                                                                  FILED BY CLERK
                        IN THE COURT OF APPEALS
                            STATE OF ARIZONA                        NOV 30 2011
                              DIVISION TWO
                                                                      COURT OF APPEALS
                                                                        DIVISION TWO

THE STATE OF ARIZONA,           )
                                )                 2 CA-CR 2011-0106
                     Appellee, )                  DEPARTMENT A
                                )
         v.                     )                 OPINION
                                )
JERROLD DEAN BROMAN,            )
                                )
                     Appellant. )
                                )


         APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

                              Cause No. CR200600044

                        Honorable James L. Conlogue, Judge

                                    AFFIRMED


Thomas C. Horne, Arizona Attorney General
 By Kent E. Cattani and Nicholas Klingerman                                 Tucson
                                                             Attorneys for Appellee

Joel A. Larson, Cochise County Legal Defender                               Bisbee
                                                             Attorney for Appellant


E C K E R S T R O M, Presiding Judge.
¶1             Appellant Jerrold Broman was convicted pursuant to a plea agreement of

failing to register as a sex offender and was placed on probation. In this appeal, he

challenges the trial court‟s revocation of probation after a contested violation hearing and

its imposition of a 2.5-year prison term. Broman argues the petition to revoke his

probation was “duplicitous” because it alleged in a single count that he had “unlawfully

possess[ed] child pornography (10 counts),” and the state introduced over forty images at

the hearing to prove the allegation. He also claims the court‟s finding that he had violated

probation was arbitrary and unsupported by any theory of the evidence because nothing

directly linked him to the images introduced at the hearing. We affirm for the reasons

that follow.

                          Factual and Procedural Background

¶2             After Broman‟s probation officer saw pornography on Broman‟s computer

during a residence check, the computer was seized and numerous images of child

pornography were discovered on its hard drive. In a subsequent interview with a police

detective, Broman admitted he had known about and seen child pornography on his

computer, but he claimed he had deleted it upon seeing it, and he attributed its presence

there to “people in the neighborhood that use his computer,” some of whom enter his

home “in the middle of the night to use his computer without him knowing.”

¶3             The state filed a petition to revoke probation which, as noted above,

contained a single allegation that Broman had “possess[ed] child pornography (10

counts)” on the date of the probation officer‟s visit. Broman waived the reading of the
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allegation at his arraignment and made no objection to the petition‟s lack of specificity

during his violation hearing. At the hearing, the state introduced at least forty images of

child pornography taken from Broman‟s computer1 and elicited testimony he had

possessed even more. Based on this evidence, the trial court determined Broman had

violated his probation. The court expressly found “there were ten or more images which

. . . Broman received or possessed that depict minors in explicit exhibition.”

                                        Discussion

¶4            Broman acknowledges that because he did not raise any duplicity objection

below, he has the burden of establishing error occurred and that the error was both

fundamental and prejudicial. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d

601, 607-08 (2005). He concedes he has found no authority to support his claim that the

law regarding duplicitous charges and indictments applies to probation revocation

proceedings. We conclude the reason for this dearth of authority is that the substantive

and procedural rights involved in criminal trials are markedly different than those in

probation proceedings; thus, the law regarding duplicity does not apply in the probation

context.

¶5            As our supreme court explained in Spencer v. Superior Court, 136 Ariz.

608, 610, 667 P.2d 1323, 1325 (1983), a “duplicitous” indictment—one “charging

separate crimes in the same count”—is prohibited by law because it fails “to give


       1
       Broman has not included any of the exhibits admitted at the hearing in the record
on appeal.
                                          3
adequate notice of the charge to be defended,” risks a nonunanimous verdict, and makes a

precise pleading of double jeopardy impossible in the event of a future prosecution.

Similar problems relating to notice, jeopardy, and unanimity arise from duplicitous

charges.2 State v. Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d 844, 847 (App. 2008).

¶6            In a probation revocation proceeding, however, a defendant‟s double

jeopardy rights are not implicated. This is because the proceeding does not create a risk

of conviction and therefore does not place a probationer in jeopardy within the meaning

of the constitution. In re Maricopa Cnty. Juv. Action No. J-83341-S, 119 Ariz. 178, 181,

580 P.2d 10, 13 (App. 1978); see Lemke v. Rayes, 213 Ariz. 232, n.2, 141 P.3d 407, 411

n.2 (App. 2006) (“The double jeopardy protections extended by the Arizona Constitution

are coextensive with those provided by its federal counterpart.”). Although Broman relies

on language from State v. Simmerman, 118 Ariz. 298, 300, 576 P.2d 157, 159 (App.

