                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                          v.

                         BRYAN CHAVEZ, Appellant.

                              No. 1 CA-CR 12-0302
                               FILED 4-8-2014


            Appeal from the Superior Court in Mohave County
                        No. S8015CR-2011-00610
                 The Honorable Steven F. Conn, Judge

                                    VACATED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice M. Jones
Counsel for Appellee

Mohave County Appellate Defender, Kingman
By Jill L. Evans
Counsel for Appellant
                           STATE v. CHAVEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Chief Judge Diane M. Johnsen
joined.


B R O W N, Judge:

¶1            Bryan Chavez appeals his conviction and sentence for one
count of criminal trespass, a class 6 felony. For the following reasons, we
vacate his conviction and sentence.

                             BACKGROUND

¶2            Chavez and the victim were neighbors, and Chavez invited
the victim to socialize on a few occasions, but she always declined. Late
one evening, the victim was out with her friends and became sick. A
friend took the victim back to the victim’s apartment, placed her on the
couch, and left. After the friend left, the victim heard a knock at the front
door but did not answer. Shortly thereafter, the victim awoke to find
Chavez sitting next to her on the couch touching her breast, trying to pull
down her pants, and asking if she wanted to touch him. The victim was
initially unable to verbally respond to Chavez, but after her dog climbed
onto the couch and started to bark, the victim screamed. Chavez left and
the victim called her mother. Although the victim was reluctant to contact
the police, her mother reported the incident two days later. The State
subsequently indicted Chavez for one count of burglary in the second
degree, a class 3 felony, and one count of sexual abuse, a class 5 felony.

¶3            At trial, Chavez testified that he saw a person leave the
victim’s home and he immediately knocked on the victim’s front door.
After receiving no response, he walked around to the back of the victim’s
residence, unimpeded by fencing or other barrier, and saw the victim
through a sliding glass door. Chavez opened the sliding door and,
without entering, shouted the victim’s name repeatedly, with no response.
Upon opening the door, Chavez immediately smelled vomit and urine
and, because the victim was unresponsive, he entered the residence and
shook the victim’s shoulder while shouting her name. Eventually, the
victim responded and asked Chavez, somewhat incoherently, to leave,
which he did.


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                           STATE v. CHAVEZ
                           Decision of the Court

¶4            Following the presentation of evidence, when discussing
final jury instructions, the court outlined the instructions it planned to
give, including those relating to burglary and sexual abuse. The court
then sua sponte raised the issue whether a criminal trespass instruction
should be given:

      On the possibility of trespass – and it may be that I don’t
      need to even have this discussion; but it seems that there’s a
      factual issue as to whether the defendant had the intent to
      make this into a burglary. The cases make it very clear that
      trespass is not a lesser-included offense within burglary, and
      the cases that address that, I think, are cases where the
      defense requested trespass as a lesser included and were not
      given it at the trial level and the appellate courts upheld that
      decision. The two other cases that I cited to counsel
      informally, talk about cases where trespass was given as a
      lesser included, and there’s no discussion as to whether that
      was a mistake. I’m kind of assuming that those were cases
      in which the parties agreed that trespass would be given as a
      lesser included. So, I’m open to suggestions, but I’m secretly
      hoping that you all agree on what to do with any trespass
      issue.

¶5           The court asked the prosecutor whether he had anything he
“want[ed] to place on the record . . . regarding the instructions or forms of
verdict” and he stated he did not. The court likewise inquired whether
defense counsel had anything he wanted to place on the record and the
following exchange occurred:

      DEFENSE COUNSEL:         I do believe that the Portillo 1
      instruction unnecessarily unduly waters down the
      reasonable doubt instruction, so I would object to that
      instruction.

      COURT: All right. Go ahead and make all your record; then
      I’ll address it at the end.

      DEFENSE COUNSEL: And then, your honor, I would
      address the lesser included offense of criminal trespass
      under [Arizona Revised Statutes section] 13-1504(A)(1).


1     State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995).



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                           Decision of the Court

      COURT: Let me just ask, [prosecutor], do you object to my
      instructing the jury on criminal trespass in the first degree?

      PROSECUTOR: No, your honor.

