State v. Duarte, 2 CA-CR 2017-0349

• Decision Date: 29 November 2018
• Docket Number: No. 2 CA-CR 2017-0349,2 CA-CR 2017-0349
• Citation: 246 Ariz. 338,438 P.3d 707
• Parties: The STATE of Arizona, Appellee, v. Alejandro Ray DUARTE, Appellant.
• Court: Arizona Court of Appeals

246 Ariz. 338

438 P.3d 707

The STATE of Arizona, Appellee,

v.Alejandro Ray DUARTE, Appellant.

No. 2 CA-CR 2017-0349

Court of Appeals of Arizona, Division 2.

Filed November 29, 2018

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Amy M. Thorson, Assistant Attorney General, Tucson, Counsel for Appellee

Joel Feinman, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellant

Presiding Judge Vásquez authored the opinion of the Court, in which Judge Espinosa and Judge Eppich concurred.

VÁSQUEZ, Presiding Judge:

¶1 After a jury trial, Alejandro Duarte was convicted of burglary, aggravated assault, and three counts of disorderly conduct. The trial court imposed concurrent prison terms, the longest of which was 3.25 years. On appeal, Duarte challenges the sufficiency of the evidence to support his burglary and aggravated assault convictions, arguing that under A.R.S. § 13-1204(A)(4) a "sleeping victim's capacity to resist is not substantially impaired." He also contends the court erred in precluding a victim's prior conviction for impeachment purposes. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to affirming Duarte's convictions. See State v. Brown , 233 Ariz. 153, ¶ 2, 310 P.3d 29 (App. 2013). Duarte and J.C. had been in an on-again, off-again relationship for several years and had three children, M.D., A.D.J., and A.D. One afternoon in May 2016, Duarte called J.C. several times, threatening to go to J.C.'s house to "[b]reak [her] stuff" and "hurt [her]." J.C. told him not to come over.

¶3 That evening, J.C., her friend V.M., A.D.J., and A.D. went to the mall and got dinner. After returning home, J.C. and A.D.J. went to sleep in J.C.'s bed, A.D. slept in her room, and V.M. fell asleep on the couch in the living room. Later that night, Duarte entered J.C.'s house through the unlocked back door. He went into J.C.'s room and began hitting her. Duarte demanded to "look through [her] phone," grabbed it, and refused J.C.'s requests to return it. He then went outside and threw it on the sidewalk, shattering it.

¶4 A grand jury indicted Duarte for one count of second-degree burglary, aggravated assault on an incapacitated victim (J.C.), and three counts of disorderly conduct (V.M., A.D.J., and A.D.). He was convicted as charged and sentenced as described above. We have jurisdiction over Duarte's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Sufficiency of the Evidence

¶5 Duarte argues his burglary and aggravated assault convictions "must be reversed because there was insufficient evidence that [J.C.] was incapacitated within the meaning of the statute defining aggravated assault." We review de novo the sufficiency of the evidence and issues of statutory interpretation. State v. Bon , 236 Ariz. 249, ¶ 5, 338 P.3d 989 (App. 2014) ; State v. Latham , 223 Ariz. 70, ¶ 9, 219 P.3d 280 (App. 2009).

¶6 Pursuant to § 13-1204(A)(4), "[a] person commits aggravated assault if the person commits assault as prescribed by [A.R.S.] § 13-1203... while the victim is bound or otherwise physically restrained or while the victim's capacity to resist is substantially impaired."¹ Here, the state agreed J.C. was not bound or physically restrained; thus, the only issue was whether her capacity to resist was substantially impaired. Pursuant to A.R.S. § 13-1507(A), "[a] person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein." Here, the state argued the felony Duarte intended to commit was aggravated assault under § 13-1204(A)(4).²

¶7 As he did below, Duarte challenges the meaning of § 13-1204(A)(4), arguing that "[s]leep does not constitute substantial impairment of a victim's capacity to resist because it is a temporary and fleeting state." He reasons that "a sleeping victim's capacity to resist is not substantially impaired" because such a victim "has the ability to immediately awake[n] and defend [him or herself] as soon as the attack begins." This issue requires us to interpret the language of § 13-1204(A)(4).

¶8 When interpreting statutes, our duty "is ‘to give effect to the legislature's intent.’ " State v. Miller , 226 Ariz. 190, ¶ 12, 245 P.3d 454 (App. 2011) (quoting State v. Hinden , 224 Ariz. 508, ¶ 9, 233 P.3d 621 (App. 2010) ). In doing so, we first consider the language of the statute, State v. Derello , 199 Ariz. 435, ¶ 21, 18 P.3d 1234 (App. 2001), giving "every word and phrase its ‘usual and commonly understood meaning unless the legislature clearly intended a different meaning,’ " State v. Randles , 235 Ariz. 547, ¶ 8, 334 P.3d 730 (App. 2014) (quoting Bilke v. State , 206 Ariz. 462, ¶ 11, 80 P.3d 269 (2003) ); see also State v. Pena , 235 Ariz. 277, ¶ 6, 331 P.3d 412 (2014) (we may look to dictionaries for common meanings). "When the statute's language is plain and unambiguous, we must follow the text as written." Derello , 199 Ariz. 435, ¶ 21, 18 P.3d 1234.

