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     UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       BENJAMIN E. MOTTEN, II, Appellant.

                                 No. 1 CA-CR 13-0845
                                    FILED 2-3-2015


               Appeal from the Superior Court in Maricopa County
                            No. CR2011-109324-005
                    The Honorable Daniel G. Martin, Judge

                                      AFFIRMED


                                       COUNSEL

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

Maricopa County Office of the Legal Advocate, Phoenix
By Colin F. Stearns
Counsel for Appellant
                              STATE v. MOTTEN
                              Decision of the Court



                         MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which
Judge Patricia A. Orozco and Judge Michael J. Brown joined.


T H U M M A, Judge:

¶1           Benjamin E. Motten, II, appeals his convictions and sentences for
armed robbery, kidnapping, aggravated assault, burglary and other offenses.
Finding no error, the convictions and sentences are affirmed.

                   FACTS1 AND PROCEDURAL HISTORY

¶2            A grand jury indicted Motten on seven counts of kidnapping, six
counts of armed robbery, one count of attempted armed robbery, two counts of
aggravated assault, one count of first-degree burglary, one count of conspiracy to
commit first-degree burglary and one count of misconduct involving weapons.
The State alleged Motten and four other men undertook a nighttime home
invasion of a west Phoenix home -- which they mistakenly believed contained
more than 400 pounds of marijuana and large amounts of money -- and the armed
robbery of the extended family living there. The men were alleged to have pistol-
whipped the father, robbed his wife and her mother of their jewelry at gunpoint,
confronted the teenage daughter and her younger female cousin at gunpoint and
ransacked their room and taken a flat-screen television from a room where the
grandfather was sleeping when the home invasion started. The grandfather
looked through the kitchen door when he heard the commotion, saw one of the
intruders and ran to the backyard, where he tried but failed to jump the fence. A
teenage son left the home through his bedroom window, leapt the backyard fence
and ran to a neighbor’s house. When he looked back, he saw one of the intruders
jump the wall, following him.

¶3            The wife called 9-1-1 while the robbery was in progress and police
chased the robbers as they fled the scene in two vehicles, one stolen from the
residence. Police caught Motten and an accomplice after they exited one of the
vehicles and ran to an apartment. When arrested, Motten had jewelry stolen from
the victims in his pocket. The driver of the vehicle in which Motten fled crashed

1On appeal, this court views the evidence in the light most favorable to sustaining
the convictions and resolves all reasonable inferences against the defendant. State
v. Karr, 221 Ariz. 319, 320 ¶ 2, 212 P.3d 11, 12 (App. 2008).


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                                STATE v. MOTTEN
                                Decision of the Court

during a high-speed chase and was arrested later that day after reporting the
vehicle stolen. That driver testified at trial against Motten as part of a plea
agreement.

¶4            Motten did not testify at trial; nor did he dispute that the family was
the victim of a home invasion. Motten defended himself by claiming that he was
merely present, and neither an active participant in, nor an accomplice to, the
charged offenses. On Motten’s motion, the superior court entered a judgment of
acquittal on the charges of kidnapping and armed robbery of the teenage son, and
armed robbery of the teenage daughter. The jury convicted Motten of the
remaining counts.

¶5           The court imposed 20-year sentences on the convictions for
kidnapping and aggravated assault of the younger of the teenage girls, which were
dangerous crimes against children, to be served consecutively. After finding
Motten had been convicted of two prior serious offenses, the court imposed life
sentences without the possibility of release for 25 years for the kidnapping, armed
robbery, conspiracy and burglary convictions, and required four of those life terms
to be served consecutively to each other and to the two 20-year sentences. The
court imposed lesser sentences for the remaining convictions, to be served
concurrently with one of the life sentences.

¶6          From Motten’s timely appeal, this court has jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)
(2015).2

                                   DISCUSSION

I.     Amendment To Kidnapping Charges.

¶7             Motten argues the superior court abused its discretion and violated
his constitutional right to pretrial notice of the charges against him by allowing the
State to amend three kidnapping counts after trial had started, to delete the
reference to the victims being restrained “with the intent to hold [them] for ransom
as a shield or hostage” and replace it with a reference to the victims being
restrained “with the intent to inflict death, physical injury or a sexual offense or to
otherwise aid in the commission of a felony.”3 In moving to amend, the prosecutor


2 Absent material revisions after the relevant dates, statutes and rules cited refer
to the current version unless otherwise indicated.

