State v. Gordon, CR-86-0323-AP
| Decision Date | 18 July 1989 |
| Docket Number | No. CR-86-0323-AP,CR-86-0323-AP |
| Citation | 778 P.2d 1204,161 Ariz. 308 |
| Parties | STATE of Arizona, Appellee, v. Anthony GORDON, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by Jessica Gifford Funkhouser and Joseph T. Maziarz, Asst. Attys. Gen., Phoenix, for appellee.
Daniel F. Davis, Tucson, for appellant.
Anthony Gordon (defendant) appeals from convictions for burglary, kidnapping, and sexual assault. He makes two challenges: first, the trial court wrongly enhanced his sentences under A.R.S. § 13-604.02 by allowing the jury to find that his fists constituted dangerous instruments under A.R.S. § 13-105(8); second, the trial court erred by imposing consecutive instead of concurrent sentences. He contends because the charges arose from the same act, A.R.S. § 13-116 requires concurrent sentences.
Because defendant received a life sentence, we have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4035.
In the early morning of May 16, 1986, defendant was driving home from a bar. At the time, he was on parole for prior sexual assault and robbery convictions. He pulled up to the victim at a stop sign and asked if she "wanted to party." Reporter's Transcript (RT), Aug. 6, 1986, at 48. The victim invited him to her apartment for a beer because he appeared well-dressed and a "nice person." Id. at 48-49. In the apartment, defendant and the victim talked for several minutes. Suddenly, defendant grabbed the victim, forced her from the couch to the floor, hit her several times with his fists, and sexually assaulted her. After the assault, defendant apologized and allowed the victim to put on her clothes. When he subsequently fell asleep on the couch, the victim escaped and called the police, who apprehended defendant.
At trial, defendant claimed that the victim consented to intercourse and he punched her when he awoke to find her rifling his wallet and demanding money. The jury did not believe defendant, finding him guilty of second degree burglary, kidnapping, and sexual assault. The trial judge also allowed the jury to find that defendant had used dangerous instruments during the felonies: his fists.
The court sentenced defendant to twenty-two years for second degree burglary, life imprisonment without possibility of release for twenty-seven years for kidnapping, and life imprisonment without possibility of release for twenty-seven years for sexual assault. The burglary and kidnapping sentences were concurrent. The court, however, imposed the sexual assault sentence consecutively to the sentences for burglary and kidnapping.
The trial court enhanced defendant's kidnapping and sexual assault sentences under A.R.S. § 13-604.02(A). This statute provides that a defendant convicted of a felony "involving the use or exhibition of a deadly weapon or dangerous instrument" while on parole shall receive a life sentence Defendant claims the trial judge erred by allowing the jury to consider whether his fists constituted dangerous instruments. He argues that as a matter of law fists cannot be dangerous instruments for enhancement purposes.
[161 Ariz. 310] without possibility of release on any basis until he has served at least twenty-five years.
The statutory definition of "dangerous instrument" is
anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury.
A.R.S. § 13-105(8). The state argues that under this definition the jury may determine whether body parts can be dangerous instruments, and that the jury's verdict must stand if the evidence supports it.
The state admits, however, that no Arizona case defines a fist as a dangerous instrument. Our cases address only whether an object constitutes a deadly weapon or dangerous instrument. In State v. Bustamonte, dealing with a pair of scissors, we held that if an instrument is not inherently dangerous as a matter of law, like a gun or knife, the jury can determine whether the defendant used the object in such a way that it became a "deadly weapon." 122 Ariz. 105, 107, 593 P.2d 659, 661 (1979); see also State v. Caldera, 141 Ariz. 634, 637, 688 P.2d 642, 645 (1984) (). Our court of appeals has held that a jury could find that a sock was a dangerous instrument. State v. Fatty, 150 Ariz. 587, 589-90, 724 P.2d 1256, 1258-59 (Ct.App.1986); see also State v. Woodall, 155 Ariz. 1, 7, 744 P.2d 732, 738 (Ct.App.1987) ().
