State v. Zanes ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JASON ALLAN ZANES, Appellant.
No. 1 CA-CR 21-0284
FILED 3-29-2022
Appeal from the Superior Court in Maricopa County
No. CR 2020-106421-001
The Honorable Glenn A. Allen, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Alexander M. Taber
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
STATE v. ZANES
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Randall M. Howe and Judge James B. Morse Jr. joined.
C A M P B E L L, Judge:
¶1 Jason Zanes appeals his conviction for theft. He argues that
the Information was duplicitous, serving to deny him the right to a
unanimous jury determination. Finding no error in the State’s charging
document, we affirm.
BACKGROUND
¶2 Zanes was the assistant manager at Rinse and Ride carwash.
He typically worked the closing shift and was responsible for counting
money at the end of each day, preparing a deposit slip in duplicate, and
securing the bundle in the office safe. Every couple of days, an employee
from Rinse and Ride would take the bundles from the safe and deposit them
at the bank in a drop box. The next day, an employee would collect a receipt
from the bank and verify the amount credited matched the amounts
reflected on the deposit slips.
¶3 In November 2019, Zanes’s manager noticed there were
missing deposit receipts from the bank for seven days when Zanes had been
working the closing shift. Upon making this discovery, the manager
reported the theft to the police, estimating that $3,263 was missing based on
the copies of deposit slips. Zanes did not return to work for his scheduled
shifts or pick up his paycheck. After conducting a more thorough
accounting, the manager contacted the police a second time to report that a
total of $4,033 was missing.
¶4 The State charged Zanes with one count of theft, a class four
felony, in the amount of $3,000 or more but less than $4,000. Before trial, the
State amended the Information to state that the alleged conduct occurred
“on or between November 13, 2019 and November 19, 2019.”
¶5 At trial, the State introduced the deposit slips from seven
different days, as well as surveillance footage for three of the days in
question. The manager testified that surveillance footage for the other days
was not available because the system only stores five-to-seven days’ worth
2
STATE v. ZANES
Decision of the Court
of footage. The surveillance footage presented showed Zanes counting
money and completing the deposit slips. But, instead of placing the bundle
in the safe, Zanes placed it in a deposit bag and carried the bag out of the
office when he left.
¶6 At the conclusion of the trial, the jury returned a guilty verdict
finding Zanes committed a theft and found the total loss amount to be
$4,033.1 The court sentenced Zanes to three years of supervised probation
and ordered him to pay restitution to Rinse and Ride. Zanes timely
appealed.
DISCUSSION
¶7 Zanes argues the Information was “duplicitous” and
deprived him of his right to a unanimous jury verdict. He did not object to
the contents of the Information at trial, thus we review for fundamental
error. State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018). To prevail, Zanes must
show that “the error goes to the foundation of [his] case, takes away a right
essential to the defense, or is of such magnitude that it denied [him] a fair
trial.” Id. We will then only reverse his conviction if he also establishes
prejudice. Id.¶8 Zanes argues that the Information was duplicitous because it
charged one criminal act but alleged several acts to prove the charged
offense. He relies on State v. Paredes-Solano, for the proposition that the
Information violated his right to a unanimous verdict because the jury
could convict Zanes of theft without unanimously agreeing about which of
the alleged act or acts gave rise to the single charged offense. 223 Ariz. 284,
287, ¶ 6 (App. 2009).
¶9 The Information before us is not duplicitous. A duplicitous
information is one that “charges two or more distinct and separate offenses
in a single count.” Id. ¶ 4 (quotations omitted). A duplicitous charge exists
when the information refers “only to one criminal act but multiple criminal
acts are introduced to prove the charge.” Id. (quotations omitted). Zanes has
not alleged that the Information charged two or more distinct and separate
offenses in one count. Zanes instead argues that the Information lacked
specificity about the alleged events underlying the charge of theft and that
1 Although the jury found that the amount of theft was $4,033, the
State stipulated that Zanes would be sentenced within the class 4 felony
range requiring proof of theft in an amount between $3,000 to $4,000. See
A.R.S. § 13-1802(G).
3
STATE v. ZANES
Decision of the Court
the seven acts offered to prove the one charge should each be considered
separately as distinct acts, each constituting a theft.
¶10 The State may charge several criminal acts as one count “even
if those acts might otherwise provide a basis for charging multiple criminal
violations.” State v. Klokic, 219 Ariz. 241, 244, ¶ 14 (App. 2008); see also State
v. Via, 146 Ariz. 108, 116 (1985) (holding that “where numerous transactions
are merely parts of a larger scheme, a single count encompassing the entire
scheme is proper.”). However, a defendant’s right to a unanimous jury
verdict may be violated when the State introduces evidence of multiple
criminal acts to prove one count. Klokic, 219 Ariz. at 248, ¶ 32. The jury may
unanimously agree that the defendant is guilty of the charged offense
without unanimously agreeing about which of the charged acts the
defendant committed. Id.
