1 

SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-07-0319-PR 

 Appellee, ) 

 ) Court of Appeals 

 v. ) Division Two 

 ) No. 2 CA-CR 06-0280 

ANN MAVINEE LEENHOUTS, ) 

 ) Pima County 

 Appellant. ) Superior Court 

 ) No. CR20043719 

 )

 )

 ) O P I N I O N 

__________________________________) 

Appeal from the Superior Court in Pima County 

The Honorable Charles S. Sabalos, Judge

REVERSED

________________________________________________________________

Memorandum Decision of the Court of Appeals, Division Two

Filed Sept. 6, 2007

VACATED

________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL 

 By Randall M. Howe, Chief Counsel, Phoenix 

 Criminal Appeals Section

 Joseph L. Parkhurst, Tucson 

 Assistant Attorney General 

Attorneys for State of Arizona

Peter A. Kelly Palominas

Attorney for Ann M. Leenhouts

________________________________________________________________

M c G R E G O R, Chief Justice

¶1 Arizona Rule of Criminal Procedure 14.1 requires that 

a defendant not in custody be arraigned “within 30 days after 
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the filing of an indictment” or “as soon as possible 

thereafter.” Ariz. R. Crim. P. 14.1(a), (b). We must decide 

whether the superior court erred in ordering a trial to proceed 

on a supervening indictment on the same day that the defendant 

learned of the supervening indictment. We hold that the 

superior court erred in requiring the trial to proceed. 

I. 

¶2 In 2003, Ann Leenhouts began divorce proceedings 

against her then-husband. In August 2004, the superior court 

granted the husband full custody of the couple’s three children, 

but Leenhouts did not return the children to him. In September 

2004, a Deputy United States Marshal located her and the 

children in Maryland and took Leenhouts into custody. Maryland 

authorities then released the children to the husband. 

¶3 In October 2004, a grand jury indicted Leenhouts for 

custodial interference in violation of Arizona Revised Statutes 

(A.R.S.) section 13-1302.A.3 (2001) (subsection A.3), a class 6 

felony. In December 2004, the superior court arraigned 

Leenhouts and released her on her own recognizance. The 

following October, the State obtained a supervening indictment 

charging Leenhouts with custodial interference in violation of 

both A.R.S. § 13-1302.A.1 (subsection A.1) and subsection A.3. 

Leenhouts was never arraigned on the supervening indictment. 

¶4 Leenhouts and her counsel first saw the supervening 
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indictment on May 23, 2006, the first day set for trial. 

Leenhouts objected to proceeding on the supervening indictment, 

arguing that she had received insufficient notice of the new 

charge based on subsection A.1. Leenhouts also argued that the 

supervening indictment prejudiced her by depriving her of an 

absolute defense to the original charge based on subsection A.3. 

The court overruled Leenhouts’s objection, and the trial 

proceeded on the charges in the supervening indictment. A jury 

ultimately found Leenhouts guilty. 

¶5 Leenhouts appealed, arguing that the trial court erred 

by ordering the trial to continue in violation of Rule 14.1. In 

a memorandum decision, the court of appeals affirmed. The court 

concluded that the record was “devoid of any suggestion 

Leenhouts had relied on the initial indictment to her 

detriment.” The court noted that because Leenhouts filed an 

extensive pretrial disclosure statement and prepared a necessity 

defense, the record indicated that she did not rely solely on 

her absolute defense to the charge of custodial interference 

under subsection A.3. Moreover, the court stated, Leenhouts 

failed to request a continuance.1

                                                           

1

 Leenhouts also made an argument based on the Sixth 

Amendment, U.S. Const. amend. VI, which the court of appeals 

declined to address because she did not raise that argument 

until oral argument. Because we resolve this case on the basis 

of Rule 14.1, we do not address the Sixth Amendment argument. 
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¶6 We granted Leenhouts’s petition for review because it 

raises an issue of statewide importance. We exercise 

jurisdiction pursuant to Article 6, Section 5.3, of the Arizona 

Constitution and Rule 23(c) of the Arizona Rules of Civil 

Appellate Procedure. 

II. 

A. 

¶7 The State necessarily concedes that because Leenhouts 

was never arraigned on the supervening indictment, these 

proceedings did not comply with Rule 14.1. The purpose of an 

arraignment under Rule 14 “is formally to advise the defendant 

of [her] legal rights and of the charges against [her] and to 

begin the proceedings by assuring that counsel is provided and 

the date of trial set.” Ariz. R. Crim. P. 14 cmt. Although the 

State obtained the supervening indictment in October 2005, 

Leenhouts was not served with the indictment or arraigned before 

the date set for trial the following May. 

¶8 As the State recognized during oral argument, the 

record does not demonstrate any attempt by the State to fulfill 

its obligation to serve Leenhouts with the supervening 

indictment. The State’s failure to serve Leenhouts or 

demonstrate its attempts to serve her, for more than seven 

months after it filed the supervening indictment, violated Rule 

14.1. 
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B. 

¶9 Rule 14.1 does not define the sanction to be imposed 

in the absence of a timely arraignment. See State v. Vassar, 

111 Ariz. 487, 489, 533 P.2d 544, 546 (1975). “There is nothing 

in the rules which requires that the case be dismissed for 

failure to comply with [Rule 14.1]. Absent such a sanction, it 

is necessary that actual prejudice be shown.” Id. Prejudice 

exists if the failure to arraign a defendant deprives him or her 

of notice of the charges and thereby deprives the defendant of 

the opportunity to defend against those charges. See State v. 