3The court allowed a similar amendment to a count resolved when the court
entered a judgment of acquittal, a decision not at issue in this appeal.


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                               STATE v. MOTTEN
                               Decision of the Court

explained that he had not realized until the indictment was read to the jury that
several of the seven kidnapping counts included an erroneous reference to an
intent to hold these victims –- as relevant here, the wife, the teenage daughter and
the father -- for ransom or as a hostage, rather than to aid in the commission of the
armed robbery. The prosecutor likened the mistake to a “scrivener’s error.”
Defense counsel argued that the proposed amendments prejudiced him “to some
extent” because it forced him “at the last minute” to revise his opening statement
and his examination of the wife to omit any reference to ransom or hostages in
case the court allowed the amendment, and he had been prepared to defend based
on the language in the indictment.

¶8             The superior court allowed the amendment, reasoning that this
appeared “to be one of clerical or scrivener’s error as opposed to a substantive
error in charging,” and although “there has been some prejudice here, as indicated
by your attorney’s remarks regarding his strategy and the manner in which he
prepared to defend you at this trial . . . the prejudice that you may have suffered
is not so sufficient that it stands as a bar to the amendment.” The superior court’s
decision to grant a motion to amend an indictment is reviewed for abuse of
discretion. State v. Johnson, 198 Ariz. 245, 247 ¶ 4, 8 P.3d 1159, 1161 (App. 2000).

¶9            The Sixth Amendment requires adequate pretrial notice of criminal
charges. See U.S. const. amend. VI. Under Arizona law, an indictment may be
amended to “correct mistakes of fact or remedy formal or technical defects,” and
“shall be deemed amended to conform to the evidence adduced at any court
proceeding.” Ariz. R. Crim. P. 13.5(b). “A defect may be considered formal or
technical when its amendment 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). The nature of the offense is
changed when the elements of the offense materially differ from those of another.
See Freeney, 223 Ariz. at 112–13 ¶ 16, 219 P.3d at 1041–42.

¶10            The Arizona Supreme Court has held that kidnapping is one crime,
regardless of the specific intent the defendant had in committing the offense. State
v. Herrera, 176 Ariz. 9, 15–16, 859 P.2d 119, 125–26 (1993) (holding A.R.S. § 13-1304
defines single offense of kidnapping that might be committed with more than one
purpose or intent, and defendant was not denied unanimous jury verdict even
though jurors might not have agreed on the intent with which he committed the
kidnapping); State v. Eagle, 196 Ariz. 188, 190 ¶ 7, 994 P.2d 395, 397 (2000)
(“Subsection (A) of the text completely defines the crime of kidnapping as it exists
in Arizona. Its elements are plainly set forth: a knowing restraint coupled with one
or more of the specifically listed intentions.”) (emphasis added). This court has held
that it is permissible to convict a defendant of kidnapping with a different intent


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                               STATE v. MOTTEN
                               Decision of the Court

than the intent charged in the indictment. State v. Stough, 137 Ariz. 121, 123, 669
P.2d 99, 101 (App. 1983) (holding, although defendant had been charged with
kidnapping with intent to aid in commission of a felony, it was permissible to
convict him of kidnapping with intent to place victim in reasonable apprehension
of imminent physical injury).

