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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 JEFFREY GLENN BUCHOLTZ, Appellant.

                             No. 1 CA-CR 15-0833
                               FILED 10-27-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-110066-001
                 The Honorable Hugh E. Hegyi, Judge

      AFFIRMED IN PART; VACATED IN PART; REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Frances J. Gray
Counsel for Appellant
                           STATE v. BUCHOLTZ
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.


D O W N I E, Judge:

¶1            Jeffrey Glenn Bucholtz (“Defendant”) appeals his convictions
and sentences for five counts of sexual conduct with a minor, two counts of
molestation of a child, and four counts of sexual abuse — all dangerous
crimes against children. For the following reasons, we vacate one
conviction, remand one count for resentencing, and affirm the remaining
convictions and sentences.

                FACTS1 AND PROCEDURAL HISTORY

¶2            In March of 2015, a grand jury indicted Defendant on 11
counts of sexual offenses committed between May 1, 2008 and July 31, 2011,
when the victim (who was born in July 1998) was between the ages of nine
and 13. After the victim testified at trial, the State filed a Motion to Amend
the Indictment to Conform to the Evidence, seeking to amend the date
range for the offenses alleged in counts 3, 4, and 5. Over Defendant’s
objection, the trial court granted the motion, amending the date range for
those three counts to between May 1, 2010 and July 31, 2012.

¶3           The jury found Defendant guilty on all counts. The court
imposed a combination of concurrent and consecutive prison terms,
including — for two of the five convictions for sexual conduct with a minor
— consecutive life sentences without the possibility of release for 35 years.
Defendant timely appealed. We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
-4033(A)(1).




1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Defendant. State v.
Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).


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                            Decision of the Court

                               DISCUSSION

I.     Amended Indictment

¶4            Counts 3–5 of the indictment charged Defendant with sexual
conduct with a minor, molestation of a child, and sexual abuse respectively.
Defendant contends the superior court erred by permitting the State to
amend the date range for these counts after the victim testified at trial about
her age at the time of the offenses.

¶5            In granting the State’s motion to amend, the superior court
did not specifically state the portion of Arizona Rule of Criminal Procedure
(“Rule”) 13.5(b) upon which it relied. The State’s motion argued both a
“formal or technical defect” in the indictment, as well as a request to amend
the indictment to conform to the victim’s trial testimony. We will affirm
the superior court’s ruling if it was correct for any reason. See State v.
Swanson, 172 Ariz. 579, 585 (App. 1992).

¶6            Rule 13.5(b) governs the amendment of criminal charges and
provides, in pertinent part:

       The charge may be amended only to correct mistakes of fact
       or remedy formal or technical defects, unless the defendant
       consents to the amendment. The charging document shall be
       deemed amended to conform to the evidence adduced at any
       court proceeding.

“We review for an abuse of discretion a court’s decision to permit the
amendment of an indictment.” State v. Buccheri-Bianca, 233 Ariz. 324, 329,
¶ 16 (App. 2013).2

¶7          The dates of the count 3–5 offenses are not elements of the
charged crimes, so amending the date range did not lead to substantively

2      Citing State v. Freeney, 223 Ariz. 110, 114, ¶ 26 (2009), Defendant
contends we should apply a harmless error standard of review. Freeney
though, addressed the portion of Rule 13.5(b) dealing with technical or
formal charging defects, not the portion governing amendments to conform
to the evidence. As our discussion infra reflects, the record supports a
determination that the amendment conformed to the trial evidence, did not
charge Defendant with a new offense, and did not cause demonstrable
prejudice.




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different charges. See State v. Jones, 188 Ariz. 534, 544 (App. 1997) (“An error
as to the date of the offense alleged in the indictment does not change the
nature of the offense, and therefore may be remedied by amendment.”).
Nor did Defendant establish prejudice stemming from the amendment.3
The record does not suggest Defendant’s trial defense was affected by the
amendment. Defendant claimed that he never engaged in inappropriate
conduct with the victim and emphasized her purported lack of credibility
and the absence of corroborating evidence. When the superior court
inquired whether there was additional discovery the defense would have
conducted or whether a trial continuance was necessary to “conduct
additional discovery or additional investigation,” defense counsel
responded in the negative. Ultimately, the court ruled:

       I’m not sure what the Defendant would have done differently.
       There’s . . . a vague allegation that this might have affected his
       decision whether to testify on his behalf or not, but nothing
       more specific than that. . . . I don’t see that the Defendant is
       prejudiced.

       He’s not been able to . . . point to any particular investigation
       he might have conducted, had he known that these -- this was
       the date range the State was alleging earlier, and he’s not
       requesting time to conduct any additional investigation or to
       decide further whether he wishes to testify on his behalf.

The superior court’s ruling is supported by the record.

