State v. Bucholtz, 1 CA-CR 15-0833

Background

Defendant Jeffrey Bucholtz was indicted on 11 sexual-offense counts for acts against a victim aged 9–13 occurring May 1, 2008–July 31, 2011; jury convicted on all counts.
After the victim testified, the State moved to amend the date range for counts 3–5 to May 1, 2010–July 31, 2012; the court granted the amendment over Defendant’s objection.
Sentencing included multiple concurrent and consecutive terms, including life without release for 35 years on two sexual-conduct-with-a-minor convictions; defendant appealed.
On appeal, the court considered (1) the propriety of the post-testimony amendment to the indictment, (2) whether lesser-included instructions were required, (3) the validity of a life sentence for count 1, (4) a verdict-form error on count 9, and (5) sufficiency and sentencing for count 10.
The appellate court vacated conviction on count 9 (jury convicted of an act different from the indictment) and vacated the life sentence for count 10 (insufficient evidence victim was <=12), remanding count 10 for resentencing; all other convictions and sentences were affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Amendment of indictment dates for counts 3–5	Amendment conformed the charging document to the victim’s testimony and remedied a technical/date defect	Amendment after testimony prejudiced defense and changed charged offenses	Court: Amendment permissible under Rule 13.5(b); dates non-elemental, no demonstrable prejudice; amendment affirmed
Lesser-included instruction (molestation) for counts 1,3,8	N/A (State opposed)	Trial court should have instructed jury on molestation as lesser-included of sexual conduct	Court: No fundamental error; evidence showed penetration so no rational juror could find only molestation; instruction not required
Life sentence for count 1	State: life appropriate based on jury finding of digital penetration	Defendant: life improper absent jury finding that conduct was not masturbatory contact	Court: Verdict form described "digital penetration;" life sentence proper and affirmed
Verdict form mismatch on count 9	N/A (State concedes)	Defendant: conviction must be set aside because jury found offense different from indictment	Court: Vacated count 9 conviction because jury convicted of uncharged act
Sufficiency of evidence and life sentence for count 10	State: date need not be exact; evidence shows offense within alleged range	Defendant: State failed to prove victim’s age at offense; life sentence improper	Court: Evidence sufficient to submit count 10 to jury but insufficient to show victim was <=12; vacated life sentence and remanded for resentencing under §13-705(C)

Key Cases Cited

State v. Swanson, 172 Ariz. 579 (affirming standard to uphold correct trial-court rulings) (procedural review principle)
State v. Buccheri-Bianca, 233 Ariz. 324 (review standard for indictment amendments) (abuse-of-discretion review)
State v. Jones, 188 Ariz. 534 (date in indictment not an element) (amendment to correct date permissible)
State v. Johnson, 198 Ariz. 245 (amendment impermissible when trial testimony describes different acts) (prejudice where acts differ)
State v. Mikels, 119 Ariz. 561 (vacating conviction where jury convicted on uncharged distinct act) (uncharged act error)
State v. Ortega, 220 Ariz. 320 (molestation is lesser-included of sexual conduct) (instruction framework)
State v. Wall, 212 Ariz. 1 (standard for when lesser-included instruction is required) (rational juror test)
State v. Marshall, 197 Ariz. 496 (penetration necessarily includes contact of vulva) (supports penetration finding)
State v. Cummings, 148 Ariz. 588 (defendant cannot be convicted of crimes not presented to grand jury) (basis to vacate uncharged convictions)