¶11             The amendment here did not change the nature of the offense -- a
knowing restraint of the victim with one of the listed intents -- but simply changed
the intent of the restraint in three of the kidnapping counts to mirror the intent
alleged in the other kidnapping counts. See A.R.S. § 13-1304; cf. Freeney, 223 Ariz.
at 113 ¶ 16, 219 P.3d at 1042; Herrera, 176 Ariz. at 16, 859 P.2d at 126; Stough, 137
Ariz. at 123, 669 P.2d at 101. This was in the nature of a permissible factual or
technical amendment. See Ariz. R. Crim. P. 13.5. Nor did the amendment
impermissibly prejudice Motten. A last minute change to defense counsel’s
opening statement -- presumably to drop any references to hostage-taking -- and
defense counsel’s decision not to ask the first witness potentially irrelevant
questions about being held as a hostage do not rise to the level of prejudice
requiring reversal. Motten also has failed to detail how he was forced to change
his trial strategy as a result of the amendment. Motten’s sole defense was that he
took no part in the charged offenses and was merely an innocent bystander. On
this record, Motten suffered no prejudice from the amendments.

¶12           Motten also received constitutionally adequate notice of the charges
against him under the Sixth Amendment, the touchstone of which “is whether the
defendant had actual notice of the charge, from either the indictment or other
sources.” Freeney, 223 Ariz. at 115 ¶ 29, 219 P.3d at 1044. The joint pretrial
statement made no mention of ransom or hostages, and instead alleged that
Motten and his accomplices threatened to shoot the victims “if they did not comply
with the gunmen,” and “various victims” were forced to lie on the floor “while
their home was robbed.” The indictment itself paired an armed robbery count with
a kidnapping count for each victim, further evidencing that the alleged intent of
the kidnapping was to allow the armed robbery, or “aid in the commission of a
felony.” See A.R.S. § 13-1304(A)(3). The indictment also described the intent of the
home invasion in the burglary count as “to commit a theft or a felony therein.”
Motten admitted in his post-arrest statements that he knew that the others
intended to invade the home and rob the residents. On this record, Motten had
adequate pretrial notice that the State was asserting that he knowingly restrained
each of the kidnapping victims with the intent to aid in the commission of the
armed robbery, and not to hold any one of them as a hostage. Accordingly, the
court did not violate Motten’s constitutional right to pretrial notice of the charges
against him by allowing the amendment.




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                               STATE v. MOTTEN
                               Decision of the Court

II.    Sufficiency Of Evidence Of Kidnapping Count.

¶13          Motten argues the superior court erred in denying his motion for
judgment of acquittal on the charge of kidnapping of the grandfather who escaped
into the backyard, because the evidence failed to demonstrate the kidnappers
knew of his existence, and thus, knowingly restrained him under A.R.S. § 13-1304.

¶14             A motion for judgment of acquittal is appropriate only “if there is no
substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a). “Substantial
evidence . . . ‘is such proof that “reasonable persons could accept as adequate and
sufficient to support a conclusion of defendant's guilt beyond a reasonable
doubt.”’” State v. West, 226 Ariz. 559, 562 ¶16, 250 P.3d 1188, 1191 (2011) (citation
omitted). This court reviews the denial of a motion for judgment of acquittal and
the sufficiency of the evidence to support a conviction de novo. West, 226 Ariz. at
562 ¶15, 250 P.3d at 1191. Facts are viewed in the light most favorable to upholding
the verdict, and all conflicts in the evidence are resolved against defendant. State
v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). Direct and circumstantial
evidence are treated the same under the law. See State v. Stuard, 176 Ariz. 589, 603,
863 P.2d 881, 895 (1993).




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                              STATE v. MOTTEN
                              Decision of the Court



¶15            The superior court properly determined that circumstantial evidence
of the kidnapping of the grandfather was minimally sufficient to survive the Rule
20 motion. The grandfather testified that he ran into the backyard, and remained
there until the intruders left, because he was unable to climb over the fence. The
mother heard one of the kidnappers shout that someone had escaped through a
window. The teenage son testified that after he had escaped through the window,
ran through the backyard and leapt the fence, he saw one of the kidnappers
jumping over the fence in pursuit. Reasonable jurors could have inferred from this
evidence that the home invaders saw the grandfather in the backyard, either when
they saw the teenage son escape through the window, or when one of them ran
through the backyard chasing the teenage son. Although recognizing, as the State
concedes, the evidence was not overwhelming, on this record, the superior court
did not err in denying the Rule 20 motion on this count.

                                CONCLUSION

¶16          Motten’s convictions and sentences are affirmed.




                                      :ama




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