¶8             Defendant’s reliance on State v. Johnson, 198 Ariz. 245 (App.
2000), and State v. Mikels, 119 Ariz. 561 (App. 1978), is unavailing. In
Johnson, the defendant was convicted of sexual conduct with a minor based
on the victim’s trial testimony that he penetrated her vagina with his penis.
Johnson, 198 Ariz. at 246–47, ¶¶ 1–3. Because the indictment had alleged
digital penetration, the State moved to amend the charge to conform to the
victim’s testimony. Id. at 247, ¶ 3. The superior court granted the motion.
Id. On appeal, this Court reversed, holding that Johnson lacked sufficient
opportunity to defend against the amended count because “the acts




3       Indeed, the amended date range for count 3 meant that Defendant
was subject to a presumptive 20-year sentence, rather than the mandatory
life sentence required if the victim had been 12 or younger, as the date range
initially charged reflected. See A.R.S. §§ 13-705(A), (C).


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                           STATE v. BUCHOLTZ
                            Decision of the Court

described in [the victim’s] testimony differed from the acts alleged in the
information.” Id. at 248, ¶ 11.

¶9            In Mikels, the defendant was indicted on one count of sodomy
based on an act allegedly occurring in a jail shower. 119 Ariz. at 562. At
trial, however, the victim testified regarding two incidents of sodomy —
one occurring in the shower and the other occurring on a later date in a jail
cell. Id. During closing arguments, the prosecutor argued for a conviction
based on the jail cell incident. Id. This Court vacated the conviction,
concluding “there were two separate and distinct acts of sodomy” at issue
and that Mikels had been convicted of a crime with which he had not been
charged. Id. at 563.

¶10           The circumstances here are materially different. The victim’s
trial testimony was consistent with counts 3–5 of the indictment, which
alleged digital penetration, sexual contact, and touching the victim’s breast
in her bedroom. See A.R.S. § 13-1401(A)(3) (defining “sexual contact,” in
relevant part, as “direct or indirect touching, fondling or manipulating of
any part of the genitals”). Only the date range was different.

¶11           Because the victim testified that the incidents alleged in
counts 3–5 occurred when she was in the eighth grade, and absent
demonstrable prejudice to the defense, the superior court did not err by
amending the date range to reflect that time frame. See State v. Self, 135 Ariz.
374, 380 (App. 1983) (permissible to amend date of alleged offense at close
of evidence).

II.    Lesser-Included Offense Instruction

¶12           Counts 1, 3, and 8 charged Defendant with sexual conduct
with a minor. As to those counts, Defendant argues the court should have
instructed the jury on the lesser-included offense of child molestation.
Defendant did not request such an instruction at trial. We therefore review
for fundamental error. State v. Tschilar, 200 Ariz. 427, 437, ¶ 39 (App. 2001).
To prevail under this standard of review, Defendant must establish that
error occurred, the error was fundamental, and the fundamental error
resulted in prejudice. See State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005).

¶13               Sexual conduct with a minor prohibits “penetration into the .
. . vulva . . . by any part of the body or by any object or masturbatory contact
with the . . . vulva,” and molestation of a child criminalizes “touching,
fondling or manipulating of any part of genitals.” A.R.S. §§ 13-401(A)(3),
(4), -1405(A), -1410(A); State v. Ortega, 220 Ariz. 320, 328, ¶ 24 (App. 2008).
Thus, molestation of a child is a lesser-included offense of sexual conduct


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                           STATE v. BUCHOLTZ
                            Decision of the Court

with a minor under the age of 15. Ortega, 220 Ariz. at 328, ¶ 25. To be
entitled to the lesser-included molestation instruction for counts 1, 3, and 8,
though, “the evidence must be such that a rational juror could conclude that
defendant committed only the lesser offense.” State v. Wall, 212 Ariz. 1, 4,
¶ 18 (2006).

¶14          The victim testified that on three separate occasions,
Defendant penetrated her vulva or vagina with his finger. See State v.
Marshall, 197 Ariz. 496, 506, ¶ 39 (App. 2000) (“Of course, one cannot
penetrate the vagina without also contacting or penetrating the vulva.”).
Defendant did not claim that he molested the victim, but did not engage in
sexual conduct with her. Based on the evidence before it, no rational juror
could conclude Defendant committed “only” molestation in connection
with counts 1, 3, and 8. Defendant was thus not entitled to the lesser-
included jury instruction, and the court did not err, let alone commit
fundamental error resulting in prejudice, by failing to sua sponte instruct on
molestation as a lesser-included offense of sexual conduct with a minor.
Indeed, giving the molestation instruction sua sponte could have infringed
on Defendant’s trial strategy. See State v. Vowell, 25 Ariz. App. 404, 405
(1976).

III.   Count 1 Sentence

¶15           Defendant argues the court erred in imposing a life sentence
for count 1 because the jury made no finding that the conduct underlying
the offense was not masturbatory contact. We disagree.

