                                                                       FILED BY CLERK
                                                                           JAN -9 2006
                            IN THE COURT OF APPEALS                        COURT OF APPEALS
                                STATE OF ARIZONA                             DIVISION TWO
                                  DIVISION TWO


                                             )          2 CA-JV 2005-0021
                                             )          DEPARTMENT B
                                             )
IN RE JEREMIAH T.                            )          OPINION
                                             )
                                             )
                                             )


         APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

                                Cause No. JV04000288

                           Honorable Ann R. Littrell, Judge

                                      VACATED


Edward G. Rheinheimer, Cochise County Attorney
 By Nancy J. Galey                                                           Sierra Vista
                                                                      Attorneys for State

Mark A. Suagee, Cochise County Public Defender
 By Kelly A. K. Smith                                                             Bisbee
                                                                     Attorneys for Minor


P E L A N D E R, Chief Judge.


¶1           After a contested hearing, the minor, Jeremiah T., born October 10, 1990, was

found responsible for assault pursuant to A.R.S. § 13-1203(A)(3), a class three

misdemeanor. See § 13-1203(B). He was adjudicated delinquent and placed on six months’
probation. On appeal, he contends the juvenile court erred as a matter of law in ruling that

assault under § 13-1203(A)(3) is a lesser-included offense of assault under § 13-1203(A)(1),

the offense charged in the delinquency petition. We agree and therefore vacate the

adjudication.

¶2              The charges against Jeremiah (also known as Jeremy) arose from an incident

that occurred in the boys’ locker room of a Sierra Vista middle school. The victim, C.,

testified that he had just finished dressing for his physical education class when he was

accosted by Jeremiah and another male student, Nikko, both of whom were older and bigger

than C. According to C., “Nikko and Jeremy came up to me, and Jeremy said [‘]let’s rape

him,[’] and Jeremy stood in front of me and Nikko stood behind me and they bumped into

me with their pelvis area.” C. immediately reported the incident to the physical education

teacher and subsequently described the event to the school principal, his mother, and an

investigating police officer.1

¶3              The delinquency petition charged Jeremiah with committing two class one

misdemeanors: “knowingly, intentionally and recklessly assault[ing C.], in violation of



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        In addition to C., the four other witnesses who testified at the adjudication hearing
were the investigating officer, Jeremiah, Nikko, and Charles, a student who had also been
present in the locker room. Charles testified he had seen Jeremiah and Nikko approaching
C. and C. backing away from them. Although there were a number of conflicts and
inconsistencies in the five witnesses’ testimony for the trial court to resolve, see In re
Maricopa County Juvenile Action No. JS-8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142
(1994) (fact-finder assesses credibility and resolves evidentiary conflicts), their existence and
resolution are irrelevant to the purely legal issue presented on appeal.

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A.R.S. § 13-1203(A)(1),”2 and “threatening by word or conduct to cause physical injury to

[C.], in violation of A.R.S. § 13-1202(A)(1).” At the conclusion of the adjudication hearing,

the juvenile court found the state had not proved either charge beyond a reasonable doubt

but had proved the elements of § 13-1203(A)(3), which the court deemed a lesser-included

offense of § 13-1203(A)(1).

¶4            Section 13-1203(A) provides:

                     A person commits assault by:

                    1. Intentionally, knowingly or recklessly causing any
              physical injury to another person; or

                    2. Intentionally placing another person in reasonable
              apprehension of imminent physical injury; or

                     3. Knowingly touching another person with the intent
              to injure, insult or provoke such person.

¶5            To be a lesser-included offense, “the offense must be composed solely of some

but not all of the elements of the greater crime so that it is impossible to have committed the

crime charged without having committed the lesser one.” State v. Celaya, 135 Ariz. 248,

251, 660 P.2d 849, 852 (1983); accord State v. Cisneroz, 190 Ariz. 315, 317, 947 P.2d

889, 891 (App. 1997). “Put another way, the greater offense contains each element of the

lesser offense plus one or more elements not found in the lesser.” Cisneroz, 190 Ariz. at

317, 947 P.2d at 891; see also State v. Foster, 191 Ariz. 355, ¶ 8, 955 P.2d 993, 995 (App.