¶9 The language at issue here is "while the victim's capacity to resist is substantially impaired." § 13-1204(A)(4). This court has previously interpreted that language, applying the common meanings of the words. See In re Maricopa Cty. Juv. Action No. JV123196 , 172 Ariz. 74, 77-78, 834 P.2d 160, 163–64 (App. 1992). Using a dictionary to guide our analysis, we concluded the language also means while the victim's ability to refuse to submit is considerably weakened. See id. at 77, 834 P.2d at 163 (citing Webster's New World Dictionary 209, 703, 1210, 1420 (2d coll. ed. 1982) ).

¶10 In Maricopa County Juvenile Action No. JV123196 , we concluded that § 13-1204(A)(4) did not apply when a juvenile twice sprayed the victim in the face with an unknown substance, "causing tears to form and a burning sensation around the [victim's] eye."³ 172 Ariz. at 75, 78-79, 834 P.2d at 161, 164–65. The victim was able to flee on his bicycle after the second spray. Id. at 75, 834 P.2d at 161. Notwithstanding that the victim was able to escape, we determined the trial court did not abuse its discretion "in finding that the victim's capacity to resist was substantially impaired" because "after he was sprayed the second time, the victim's vision was blurred to the point where it was difficult for him to ride his bicycle." Id. at 78, 834 P.2d at 164. We explained, "The fact that he did escape may bear on the degree of impairment, but it is not determinative." Id. However, we concluded that "even if the second spray did substantially impair him, the assault was essentially over at that point" because the short distance the juvenile chased the victim after the second spray was "too closely tied to the original assault, and too fleeting." Id. Accordingly, we modified the juvenile's adjudication of delinquency to simple assault rather than aggravated assault. Id. at 78-79, 834 P.2d at 164–65.

¶11 State v. Barnett , 173 Ariz. 282, 842 P.2d 1295 (App. 1991), is the only other published decision addressing the meaning of § 13-1204(A)(4). In that case, the victim testified he had been hit in his eye, dropped to his knees, and felt someone on top of him followed by "a series of electrical shocks on his chest underneath his heart." Barnett , 173 Ariz. at 283, 842 P.2d at 1296. A majority of this court affirmed the defendant's aggravated assault conviction based upon an assault occurring "while the victim [was] physically restrained." Id. at 285, 842 P.2d at 1298. However, the dissenting judge believed the defendant's conviction should have been reduced to simple assault because "the statute requires something more substantial than the momentary restraint that occurred in this case." Id. at 287, 842 P.2d at 1300. As relevant here, the dissenting judge also addressed "whether the victim's capacity to resist was substantially impaired." Id. at 286, 842 P.2d at 1299. "[T]he victim's capacity to resist was impaired" but not "substantially impaired" because "[t]here was no testimony that the victim was ever rendered groggy and disoriented" and the victim testified that he had "continue[d] to fight." Id.

¶12 Here, J.C. purportedly was incapacitated not by a chemical spray to the face or a stun gun, but by sleeping. Sleep is defined as "[a] natural periodic state of rest for the mind and body, in which the eyes are usually close[d] and consciousness is completely or partially lost, so that there is a decrease in bodily movement and responsiveness to external stimuli." The American Heritage Dictionary 1646 (5th ed. 2011). Based on this common definition, we conclude that sleeping plainly renders a "victim's capacity to resist ... substantially impaired." § 13-1204(A)(4). Put another way, being unconscious considerably reduces an individual's ability to refuse to submit.⁴ See Maricopa Cty. Juv. Action No. JV123196 , 172 Ariz. at 77, 834 P.2d at 163.

¶13 We recognize that sleeping may be "temporary and fleeting," as Duarte points out. See The American Heritage Dictionary 1646 (5th ed. 2011). However, the plain language of § 13-1204(A)(4) does not require an ongoing substantial impairment of the victim's capacity to resist during an entire prolonged assault. And we will not read such a requirement into the statute. See State v. Womack , 174 Ariz. 108, 111, 847 P.2d 609, 612 (App. 1992) ("[C]ourts will not read into a statute something that is not within the manifest intent of the Legislature as gathered from the statute itself." (alteration in Womack ) (quoting Collins v. Stockwell , 137 Ariz. 416, 420, 671 P.2d 394, 398 (1983) ) ). Notably, a defendant could cause considerable harm in a short amount of time while the victim is sleeping, before he or she wakes up. Accordingly, the relevant language of § 13-1204(A)(4) is clear and unambiguous, and sleep renders a "victim's capacity to resist ... substantially impaired." See Bon , 236 Ariz....