State v. Gomez

• Decision Date: 23 April 2021
• Docket Number: No. 2 CA-CR 2020-0127,2 CA-CR 2020-0127
• Citation: 251 Ariz. 230,489 P.3d 398
• Court: Arizona Court of Appeals
• Parties: The STATE of Arizona, Appellee, v. Johnny Angel GOMEZ, Appellant.

251 Ariz. 230

489 P.3d 398

The STATE of Arizona, Appellee,

v.Johnny Angel GOMEZ, Appellant.

No. 2 CA-CR 2020-0127

Court of Appeals of Arizona, Division 2.

Filed April 23, 2021

Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Michelle L. Hogan, Assistant Attorney General, Phoenix Counsel for Appellee

Robert A. Kerry, Tucson Counsel for Appellant

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred.

ECKERSTROM, Judge:

¶1 Johnny Gomez appeals from his convictions and sentences for manslaughter, aggravated assault, endangerment, criminal damage, and driving under the influence (DUI). For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Rumsey , 225 Ariz. 374, ¶ 2, 238 P.3d 642 (App. 2010). One night in 2016, Gomez drove a vehicle into an intersection without stopping at a stop sign, colliding with the side of an SUV at a high rate of speed. He had been travelling over the posted speed limit and did not brake or swerve to avoid the collision. The force of the impact caused the SUV to crash through a wall, and the vehicle Gomez was driving flipped onto its side.

¶3 One of Gomez's passengers died the morning after the accident from blunt-force head injuries

. Gomez's other two passengers sustained significant injuries: one suffered a facial laceration requiring stitches, and the other—who had been ejected from the vehicle—suffered a range of fractured bones, a collapsed lung, and facial abrasions. The driver and two of the adult passengers of the SUV also suffered fractures and facial lacerations. The SUV's third adult passenger suffered what the state characterized as "minor injuries." A young child riding in the back seat between two adults was not injured.

¶4 The crash caused more than $8,000 in property damage. A test of Gomez's blood after the incident revealed the presence of methamphetamine at a level four times the "therapeutic range,"¹ as well as a methamphetamine metabolite.

¶5 At the conclusion of a six-day trial, a jury found Gomez guilty of manslaughter, six counts of aggravated assault with a dangerous instrument, five counts of aggravated assault resulting in temporary but substantial disfigurement, two counts of endangerment, criminal damage, and two counts of DUI.² The jury also found that Gomez had committed the offenses while on release and made dangerousness findings for the manslaughter, aggravated assault, and endangerment offenses. The trial court sentenced Gomez to consecutive and concurrent prison terms totaling 76. 5 years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Double Jeopardy

¶6 Gomez contends that his two convictions and concurrent sentences for aggravated assault as to each of the five victims who suffered fractured bones, facial lacerations

, and other significant injuries violate his constitutional protections against double jeopardy. He argues:

There was only one crime committed as to each victim. Whether the crime was aggravated assault because a ... dangerous instrument was used under A.R.S. § 13-1204(A)(1) or because the victims suffered temporary but substantial disfigurement or the other injuries listed in subsection (A)(3) the result is the same, a single crime was committed and only one punishment may be applied.

Gomez is correct that the Double Jeopardy Clauses of both the United States and Arizona constitutions³ protect a criminal defendant from being punished multiple times for the same offense. State v. Carter , 249 Ariz. 312, ¶ 7, 469 P.3d 449 (2020). "[M]ultiple convictions for the same offense constitute multiple punishments even if the sentences are concurrent." Id. n.1. When the same conduct has been held to constitute a violation of two different provisions of the criminal code, we must therefore "determine whether there are two offenses or only one." State v. Jurden , 239 Ariz. 526, ¶ 10, 373 P.3d 543 (2016) (quoting Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ).

¶7 Because Gomez did not raise his double jeopardy challenge before the trial court, he has forfeited all but review for fundamental, prejudicial error. State v. Escalante , 245 Ariz. 135, ¶ 12, 425 P.3d 1078 (2018). However, as the state concedes, a violation of double jeopardy is fundamental error. See State v. Price , 218 Ariz. 311, ¶ 4, 183 P.3d 1279 (App. 2008).

¶8 Gomez's claim turns on whether our legislature intended for subsections (A)(2) and (A)(3) of the aggravated assault statute, § 13-1204, to describe "distinct offenses, each constituting aggravated assault" or "a single offense that could be committed in more than one way." State v. Delgado , 232 Ariz. 182, ¶ 20, 303 P.3d 76 (App. 2013). Answering this question requires a clear understanding of the nature of and the differences between two types of "alternatively phrased" criminal statutes. Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (2016) ; see also State v. Paredes-Solano , 223 Ariz. 284, ¶ 9, 222 P.3d 900 (App. 2009) (describing two classes of criminal statutes).

