State v. Christian ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MICHAELA CHRISTIAN, Appellant.
No. 1 CA-CR 22-0223
FILED 3-28-2023
Appeal from the Superior Court in Mohave County
No. S8015CR202100140
The Honorable Billy K. Sipe, Jr., Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Kevin M. Morrow
Counsel for Appellee
Apfel Law Group, Phoenix
By Seth M. Apfel
Counsel for Appellant
STATE v. CHRISTIAN
Decision of the Court
MEMORANDUM DECISION
Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.
F O S T E R, Judge:
¶1 Michaela Christian appeals her convictions and sentences for
burglary in the second degree, a class 3 felony and theft, a class 3 felony.
She argues 1.) the theft charge was unconstitutionally duplicitous; 2.) the
jury instructions were improper; and 3.) the court failed to conduct a
hearing under State v. Donald, 198 Ariz. 406 (App. 2000). For reasons that
follow, her convictions and sentences are affirmed.
FACTUAL1 AND PROCEDURAL BACKGROUND
¶2 On March 31, 2022, following a three-day trial, a jury
convicted Christian of theft, a class 3 felony and burglary, a class 3 felony
in relation to two properties – an apartment on Palisades Drive
(“Apartment”) and a house (“Clarke house”). Evidence presented at trial
established that the property manager of the Apartment called the police in
February 2021, following the discovery of an apartment under her care that
had its door ajar for several days. When the police arrived, they noticed that
“[e]verything was gone,” including kitchen cabinets, ceiling fans, the
kitchen sink, the water heater, the chandelier, vanities, countertops, the
water softener, the dishwasher, and plumbing. The property manager
estimated that the “fair market value” of the stolen fixtures was $5,000.
¶3 A witness identified Christian as the person that removed
items from the Apartment and loaded them onto a truck. The witness also
provided information to police that items loaded into the truck had been
taken to a house owned by JS2 – the Clarke house. Police confirmed that the
registered owner of the truck was Christian. Officers later searched the
1 The evidence and all reasonable inferences drawn therefrom are
viewed in the light most favorable to sustaining the verdicts. State v.
Fuentes, 247 Ariz. 516, 520, ¶ 2 (App. 2019).
2 We refer to the victim by her initials to protect her privacy. See State
v. Maldonado, 206 Ariz. 339, 341, ¶ 2 n.1 (App. 2003).
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Clarke house and found numerous fixtures that had been taken from the
Apartment.
¶4 When officers spoke with Christian, she admitted that she had
taken property from the Apartment but said that the tenant, who had been
arrested a few weeks earlier and was in jail, had asked her to do so.
Christian denied removing the fixtures, saying she took only the tenant’s
personal belongings and furniture. Christian also told the officers that she
had a lease to rent the Clarke house, which she claimed was obtained from
JS’s husband. Christian further stated she had keys to the Clarke house and
had placed the electricity in her name.
¶5 During a search of Christian’s residence, officers found a
partially completed, unsigned lease for the Clarke house. The lease
contained an incorrect spelling of “Clarke,” and a detective noted that it
seemed to have been filled out by only one person. JS, the owner of the
Clarke house, stated it had not been leased to anyone at the time and that
no one had resided there since 2017. JS further stated she handled all
matters related to the house and neither she nor her husband had given
anyone permission to be there.
¶6 The police also recovered numerous items of personal
property that had been taken from the Clarke house at Christian’s
residence, including JS’s pill bottle, and some of JS’s legal paperwork. The
value of the stolen items totaled more than $12,000.
¶7 Prior to trial, the State motioned to amend the indictment on
the theft charge from a class 2 felony to a class 3 felony. Additionally, the
value of the stolen property was changed from $25,000 to $4,000. The issue
was discussed in open court and Christian did not object to the amendment.
Following trial, and based on prior criminal history, the superior court
sentenced Christian to concurrent terms of three years’ imprisonment. This
timely appeal followed. This Court has jurisdiction under article 6, § 9 of
the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031,
and -4033(A).
DISCUSSION
I. Alleged Duplicitous Charge
¶8 Christian argues her theft conviction resulted from a
duplicitous charge, creating the hazard of a nonunanimous verdict.
Specifically, she complains (1) the theft charge impermissibly “alleged two
separate and distinct offenses: Theft occurring at the Clarke [house] and
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Theft occurring at the [Apartment]”; and (2) “there is no way to know
whether the $4,000 amount (and thus the status of the offense as a level 3
felony) included just the [Apartment], just the Clarke [house], or both.”
