State v. Dominguez
| Decision Date | 19 November 2014 |
| Docket Number | No. 2 CA–CR 2014–0015.,2 CA–CR 2014–0015. |
| Citation | 700 Ariz. Adv. Rep. 11,236 Ariz. 226,338 P.3d 966 |
| Parties | The STATE of Arizona, Appellee, v. George Anthony DOMINGUEZ Jr., Appellant. |
| Court | Arizona Court of Appeals |
OPINION TEXT STARTS HERE
Affirmed as modified; vacated in part. Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Jonathan Bass, Assistant Attorney General, Tucson, Counsel for Appellee.
Harriette P. Levitt, Tucson, Counsel for Appellant.
OPINION
¶ 1 Following a jury trial, appellant George Dominguez Jr. was convicted of manslaughter, endangerment, discharging a firearm at a residential structure, second-degree burglary, theft of a firearm, and second-degree trafficking in stolen property. The trial court imposed a combination of concurrent and consecutive prison terms totaling twenty-one years, followed by concurrent five-year terms of probation upon his release from prison. On appeal, Dominguez argues his conviction for endangerment constitutes double jeopardy. He also contends the trial court erred in denying his motion for a new trial and imposing aggravated sentences. We affirm the convictions and sentences, as corrected, but vacate an unauthorized fee imposed at sentencing.
¶ 2 We view the evidence in the light most favorable to upholding the verdicts. See State v. Chappell, 225 Ariz. 229, n. 1, 236 P.3d 1176, 1180 n. 1 (2010). In January 2012, Dominguez was carrying a rifle while searching for marijuana plants in a rural area of Graham County with some of his friends. When Dominguez and another friend came across an occupied “shack,” Dominguez fired a shot into it that killed the victim. Dominguez returned with the same friend the following day to burglarize the victim's shack and take a shotgun from it. He later admitted to several people that he had shot the victim and taken the shotgun, which Dominguez turned into a “sawed-off” gun in order to make it less identifiable. He was convicted as noted above, and this appeal followed the imposition of sentence.
¶ 3 Dominguez first asserts his conviction for endangerment violates his constitutional protections against double jeopardy.1 His argument is based on the premise that felony endangerment under A.R.S. § 13–1201 is a lesser-included offense of manslaughter under A.R.S. § 13–1103(A)(1), and both offenses here were based on the same act against the same victim. See State v. Ortega, 220 Ariz. 320, ¶ 9, 206 P.3d 769, 773 (App.2008) (). We will find one crime to be a lesser-included offense of another if it is “composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the [greater] crime ... without having committed the lesser one.” State v. Ramirez, 142 Ariz. 171, 175, 688 P.2d 1063, 1067 (App.1984); accord State v. Anderson, 210 Ariz. 327, ¶ 139, 111 P.3d 369, 399 (2005).
¶ 4 A close examination of the elements of manslaughter and felony endangerment reveals that the latter is not included in the former. A person commits manslaughter by “recklessly causing the death of another person,” § 13–1103(A)(1)—that is, by killing another person after consciously disregarding a “substantial and unjustifiable risk” of death, A.R.S. § 13–105(10)(c).2 Felony endangerment, on the other hand, occurs when one person recklessly creates “a substantial risk of imminent death” to another. § 13–2101(B) (emphasis added); accord State v. Doss, 192 Ariz. 408, ¶ 7, 966 P.2d 1012, 1015 (App.1998). The word “imminent” means “about to occur” or “impending.” The American Heritage Dictionary 879 (5th ed.2011); accord Little v. All Phx. S. Comm. Mental Health Ctr., Inc., 186 Ariz. 97, 102, 919 P.2d 1368, 1373 (App.1995). We do not interpret any words in a statute to be meaningless or trivial, Mejak v. Granville, 212 Ariz. 555, ¶ 9, 136 P.3d 874, 876 (2006), but rather give operation and effect to each one. State ex rel. Dep't of Econ. Sec. v. Hayden, 210 Ariz. 522, ¶ 7, 115 P.3d 116, 117 (2005). Thus, the endangerment statute requires proof of a “substantial risk” of a particular harm, namely an “imminent death.” § 13–1201(B); cf. Me. People's Alliance v. Mallinckrodt, Inc., 471 F.3d 277, 279 & n. 1 (1st Cir.2006) ().
