State v. Greene
| Decision Date | 22 June 1995 |
| Docket Number | No. CR-93-0397-PR,CR-93-0397-PR |
| Citation | 898 P.2d 954,182 Ariz. 576 |
| Parties | STATE of Arizona, Appellee, v. Joseph Starling GREENE, Appellant. |
| Court | Arizona Supreme Court |
We must determine whether a single serious physical injury inflicted by appellant Joseph Starling Greene (defendant) during the commission of 4 separate and distinct offenses can enhance, based on dangerousness, all 4 of defendant's sentences. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and rule 31.19, Arizona Rules of Criminal Procedure.
At approximately 10:25 p.m. on December 31, 1985, the victim, a 19-year-old waitress, left the restaurant where she worked to walk home. During the one-mile walk to her apartment, she noticed a man following her. Defendant approached her as she was walking south along Dobson Road, a well-traveled north-south street in Mesa, Arizona, and wished her "Happy New Year's."
Defendant then grabbed the victim by her neck, hair, and arm, and dragged her away toward a grassy embankment. Defendant threatened to kill her if she screamed. While defendant was dragging the victim, he began battering her face by bringing her head into his fist. The victim stated that she believed defendant was trying to knock her unconscious because of the amount of force he was using. She remembers 3 or 4 hard blows to her face, but thinks she may have been unconscious during part of this time. She testified that she had "never experienced so much pain in [her] whole life," not even during childbirth. After defendant finished hitting the victim, he continued dragging her. Defendant then threw her facedown in the dirt approximately 30 to 50 feet from where he first grabbed her.
By this time, the victim's face was bleeding very badly and her eyes were bloody. She thought she was going to die. Defendant ordered her to get up on her knees and began sexually assaulting her. He ripped the victim's pantyhose and underwear down to her ankles, scratching her in the process. He then sexually assaulted the victim by inserting his fingers "really roughly, harshly," into her vagina, hurting her "really bad."
The victim offered defendant money, but he said that he did not want her money; he "wanted a little piece for New Year's." After several unsuccessful attempts, defendant inserted his penis into the victim's vagina. During this portion of the assault, defendant roughly scratched her chest, back, and buttocks. The victim's face continued to bleed throughout the sexual assaults; investigators found two large pools of blood on the ground where the assaults occurred. Following the second sexual assault, while defendant was dressing, the victim heard a metal sound she thought might be a knife or gun and turned to look. Defendant kicked her "full force in the face" and told her not to look at him.
After again threatening that he would kill her if she turned him in, defendant fled. The victim removed her pantyhose and underwear and placed them on her face because it was bleeding so badly. A police officer traveling north on Dobson Road heard the victim scream and stopped to assist her. The officer testified that the victim had blood on her face, hair, and hands when she approached the police car, and that she continued to bleed inside the car. The victim testified that she had never seen so much blood. The officer took the victim to a nearby police station for immediate paramedic attention and then to the hospital.
The victim suffered an open nasal fracture. Hospital personnel initially thought she had been shot because the top part of her nose had separated at the bridge causing a quarter-inch hole. Her entire face was very swollen, and she had multiple bruises. She suffered particularly severe bruising and swelling below her left eye. The doctor who examined the victim stated that the injuries to her eye were consistent with someone punching or kicking her. She also had redness and scratches on her chest, buttocks, and back.
Her bruises and black eyes took 3 to 4 months to heal. The appearance of her nose was "completely changed"; she still has "lumps all down [her] nose," including what one physician described as "a sharp bump." She has two scars on her nose that she tries to hide with makeup. In addition, she suffered from sinus problems and had breathing difficulties for 3 months, and she continues to suffer from nosebleeds.
