Background
The State charged Brandon Kenneth Zamora with multiple offenses arising from the alleged sexual abuse of his niece and nephew. Before trial, the State obtained an unopposed amendment to one count of sexual conduct with a minor, changing the incident identified in the count from oral-penile contact in a garage to an incident involving the victim in a bathtub. The jury ultimately convicted Zamora of the charges remaining after one count was dismissed before trial and the court directed verdicts in his favor on two others.
The superior court sentenced Zamora to life imprisonment with the possibility of release after 35 years on one count, plus concurrent and consecutive presumptive prison terms totaling an additional 107 years. On appeal, Zamora challenged the amended indictment, the admission of testimony from a cousin who had refused a court-ordered pretrial deposition, and the denial of his motion for a new trial without an evidentiary hearing.
The Court’s Holding
The Court of Appeals held that the superior court erred under Arizona Rule of Criminal Procedure 13.5(b) by permitting the amendment without Zamora’s consent. Because the bathtub incident was a separate offense rather than a correction of a factual mistake or technical defect, the amendment materially changed the charge. But under fundamental-error review, reversal was unwarranted: Zamora had actual notice of the amended allegation approximately three months before trial, and his speculation about additional impeachment evidence did not establish prejudice. The jury’s guilty verdict also foreclosed his appellate probable-cause challenge.
The court further held that permitting the cousin to testify was within the superior court’s discretion. The prosecution timely disclosed her, diligently attempted to secure her cooperation, and gave the defense an opportunity to interview her before she testified; her own refusal to cooperate did not amount to a State disclosure violation warranting preclusion. Finally, the superior court properly denied a new trial without an evidentiary hearing because Zamora supported his allegations of juror perjury and improper communications only with vague, unsubstantiated hearsay and presented no concrete evidence creating a factual dispute.
Key Takeaways
- An indictment amendment that substitutes a wholly distinct incident changes the nature of the charged offense and requires the defendant’s consent under Rule 13.5(b).
- A Rule 13.5(b) violation does not require reversal when the defendant had constitutionally adequate actual notice and cannot show prejudice under fundamental-error review.
- Witness preclusion was unwarranted where the prosecution fulfilled its disclosure duties and diligently sought an uncooperative witness’s deposition.
- Unsupported allegations of juror misconduct do not require an evidentiary hearing on a motion for a new trial.
Why It Matters
The memorandum decision distinguishes a prohibited substantive change to an indictment from a harmless notice error. Even though the State replaced one alleged incident with another, the conviction survived because Zamora received advance notice and did not demonstrate that the amendment impaired his defense.
The decision also underscores that preclusion is a last-resort discovery sanction and that a defendant seeking a post-verdict hearing on juror misconduct must present concrete evidence rather than rumor or speculation. The decision is not precedential under Arizona Supreme Court Rule 111(c).