State v. Ault

• Decision Date: 04 August 1988
• Docket Number: No. CR-86-0388-AP,CR-86-0388-AP
• Citation: 759 P.2d 1320,157 Ariz. 516
• Parties: STATE of Arizona, Appellee, v. Gary Michael AULT, Appellant.
• Court: Arizona Supreme Court

Page 1320

759 P.2d 1320

157 Ariz. 516

STATE of Arizona, Appellee, v. Gary Michael AULT, Appellant.

No. CR-86-0388-AP.

Supreme Court of Arizona, In Banc.

Aug. 4, 1988.

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Greg A. McCarthy, Asst. Atty. Gen., Phoenix, for appellee.

Robert J. Roberson, Yuma, for appellant.

GORDON, Chief Justice.

In the early morning hours of December 27, 1984, Appellant, Gary Ault, broke into a home, entered the bedroom of a one-year-old boy and a six-year-old girl, and fondled the young girl's genitalia. When the victim awoke and screamed, Ault ran out of the house. The details of the investigation and the facts as brought out in Ault's first trial are reported in State v. Ault, 150 Ariz. 459, 724 P.2d 545 (1986).

Ault was indicted on January 3, 1985, for the crimes of second-degree burglary and child molestation. The State alleged prior convictions for six offenses from the State of California. Appellant was convicted on March 21, 1985, on both counts, and was sentenced to life imprisonment for child molestation and a concurrent 11.25-year term for burglary. This court reversed and remanded. State v. Ault, 150 Ariz. 459, 724 P.2d 545 (1986).

Following a mistrial, Appellant was retried on November 20, 1986. He was again convicted of second-degree burglary and child molestation, and again received a life sentence for child molestation and a concurrent 11.25-year term for burglary. He appeals his convictions and sentences. We have jurisdiction pursuant to Ariz.Const. art. 6 § 5(3) and A.R.S. § 13-4031.

I. QUESTIONS PRESENTED

Appellant raises two issues on appeal.

1. Was Appellant properly sentenced pursuant to A.R.S. § 13-604(N)? ¹

2. Did the trial court err in denying Appellant's motion for a new trial?

II. SENTENCING

A.

Appellant was initially indicted for burglary in the second degree, in violation of A.R.S. §§ 13-1507, 13-1501, 13-701 and 13-801, and child molestation, in violation of A.R.S. §§ 13-1410, 13-701, and 13-801. The State moved to amend the indictment under A.R.S. § 13-604, to allege that Appellant had previously been convicted in California of six offenses: burglary, oral copulation by force and violence, and attempted rape by threats of bodily harm (occurring on one occasion); and burglary, oral copulation by force and violence, and rape by threats of bodily harm (occurring on a different occasion). Certified records, including an abstract of judgment, Ault's picture and his fingerprints were attached to the motion. Appellant did not object to the motion, and the trial court granted it. Appellant then denied the allegations in the amendment.

Subsequently, the State moved to amend the indictment under A.R.S. § 13-604.01(B) to allege that Appellant committed the instant offense while released on bond. Appellant opposed this second motion on the ground that he had not yet been convicted of the charge mentioned in the motion. At the hearing on the motion, the trial court observed that the appropriate section would be A.R.S. § 13-604(M). The State agreed, and the court ordered the motion corrected to reflect the new statutory citation. Appellant had no opposition to the motion as altered. He then denied the allegations in the amendment.

At the first trial, while the jury was deliberating on the principal charges, the trial court asked the State if it had evidence to prove Appellant's priors. The State replied that it did, and detailed its evidence. The trial court then observed that A.R.S. § 13-604(N) would be applicable. The trial court asked the State whether it also intended to pursue a conviction under A.R.S. § 13-604(M), and the State replied that it did not. After Appellant's conviction of the principal offenses, the jury also found Ault guilty of having the six prior convictions the State had alleged. The court entered a minute entry to reflect that the State was proceeding under A.R.S. § 13-604(N), and dropped its amendment under A.R.S. § 13-604(M). On the child molestation count, Appellant was sentenced as a serious offender under A.R.S. § 13-604(N).

On remand, Ault asserted that the trial court could not sentence him under A.R.S. § 13-604(N). Ault alleged that the court lacked a sufficient basis for determining whether the California priors were "serious" under the subsection. He also claimed that the jury, rather than the judge, should have determined whether the priors, which Appellant admitted, were serious under § 13-604(N). The trial court disagreed. It ruled that Ault's present conviction for child molestation was a serious offense. It also ruled that Ault's prior convictions for oral copulation by force and violence (first occasion), oral copulation by force and violence (second occasion), and rape were serious. Accordingly, the trial court, on the molestation conviction, sentenced Appellant to life imprisonment without eligibility for parole for 25 years. See A.R.S. § 13-604(N). ²

B.