Defendant was initially arrested for these offenses in 1986 and obtained a trial court order suppressing certain physical evidence. After an appeal by the state, this court set aside that suppression order in State v. Greene, 162 Ariz. 431, 784 P.2d 257 (1989). Defendant was tried and convicted of one count of aggravated assault, one count of kidnapping, and two counts of sexual assault. Over defendant's objection, the trial judge sent the question of dangerousness to the jury on all 4 counts. The jury found all offenses to be dangerous, as indicated by a special finding on each verdict.
The same jury later found that defendant had been previously convicted of felony theft; following an evidentiary hearing, the court found that defendant committed the aggravated assault, kidnapping, and sexual assault offenses while on probation for the prior felony theft conviction. Accordingly, pursuant to A.R.S. § 13-604.02(A), the trial judge sentenced defendant on each count to life imprisonment without eligibility for release on any basis for 25 years, except as authorized by A.R.S. § 31-233. The trial judge ordered the sentences for the two sexual assaults to run concurrently; he ordered that the other two sentences run consecutively to each other and to the sexual assault sentences.
Defendant appealed his convictions and sentences, and the court of appeals addressed the sentencing issues in a published opinion. 1 The court of appeals held that the trial court properly found that a single "serious physical injury" rendered all 4 offenses "dangerous" for sentence enhancement purposes, and that the consecutive sentences did not constitute double punishment. State v. Greene, 177 Ariz. 218, 220-21, 866 P.2d 886, 888-89 (App.1993).
1. Whether a single physical injury can enhance multiple sentences under A.R.S. § 13-604.02(A).
2. Whether each felony offense for which defendant was convicted--aggravated assault, kidnapping, and two sexual assaults--was involving:
(a) the intentional or knowing infliction
(b) of serious physical injury
(c) upon another, and
(d) was committed while defendant was on probation for a felony offense.
We find that a single physical injury can enhance multiple sentences, pursuant to A.R.S. § 13-604.02(A). We further find that defendant was convicted of two felony offenses, namely aggravated assault and kidnapping, involving the intentional or knowing infliction of serious physical injury upon another, and that defendant committed these offenses while on probation. Therefore, his sentences for aggravated assault and kidnapping were properly enhanced under this statute.
However, we find that the two sexual assault offenses were not felony offenses involving the intentional or knowing infliction of serious physical injury upon another, and therefore defendant's sentences for the sexual assaults should not have been enhanced under § 13-604.02(A).
Defendant argues that if the offenses are separate enough to permit consecutive sentences, then one injury cannot enhance the sentence of more than one offense. The state argues that the statute requires sentence enhancement for all offenses "involving" the serious injury.
The issue centers around the interpretation of A.R.S. § 13-604.02(A), 1985 Laws, Ch. 227, § 1, renumbered by 1985 Laws, Ch. 364, § 5, which provided in part:
Notwithstanding any provision of law to the contrary, a person convicted of any felony offense involving ... the intentional or knowing infliction of serious physical injury upon another if committed while the person is on probation for a conviction of a felony offense ... shall be sentenced to life imprisonment and is not eligible for ... release from confinement ... until the person has served not less than twenty-five years.
(Emphasis added.) 2
"Serious physical injury" was defined in A.R.S. § 13-105(31) to include
physical 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. 3
The victim suffered "serious and permanent disfigurement" and "protracted impairment" of her face and nose. The record indicates that the appearance of the victim's nose was "completely changed" and that the victim continues to suffer from nosebleeds. Thus, the victim's face and nose injury falls within the definition of "serious physical injury" under § 13-105(31).
The first question we must decide is whether a single serious physical injury can ever enhance multiple sentences under § 13-604.02(A). We hold that the same single physical injury can enhance multiple sentences when each offense "involved" the injury.
This court has previously confirmed that an element of the underlying offense can also be used to trigger sentence enhancement. In State v. Caldera, we reasoned that:
[T]he determination of dangerousness can be made in at least two ways. The preferable way would be to directly submit to the jury the issue of dangerousness via verdict forms. Another way in which dangerousness can be determined is when it was...
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