¶16            Although masturbatory contact is sufficient to prove sexual
conduct with a minor, such a conviction involving a victim under 12 years
of age gives the trial court discretion to impose a life sentence or a
presumptive prison sentence of 20 years. A.R.S. §§ 13-705(A), (B),
-1401(A)(4), -1405(A). A conviction for sexual conduct with a child younger
than 12 and involving penetration mandates a life sentence. A.R.S. § 13-
705(A).

¶17           As noted, the trial evidence established that Defendant
penetrated the victim’s vulva with his finger, and, based on that act, the
State sought a conviction on count 1. The signed verdict form for count 1
describes the criminal conduct as “digital penetration.” The jury thus
found that penetration, not masturbatory contact, was the basis for the
count 1 conviction. Under these circumstances, the court did not err by
imposing a life sentence for count 1.




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                           STATE v. BUCHOLTZ
                            Decision of the Court

IV.    Count 9

¶18           Defendant argues his conviction on count 9 must be set aside
because the court gave the jury a verdict form describing conduct
constituting sexual conduct with a minor rather than sexual abuse — the
offense charged in the indictment.4 The State concedes error, arguing
“count 9 should be vacated.”

¶19            The verdict form for count 9 reflects that the jury found
Defendant guilty of committing “oral sexual contact in the living room
between 7/1/2009 — 7/31/2011.” Count 9 of the indictment, however,
alleged that Defendant committed sexual abuse by touching the victim’s
breast. Because Defendant was convicted of an act with which he was not
charged, we vacate his conviction on count 9. See State v. Cummings, 148
Ariz. 588, 590 (App. 1985) (A defendant “cannot be convicted for crimes
which were not presented to the grand jury and which did not form the
basis for the grand jury’s indictment.”).

V.     Count 10

       A.     Sufficiency of the Evidence

¶20           In its count 10 verdict, the jury found that Defendant
committed the charged act of sexual conduct with a minor “between
7/1/2009 — 7/31/2011.” Defendant contends the court should not have
submitted this count to the jury because the State failed to prove when the
alleged offense occurred. The State responds that the date of the crime is
not an element of the count 10 offense and that the charged act “occurred
during a discrete time-frame reflected in the record.”

¶21            The superior court recognized that the State had not
established a specific date for the count 10 offense, but noted that the victim
testified regarding a range of dates for all of the charged offenses. The court
ruled:

       There’s a discrete range of time within which [the victim]
       claimed all of the acts took place, and that was only four years
       apart. The Court finds that a reasonable jury could find




4      Defendant also contends the court should have granted his motion
for judgment of acquittal as to count 9. Because we are vacating the count
9 conviction on other grounds, we need not address this argument.


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                           STATE v. BUCHOLTZ
                            Decision of the Court

       beyond a reasonable doubt that the indicted offenses took
       place between the times alleged by the State.

¶22              The record supports this determination. As Defendant
acknowledges, “the State need not prove a specific date if it is alleged that
an offense occurred ‘on or about’ a given date.” See, e.g., State v. Verdugo,
109 Ariz. 391, 392 (1973) (“It has been held repeatedly that it is sufficient
under the law that the precise time of the act is unnecessary to be proven,
if it is alleged that it occurred ‘on or about’ a given date.”). And Defendant
concedes the jury could “conclude that Count 10 occurred sometime
between the ages of 9 and 14.” Although this broad date-span creates a
problem in the context of sentencing for count 10, which we discuss infra, it
did not require the superior court to grant the motion for judgment of
acquittal on that count.

       B.     Life Sentence

¶23            The parties agree that the superior court erred by imposing a
life sentence for count 10. As the State concedes, there was not “sufficient
evidence that the victim was twelve at the time of the [count 10] offense.”

¶24            A life sentence is mandatory for sexual conduct with a minor
if the victim is “twelve years of age or younger.” A.R.S. § 13-705(A). But if
the victim is 12, 13, or 14 years of age, the presumptive sentence is 20 years’
imprisonment. A.R.S. § 13-705(C). We therefore vacate the life sentence
imposed for count 10 and remand that count to the superior court for
resentencing consistent with 13-705(C), which governs convictions for
sexual conduct with a minor aged 12, 13, or 14.

VI.    Resentencing on Remaining Counts

¶25            The State contends that because we are vacating the life
sentence imposed for count 10, Defendant must be resentenced on the
remaining counts. We disagree. Although the superior court stated that
some of the concurrent sentences it imposed were appropriate “because the
amount of time [Defendant will] be serving is already beyond the natural
lifetime of any individual alive today,” our decision leaves undisturbed
Defendant’s life sentence for count 1, and, on remand, the superior court
will resentence Defendant on count 10 — necessarily taking into account
the overall effect of the sentences imposed.




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                         STATE v. BUCHOLTZ
                          Decision of the Court

                             CONCLUSION

¶26          For the foregoing reasons, we vacate Defendant’s conviction
for count 9 and vacate the life sentence imposed for count 10, remanding
count 10 for resentencing. In all other respects, we affirm Defendant’s
convictions and sentences.




                       AMY M. WOOD • Clerk of the Court
                       FILED: AA




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