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State v. Williams6/27/1991
order to show appellant's recklessness. Counsel then replied that appellant's double jeopardy rights precluded the state from proceeding on a theory of recklessness because those elements had been adjudicated in justice court where he had apparently been convicted of driving while under the influence of alcohol (DUI) for the same incident. During that argument, counsel asked the court to take judicial notice of appellant's abstract of conviction. The court apparently saw the document, but it was not admitted into evidence and it is not included in the record. It is impossible to determine the contents of the document from the transcript of that hearing. Without further discussion, the court then denied appellant's motion to preclude evidence of his BAC.
The record is devoid of any evidence that appellant was convicted of a DUI offense other than the statement by appellant's counsel. The presentence report does not mention a DUI conviction; it reflects, instead, that appellant has no previous felony or misdemeanor convictions.
Appellant bears the burden of assuring that the record on appeal is sufficient to enable us to review the ruling he challenges. State v. Zuck, 134 Ariz. 509, 658 P.2d 162 (1982). From the record before us, we find no evidence that appellant's double jeopardy rights were violated.
IMPROPER CHARGING OF AGGRAVATED ASSAULT COUNT
Appellant next contends that he "was charged with a non-existent crime," that he recklessly caused physical injury to the victim while using a dangerous instrument. He was charged with aggravated assault pursuant to A.R.S. §§ 13-1203(A) and 13-1204(A)(2). To the extent we understand his argument, appellant apparently contends that because the state normally charges such incidents as an assault causing serious physical injury under § 13-1204(A)(1) rather than under § 13-1204(A)(2), an assault involving the use of a dangerous instrument, by charging appellant under subsection (A)(2), the state created due process problems for itself. He also argues that under the state's charging theory, the same conduct could constitute a "mitigated" DUI offense pursuant to A.R.S. § 28-692.01(C)(2) and an aggravated assault pursuant to § 13-1204(A)(2). We find no merit to the
latter contention because no DUI conviction is involved here, "mitigated" or otherwise.
Appellant's argument ignores the fact that the prosecutor has discretion to determine both whether to file charges and which charges to file. State v. Hankins, 141 Ariz. 217, 686 P.2d 740 (1984). When particular conduct can be charged under two or more statutes, the prosecutor has discretion to determine which statute to apply. See State v. Gooch, 139 Ariz. 365, 678 P.2d 946 (1984).
We also find no merit to appellant's contention that the indictment was vague because he could not tell under which sub section of § 13-1203(A) the state was proceeding. In support of that contention, he argues that the state did not disclose until late in the trial whether it was proceeding under a theory of intentional conduct or recklessness. Although the state was unnecessarily evasive on that subject, both theories were clearly alternative ones under § 13-1203(A)(1). The confusion on that subject did not in any way render the indictment vague.
Appellant also argues that his conviction cannot be upheld because th
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