State v. Delgado, 2 CA–CR 2012–0287.

• Court: Court of Appeals of Arizona
• Citation: 303 P.3d 76,232 Ariz. 182
• Docket Number: No. 2 CA–CR 2012–0287.,2 CA–CR 2012–0287.
• Parties: The STATE of Arizona, Appellee, v. Manuel Alejandro DELGADO, Appellant.
• Decision Date: 30 May 2013

232 Ariz. 182
303 P.3d 76

The STATE of Arizona, Appellee,
v.
Manuel Alejandro DELGADO, Appellant.

No. 2 CA–CR 2012–0287.

Court of Appeals of Arizona,
Division 2, Department B.

May 30, 2013.

[303 P.3d 78]

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Diane Leigh Hunt, Tucson, Attorneys for Appellee.

Lori J. Lefferts, Pima County Public Defender By David J. Euchner and Michael T. Brooks, Tucson, Attorneys for Appellant.

OPINION
KELLY, Judge.

[232 Ariz. 184]¶ 1 Manuel Delgado appeals from his convictions and sentences for one count each of aggravated assault and simple assault. He argues A.R.S. § 13–1204(B)(1), which provides that a person commits aggravated assault by “imped [ing] the normal breathing or circulation of blood of another person,” is unconstitutionally vague. He also contends the trial court abused its discretion by denying his motion to preclude the testimony of a “ strangulation expert” pursuant to Rule 702, Ariz. R. Evid. Finally, he argues that the information and charges were duplicitous and constituted fundamental error. We affirm.

[303 P.3d 79]

[232 Ariz. 185]Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to upholding Delgado's convictions and sentences. See State v. Becerra, 231 Ariz. 200, ¶ 2, 291 P.3d 994, 996 (App.2013). In October 2011, Delgado and D.H., who have a child in common, were living together. D.H. testified that after the two had been arguing via text message one day, Delgado came home from work, “grabbed” her shoulders, and “headbutted” her. He then put his hands around D.H.'s neck for a number of minutes, alternately “squeezing” and loosening his grip. When he squeezed her neck, D.H. could not talk or breathe. Delgado then left the home, but came back shortly thereafter, broke down the door, grabbed D.H. from behind, and pressed his forearm against her throat. Delgado eventually released D.H. and told her to leave.

¶ 3 Count one charged Delgado with aggravated assault for impeding D.H.'s breathing or circulation of blood; count two charged him with simple assault for “head butting” D.H.; and count three charged him with impeding D.H.'s breathing or circulation a “second time.” After a jury trial, Delgado was convicted of count one and the lesser-included offense of assault on count three. The jury found him not guilty of count two, the simple assault charge. Delgado was sentenced to an enhanced, slightly mitigated prison term of eight years for the aggravated assault and time served for the assault. This appeal followed.

Discussion I. Constitutionality of A.R.S. § 13–1204(B)(1)

¶ 4 Delgado first argues, as he did below, that A.R.S. § 13–1204(B)(1) is unconstitutionally vague. The constitutionality of a statute is a question of law we review de novo, beginning with a strong presumption the statute is constitutional. Polanco v. Indus. Comm'n, 214 Ariz. 489, ¶ 6, 154 P.3d 391, 394 (App.2007). The defendant has the burden of establishing a statute's constitutional invalidity. State v. McLamb, 188 Ariz. 1, 5, 932 P.2d 266, 270 (App.1996).

¶ 5 A statute is unconstitutionally vague if it does not “ ‘give persons of ordinary intelligence notice of what conduct is prohibited and contain explicit standards of application so as to prevent arbitrary and discriminatory enforcement.’ ” State v. McDermott, 208 Ariz. 332, ¶ 13, 93 P.3d 532, 536 (App.2004), quoting State v. Cotton, 197 Ariz. 584, ¶ 19, 5 P.3d 918, 924 (App.2000). We are not required to find a law unconstitutionally vague simply because it has not been “ ‘drafted with absolute precision,’ ” lacks an “ ‘explicit definition,’ ” or is “ ‘susceptible to different interpretations.’ ” State v. Putzi, 223 Ariz. 578, ¶ 4, 225 P.3d 1154, 1155 (App.2010), quoting State v. Zinsmeyer, 222 Ariz. 612, ¶ 35, 218 P.3d 1069, 1082 (App.2009), overruled on other grounds by State v. Bonfiglio, 231 Ariz. 371, 295 P.3d 948 (2013).