      COURT: All right, so if we’re in agreement on that, then I
      think we fall into the second area of cases where – and I
      don’t know how comfortable I’d feel stating this on the
      record, but I guess we fall under the category where if
      everyone agrees that we will do something that is probably
      improper, that’s okay; and I’m just making sure that this is
      clear, in case any Court of Appeals in the future is listening
      to this thinking, well, why did Judge Conn, after citing the
      cases that say trespass is not a lesser included, go ahead and
      give an instruction; is he a complete idiot, or what? So
      apparently, you all are agreeing that I will instruct the jury
      on criminal trespass in the first degree as a lesser included.
      So that will change a couple things[.]

¶6            The jury acquitted Chavez of sexual abuse and either
acquitted or could not unanimously agree on burglary in the second
degree, but convicted him of criminal trespass as a “lesser-included
offense” of burglary in the second degree. The court imposed three years’
probation with a condition to serve ninety days in jail. Chavez timely
appealed.

                              DISCUSSION

¶7            In response to this court’s request for supplemental briefing
on the issue, Chavez argues criminal trespass is not a lesser-included
offense of burglary, meaning the trial court erred in instructing the jury on
that charge. 2 Because Chavez did not object to the criminal trespass
instruction, we review for fundamental error only. State v. Henderson, 210
Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To prevail on fundamental


2      On the court’s own motion, we also requested that the parties
address, in supplemental briefing, whether the trial court fundamentally
erred in giving the criminal trespass jury instruction. See State v.
Fernandez, 216 Ariz. 545, 554, ¶ 32, 169 P.3d 641, 650 (App. 2007)
(“Although we do not search the record for fundamental error, we will not
ignore it when we find it.”).




                                     4
                            STATE v. CHAVEZ
                            Decision of the Court

error review, Chavez must show “both that fundamental error exists and
that the error in his case caused him prejudice[.]” Henderson, 210 Ariz. at
567, ¶ 20, 115 P.3d at 607.

¶8            On appeal, the State concedes that criminal trespass is not a
lesser-included offense of burglary in the second degree under the
“elements” test. 3 See State v. Malloy, 131 Ariz. 125, 130-31, 639 P.2d 315,
320-21 (1981). The State also concedes that the indictment did not charge
Chavez with criminal trespass. See State v. Kozan, 146 Ariz. 427, 429, 706
P.2d 753, 755 (App. 1985).

¶9           The law is clear that a “person cannot be convicted of an
offense not charged against him by indictment or information.” State v.
Rogers, 113 Ariz. 6, 8, 545 P.2d 930, 932 (1976). “When the elements of one
offense materially differ from those of another – even if the two are
defined in subsections of the same statute – they are distinct and separate
crimes.” State v. Freeney, 223 Ariz. 110, 113, ¶ 16, 210 P.3d 1039, 1042
(2009). Therefore, the trial court erred by giving the criminal trespass
instruction and allowing the jury to convict Chavez of an offense with
which he was not charged. See Ariz. Const. art. II, § 30 (“No person shall
be prosecuted criminally in any court of record for felony or
misdemeanor, otherwise than by information or indictment[.]”).

¶10           The State nonetheless asserts Chavez’s conviction should be
affirmed because he allegedly requested the erroneous instruction and
thus invited the error. “[W]hen a party requests an erroneous instruction,
any resulting error is invited and the party waives his right to challenge
the instruction on appeal.” State v. Logan, 200 Ariz. 564, 565, ¶ 8, 30 P.3d
631, 632 (2001). “If an error is invited, we do not consider whether the
alleged error is fundamental[.]” Id. at ¶ 9. “The purpose of the doctrine is
to prevent a party from ‘inject[ing] error in the record and then profit[ing]
from it on appeal.’” Id. at 566, ¶ 11, 30 P.3d at 633 (quoting State v. Tassler,
159 Ariz. 183, 185, 765 P.2d 1007, 1009 (App. 1988)). “We achieve that
purpose by looking to the source of the error, which must be the party

3       Pursuant to Arizona Revised Statutes (A.R.S.) section 13-1507(A), a
person commits burglary in the second degree “by entering or remaining
unlawfully in or on a residential structure with the intent to commit any theft
or any felony therein.” (Emphasis added.) By contrast, “[a] person commits
criminal trespass in the first degree by knowingly entering or remaining
unlawfully in or on a residential structure.” A.R.S. § 13-1504(A)(1)
(emphasis added).