In the present case, however, defendant used no object in perpetrating the crime, only his fists--part of his body. Indeed, the overwhelming majority of other jurisdictions hold that body parts do not constitute deadly weapons or dangerous instruments. See Annotation, Parts of the Human Body, Other Than Feet, as Deadly or Dangerous Weapons for Purposes of Statutes Aggravating Offenses Such as Assault and Robbery, 8 A.L.R.4th 1268 (1981).
The state urges us to adopt the minority rule allowing the jury to decide on a case-by-case basis whether a body part can be a dangerous instrument. See Hollis v. State, 417 So.2d 617 (Ala.Crim.App.1982); Kirby v. State, 145 Ga.App. 813, 245 S.E.2d 43 (1978); State v. Born, 280 Minn. 306, 159 N.W.2d 283 (1968); State v. Jacobs, 61 N.C.App. 610, 301 S.E.2d 429, rev. denied, 309 N.C. 463, 307 S.E.2d 368 (1983); State v. Zangrilli, 440 A.2d 710 (R.I.1982); Kirkpatrick v. State, 747 S.W.2d 521 (Tex.Ct.App.1988). Given our statutory scheme, we find these cases unpersuasive.
In the cases the state cites, the victims sustained serious physical injury or death, 1 but none of those cases involves statutory schemes that enhance punishment for assault causing "serious bodily injury," even without use of a dangerous instrument or deadly weapon. Each of the statutes only permits enhancement for use of dangerous instruments or weapons. 2 Where differen Our statute, however, specifically provides for enhanced punishment when the defendant assaults with a dangerous instrument or when he causes serious injury. See A.R.S. § 13-604.02. Further, § 13-105(31) defines "serious injury" as
[161 Ariz. 311] tiation in the degree of assault is limited to the use of a dangerous instrument or weapon and excludes the type of harm caused as an enhancing factor, the jury naturally may consider the severity of harm in determining whether a body part "qualifies" as a dangerous instrument.
injury which creates a reasonable risk of death, or which causes serious and permanent disfigurement, or serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.
Because the Arizona statute increases the punishment for the crime if the defendant either uses a dangerous instrument or causes serious harm, no purpose exists for allowing the jury to find that body parts are dangerous instruments just because they caused serious bodily harm. 3
Further, allowing the jury to find fists a dangerous instrument without serious physical injury creates an undefined standard--a "not so serious physical injury" enhancement test. Some juries would find a body part was a dangerous instrument, even though no serious physical injury resulted, and others would not. Given that the statute already enhances punishment when the defendant causes serious physical injury, the jury would have little to guide it when determining whether a fist is a dangerous instrument. The cases suggest no other factors appropriate to differentiate between when a fist is a dangerous weapon and when it is not.
Finally, if fists can be dangerous instruments, then we must eventually hold that any body part can also be a dangerous instrument, depending on the circumstances. Allowing the jury to consider body parts as dangerous instruments confuses the essential elements of several crimes. For example, one cannot commit an assault without using, or threatening to use, an object or body part. See A.R.S. §§ 13-1203 and 13-1204 (); see also People v. Van Diver, 80 Mich.App. 352, 263 N.W.2d 370 (1977) ().
We also consider the deterrent objective of §§ 13-105(8) and 13-604.02(A). The legislature specifically intended that courts treat paroled felons who commit offenses with dangerous instruments or cause serious physical injury more harshly than paroled felons who do neither. The state asks us to allow juries to treat both types of paroled felons alike. If we do, then felons might as well use a dangerous instrument. We are unwilling to circumvent the legislative objective on this issue.
We hold the trial court erred by allowing the jury to find that defendant's fists were dangerous instruments. Because defendant used no object except his fists in committing the assault, and because he did not inflict serious bodily harm with his fists, the trial court should not have enhanced his punishment under A.R.S. § 13-604.02.
The trial court imposed concurrent sentences on the burglary and kidnapping counts. However, the judge ordered the sexual assault sentence served consecutively to the burglary and kidnapping sentences. Defendant argues that these consecutive An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent.
[161 Ariz. 312] sentences violate A.R.S. § 13-116, which reads as follows:
(Emphasis added.) The question before us, then, is whether the burglary, kidnapping, and sexual assault here constituted an act or multiple acts.
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