NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JASON ALLAN ZANES, Appellant.

No. 1 CA-CR 21-0284

Appeal from the Superior Court in Maricopa County

No. CR 2020-106421-001

The Honorable Glenn A. Allen, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson

By Alexander M. Taber

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Lawrence S. Matthew

Counsel for Appellant

FILED 3-29-2022
STATE v. ZANES

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, 

in which Judge Randall M. Howe and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Jason Zanes appeals his conviction for theft. He argues that 

the Information was duplicitous, serving to deny him the right to a 

unanimous jury determination. Finding no error in the State’s charging 

document, we affirm. 

BACKGROUND

¶2 Zanes was the assistant manager at Rinse and Ride carwash.

He typically worked the closing shift and was responsible for counting 

money at the end of each day, preparing a deposit slip in duplicate, and 

securing the bundle in the office safe. Every couple of days, an employee 

from Rinse and Ride would take the bundles from the safe and deposit them 

at the bank in a drop box. The next day, an employee would collect a receipt 

from the bank and verify the amount credited matched the amounts 

reflected on the deposit slips.

¶3 In November 2019, Zanes’s manager noticed there were

missing deposit receipts from the bank for seven days when Zanes had been

working the closing shift. Upon making this discovery, the manager 

reported the theft to the police, estimating that $3,263 was missing based on 

the copies of deposit slips. Zanes did not return to work for his scheduled 

shifts or pick up his paycheck. After conducting a more thorough 

accounting, the manager contacted the police a second time to report that a 

total of $4,033 was missing.

¶4 The State charged Zanes with one count of theft, a class four 

felony, in the amount of $3,000 or more but less than $4,000. Before trial, the

State amended the Information to state that the alleged conduct occurred 

“on or between November 13, 2019 and November 19, 2019.”

¶5 At trial, the State introduced the deposit slips from seven 

different days, as well as surveillance footage for three of the days in 

question. The manager testified that surveillance footage for the other days 

was not available because the system only stores five-to-seven days’ worth 
STATE v. ZANES

Decision of the Court

3

of footage. The surveillance footage presented showed Zanes counting 

money and completing the deposit slips. But, instead of placing the bundle 

in the safe, Zanes placed it in a deposit bag and carried the bag out of the 

office when he left.

¶6 At the conclusion of the trial, the jury returned a guilty verdict 

finding Zanes committed a theft and found the total loss amount to be 

$4,033.1 The court sentenced Zanes to three years of supervised probation 

and ordered him to pay restitution to Rinse and Ride. Zanes timely 

appealed.

DISCUSSION

¶7 Zanes argues the Information was “duplicitous” and 

deprived him of his right to a unanimous jury verdict. He did not object to 

the contents of the Information at trial, thus we review for fundamental 

error. State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018). To prevail, Zanes must 

show that “the error goes to the foundation of [his] case, takes away a right 

essential to the defense, or is of such magnitude that it denied [him] a fair 

trial.” Id. We will then only reverse his conviction if he also establishes 

prejudice. Id. 

¶8 Zanes argues that the Information was duplicitous because it

charged one criminal act but alleged several acts to prove the charged 

offense. He relies on State v. Paredes-Solano, for the proposition that the 

Information violated his right to a unanimous verdict because the jury 

could convict Zanes of theft without unanimously agreeing about which of 

the alleged act or acts gave rise to the single charged offense. 223 Ariz. 284, 

287, ¶ 6 (App. 2009).

¶9 The Information before us is not duplicitous. A duplicitous 

information is one that “charges two or more distinct and separate offenses 

in a single count.” Id. ¶ 4 (quotations omitted). A duplicitous charge exists 

when the information refers “only to one criminal act but multiple criminal

acts are introduced to prove the charge.” Id. (quotations omitted). Zanes has 

not alleged that the Information charged two or more distinct and separate 

offenses in one count. Zanes instead argues that the Information lacked 

specificity about the alleged events underlying the charge of theft and that 

1 Although the jury found that the amount of theft was $4,033, the 

State stipulated that Zanes would be sentenced within the class 4 felony 

range requiring proof of theft in an amount between $3,000 to $4,000. See 

A.R.S. § 13-1802(G).
STATE v. ZANES

Decision of the Court

4

the seven acts offered to prove the one charge should each be considered 

separately as distinct acts, each constituting a theft.

¶10 The State may charge several criminal acts as one count “even 

if those acts might otherwise provide a basis for charging multiple criminal 

violations.” State v. Klokic, 219 Ariz. 241, 244, ¶ 14 (App. 2008); see also State 

v. Via, 146 Ariz. 108, 116 (1985) (holding that “where numerous transactions 

are merely parts of a larger scheme, a single count encompassing the entire 

scheme is proper.”). However, a defendant’s right to a unanimous jury 

verdict may be violated when the State introduces evidence of multiple 

criminal acts to prove one count. Klokic, 219 Ariz. at 248, ¶ 32. The jury may 

unanimously agree that the defendant is guilty of the charged offense 

without unanimously agreeing about which of the charged acts the 

defendant committed. Id. 