       2
       Although count one of the delinquency petition cited A.R.S. § 13-1203(A)(1), it did
not accurately mirror the language of the statute. See ¶ 4, infra.

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1998). “The elements test requires that commission of the greater offense always result in

commission of the lesser offense.” State v. Cutright, 196 Ariz. 567, ¶ 2, 2 P.3d 657, 662

(App. 1999), disapproved on other grounds by State v. Miranda, 200 Ariz. 67, 69, 22 P.3d

506, 508 (2001).3 In applying the elements test, “we focus on the elements of each

provision” without regard to the facts of the case before us. State v. Siddle, 202 Ariz. 512,

¶ 10, 47 P.3d 1150, 1154 (App. 2002).

¶6            It is readily evident from comparing § 13-1203(A)(1) and (A)(3) that the

elements of the two offenses differ and that a person can commit either offense without

necessarily committing the other. Subsection (A)(1) requires that a person cause physical

injury to another person but does not require “touching,” while subsection (A)(3) requires

touching but not resultant injury. “Touching” for purposes of § 13-1203(A)(3) does not

require direct, person-to-person physical contact. It is sufficient if the defendant sets in

motion a force or process that produces some sort of contact with the victim. State v.

Mathews, 130 Ariz. 46, 49, 622 P.2d 1039, 1042 (App. 1981). Examples discussed or

suggested by Mathews include throwing urine from a container onto a person, spitting on



       3
        As this court has noted, “[i]n the context of lesser-included offenses, the test has
been articulated as ‘whether [the purported lesser-included offense] is, by its very nature,
always a constituent part of the greater offense, or whether the charging document describes
the lesser offense even though it does not always make up a constituent part of the greater
offense.’” State v. Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d 1150, 1154 (App. 2002), quoting
State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d 94, 97 (App. 1998) (emphasis
and alteration in Siddle). As discussed below, neither of these alternative tests is satisfied
here.

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someone, poisoning food that the victim ingests, transmitting a disease, or placing caustic

chemicals on a surface touched by the victim. Causing physical injury for purposes of § 13-

1203(A)(1), however, can be accomplished without any touching at all—as, for example,

by withholding needed medication from a dependent or incapacitated victim.

¶7             In addition, the touching required under subsection (A)(3) must be knowing

while the necessary physical injury under subsection (A)(1) can be caused intentionally,

knowingly, or recklessly. And the knowing touch required under subsection (A)(3) must be

accompanied by a specific intent either “to injure, insult or provoke” the victim, which thus

may or may not overlap with subsection (A)(1)’s “intentionally, knowingly or recklessly

causing . . . physical injury.”

¶8             In short, the offense described in § 13-1203(A)(3) is a less serious offense than

the offense described in § 13-1203(A)(1) and a lower class of misdemeanor, see § 13-

1203(B), but it is not a lesser-included offense because the elements of the two offenses are

distinct. See State v. Sanders, 205 Ariz. 208, ¶ 33, 68 P.3d 434, 442 (App. 2003) (the two

types of assault under § 13-1203(A)(2) and (A)(3) are “distinctly different crimes[;] . . .

neither is a lesser-included offense of the other because each offense has elements that the

other does not”); State v. Foster, 191 Ariz. 355, ¶¶ 9-10, 955 P.2d 993, 995 (App. 1998)

(disorderly conduct is lesser-included offense of aggravated assault charged under § 13-

1203(A)(2) but not of assault under § 13-1203(A)(1)).




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¶9            The state characterizes the juvenile court’s ruling as effectively amending the

delinquency petition to conform to the evidence presented at the adjudication hearing. Such

an amendment was permissible, the state contends, pursuant to Rule 29(D)(1), Ariz. R. P.

