State v. Westerfield, 1 CA-CR 16-0734

Westerfield was indicted in May 2012 for sexual conduct with a minor (M.W.) and aggravated luring of a minor (M.P.).
In May 2014 the State returned a second indictment adding 11 counts (sexual exploitation and aggravated luring) based on additional pictures/texts recovered from Westerfield’s Sprint account covering Feb–Apr 2012.
Westerfield objected to consolidation and claimed the new charges were filed to punish him for rejecting a plea and asserting his right to a jury trial, but he did not file a pretrial motion to dismiss for prosecutorial vindictiveness.
The superior court consolidated the 2012 and 2014 indictments after an evidentiary hearing; a jury later acquitted on the 2012 counts but convicted on the 13 counts related to M.P. (2012 and 2014 allegations). He was sentenced to 20 years.
On appeal, Westerfield argued prosecutorial vindictiveness (and briefly raised a speedy trial claim which the court deemed waived); the appellate court reviewed the vindictiveness claim only for fundamental, prejudicial error.

Issue	Westerfield’s Argument	State’s Argument	Held
Whether additional 2014 indictment presumed vindictive because it followed rejected plea and jury-trial demand	The State filed new charges to punish him for refusing a plea and insisting on trial	The State discovered new evidence after the 2012 indictment (Sprint pictures/texts) justifying additional charges; prosecutors were negotiating resolution of all possible charges	No presumption of vindictiveness; no fundamental error – conviction affirmed

State v. Henderson, 210 Ariz. 561 (2005) (standard for reviewing unpreserved error: fundamental, prejudicial error burden on appellant)
State v. Mieg, 225 Ariz. 445 (App. 2010) (defines prosecutorial vindictiveness and discusses actual vs. presumed vindictiveness)
State v. Tsosie, 171 Ariz. 683 (App. 1992) (defendant initially must show appearance of vindictiveness; burden then shifts to prosecution)
Town of Newton v. Rumery, 480 U.S. 386 (1987) (pretrial prosecutorial decisions receive especially deferential judicial review)
United States v. Goodwin, 457 U.S. 368 (1982) (initial charges may not reflect full scope of prosecutable conduct; subsequent charges can be justified by new evidence)