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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                GREGORY NELSON DESHAIES, Appellant.

                         No. 1 CA-CR 15-0319
                           FILED 10-20-2016
               AMENDED PER ORDER FILED 10-20-16
           Appeal from the Superior Court in Maricopa County
                        No. CR2010-153942-001
                   The Honorable Sam J. Myers, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Adams
Counsel for Appellant
                              State v. Deshaies
                            Decision of the Court



                      MEMORANDUM DECISION

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


N O R R I S, Judge:

¶1            A jury convicted Defendant Gordy Nelson Deshaies of
resisting arrest and criminal trespass.1 On appeal, Deshaies argues the
superior court’s instruction regarding resisting arrest rendered the charge
duplicitous. Because Deshaies did not object to the instruction, we review
for fundamental error and find none. See State v. Henderson, 210 Ariz. 561,
567, ¶ 19, 115 P.3d 601, 607 (2005). Therefore, we affirm Deshaies’s
conviction and sentence.

¶2             At trial, the superior court instructed the jury on the elements
of resisting arrest as follows:2

              The crime of Resisting Arrest requires proof
              that:

              1. A peace officer, acting under official
                 authority, sought to arrest either the
                 defendant or some other person; and

              2. The defendant knew, or had reason to know,
                 that the person seeking to make the arrest
                 was a peace officer acting under color of
                 such peace officer’s official authority; and

              3. The defendant intentionally prevented, or
                 attempted to prevent, the peace officer from
                 making the arrest; and



              1Deshaies   has not challenged his conviction for criminal
trespass on appeal.

              2The superior court’s instruction mirrors the Revised Arizona
Jury Instructions (Criminal) for the offense of resisting arrest. RAJI
(Criminal) § 25.08 (2014).


                                      2
                              State v. Deshaies
                            Decision of the Court
              4. The means used by the defendant to prevent
                 the arrest involved either the use or threat to
                 use physical force or any other substantial
                 risk of physical injury to either the peace
                 officer or another.

              Whether the attempted arrest was legally
              justified is irrelevant.

¶3           In turn, Arizona Revised Statutes (“A.R.S.”) section
13-2508(A) (Supp. 2015)3 defines the crime of resisting arrest as follows:

              A person commits the crime of resisting arrest
              by intentionally preventing or attempting to
              prevent a person reasonably known by him to
              be a peace officer, acting under color of such
              peace officer’s official authority, from effecting
              an arrest by:

                     1. Using or threatening to use physical
                        force against the peace officer.

                     2. Using any other means creating a
                        substantial risk of causing physical
                        injury to the peace officer.

                     3. Engaging in passive resistance.

¶4            Deshaies argues the three subsections of A.R.S. § 13-2508(A)
establish three separate crimes and, therefore, paragraph four of the jury
instructions, “the arrest involved either the use or threat to use physical
force or any other substantial risk of physical injury,” (emphasis added),
rendered the charge duplicitous. A duplicitous charge exists when an
indictment refers to only one criminal act but multiple alleged criminal acts
are introduced at trial to prove the single charge. State v. Paredes-Solano, 223
Ariz. 284, 287, ¶ 4, 222 P.3d 900, 903 (quotations and citation omitted).
Depending on the context, a duplicitous charge can deprive a defendant of
notice of the charge, create the “hazard” of a non-unanimous verdict, and
make it impossible to precisely plead prior jeopardy in a subsequent



              3We cite to the current version of the statute, which has not
been materially amended as relevant to our resolution of this appeal.


                                       3
                              State v. Deshaies
                            Decision of the Court
prosecution. State v. Klokic, 219 Ariz. 241, 244, ¶ 12, 196 P.3d 844, 847 (App.
2008) (citation omitted).

¶5            Assuming, without deciding, that the resisting arrest statute
creates separate offenses, Deshaies fails to establish fundamental error
resulting in prejudice because the evidence at trial and counsel’s arguments
focused only on the “physical force” subsection of the statute. See State v.
Johnson, 205 Ariz. 413, 417, ¶ 11, 72 P.3d 343, 347 (App. 2003) (appellate
court considers closing arguments of counsel when evaluating jury
instructions) (citation omitted). Thus, Deshaies was not defending against
a duplicitous charge.

¶6            One of the arresting officers testified that when he and the
other officer went to arrest Deshaies, instead of putting his arms behind his
back, Deshaies began to pull his arms forward in an attempt to evade the
arrest. The officer stated Deshaies brought his arm “up in an upward
forward motion trying to get out of [the other officer’s] grasp.” Eventually,
the officers were forced to move Deshaies into the prone position (on his
stomach) because he was pulling away from them.

¶7            During closing arguments, the prosecutor argued, “What’s
important is, did [Deshaies] pull against [the officers]? And yes, he did.
That’s force.” Deshaies’s counsel similarly focused on physical force,
arguing Deshaies had not used physical force against the officers. After
quoting the definition of physical force contained in the jury instructions
(force used upon or directed toward the body of another person), defense
counsel argued, “Did Mr. Deshaies do that? No. There was no testimony of
that whatsoever.” In rebuttal closing, the prosecutor added, “He pulled
away from the officer and the officer’s hand, part of his body, when he
made contact with the defendant. Both officers. That’s physical force
against the body.” Accordingly, because the trial evidence and arguments
of the parties implicated only one subsection of the statute, Deshaies has
not met his burden in showing fundamental error resulting in prejudice.

¶8           Therefore, for the foregoing reasons, we affirm Deshaies’s
conviction and sentence for resisting arrest.




                          AMY M. WOOD • Clerk of the Court
                          FILED:    JT
                                        4