¶11 “[I]f the State introduces evidence of multiple criminal acts to 

prove a single charge, the trial court is normally obliged to take one or two 

remedial measures to insure the defendant receives a unanimous jury 

verdict.” Id. at 244, ¶ 14. The court may either (1) “require the state to elect 

the act which it alleges constitutes the crime,” or (2) “instruct the jury that 

they must agree unanimously on a specific act that constitutes the crime.” 

Id. (quotations omitted). These remedial measures are not necessary, 

however, when the State introduces evidence of multiple criminal acts that 

“are part of a single criminal transaction.” Id. ¶ 15. The court may determine 

that multiple criminal acts constitute a single criminal transaction when the 

defendant offers the same defense for each act and “there is no reasonable 

basis for the jury to distinguish between them.” Id. at 245, ¶ 18. 

¶12 Here, the State’s evidence of multiple criminal acts constitutes 

an ongoing course of conduct culminating in a single criminal transaction. 

The State introduced seven days’ worth of deposit slips as well as security 

footage of the office and safe. Zanes presented the same defense for each of 

the dates in question. He has not shown that the different transactions 

“gave rise to different defenses or otherwise assert[ed] a reasonable basis to 

distinguish between the acts.” Klokic, 219 Ariz. at 248, ¶ 33. The jury found 

Zanes guilty of theft and found the total loss to be $4,033, the total amount 

reported as missing over the seven-day period. The record before us does 

not reveal any violation of Zanes’s right to a unanimous jury verdict.

¶13 Even if, for the sake of argument, the charged offense was 

duplicitous, Zanes failed to show he suffered prejudice, as required to 

warrant a dismissal. See State v. Schroeder, 167 Ariz. 47, 52 (App. 1990); see 

also Escalante, 245 Ariz. at 138, ¶ 1. “To constitute reversible error, the 
STATE v. ZANES

Decision of the Court

5

defendant must have been prejudiced by [a duplicitous indictment] when 

considered in conjunction with all the evidence in the case.” State v. Kelly, 

149 Ariz. 115, 117 (App. 1986). Zanes contends that if he can show that the 

jury may have reached a nonunanimous verdict, he has established 

prejudice. We disagree. As explained above, the jury found that Zanes 

committed a theft in the amount of $4,033, the total amount missing over 

the seven-day period. 

¶14 Zanes also argues prejudice because the State could have 

charged him separately for each date, and therefore he would only be 

convicted of misdemeanor offenses instead of a felony offense. He contends 

that the “consequences” of a misdemeanor conviction are less severe than 

those of a felony conviction. This argument overlooks that the State has 

broad discretion over charging decisions. State v. Frey, 141 Ariz. 321, 324 

(App. 1984). Here, the State could have charged Zanes separately for each 

date and could also have added an additional charge under A.R.S. § 13-

2310, for example, alleging a fraudulent scheme, a class 2 felony. See State v. 

Griffin, 250 Ariz. 651, 656, ¶ 17 (“To support a conviction for fraudulent 

scheme and artifice, the state must prove that (1) pursuant to a scheme or 

artifice to defraud, (2) [defendant] knowingly obtained any benefit, (3) by 

means of false or fraudulent pretenses, representations, promises, or 

material omissions.”). Zanes’s argument is speculative, and he fails to take 

into account his heightened exposure had the State made a different 

charging decision. Hence, Zanes fails to establish prejudice as required. See 

State v. Munninger, 213 Ariz. 393, 397, ¶ 14 (App. 2006) (finding defendant’s 

speculation about the possibility of a different sentence to be insufficient to 

establish prejudice). 

¶15 Zanes also appears to challenge the sufficiency of the

evidence. He argues that while the State introduced deposit slips for seven 

dates, it only provided surveillance footage for three days. He also takes 

issue with one deposit slip that did not have his initials on it and the lack of 

surveillance footage for the date of that deposit. And he disputes that there 

was a lack of evidence from the bank where the deposits were made. But 

Zanes had an opportunity to cross-examine the manager about the deposit 

slips and the lack of surveillance footage. The State offered testimony from 

the manager that surveillance footage for some of the dates in question was 

unavailable because the system holds a limited amount of footage. This 

court does not reweigh the evidence “already considered by the jury” and 

resolves any conflicts in the evidence “in favor of sustaining the verdict.” 

State v. Fuentes, 247 Ariz. 516, 526, ¶ 38 (App. 2019) (quotations and citations 

omitted). 
STATE v. ZANES

Decision of the Court

6

CONCLUSION

¶16 We affirm Zanes’s conviction and sentence.