A.R.S. § 13-604(N), at all times relevant to this proceeding, provided:

A person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a serious offense ... and who has previously been convicted of two or more serious offenses not committed on the same occasion shall be sentenced to life imprisonment and is not eligible for ... release from confinement on any ... basis ... until the person has served not less than 25 years.

"Serious offense" was defined in § 13-604(O) as:

any of the following offenses if committed in this state or any offense committed outside this state which if committed in this state would constitute one of the following offenses:

....

5. Sexual assault.

6. Child molestation.

....

Appellant raises two objections to his sentence. First, he claims that the jury, not the judge, should determine whether prior convictions qualify as "serious offenses" under § 13-604(N) and (O). Second, he claims that an inadequate showing was made that his prior convictions qualified as serious offenses. ³ We discuss these objections separately.

1. Who should determine seriousness?

Immediately after the jury returned its verdict on the principal charges, Ault admitted that he had been previously convicted of six felonies in California. ⁴ The felonies included two convictions for "oral copulation by force and violence" and one conviction for "rape by threats of bodily harm." ⁵

At the sentencing hearing, the trial court found that Ault was guilty of the crime of child molestation, a serious offense as defined in A.R.S. § 13-604(O)(6), and had previously been convicted of two counts of oral copulation by force and violence (on two separate occasions), also serious offenses under A.R.S. § 13-604(O)(5). Therefore, the court imposed the mandatory sentence of life imprisonment without release on any basis until Ault served 25 years.

Ault argues that, although he admitted the fact of his prior convictions, he did not admit that they were serious. He contends that the jury, not the judge, should have determined this issue. He urges this court to rule that the serious nature of priors is similar to a finding of dangerousness, which he contends is a question for the trier of fact to determine. See State v. Brydges, 134 Ariz. 59, 653 P.2d 707 (App.1982); cf. State v. Hunter, 137 Ariz. 234, 236-239, 669 P.2d 1011, 1015-16 (App.1983). We disagree.

The construction Appellant urges is inconsistent with the language of A.R.S. § 13-604. ⁶ Section 13-604(K) provides:

The penalties prescribed by this section shall be substituted for the penalties otherwise authorized by law if the previous conviction, the dangerous nature of the felony or the allegation that the defendant committed a felony while released on bond or on his own recognizance as provided in subsection M of this section is charged in the indictment or information and admitted or found by the trier of fact....

(Emphasis added.)

This subsection expressly lists those things that must be found by the trier of fact. The serious nature of an offense is not listed. Generally, when the legislature expresses a list, we assume the exclusion of items not listed. Pima County v. Heinfeld, 134 Ariz. 133, 654 P.2d 281 (1982); State v. Allred, 102 Ariz. 102, 425 P.2d 572 (1967).

The history of § 13-604 also supports the conclusion that the trial judge must determine seriousness. Before its amendment in 1981, § 13-604 provided for enhanced punishment only for recidivists and/or dangerous offenders. See 1980 Ariz.Sess.Laws, ch. 229, § 7. At that time, § 13-604(K) required that prior convictions and the dangerous nature of convictions had to be either admitted or found by the trier of fact. Id. In 1981, the legislature amended A.R.S. § 13-604 to prescribe an enhanced sentence for a person convicted of committing a felony while released on bail or on his own recognizance. See A.R.S. § 13-604(M), 1981 Ariz.Sess.Laws, ch. 165, § 1. In the same act, the legislature amended § 13-604(K) to provide that in order to impose an enhanced penalty under the new subsection, the defendant had to admit or the trier of fact had to find that the defendant committed the crime while on bond or while released on his own recognizance.

Conversely, when the legislature added § 13-604(N) and (O) to provide for enhanced punishments for repeat "serious" offenders, it did not amend subsection K to provide that "seriousness" must be found by the trier of fact. Because the legislature obviously knew how to require a jury finding when that was its intention and did not make such a provision here, we conclude that the legislature did not intend for seriousness to require a separate finding by the trier of fact.

Moreover, leaving the seriousness determination to the trial judge is the sensible rule. Whether an offense is serious as defined in A.R.S. § 13-604(O) is purely a legal question; it does not depend on the merits of alternative versions of the facts. Once the...