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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   RAYMOND EARL MAYES, Appellant.

                             No. 1 CA-CR 14-0676
                               FILED 1-19-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-001050-001
            The Honorable Jerry Bernstein, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant
                             STATE v. MAYES
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined.


P O R T L E Y, Judge:

¶1             This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant
Raymond Earl Mayes has advised us that he has been unable to discover
any arguable questions of law after searching the entire record, and has
filed a brief requesting that we conduct an Anders review of the record.
Mayes did not take the opportunity to file a supplemental brief.

                                   FACTS1

¶2            Detective Hatcher and Detective Vail were in separate cars
conducting street patrols in Mesa on March 16, 2013. Detective Hatcher saw
Mayes walking and carrying a black satchel. Recognizing Mayes from
previous encounters, Detective Hatcher radioed Detective Vail to stop and
assist him with making casual contact. Both detectives stopped their cars,
and Detective Hatcher approached Mayes and asked him if he was carrying
anything illegal. Mayes responded, “No,” and the detective patted down
Mayes and did not find any weapons or drugs. Then, with Mayes’ consent,
the detective searched the satchel. The detective found a large number of
DVDs, and a clear plastic bag containing a green leafy substance. Mayes
admitted that the plastic bag contained marijuana, and that it belonged to
him. The detective subsequently read Mayes his Miranda2 rights, and gave
the seized DVDs, which were suspected to be counterfeit, to Detective
Fitzgerald, who had been called for assistance.




1 We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
2 Miranda v. Arizona, 384 U.S. 436 (1966).




                                       2
                             STATE v. MAYES
                            Decision of the Court

¶3             Mayes was subsequently indicted for two counts of unlawful
copying or sale of sounds from recording devices, one count of possession
or use of marijuana, and one count of possession of drug paraphernalia.
Mayes moved to suppress the marijuana and DVDs, arguing he had not
consented to the search and the items, as a result, were the result of an
illegal search. The trial court held an evidentiary hearing, heard witness
testimony, and, after finding Mayes’ testimony lacked “inherent
credibility,” denied the motion because Mayes had consented to the search.
The State, however, successfully moved to dismiss the possession of
marijuana charge because of concerns about the forensic testing of the
substance.3

¶4            During trial, the court granted the State’s request, over
Mayes’ objection, to amend the indictment by modifying the drug
paraphernalia count. After the presentation of the evidence, jury
instructions and closing arguments, the jury found Mayes guilty of
possession of drug paraphernalia and both counts of unlawful copying or
sale of sounds from recording devices. Mayes was subsequently sentenced
to concurrent terms of 1.75 years,4 and given 418 days of presentence
incarceration credit.

¶5            We have jurisdiction over this appeal pursuant to Article 6,
Section 9, of the Arizona Constitution, and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).5

                                DISCUSSION

¶6             We have read and considered the opening brief and have
searched the entire record for reversible error. Although we find no
reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we address the
ruling allowing the State to amend the indictment during trial. Because
Mayes objected to the amendment, we review the issue for an abuse of
discretion, State v. Buccheri-Bianca, 233 Ariz. 324, 329, ¶ 16, 312 P.3d 123, 128
(App. 2013) (citation omitted), and will affirm the conviction so long as any


3 The record also reveals there were concerns about the chain of custody of
the alleged marijuana because Detective Hatcher did not impound the
marijuana until four days after it was seized from Mayes.
4 The trial court also ordered the sentence concurrent with Mayes’

conviction in CR 2013-433938 for possession of marijuana.
5 We cite to the current version of the statutes unless otherwise noted.




                                       3
                              STATE v. MAYES
                             Decision of the Court

abuse of discretion is harmless. See State v. Valverde, 220 Ariz. 582, 585, ¶
11, 208 P.3d 233, 236 (2009) (citations omitted). An error is harmless if it did
not contribute to or affect the verdict. Id.

¶7             Arizona Rule of Criminal Procedure (“Rule”) 13.5 allows for
amendments to an indictment so long as an amendment is timely, as
defined by Rule 16.1(b), and only if it is to “correct mistakes of fact or
remedy formal or technical defects.”6 Ariz. R. Crim. P. 13.5. A defect is
“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. Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980). If an amendment
violates the defendant’s right to “notice of the charges against him with an
ample opportunity to prepare to defend against them” or if “the acquittal
of the amended charge . . . provide[s] a double jeopardy defense to a
subsequent prosecution on the original charge,” then the amendment is
impermissible because it does not merely correct a technical defect. State v.
Barber, 133 Ariz. 572, 577, 653 P.2d 29, 34 (App. 1982); see also State v. Johnson,
198 Ariz. 245, 248, ¶ 8, 8 P.3d 1159, 1162 (App. 2000). Moreover, the
defendant must also show that he or she has “suffered actual prejudice from
an amendment.” Johnson, 198 Ariz. at 248, ¶ 8, 8 P.3d at 1162.

