State v. Klokic
In State v. Klokic, 219 Ariz. 241, 196 P.3d 844 (App. 2008), the defendant was convicted of one count of aggravated assault stemming from a road-rage incident. 219 Ariz. 241,1-2, 196 P.3d at 845.
To prove that count, the state introduced evidence at trial that the defendant had pointed a gun at the victim on two separate occasions. Id.6.
The defendant asked the trial court to require the state "either to elect which particular act it was charging as the assault or to instruct the jurors that they must unanimously agree on the particular act that constituted the crime of assault." Id.7.
The court, however, refused. Id.
On appeal, this court explained, "If the State introduces evidence of multiple criminal acts to prove a single charge, the trial court is 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. Id.14.
However, we also pointed out that "it is not error for the trial court to fail to require such curative measures in those instances in which all the separate acts that the State intends to introduce into evidence are part of a single criminal transaction." Id.15.
The Court explained that "multiple 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.18,
Under the facts of that case, we concluded the separate acts were not part of the same criminal transaction and, consequently, the trial court erred in refusing to provide one of the curative measures. Id.38.