State v. Winter
In State v. Winter, 146 Ariz. 461, 706 P.2d 1228 (App. 1985), the defendant was charged with theft committed by knowingly controlling property of another with the intent to deprive. Id. at 463, 706 P.2d at 1230.
However, the trial court instructed the jury that it could convict the defendant if it found that defendant knowingly controlled the property either with the intent to deprive or knowing or having reason to know that the property was stolen. Id.
The jury convicted defendant, and on appeal defendant complained that she had received insufficient notice that she would be charged and convicted under a different subsection of the theft statute than that specified in the original indictment. Id. at 464, 706 P.2d at 1231.
The Winter court noted that although the language of the indictment was couched in terms that clearly tracked subsection (1) of the statute, the statutory citation in the indictment referenced only the general theft statute, not any particular subsection. Id. at 463, 706 P.2d at 1230.
The court characterized the crime of theft as "unitary," meaning that there was only one crime of theft, even though the multiple subsections described different ways of committing it. Id. at 464, 706 P.2d at 1231.
A charge using only a general citation to the theft statute "sufficed to charge a violation of its subparts," and the defendant therefore received adequate notice when charged under the language of subsection (1) that she could nevertheless be convicted under another subsection. Id. at 465, 706 P.2d at 1232.
Winter relied on this "unitary" concept to skirt any problems with Rule 13.5(b) and the Sixth Amendment. The court held that because theft was only one crime, Rule 13.5(b) was not violated. Id.
This is so because the change in question was simply from one subsection of a "unitary" charge to another subsection, and consequently there was "no change in the nature of the underlying crime." Id.