State v. Gordon
Decision Date | 18 September 1978 |
Docket Number | No. 4280-PR,4280-PR |
Citation | 120 Ariz. 172,584 P.2d 1163 |
Parties | STATE of Arizona, Appellee, v. Robert Allen GORDON, Appellant. |
Court | Arizona Supreme Court |
John A. LaSota, Jr., Atty. Gen., Phoenix, Stephen D. Neely, Pima County Atty. by D. Jesse Smith, Deputy County Atty., Tucson, for appellee.
John M. Neis, Pima County Public Defender by Michael P. Roca, Asst. Public Defender, Tucson, for appellant.
A jury found appellant Robert Allen Gordon guilty of assault with a deadly weapon. He appealed his conviction alleging that the state failed to prove an essential element of the crime. The Court of Appeals affirmed the judgment but vacated the sentence which had been imposed under the enhanced punishment provision of A.R.S. § 13-249(B). Pursuant to Rule 31.19, Rules of Criminal Procedure, 17 A.R.S., we accepted review of this case in order to harmonize this state's case law concerning the crime of assault with a deadly weapon.
In the early morning hours of January 20, 1977, the victim was driving her Volkswagen homeward when she noticed the vehicle following her flashing its lights. Assuming the vehicle to be a police car, she stopped at the side of the road. Appellant then walked up to the driver's side of the vehicle, held a knife to the back of the driver's neck and ordered her to move over. Almost immediately, a passing police officer noticed the activity, including a shiny object in appellant's hand. The officer stopped, ordered appellant out of the Volkswagen, and arrested him.
Although A.R.S. § 13-249 prescribes the punishment for assault with a deadly weapon, it does not define the term "assault." Instead, the definition of assault is found in the same article of the Criminal Code at A.R.S. § 13-241, which provides:
Appellant contends that the evidence was insufficient to establish that he attempted to injure the victim. The Court of Appeals did not deal squarely with the issue of whether our statute requires an actual attempt to harm the victim. State v. Gordon, --- Ariz. ---, 584 P.2d 1173 (App.1978). Instead, it utilized a common law definition of assault citing State v. Parker, 116 Ariz. 3, 567 P.2d 319 (1977). Parker followed a long line of Arizona cases concerning assaults with firearms which seemingly eliminated the attempt element because of the inherent dangerousness of firearms. See e. g. State v. Gary, 112 Ariz. 470, 543 P.2d 782 (1975).
Since our assault and battery statute was adopted from California, 1 we are aided in this case by California's interpretation of the statute, as well as our previous case law. In State v. Andrews, 106 Ariz. 372, 476 P.2d 673 (1970), this Court recognized that "(t)he essential element (of assault with a deadly weapon) is an unlawful attempt coupled with present ability to commit violent injury upon another with a deadly weapon." Id. at 377, 476 P.2d at 678. Andrews has not been overruled nor has the attempt element been eliminated from A.R.S. § 13-241. Of course the Legislature could redefine assault and eliminate the word attempt, 2 but it is only within this Court's province to interpret our statutes rather than to eliminate unambiguous terms which have been a part of Arizona's statutory scheme since territorial days. See, e. g., Revised Statutes of Arizona, Penal Code, Title VIII, ch. IX, § 382 (1887). Our conclusion that attempt remains a necessary element of assault is supported by case law, the common definition of assault, and by a comparison of the statutory definition of assault with the definition of battery. Simply stated, an assault is an attempted battery. 3 People v. Rocha, 3 Cal.3d 893, 92 Cal.Rptr. 172, 479 P.2d 372 (1971); LaFave and Scott, Handbook on Criminal Law, § 82 (1972). (Hereinafter cited as LaFave and Scott.)
The language of our assault statute was modified in 1969 from "an unlawful attempt * * * to commit a Violent injury on the person of another" to read "an unlawful attempt * * * to commit a Physical injury on the person of another." 1969 Ariz.Sess.Laws, ch. 133. (Emphasis added.) The term "physical injury" in the statute
State v. Dillon, 26 Ariz.App. 220, 222, 547 P.2d 491, 493 (1976); See also People v. Bradbury, 151 Cal. 675, 91 P. 497 (1907).
A battery, on the other hand, is "a wilful and unlawful use of force or violence upon the person of another." A.R.S. § 13-241(B). State v. Dillon, 26 Ariz.App. at 222, 547 P.2d at 493. LaFave and Scott, § 81. The physical force with which the term physical injury in A.R.S. § 13-241(A) is synonymous has the same meaning as the terms "force or violence upon the person of another" found in A.R.S. § 13-241(B). Thus, the difference between an assault and a battery rests on the word "attempt" in subsection (A) of A.R.S. § 13-241, whereas actual use of such force is required to constitute a battery. See State v. Parker, 116 Ariz. 3, 567 P.2d 319 (1977); People v. Rocha, 3 Cal.3d 893, 92 Cal.Rptr. 172, 479 P.2d 372 (1971); People v. McCaffrey, 118 Cal.App.2d 611, 258 P.2d 557 (1953).
If read out of context, one sentence in State v. Gary, supra, could be construed to be in conflict with the foregoing discussion. 4 In Gary we began our analysis by noting that "(t)he pointing of a (loaded) gun in a threatening manner may constitute an 'assault' under Arizona Law." Id. 112 Ariz. at 471, 543 P.2d at 783 (cite omitted). Because a loaded gun is a deadly weapon, it is not necessary to prove actual intent to injure the victim. State v. Seebold, 111 Ariz. 423, 531 P.2d 1130 (1975); United States v. Harvey, 428 F.2d 782 (9th Cir. 1970). In Seebold, we quoted the Harvey court with approval:
United States v. Harvey, 428 F.2d at 783-4.
By reading State v. Gary, supra, in the context of Harvey, which we relied on in Gary, together with the facts in Gary, it becomes clear that we meant that a stringent concept of both intent and attempt is not required when deadly weapons are involved. For example, it is not necessary to pull the trigger of a loaded gun before the crime of assault with a deadly weapon is complete. See People v. Thompson, 93 Cal.App.2d 780, 209 P.2d 819 (1949).
The reason for the relaxed attempt requirement was explained in the early California case of People v. McMakin, 8 Cal. 547 (1857):
"(It is) not essential to constitute an assault that there should be a direct attempt at violence.
Id. at 548-549 (emphasis added). People v. Thompson, supra.
In other words, regardless of the type of deadly weapon, when a person holds a deadly weapon in a position so that it could immediately be used to physically injury another, he need go no further toward the completion of a battery in order to satisfy the "attempt" element inhering in A.R.S. § 13-249. Here, appellant held a knife to the victim's neck and ordered her to move over in her car. That action constituted an assault with a deadly weapon, since it was not necessary for him to actually begin cutting the victim.
Although we are affirming appellant's conviction, the sentence is vacated because it is in excess of the punishment prescribed by A.R.S. § 13-249(A). Before a person may be subjected to the enhanced punishment provision of A.R.S. § 13-249(B), there must be a determination that he was armed with an inherently dangerous weapon. In State v. Church, 109 Ariz. 39, 504 P.2d 940 (1973) we examined the difference between the term "deadly weapon" as utilized in both subsections A and B of the statute.
Id. at 42-43, 504 P.2d at 943-944. (Emphasis added.)
An inherently dangerous weapon, for which subsection B prescribes enhanced punishment, is "any instrument which, when used in (the) ordinary manner contemplated by its design and construction, will, or is likely to, cause death or great bodily harm." State...
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