¶9 Objections on duplicity grounds must be brought in the
superior court or are forfeited. State v. Urquidez, 213 Ariz. 50, 51, ¶ 4 (App.
2006). Because Christian did not object on duplicity grounds in the superior
court, she has forfeited review of her challenge for all but fundamental,
prejudicial error.3 To obtain relief on fundamental-error review, Christian
carries the burden to prove trial error exists, the error is fundamental, and
the error resulted in prejudice. State v. Escalante, 245 Ariz. 135, 142, ¶ 21
(2018). Christian has not met that burden.
¶10 A charge is duplicitous “[w]hen the text of an indictment
refers only to one criminal act, but multiple alleged criminal acts are
introduced to prove the charge.” State v. Klokic, 219 Ariz. 241, 244, ¶ 12
(App. 2008). When confronted with a duplicitous charge, courts are
“normally obliged to take one of two remedial measures to insure that the
defendant receives a unanimous jury verdict: (1) require the state to elect
which of the alleged acts constitutes the crime or (2) instruct the jury that
they must unanimously agree on the act that constitutes the crime.” State v.
West, 238 Ariz. 482, 493, ¶ 33 (App. 2015) (quotation omitted). Courts need
not undertake any remedial measures, however, if “the separate acts that
the State intends to introduce into evidence are part of a single criminal
transaction.” Id. (quotation omitted). “[M]ultiple acts may be considered
part of the same criminal transaction when the defendant offers essentially
the same defense to each of the acts and there is no reasonable basis for the
jury to distinguish between them.” Id. (quotation omitted).
¶11 Here the indictment stated, “On or between the 15th day of
January and the 2nd day of February 2021, in the vicinity of [Apartment] and
3 Citing State v. Anderson, 210 Ariz. 327, 336, ¶ 17 (2005), the State
argues Christian’s duplicity “claim should be forfeited entirely” because
she did not challenge the indictment’s sufficiency before trial. As the State
acknowledges, however, our supreme court in State v. Hargrave, 225 Ariz.
1, 11, ¶ 28 (2010), (abrogated in part by Cruz v. Arizona, 143 S.Ct. 650 (2023))
later applied fundamental-error review to a duplicity argument raised for
the first time on appeal. Because we find no error in this case, we assume
without deciding that fundamental-error review is appropriate here. See
State v. Butler, 230 Ariz. 465, 470, ¶ 15 (App. 2012) (noting that whether
Hargrave governs all duplicitous-indictment issues is “questionable” but
nonetheless reviewing the issue for fundamental error).
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[Clarke house]…Christian, committed theft of personal property…with a value of
$4,000.00 or more….” The evidence established that over several days,
Christian removed items from the Apartment, transported those items to
the Clarke house, then moved the items stolen from the Apartment along
with items stolen from the Clarke house to her residence. Based on that
evidence, the prosecutor argued in summation that the jury should find
Clarke’s criminal acts amounted to “a three-house puzzle,” and “when you
put the three houses together, when you put the puzzle together, the
defendant clearly stole the items.” Based on the trial evidence and the
State’s theory, the jury had no reasonable basis to distinguish the
Apartment theft from the Clarke house theft. West, 238 Ariz. at 493, ¶ 33; see
State v. Ramsey, 211 Ariz. 529, 534, ¶ 12 (App. 2005) (explaining a
“continuing scheme or course of conduct may properly be alleged in a
single count”); see also State v. Helmer, 203 Ariz. 309, 310–11, ¶ 8 (App. 2002)
(noting continuous offenses “endure[ ] over a period of time, and [their]
commission is ongoing until cessation of the proscribed conduct”).
¶12 Furthermore, Christian does not assert she presented
different defenses to the multiple acts; thus, she has waived any such claim.
See State v. Carver, 160 Ariz. 167, 175 (1989) (“Failure to argue a claim
usually constitutes abandonment and waiver of that claim.”) (citation
omitted). Waiver aside, the record shows her defense to the charged acts
was the same: that she had permission to be in both properties and had not
stolen the recovered items. Therefore, because Christian’s separate acts
occurred during a single criminal episode, the superior court did not err in
declining to sua sponte employ curative measures.