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                           STATE v. CHAVEZ
                           Decision of the Court

urging the error[.]” Logan, 200 Ariz. at 566, ¶ 11, 30 P.3d at 633. “Mere
acquiescence is insufficient to find invited error; the party must have
‘affirmatively and independently initiated the error.’” State v. Torres, 233
Ariz. 479, 481, ¶ 7, 314 P.3d 825, 827 (App. 2013) (quoting State v. Lucero,
223 Ariz. 129, 138, ¶ 31, 220 P.3d 249, 258 (App. 2009)). As noted in Lucero,
expanding the invited error doctrine to include acquiescence to error
injected by the court “would cast the net too wide, penalizing both parties
who intend to build error into the record for strategic purpose along with
those who are merely unwitting.” 223 Ariz. at 138, ¶ 29, 220 P.3d at 258.

¶11           According to the transcript excerpt quoted above, in
responding to the court’s question about final instructions, defense
counsel stated he “would address the lesser included offense of criminal
trespass.” (Emphasis added.) On appeal, citing the context of the
statement, the State contends defense counsel actually said he “would
request the lesser included offense of criminal trespass.” (Emphasis
added.) Rather than ask this court to presume the transcript is mistaken,
however, the State should have sought to confirm its contention before it
filed its supplemental brief by requesting that the record be settled
pursuant to Arizona Rule of Criminal Procedure 31.8(h). See State v. Diaz,
223 Ariz. 358, 362, ¶ 18, 224 P.3d 174, 178 (2010) (explaining that when the
State learned of a possible transcription error, it “could and should have
asked the appellate court to employ [Rule 31.8(h)] to clarify what actually
occurred” and thereby “better served the goals of timely administering
justice and searching for the truth.”).

¶12            Although we have discretion to sua sponte stay the appeal
and remand for clarification of the record, id., a remand is unnecessary
because, even accepting the State’s “correction” of the transcript, the
instruction would not constitute invited error by Chavez. The record
reflects that the trial court sua sponte suggested to counsel that a criminal
trespass instruction would be appropriate given the trial evidence. The
court acknowledged that the criminal trespass instruction was not a
lesser-included offense of burglary, but suggested the instruction could be
given if the parties all agreed. Thus, we reject the State’s assertion that
Chavez invited the erroneous instruction. See Logan, 200 Ariz. at 566, ¶ 11,
30 P.3d at 633 (explaining that, for the doctrine of invited error to apply,
the source of the error “must be the party urging the error”).

¶13          Alternatively, the State asserts that no fundamental error
occurred because Chavez effectively consented to an amendment of the
indictment to add a charge of criminal trespass. Arizona Rule of Criminal
Procedure 13.5(b) provides that an indictment “may be amended only to


                                     6
                            STATE v. CHAVEZ
                            Decision of the Court

correct mistakes of fact or remedy formal or technical defects, unless the
defendant consents to the amendment.” Because the rule “implicates
several important policy considerations,” the Arizona Supreme Court has
directed that it be “strictly” limited “to its terms.” Freeney, 223 Ariz. at 115
n.3, 219 P.3d at 1044 n. 3.

¶14           Nothing in the record suggests that the State sought to
amend the indictment. Rather, the court constructively amended the
indictment tacitly by instructing the jury on criminal trespass. See United
States v. Daraio, 445 F.3d 253, 259-60 (3d Cir. 2006) (“An indictment is
constructively amended when, in the absence of a formal amendment, the
evidence and jury instructions at trial modify essential terms of the
charged offense in such a way that there is a substantial likelihood that the
jury may have convicted the defendant for an offense different from the
offense the indictment returned by the grand jury actually charged.”).
Such an amendment was not permissible under Rule 13.5(b) absent
Chavez’s affirmative consent. See State v. Sanders, 115 Ariz. 289, 293, 564
P.2d 1256, 1260 (App. 1977) (explaining that because an amendment to an
indictment involves “a fundamental element of due process,” a defendant
must consent to an amendment). In this case, the State never moved to
amend the indictment; instead, the purported constructive amendment
was initiated sua sponte by the court and occurred after the close of
evidence without Chavez’s affirmative consent, in violation of Rule
13.5(b).