¶ 6 Section 13–1204(B)(1) provides that a person commits aggravated assault by “intentionally or knowingly imped[ing] the normal breathing or circulation of blood of another person by applying pressure to the throat or neck or by obstructing the nose and mouth” in the context of a domestic violence assault. Delgado argues use of the word “normal” in the statute renders it unconstitutionally vague because “ ‘[n]ormal’ is a relative term, and no person in Arizona can be expected to know what ‘normal’ breathing or circulation of blood represents.” As some support for his argument, Delgado refers to the testimony of state expert Dr. Ronald Salik, who stated at trial “[i]n medicine, it's always difficult to say what is normal.” Delgado maintains that if the state's expert cannot provide one definition of “normal” breathing or circulation, “it cannot be said that anyone of reasonable intelligence could understand what is forbidden” by the statute.

¶ 7 We agree that “normal” may be used as a relative term that depends on its context. “Normal” means “[c]onforming with, adhering to, or constituting a norm, standard, pattern, level, or type; typical: [e.g.] ... one's normal weight.” The American Heritage Dictionary 1202 (5th ed. 2011). However, the fact that “normal” may not be the same for all persons does not render the statute unconstitutionally vague. See Putzi, 223 Ariz. 578, ¶ 4, 225 P.3d at 1155 (statute [232 Ariz. 186]

[303 P.3d 80]

not void simply because subject to multiple interpretations). A plain reading of § 13–1204(B)(1) provides adequate notice that a person may not impede another person's normal or typical breathing or circulation of blood. See State v. Takacs, 169 Ariz. 392, 395, 819 P.2d 978, 981 (App.1991) (reviewing court “should give statutes a constitutional construction whenever possible”). As Salik noted during his testimony, “What is normal is for that certain situation.” And Delgado provides no support for his contention that a statute is unconstitutionally vague unless each of its terms has a “legally fixed standard” meaning. See State v. Thompson, 204 Ariz. 471, ¶ 15, 65 P.3d 420, 424 (2003) (law must provide some legally fixed standards for those enforcing it). To the contrary, whether a statute provides adequate notice of the prohibited conduct turns on its ordinary meaning, not its technical one. McDermott, 208 Ariz. 332, ¶ 13, 93 P.3d at 536.

¶ 8 Delgado has not sustained his burden to establish the statute's unconstitutionality. McLamb, 188 Ariz. at 5, 932 P.2d at 270. We see no likelihood that a person of reasonable intelligence would not understand what conduct is prohibited by the statute, and we will not conclude the statute is invalid simply because it might have been written with greater precision. See Takacs, 169 Ariz. at 394–95, 819 P.2d at 980–81.

II. Expert Testimony

¶ 9 Before trial, Delgado filed a motion to preclude Salik's testimony as a “strangulation expert” pursuant to Rule 702, Ariz. R. Evid. The court denied the motion at a pre-trial hearing, concluding that Salik was qualified to testify based on his medical training and experience. Delgado now challenges that ruling, contending Salik's testimony “did not help the jury determine any issue, ... w[as] not based on sufficient data,” and did not apply “reliable principles or methods.” We review a court's denial of a motion to preclude evidence for an abuse of discretion. See Becerra, 231 Ariz. 200, ¶ 4, 291 P.3d at 996.

¶ 10 Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

¶ 11 The Arizona Supreme Court amended Rule 702 on September 8, 2011, effective January 1, 2012, to “adopt[ ] Federal Rule of Evidence 702, as restyled” and to reflect the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Ariz. R. Evid. 702 cmt.; Ariz. Sup. Ct. Order No. R–10–0035 (Sept. 8, 2011). Therefore, we consider federal court decisions interpreting the federal rule as persuasive authority. Ariz. State Hosp. v. Klein, 231 Ariz. 467, ¶ 26, 296 P.3d 1003, 1009 (App.2013).

¶ 12 Delgado argues Salik had “no specialized training in strangulation” and suggests his relevant experience was insufficient to qualify him as an expert because it was limited to taking patient histories regarding strangulation when treating trauma injuries. Whether a witness is qualified as an expert is to be construed liberally, and it would be an abuse of discretion “ ‘to exclude testimony simply because ... the proposed expert does not have the specialization that the court considers most appropriate.’ ” Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 809 (3rd Cir.1997), quoting Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3rd Cir.1996). If an...