State v. Whiteside, 1 CA-CR 16-0270

In 2010, police executing a warrant found Whiteside hiding under a bed at a relative’s home; he refused orders to come out and was dragged out by officers.
During about two minutes of attempts to handcuff him, Whiteside flopped, thrashed, kicked, and rolled to resist arrest.
Whiteside was convicted in absentia in 2010 of resisting arrest (A.R.S. § 13-2508) after failing to appear; he later pled guilty to unrelated 2015 drug charges.
At sentencing for resisting arrest, Whiteside admitted a prior felony conviction as part of a plea agreement tied to his drug-case plea, and the court imposed the 2.25-year statutory maximum.
On appeal Whiteside raised two challenges: (1) that the jury instruction (tracking § 13-2508’s alternative means) created a duplicitous charge and denied a unanimous verdict; and (2) that using his prior felony to aggravate sentence violated Blakely because the jury did not find prior convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether A.R.S. § 13-2508 (resisting arrest) is duplicitous such that the jury instruction deprived defendant of a unanimous verdict	State: § 13-2508 describes a single offense with alternative means; statutory language and instruction are proper	Whiteside: The instruction mirrored two distinct means, creating a duplicitous count and denying a unanimous verdict	Court: § 13-2508 is a single unified offense with alternative means; the instruction was not duplicitous and did not violate unanimity
Whether use of Whiteside’s admitted prior felony at sentencing violated Blakely	State: The prior conviction was admitted by Whiteside and may be used to enhance/aggravate sentence	Whiteside: The jury did not find the prior felony, so its use to increase sentence violated Blakely	Court: No Blakely error — the fact of a prior conviction need not be found by a jury; the court permissibly used the admitted prior to aggravate and impose the maximum sentence

State v. Gonzalez, 216 Ariz. 11 (discussing de novo review of statutory interpretation)
State v. Henderson, 210 Ariz. 561 (fundamental-error review standard)
State v. Klokic, 219 Ariz. 241 (definition of duplicitous charge)
State v. O'Brien, 123 Ariz. 578 (alternative means statutes do not require unanimity)
State v. West, 238 Ariz. 482 (framework for determining whether statute creates a single unified offense)
Blakely v. Washington, 542 U.S. 296 (prior conviction is an exception to the jury-finding requirement)
State v. Bonfiglio, 228 Ariz. 349 (court may use same convictions to enhance range and aggravate within that range)