v. GRADY
                           Decision of the Court

this time” improperly vouched for the strength of the State’s case by
suggesting evidence not presented to the jury supported the evidence
presented), and State v. Salcido, 140 Ariz. 342, 343–44, 681 P.2d 925, 926–27
(App. 1984) (concluding that prosecutor’s argument that “I went over with
the agents and saw the [evidence]” constituted improper vouching both as
an assertion of personal knowledge and by directing the jurors’ attention to
facts not in evidence to bolster the credibility of State’s witnesses). The
prosecutor’s references to a torn larynx did not “call[] to the jurors’
attention matters that they should not consider,” Roque, 213 Ariz. at 224,
¶ 128, 141 P.3d at 399, and did not constitute prosecutorial misconduct.

                              CONCLUSION

¶20          Grady’s conviction and sentence are affirmed.




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