Curry, 187 Ariz. 623, 631, 931 P.2d 1133, 1141 (App. 1996); 

State v. Dungan, 149 Ariz. 357, 362, 718 P.2d 1010, 1015 (App. 

1985) (“[T]here is no prejudice if the defendant had full and 

fair notice of the crime charged, is not surprised, confused or 

prejudiced in his defense, and is afforded a full and fair 

opportunity to defend the charge against him.”). 

¶10 The original indictment charged Leenhouts only with 

custodial interference in violation of subsection A.3, which 

applies when a person who is “one of two persons who have joint 

legal custody of a child takes, entices or withholds from 

physical custody the child from the other custodian,” “knowing 

or having reason to know that the person has no legal right to 

do so.” A.R.S. § 13-1302.A.3. To establish custodial 

interference in violation of subsection A.3, therefore, the 
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State needed to show that Leenhouts was one of two persons who 

had joint legal custody of the children. But because the court 

had granted the husband full custody of the children, Leenhouts 

did not share joint legal custody, and the State simply could 

not establish the charge’s joint legal custody requirement. 

¶11 Perhaps aware of its inability to prove the original 

charge, the State obtained a supervening indictment. The 

indictment added a charge of custodial interference in violation 

of subsection A.1. A person violates subsection A.1 when the 

person, 

knowing or having reason to know that the person has 

no legal right to do so . . . [t]akes, entices or 

keeps from lawful custody any child, or any person who 

is incompetent, and who is entrusted by authority of 

law to the custody of another person or institution. 

A.R.S. § 13-1302.A.1. Leenhouts’s argument before the trial 

judge on the first day of trial makes clear that she and her 

counsel lacked notice of the supervening indictment’s new 

custodial interference charge, alleged under subsection A.1. 

¶12 There can be little question that the State’s failure 

to provide notice of the new charge in the supervening 

indictment prejudiced Leenhouts’s defense. She and her counsel 

arrived for trial knowing that the State could not show the 

joint legal custody required to obtain a conviction under 

subsection A.3. The new charge, in contrast, alleged a 

violation to which Leenhouts’s “absolute defense” did not apply. 
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The lack of notice clearly prejudiced Leenhouts. 

¶13 The State argues that the Rule 14.1 violation did not 

deprive Leenhouts of notice of the charges against her because 

the supervening indictment did not change the nature of the 

charge in the original indictment. Cf. State v. Van Vliet, 108 

Ariz. 162, 164, 494 P.2d 34, 36 (1972) (stating that a new 

arraignment is generally unnecessary if an amended indictment 

does not change the nature of the offense). Subsections A.1 and 

A.3, however, define distinct statutory offenses with distinct 

elements. The State itself apparently regarded the charges as 

sufficiently different to require that it obtain a superseding 

indictment rather than merely amend the original indictment 

pursuant to Arizona Rule of Criminal Procedure 13.5. Because 

the elements required to prove a violation of subsection A.1 

differ from those required to prove a violation of subsection 

A.3, the original and supervening indictments do not allege the 

same charge. 

¶14 The legislative history of A.R.S. § 13-1302 buttresses 

our conclusion. Pursuant to a statutory amendment in 1997, the 

legislature adopted a new version of A.R.S. § 13-1302.A. 1997 

Ariz. Sess. Laws, ch. 270, § 1 (1st Reg. Sess.). The previous 

version simply stated: 

A person commits custodial interference if, knowing or 

having reason to know that he has no legal right to do 

so, such person knowingly takes, entices or keeps from 
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lawful custody any child who is less than eighteen 

years of age or incompetent and who is entrusted by 

authority of law to the custody of another person or 

institution. 

1994 Ariz. Sess. Laws, ch. 364, § 1 (2d Reg. Sess.). The 

previous version did not clearly encompass situations in which 

one custodial parent deprived another custodial parent of 

physical custody of a child. Final Revised Fact Sheet for H.B. 

2248, 43d Leg. (Sen.), 1st Reg. Sess. (1997). The 1997 

legislative amendment sought to “rectify these types of 

situations by increasing the scope of actions which come under 

custodial interference,” and redefined custodial interference to 

include situations involving joint legal custodians. Id. The 

1997 amendment renumbered A.R.S. § 13-1302.A as subsection A.1 

and added subsection A.3. 

¶15 This history indicates that the legislature, in 

creating subsections A.1 and A.3, intended to define distinct 

custodial interference violations. Viewing the two subsections 

as the State urges renders subsection A.3 superfluous. We 

decline to treat the 1997 amendment as an inconsequential 

legislative act and conclude that the State’s addition of a 

subsection A.1 charge changed the nature of the charges against 

Leenhouts. 

III. 

¶16 For the foregoing reasons, we vacate the decision of 
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the court of appeals. We reverse the conviction and remand the 

matter to the superior court for proceedings consistent with 

this opinion. 

 _______________________________________

 Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________

Rebecca White Berch, Vice Chief Justice

_______________________________________

Michael D. Ryan, Justice

_______________________________________

Andrew D. Hurwitz, Justice

_______________________________________

W. Scott Bales, Justice