State v. Sanders
In State v. Sanders, 205 Ariz. 208, 68 P.3d 434 (App. 2003), the defendant was originally charged with aggravated assault - by knowingly touching a police officer with the intent to injure, insult, or provoke him, under A.R.S. 13-1203(A)(3) and former 13-1204(A)(5) and (B). 205 Ariz. at 212, P 5, 68 P.3d at 438.
At the preliminary hearing before the indictment issued, the State arguably produced no evidence that the police officer had apprehended any imminent physical injury from the defendant. Id. at 211, P 4, 68 P.3d at 437.
The dissent disagreed with this characterization of the record, noting that the officer testified at the preliminary hearing that Sanders' "'belligerent and cursing' behavior 'from the initial contact . . . led me to believe that I was in a potential situation of being injured.'" Sanders, 205 Ariz. at 228, P 92, 68 P.3d at 454 (Hall, J., dissenting).
At trial, during direct examination, the prosecutor did not ask the officer whether he had feared that the defendant might physically harm him. Sanders, 205 Ariz. at 212, P 7, 68 P.3d at 438.
The defendant did not conduct cross-examination regarding whether the officer reasonably apprehended any physical injury from the defendant. Id. at P 8.
After the State rested, the prosecutor moved to amend the indictment for aggravated assault from one involving a knowing touching of another, proscribed by A.R.S. 13-1203(A)(3), to one intentionally placing another in reasonable apprehension of imminent physical injury, a violation of A.R.S. 13-1203(A)(2). Id. at P 9. Although the defendant objected, the trial court granted the State's motion. Id. at P 10.
The state moved at the conclusion of its case-in-chief to amend an assault charge from an offense requiring a "knowing touching with intent to injure, insult, or provoke" to an offense requiring an intent to place another in reasonable apprehension of imminent physical injury. 205 Ariz. 208, 212, P9, 68 P.3d at 438.
In that case, Division One of this court stated that a proposed amendment could impermissibly change the nature of the offense "either by proposing a change in factual allegations or a change in the legal description of the offense." Id. P25.
In the second category, the court in Sanders cited two cases, Gray v. Raines, 662 F.2d 569 (9th Cir. 1981), and Government of the Virgin Islands v. Joseph, 765 F.2d 394 (3d Cir. 1985). Id. PP26-30.