¶ 5 Although restricting felony endangerment to situations involving “imminent death” may seem unintuitive at first blush, it is an important feature of a statute that criminalizes conduct posing a substantial risk rather than creating an observable result. See A.R.S. § 13–104 (). Whereas our manslaughter statute criminalizes reckless acts that actually result in death—including gradual or delayed deaths, as with exposure to certain hazardous substances or environmental toxins—our endangerment statute uses the modifying adjective “imminent” to exclude deaths that are too remote in time, even if the risks of such deaths might be considered substantial and unjustified. With the qualifying word “imminent” in place, our endangerment statute thus avoids criminal convictions based on speculative or attenuated theories that could produce uncertainty and unpredictability. Cf. W.R. Grace & Co. v. U.S. E.P.A., 261 F.3d 330, 339–40 (3d Cir.2001) ().3
¶ 6 The “imminent death” language in § 13–1201(B) also is similar to that found in our justification statute A.R.S. § 13–418(A), which allows the use of deadly force against someone who creates an “imminent peril of death or serious physical injury” to the occupant of a home or vehicle. Our legislature is thus well aware of the implications of including or omitting the word “imminent” in a criminal statute. See Korzep v. Superior Court, 172 Ariz. 534, 537, 838 P.2d 1295, 1298 (App.1991). The temporal component of imminence is essential to both felony endangerment and justification.
¶ 7 Because a person can commit manslaughter by acts that create a “substantial and unjustifiable risk” of death, § 13–105(10)(c), though not necessarily “imminent death,” § 13–1201(B), felony endangerment is not a lesser-included offense of manslaughter. We therefore reject Dominguez's double jeopardy argument. See State v. Diaz, 223 Ariz. 358, ¶ 11, 224 P.3d 174, 176 (2010) ().4
¶ 8 Dominguez next claims the trial court erred by denying his motion for a new trial. He does not cite any legal authority to support this argument, apart from Rule 24.1(c)(4), Ariz. R.Crim. P., and a single case establishing that we review the trial court's ruling for an abuse of discretion. See State v. Bogard, 88 Ariz. 244, 246, 354 P.2d 862, 863 (1960). In his reply brief, Dominguez suggests his citation to his motion for a new trial makes “all of the arguments therein ... incorporated by reference.” This is flatly incorrect. Rule 31.13(c)(1)(vi), Ariz. R.Crim. P., requires arguments and supporting authorities to be provided in the body of an opening brief, State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995); incorporation by reference is forbidden, State v. Rodgers, 134 Ariz. 296, 302, 655 P.2d 1348, 1354 (App.1982).
¶ 9 In any event, we find no abuse of discretion on the record before us. Dominguez sought relief below under Rule 24.1(c)(4), alleging the trial court had “erred in ... a matter of law” by refusing to admit the out-of-court statement of an unavailable witness, M.H., who claimed he had seen a third party, D.S., in possession of a sawed-off shotgun matching the description of the one taken from the victim. Dominguez sought to admit M.H.'s statement in order to show that the shotgun Dominguez had admitted stealing and modifying had actually been stolen in an earlier burglary of the same residence by M.H. and D.S. The trial court correctly determined the statement was inadmissible hearsay, see Ariz. R. Evid. 801(c), 802, and denied the motion.
¶ 10 Contrary to Dominguez's suggestion, the statement was not admissible under Rule 804(b)(3), Ariz. R. Evid. That provision allows a hearsay statement to be admitted if it is contrary to the declarant's penal interest or subjects him to criminal liability such that “a reasonable person in the declarant's position would have made [the statement] only if the person believed it to be true.” Id. A statement must be individually self-inculpatory to fall within this exception. State v. Soto–Fong, 187 Ariz. 186, 194, 928 P.2d 610, 618 (1996). “To determine if a statement is truly against interest requires a fact-intensive inquiry of the surrounding circumstances[,] and each declaration must be scrutinized to determine if it is self-inculpatory in light of the totality of circumstances.” State v. Nieto, 186 Ariz. 449, 455, 924 P.2d 453, 459 (App.1996).
¶ 11 M.H. made his statement during an interview with a detective from the Graham County Sheriff's Office concerning the prior burglary. Their exchange was as follows:
[Detective]: ... [H]ave you ever known D[.S.] to have a .12 gauge sawed off by chance?
[Detective]: say the last 18 month[s]?
MH: I think I might've seen one.
[Detective]: Yeah?
MH: Well, a wooden handle one, look like it's all broken up?
[Detective]: Yeah, well it would've, the barrel would've been sawed off?
MH: And the butt.
The record on appeal contains only the above quotation from the...
To continue reading
Request your trial