¶8             In State v. Freeney, our supreme court defined when an
amendment is material, and also noted that permissible amendments “have
corrected dates, names, addresses, and even a statutory section number,
when the defendants had adequate notice of the intended charge and the
typographical error was first discovered shortly before trial.” 223 Ariz. 110,
113, ¶¶ 16, 18, 219 P.3d 1039, 1042 (2009); see Buccheri-Bianca, 233 Ariz. at
330, ¶¶ 19-22, 312 P.3d at 129 (finding that amendment changing the
location of the crime was not prejudicial because location was not element
of the offense, and defendant was permitted to point out amendment to jury
and argue that it demonstrated major change in victim’s story); Bruce, 125
Ariz. at 423, 610 P.2d at 57 (finding that where defense counsel had notice
of discrepancies in dates before trial began, amending the indictment to
correct the dates was not prejudicial); cf. Johnson, 198 Ariz. at 248, ¶¶ 11-13,
8 P.3d at 1162 (finding that an amendment, after State rested, to conform
with testimony about acts different from those alleged was prejudicial

6Rule 16.1(b) states that all motions should be made “no later than 20 days
prior to trial, or at such other time as the court may direct.” Ariz. R. Crim. P.
16.1(b) (emphasis added); see also State v. Colvin, 231 Ariz. 269, 271, ¶ 7, 293
P.3d 545, 547 (App. 2013) (“Trial courts have discretion to extend the time
for filing motions and, implicitly, to hear untimely motions.”).


                                        4
                            STATE v. MAYES
                           Decision of the Court

because defendant not given opportunity to defend against amended count
or prove that defense to the jury).

¶9            Here, the trial court permitted the State to amend the
indictment after the jury had been selected and the charges read. The
original indictment for possession of drug paraphernalia alleged:

      [O]n or about the 16th day of March, 2013, unlawfully used or
      possessed with intent to use a baggie, drug paraphernalia, to
      plant, propagate, cultivate, grow, or harvest marijuana, in
      violation of A.R.S. §§ 13-3401, 13-3405, 13-3415, 13-3418, 13-
      701, 13-702, and 13-801.

(Emphasis added.) The amendment, however, removed the words “to
plant, propagate, cultivate, grow, or harvest marijuana” and replaced them
as follows:

       [O]n or about the 16th day of March, 2013, unlawfully used
       or possessed with intent to use a baggie, drug paraphernalia,
       to pack, repack, store, contain, or conceal marijuana in violation
       of A.R.S. §§ 13-3401, 13-3405, 13-3415, 13-3418, 13-701, 13-702,
       and 13-801.

(Emphasis added.) The elements of the two charges are distinct – from
“plant, propagate, cultivate, grow, or harvest marijuana” to “pack, repack,
store, contain, or conceal marijuana.” The amendment did more than
correcting a defect. It was a substantive change in what the State would
have to prove at trial and was made after the jury had been empaneled and
the charges read. The amendment was, as a result, impermissible, and the
court should have sustained the objection.

¶10           We find, however, the ruling granting the amendment was
not prejudicial. In Freeney, our supreme court held that an amendment
altering the nature of the indicted offense was harmless error because the
defendant had received notice of the victim’s injuries, and he did not allege
the amendment affected his trial preparation or argument, or require him
to change his defense theory. 223 Ariz. at 114-15, ¶¶ 27-28, 219 P.3d at
1043-44.




                                      5
                            STATE v. MAYES
                           Decision of the Court

¶11           Here, the defense acknowledged at trial that the charge, as
originally contained in the indictment, stated the drug paraphernalia (the
baggie) was used to contain marijuana, even though the indictment stated
that the paraphernalia was to be used to plant, propagate, cultivate, grow
or harvest marijuana. Mayes also argued that the evidence to prove the
original charge would be different than the charge as amended. Although
the evidence might have been different, the relevant statutory section,
A.R.S. § 13-3415(A), however, was the same for both the original and
amended indictment. Moreover, Mayes testified at trial and admitted that
the plastic bag was his, and had admitted to the detectives at the scene that
the substance inside the bag was marijuana. Although the original indicted
charge suggested that he was planting and harvesting the marijuana
contained in the baggie, the nature of the original charge was sufficient to
put him on notice that regardless of what he was using the marijuana for, it
was in the baggie and the possession of the baggie was the offense. And
even though the charging mistake should have been caught by the State
well before the charges were read to the jury, especially considering the
evidentiary hearing on the motion to suppress, Mayes does not allege that
his defense theory or defense changed or was affected as a consequence of
the amendment. Thus, the error in allowing the amendment was harmless.

                   FUNDAMENTAL ERROR REVIEW

¶12           The record, as presented, reveals that Mayes was represented
by counsel at all stages of the proceedings, and counsel filed appropriate
pretrial motions and protected Mayes’ interests by objecting, especially to
the amendment. Moreover, the sentences imposed were within the
statutory limits and appropriately concurrent.

¶13            After this decision is filed, counsel’s obligation to represent
Mayes in this appeal has ended. Counsel must only inform Mayes of the
status of the appeal and Mayes’ future options, unless counsel identifies an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984). Mayes may, if desired, file a motion for reconsideration or petition
for review pursuant to the Arizona Rules of Criminal Procedure.




                                      6
                   STATE v. MAYES
                  Decision of the Court

                     CONCLUSION

¶14   Accordingly, we affirm Mayes’ convictions and sentences.




                        :ama




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