¶9 One class of alternatively phrased statutes contains those that "set forth several distinctive acts and make the commission of each a separate crime, all in one statute." Paredes-Solano , 223 Ariz. 284, ¶ 9, 222 P.3d 900 (quoting State v. Dixon , 127 Ariz. 554, 561, 622 P.2d 501, 508 (App. 1980) ). These statutes "list elements in the alternative, and thereby define multiple crimes." Mathis , 136 S. Ct. at 2249 (emphasis added). Elements, of course, "are the ‘constituent parts’ of a crime's legal definition—the things the ‘prosecution must prove to sustain a conviction.’ " Id. at 2248 (quoting Black's Law Dictionary 634 (10th ed. 2014)). They are what a jury "must find beyond a reasonable doubt to convict the defendant" at trial and "what the defendant necessarily admits when he pleads guilty." Id. ; see also State v. Ramsey , 211 Ariz. 529, ¶ 18, 124 P.3d 756 (App. 2005) (jury must unanimously find every element of crime beyond reasonable doubt); Ariz. Const. art II, § 23 (guaranteeing right to unanimous jury verdict in criminal cases).

¶10 The other class of alternatively phrased statutes, known as "alternative-means statutes," define a specific crime (a "single unified offense") and provide various ways the one crime may be committed. State v. West , 238 Ariz. 482, ¶ 19, 362 P.3d 1049 (App. 2015). Because this type of statute "merely specifies diverse means of satisfying a single element of a single crime—or otherwise said, spells out various factual ways of committing some component of the offense—a jury need not find (or a defendant admit) any particular item." Mathis , 136 S. Ct. at 2249 ; see also State v. Kalauli , 243 Ariz. 521, ¶ 11, 414 P.3d 690 (App. 2018) (when defendant charged with "unitary crime," jury need not unanimously agree on manner in which offense committed). This is because the various means (or "alternative factual scenarios") enumerated by an alternative-means statute are "non-elemental fact[s]" whose proof is unnecessary; none is "essential to any conviction." Mathis , 136 S. Ct. at 2253.

¶11 This division of the Arizona Court of Appeals has consistently treated § 13-1204(A) as setting forth separate crimes, not alternative means of committing aggravating assault. Indeed, in West , we expressly stated that aggravated assault under A.R.S. §§ 13-1203(A) and 13-1204(A) "is not a single unified offense or an alternative-means statute," although we did not explain why. 238 Ariz. 482, ¶ 37, 362 P.3d 1049 (emphasis added).⁴

¶12 Of particular relevance here, we have routinely affirmed defendants’ convictions for multiple counts of aggravated assault under § 13-1204(A)(2) and (A)(3) when the use of the deadly weapon or dangerous instrument in question resulted in the temporary but substantial disfigurement of the victim. For instance, in State v. Pena , we upheld the defendant's conviction for aggravated assault with a deadly weapon (there, a knife) and two separate convictions under (A)(3) for the resulting knife wounds. 233 Ariz. 112, ¶¶ 1-2, 17, 309 P.3d 936 (App. 2013), vacated in part by 235 Ariz. 277, 331 P.3d 412 (2014). Our supreme court vacated that opinion in part, but only to reinstate the defendant's third conviction for aggravated assault under (A)(3) for an additional knife wound, which we had downgraded to simple assault on the ground that it was not sufficiently "significant." 235 Ariz. 277, ¶ 13, 331 P.3d 412. Other examples include State v. Jones , 248 Ariz. 499, ¶¶ 1, 4-5, 16, 462 P.3d 576 (App. 2020) (affirming convictions for aggravated assault under (A)(2) and (A)(3) in case of assault with dog and resulting dog-inflicted injuries), and State v. Juarez-Orci , 236 Ariz. 520, ¶¶ 1, 4-6, 10, 24, 342 P.3d 856 (App. 2015) (same, in case of assault with knife resulting in knife wounds).

¶13 None of these opinions have explained why a defendant may properly be convicted of separate counts of aggravated assault under (A)(2) and (A)(3) for causing temporary but significant disfigurement with a deadly weapon or dangerous instrument.⁵ However, a careful review of the statute's language and structure reveals that the unexplained assumption in those cases is correct: our legislature intended to create separate offenses in enacting subsections (A)(2) and (A)(3) of the aggravated assault statute, not alternative factual means of committing the crime of aggravated assault. See Paredes-Solano , 223 Ariz. 284, ¶ 9, 222 P.3d 900 (our task is to interpret language of statute and determine which class of statute legislature intended to enact); State v. Manzanedo , 210 Ariz. 292, ¶ 8, 110 P.3d 1026 (App. 2005) ("[W]e must determine whether the legislature intended to create...