¶15           As explained by our supreme court in Freeney, “a violation of
Rule 13.5(b) is neither prejudicial per se nor structural error.” 223 Ariz. at
114, ¶ 26, 219 P.3d at 1043. Rather, “Rule 13.5(b) is a prophylactic”
measure that may “be violated even when the Sixth Amendment notice
requirement has been satisfied.” Id. at 114, ¶ 25, 219 P.3d at 1043.
Accordingly, whether the rule violation that occurred here was prejudicial
turns on whether Chavez’s Sixth Amendment rights were violated. Id. at
114, ¶ 25, 219 P.3d at 1043 (explaining “a violation of Rule 13.5(b) does not
necessarily equate to an infringement of a defendant’s Sixth Amendment
rights”).

¶16            The Sixth Amendment to the United States Constitution,
applicable to the states through the Fourteenth Amendment, requires that
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
informed of the nature and cause of the accusation.” The State does not
identify nor does our own review of the record reveal anything to suggest
Chavez was on notice that the State would seek to convict him of criminal
trespass. In Freeney, the supreme court found the State’s pretrial


                                       7
                            STATE v. CHAVEZ
                            Decision of the Court

disclosures adequately placed the defendant on notice, for both Rule 13.5
and Sixth Amendment purposes, that the State sought to prove the
amended charge. 223 Ariz. at 114-15, ¶¶ 26-28, 219 P.3d at 1043-44. Here,
however, Chavez had no notice of any criminal trespass charge and
reasonably could have believed that the State’s failure to prove he
intended to commit a felony inside the victim’s apartment would result in
an acquittal on the burglary charge. See State v. Branch, 108 Ariz. 351, 355,
498 P.2d 218, 222 (1972) (“An opportunity to prepare and present his
defense without facing conviction of a crime of which he has no notice is
an essential right for the criminal defendant.”); see also State v. Sims, 114
Ariz. 292, 295, 560 P.2d 810, 813 1977) (“Due process requires that an
accused be on notice of the offense charged. This is the reason we have
the rule that a defendant may be convicted of an offense different from
that in the charging document only if it is an included offense or pursuant
to the consent of the defendant as provided in Rule 13.5(b)[.]”).

¶17           Because we conclude Chavez was denied his constitutional
right to adequate notice of the offense of which he was ultimately
convicted, we vacate his conviction and sentence. See Branch, 108 Ariz. at
355, 498 P.2d at 222 (vacating conviction because the trial court
fundamentally erred when it gave a lesser-included offense instruction,
depriving the defendant of a right essential to his defense); see also Freeney,
223 Ariz. at 113, ¶ 26, 219 P.3d at 1042 (“For Sixth Amendment purposes,
when a defendant does not receive constitutionally adequate notice of the
charges against him, he is necessarily and actually prejudiced.”); State v.
Martin, 139 Ariz. 466, 472, 679 P.2d 489, 495 (1984) (holding it is
“inconceiveable” that an error allowing a jury to convict “based on acts
not charged” could be harmless); Larson, 222 Ariz. at 345, ¶ 18, 214 P.3d at
433 (vacating defendant’s conviction and sentence for uncharged offense);
In re Jeremiah T., 212 Ariz. 30, 34, ¶¶ 13-14, 126 P.3d 177, 181 (App. 2006)
(vacating an adjudication of delinquency for an uncharged offense). 4


4      Based on our conclusion that the trial court erred by instructing the
jurors on criminal trespass, and that such error was both fundamental and
prejudicial, we need not address Chavez’s additional arguments that his
statements to police officers during their investigation were inadmissible
under Miranda v. Arizona, 384 U.S. 436 (1966), or that the trial court made
improper comments during sentencing. Furthermore, although both
parties raise arguments regarding whether retrial is barred by double
jeopardy, we leave it to the trial court to decide that issue in the first
instance.



                                      8
                        STATE v. CHAVEZ
                        Decision of the Court

                           CONCLUSION

¶18           Because Chavez was convicted of an uncharged offense, we
vacate his conviction and sentence.




                               :MJT




                                  9