¶13 Nonetheless, Christian insists State v. Davis, 206 Ariz. 377(2003), entitles her to relief. Davis is readily distinguishable because the
alleged acts supporting it occurred eleven days apart, the events were not
part of a single transaction, and the defendant offered different defenses to
the two incidents. Id. at 389–91, ¶¶ 58, 65–66. Similar circumstances are
absent here. Unlike in Davis, the State theorized that the events were part
of a continuous criminal transaction and the jury was informed that the
crime occurred “on or between January 15 and February 2.” Further,
Christian advanced a single defense to the incidents supporting the theft
charge unlike the defendant in Davis. Accordingly, Davis provides no basis
to disturb Christian’s theft conviction.
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II. Second-Degree Burglary Jury Instruction
¶14 Citing State v. Altamirano, 166 Ariz. 432 (App. 1990), and
language contained in a comment to the Revised Arizona Jury Instructions
(“RAJI”) Statutory Criminal 15.07 (second-degree burglary) (5th ed. 2019),
Christian asserts the superior court should have sua sponte instructed the
jurors that a “person cannot burglarize his or her own residence.” Because
she did not object to the given instructions, our review is limited to
fundamental, prejudicial error. Escalante, 245 Ariz. at 140, ¶ 12.
¶15 “With regard to jury instructions, fundamental error occurs
when the trial judge fails to instruct upon matters vital to a proper
consideration of the evidence.” State v. Edmisten, 220 Ariz. 517, 522, ¶ 11
(App. 2009) (quotation omitted). “[R]arely will an improperly given
instruction justify reversal of a criminal conviction when no objection has
been made in the trial court.” State v. Gomez, 211 Ariz. 494, 499, ¶ 20 (2005)
(quotation omitted). Although parties are generally entitled to an
instruction on any reasonably supported theory, courts need not give an
instruction “when its substance is adequately covered by other
instructions.” State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16 (1998) (citation
omitted).
¶16 Christian has not shown error, fundamental or otherwise. The
burglary instruction directly tracked the language of the second-degree
burglary statute, informing the jurors that “[t]he crime of burglary in the
second degree requires proof that the defendant: 1. [e]ntered or remained
unlawfully in or on a residential structure; and 2. [d]id so with the intent to
commit any theft or felony therein.” See A.R.S. § 13-1507(A). The court
further gave the statutory definition for “[e]nter or remain unlawfully”:
[A]n act of a person who enters or remains on premises when
the person’s intent for so entering or remaining is not
licensed, authorized or otherwise privileged except when the
entry is to commit theft of merchandise displayed for sale
during normal business hours, when the premises are open to
the public and when the person does not enter any
unauthorized areas of the premises.
See A.R.S. § 13-1501(2).
¶17 Because the instructions mirrored the applicable statutes,
they embodied the essential elements of the charged crime. See, e.g., State v.
Rios, 217 Ariz. 249, 251, ¶ 9 (App. 2007) (rejecting a challenge to given
instructions when they tracked the governing statutes). Christian does not
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STATE v. CHRISTIAN
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argue otherwise or cite any authority supporting the proposition that a jury
instruction replicating the associated statute inaccurately states the law.
And insofar as Christian’s claim is based on RAJI Statutory Criminal 15.07,
“neither RAJI instructions nor their comments constitute binding
authority.” State v. Reaves, 252 Ariz. 553, 565, ¶ 33 (App. 2022).
¶18 Altamirano does not compel a different conclusion. As was
recently explained in Reaves, Altamirano does not stand for the proposition
that an accused “has an absolute and unlimited right to any dwelling [s]he
merely considers to be h[er] legal residence, or h[er] ‘own home.’” Reaves,
252 Ariz. at 565, ¶ 32. Altamirano merely carves out a narrow exception to
the burglary statute’s application that is not present here: one cannot
burglarize a residence where one has an unconditional right of possession
in the property. The State introduced evidence that Christian had no valid
lease and thus no right whatsoever to be in the Clarke house. No evidence
was provided to dispute that she did not have an “absolute and
unconditional right to enter and remain.” Altamirano, 166 Ariz. at 437.
Altamirano does not support Christian’s arguments.
III. Alleged Failure to Conduct a Donald Hearing
¶19 Christian contends the superior court’s purported failure to
conduct a Donald hearing rendered involuntary her decision to reject the
State’s plea offer and proceed to trial. Because Donald claims are predicated
on an assessment of trial counsel’s performance, they are not cognizable on
direct appeal. See State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20 (2007)
(“[A] defendant may bring ineffective assistance of counsel claims only in a
Rule 32 post-conviction proceeding—not before trial, at trial, or on direct
review.”). Therefore, this Court declines to address Christian’s premature
Donald claim.
CONCLUSION
¶20 Christian’s convictions and sentences are affirmed.
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