1978), to support his view that double jeopardy principles prohibit successive petitions to

revoke probation based on the same allegations, that language is mere dicta, not the

holding of the case. Furthermore, as Broman acknowledges, probation proceedings also

are distinguishable from criminal prosecutions in that a single judge is always the trier of

fact; there is no jury and therefore no possibility of a nonunanimous decision. See Ariz.


       2
         We explained the distinction between a duplicitous indictment and a duplicitous
charge in State v. Paredes-Solano as follows: “A duplicitous charge exists „[w]hen the
text of an indictment refers only to one criminal act, but multiple alleged criminal acts are
introduced to prove the charge.‟” 223 Ariz. 284, ¶ 4, 222 P.3d 900, 903 (App. 2009),
quoting State v. Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d 844, 847 (App. 2008) (alteration in
Paredes-Solano).
                                             4
R. Crim. P. 27.8(b)(4) (requiring court to “make specific findings of the facts which

establish the violation”). The law of duplicity is thus inapposite in a probation hearing.

¶7            Due process, of course, entitles a probationer to adequate notice of any

allegation that might result in the revocation or modification of probation. State v. Stotts,

144 Ariz. 72, 80, 695 P.2d 1110, 1118 (1985); State v. Turnbull, 114 Ariz. 289, 290, 560

P.2d 807, 808 (App. 1977); see Maricopa Cnty. J-83341-S, 119 Ariz. at 181, 580 P.2d at

13; see also Ariz. R. Crim. P. 27.8(a)(2) (requiring court to “inform the probationer of

each alleged violation of probation” at revocation arraignment). Thus, even though

duplicity law does not apply to probationers, principles of due process require a degree of

specificity with respect to the allegations that must be proven by the state. As this court

stated in Turnbull:

              While the allegations in a petition to revoke probation do not
              require the same particularity of an indictment or an
              information, in all fairness, the allegations as to a violation
              should be fully and clearly set forth in the petition so that the
              probationer might be informed, by written notice, as to that
              which he will be called to defend.

114 Ariz. at 291, 560 P.2d at 809.

¶8            Broman basically argues he was deprived of notice essential to the

preparation of his defense. Even assuming we were to agree with Broman that, in the

abstract, a combination of imprecise allegations, overabundant evidence, and nonspecific

findings by a trial court can deprive a probationer of due process, he would not be entitled

to relief in any event.    Again, having failed to object, Broman has the burden of

                                             5
establishing he was prejudiced by error that was fundamental. Henderson, 210 Ariz. 561,

¶¶ 19-20, 115 P.3d at 607. Broman has not shown prejudice here.

¶9           As the state points out, Broman‟s defense was a blanket denial that he

voluntarily had possessed any of the illicit images found on his computer. Broman

suggests that more details about the illicit images would have provided him with

additional defenses. But he has not shown these defenses were anything more than

speculative. Although it is unclear here which images provided the specific bases for the

trial court‟s determination that Broman had violated the terms and conditions of

probation, it is undisputed on appeal that the images admitted at the hearing constitute

child pornography.    Broman‟s own admissions, together with the court‟s apparent

rejection of his implausible explanation of how child pornography ended up on his

computer, provided a sufficient basis for the court‟s determination that the state had

sustained its burden of proving the violation by a preponderance of the evidence. See

Ariz. R. Crim. P. 27.8(b)(3); State v. Vaughn, 217 Ariz. 518, ¶¶ 14, 18, 176 P.3d 716,

719, 720 (App. 2008). Under the circumstances, therefore, we do not find any prejudice

from the alleged errors. Cf. State v. Ramsey, 211 Ariz. 529, ¶ 7, 124 P.3d 756, 760 (App.

2005) (denying relief when defendant “[did] not specifically articulate[] how his defense

was impaired or prejudiced by the indictment against him”).




                                           6
                                   Disposition

¶10         The trial court‟s revocation of probation and imposition of sentence are

affirmed.

                                         /s/ Peter J. Eckerstrom
                                         PETER J. ECKERSTROM, Presiding Judge

CONCURRING:



/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge



/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge




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