¶11 “[I]f the State introduces evidence of multiple criminal acts to
prove a single charge, the trial court is normally obliged to take one or two
remedial measures to insure the defendant receives a unanimous jury
verdict.” Id. at 244, ¶ 14. The court may either (1) “require the state to elect
the act which it alleges constitutes the crime,” or (2) “instruct the jury that
they must agree unanimously on a specific act that constitutes the crime.”
Id. (quotations omitted). These remedial measures are not necessary,
however, when the State introduces evidence of multiple criminal acts that
“are part of a single criminal transaction.” Id. ¶ 15. The court may determine
that multiple criminal acts constitute a single criminal transaction when the
defendant offers the same defense for each act and “there is no reasonable
basis for the jury to distinguish between them.” Id. at 245, ¶ 18.
¶12 Here, the State’s evidence of multiple criminal acts constitutes
an ongoing course of conduct culminating in a single criminal transaction.
The State introduced seven days’ worth of deposit slips as well as security
footage of the office and safe. Zanes presented the same defense for each of
the dates in question. He has not shown that the different transactions
“gave rise to different defenses or otherwise assert[ed] a reasonable basis to
distinguish between the acts.” Klokic, 219 Ariz. at 248, ¶ 33. The jury found
Zanes guilty of theft and found the total loss to be $4,033, the total amount
reported as missing over the seven-day period. The record before us does
not reveal any violation of Zanes’s right to a unanimous jury verdict.
¶13 Even if, for the sake of argument, the charged offense was
duplicitous, Zanes failed to show he suffered prejudice, as required to
warrant a dismissal. See State v. Schroeder, 167 Ariz. 47, 52 (App. 1990); see
also Escalante, 245 Ariz. at 138, ¶ 1. “To constitute reversible error, the
4
STATE v. ZANES
Decision of the Court
defendant must have been prejudiced by [a duplicitous indictment] when
considered in conjunction with all the evidence in the case.” State v. Kelly,
149 Ariz. 115, 117 (App. 1986). Zanes contends that if he can show that the
jury may have reached a nonunanimous verdict, he has established
prejudice. We disagree. As explained above, the jury found that Zanes
committed a theft in the amount of $4,033, the total amount missing over
the seven-day period.
¶14 Zanes also argues prejudice because the State could have
charged him separately for each date, and therefore he would only be
convicted of misdemeanor offenses instead of a felony offense. He contends
that the “consequences” of a misdemeanor conviction are less severe than
those of a felony conviction. This argument overlooks that the State has
broad discretion over charging decisions. State v. Frey, 141 Ariz. 321, 324
(App. 1984). Here, the State could have charged Zanes separately for each
date and could also have added an additional charge under A.R.S. § 13-
2310, for example, alleging a fraudulent scheme, a class 2 felony. See State v.
Griffin, 250 Ariz. 651, 656, ¶ 17 (“To support a conviction for fraudulent
scheme and artifice, the state must prove that (1) pursuant to a scheme or
artifice to defraud, (2) [defendant] knowingly obtained any benefit, (3) by
means of false or fraudulent pretenses, representations, promises, or
material omissions.”). Zanes’s argument is speculative, and he fails to take
into account his heightened exposure had the State made a different
charging decision. Hence, Zanes fails to establish prejudice as required. See
State v. Munninger, 213 Ariz. 393, 397, ¶ 14 (App. 2006) (finding defendant’s
speculation about the possibility of a different sentence to be insufficient to
establish prejudice).
¶15 Zanes also appears to challenge the sufficiency of the
evidence. He argues that while the State introduced deposit slips for seven
dates, it only provided surveillance footage for three days. He also takes
issue with one deposit slip that did not have his initials on it and the lack of
surveillance footage for the date of that deposit. And he disputes that there
was a lack of evidence from the bank where the deposits were made. But
Zanes had an opportunity to cross-examine the manager about the deposit
slips and the lack of surveillance footage. The State offered testimony from
the manager that surveillance footage for some of the dates in question was
unavailable because the system holds a limited amount of footage. This
court does not reweigh the evidence “already considered by the jury” and
resolves any conflicts in the evidence “in favor of sustaining the verdict.”
State v. Fuentes, 247 Ariz. 516, 526, ¶ 38 (App. 2019) (quotations and citations
omitted).
5
STATE v. ZANES
Decision of the Court
CONCLUSION
¶16 We affirm Zanes’s conviction and sentence.
AMY M. WOOD • Clerk of the Court
FILED: JT
6