Juv. Ct., 17B A.R.S. Like its counterpart in the criminal rules, Rule 29(D)(1) provides:

“The charge may be amended only to correct mistakes of fact or remedy formal or technical

defects, unless the juvenile consents to the amendment. The charging document shall be

deemed amended to conform to the evidence presented at any court proceeding.” (Emphasis

added.) See Ariz. R. Crim. P. 13.5(b), 16A A.R.S. But, the juvenile court gave no

indication that it intended such an amendment; it stated only that it found the assault in §

13-1203(A)(3) to be a lesser-included offense of assault under subsection (A)(1).

¶10           Citing State v. Eastlack, 180 Ariz. 243, 258, 883 P.2d 999, 1014 (1994), and

State v. Winter, 146 Ariz. 461, 465, 706 P.2d 1228, 1232 (App. 1985), the state suggests

the delinquency petition was amended automatically, without a formal request by the state

or an express ruling by the court, and that the amendment was constitutionally permissible

because changing the offense from subsection (A)(1) to subsection (A)(3) did not change the

nature of the offense. The state argues that “[t]he nature of the offense charged in this case

was physical contact that resulted in actual injury” and that the nature of the “lesser-

included offense” under § 13-1203(A)(3) was likewise physical contact, that is, “touching.”

¶11           The argument suffers from several flaws. First, it overlooks the divergent

elements of the applicable subsections and instead focuses improperly on the particular facts


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of this case. See Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d at 1154; State v. Cook, 185 Ariz. 358,

361, 916 P.2d 1074, 1077 (App. 1996). Second, it ignores the fact that the delinquency

petition alleged only that Jeremiah had “knowingly, intentionally and [sic] recklessly

assaulted” C. in violation of § 13-1203(A)(1), mentioning neither physical contact nor

resulting injury. Third, it overlooks that “causing . . . physical injury” under subsection

(A)(1) does not inherently require “touching.”

¶12           Finally, unlike the theft offenses involved in Eastlack and Winter, the three

subsections of § 13-1203(A) are not simply variants of a single, unified offense; they are

different crimes. See Sanders, 205 Ariz. 208, ¶ 33, 68 P.3d at 442. As Division One of this

court observed in Sanders, “Whatever merit Winter’s unitary approach might have in the

context of Arizona’s theft statute, it does not transfer to Arizona’s assault statute.” 205

Ariz. 208, ¶ 44, 68 P.3d at 444. We agree with Division One’s reasoning and thus reject the

state’s contention that “the nature of the charge” is the same under either § 13-1203(A)(1)

or (A)(3), permitting an implicit revision of the charge during trial without prior notice or

a formal request by the state.

¶13           Because the elements of § 13-1203(A)(1) and (A)(3) differ, and because it is

possible to commit assault under (A)(1) without also violating (A)(3), assault under the

latter subsection is not a lesser-included offense of assault under the former. Consequently,

the juvenile court erred in adjudicating Jeremiah delinquent for a different offense from the

one with which he had been charged, in the absence of his consent to the change or prior


                                             7
notice. See In re Maricopa County Juvenile Action No. J-75755, 111 Ariz. 103, 106, 523

P.2d 1304, 1307 (1974). Jeremiah was not required to demonstrate prejudice because, when

an amendment changes the nature of the offense charged, “prejudice inheres in the

amendment and is conclusively presumed.” Sanders, 205 Ariz. 208, ¶ 20, 68 P.3d at 440.

“[W]hen the Sixth Amendment is violated by an amendment that ‘actually modifies an

essential element of the offense charged . . . it is reversible per se.’” Id., quoting Hunter v.

New Mexico, 916 F.2d 595, 599 (10th Cir. 1990).

¶14            Accordingly, we vacate the juvenile court’s orders of adjudication and

disposition.



                                               ____________________________________
                                               JOHN PELANDER, Chief Judge

CONCURRING:



____________________________________
PHILIP G. ESPINOSA, Presiding Judge



____________________________________
WILLIAM E. DRUKE, Judge*


*A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge
on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed
December 6, 2005.


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