State v. Harper
| Decision Date | 29 April 2016 |
| Docket Number | No. 2 CA-CR 2014-0297,2 CA-CR 2014-0297 |
| Parties | THE STATE OF ARIZONA, Appellee, v. DANIEL ZEEK HARPER, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Christopher C. Browning, Judge
AFFIRMED IN PART AND REMANDED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
Steven R. Sonenberg, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
Judge Espinosa authored the decision of the Court, in which Presiding Judge Howard and Judge Vásquez concurred.
¶1 After a jury trial, Daniel Harper was found guilty of burglary, kidnapping, criminal damage, and four counts of aggravated assault. The trial court sentenced him to concurrent, enhanced prison sentences, the longest of which is 11.5 years, followed by eight years of probation. On appeal, Harper challenges one of his convictions for aggravated assault based on an improper jury instruction, the sufficiency of the evidence on the criminal damage conviction, and the legality of his sentences. He also challenges the trial court's jurisdiction to alter restitution more than sixty days after sentencing. For the following reasons, we modify one of Harper's convictions, affirm the other convictions and sentences, and remand for resentencing on two of the aggravated assault convictions.
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Payne, 233 Ariz. 484, 496 n.1, 314 P.3d 1239, 1251 n.1 (2013). On the morning of July 20, 2013, C.P. awoke to someone banging at her bedroom window, and recognized a voice outside as that of Harper, the father of her then three-year-old daughter. C.P. called 9-1-1 and was standing a "few feet away" from her closed bedroom window when it was shattered from outside. C.P. ran out of the room and down the hall, where she encountered Harper inside the house near her open front door. Harper hit C.P. in the face, and she lost consciousness.
¶3 When police arrived, they found C.P. on the ground outside the front door, surrounded by broken glass and blood. Paramedics arrived and eventually transported her to a hospital. Officers found the front door open and badly damaged, and observed glass from a broken wine bottle and a smashed vase in the living room, kitchen, and hallway. There was also a brick on the floor of C.P.'s bedroom, and the windshield of her car had been broken.
¶4 The state alleged Harper dragged C.P. through the broken glass of "a wine bottle and/or a vase(s)" alleged as dangerous instruments when he moved her unconscious body. The evidence showed C.P. suffered abrasions and lacerations on her legs, glass embedded in her shoulder, a "through and through laceration" of her lip, two black eyes, and a broken tooth that required replacement with a surgical implant.
¶5 An amended indictment charged Harper with domestic violence aggravated assault with a dangerous instrument (count one); two counts of domestic violence aggravated assault causing temporary but substantial disfigurement (counts two and three); one count of domestic violence aggravated assault causing serious physical injury (count four); first-degree burglary (count five); domestic violence kidnapping (count six); and criminal damage over $10,000 (count seven). The jury found Harper guilty as charged on all counts and determined counts one, four, and five were dangerous-nature offenses. At sentencing, the trial court mistakenly found that the kidnapping conviction was included in the jury's dangerous-nature offense determination.
¶6 The trial court sentenced Harper to concurrent, slightly aggravated prison terms on counts one, four, five, and six, followed by terms of probation on counts two, three, and seven. The court ordered Harper to pay restitution of $3,998.30 to the Pima County Victim Compensation Fund, and at a later, separate restitution hearing, an additional sum of $14,154.30 in restitution to C.P.'s parents who owned the home where she was assaulted.
¶7 The trial court subsequently permitted Harper to file a delayed notice of appeal from his convictions, sentences, and post-sentencing restitution order. See Ariz. R. Crim. P. 31.3(b) and 32.1(f). We have jurisdiction over Harper's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶8 Harper first argues the trial court erred in instructing the jury as to what constitutes "serious physical injury." We review whether jury instructions properly state the law de novo,1 State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997), but will reverse a trial court's decision to give an instruction only when the instructions, taken as a whole, misled the jurors. State v. Petrak, 198 Ariz. 260, ¶ 9, 8 P.3d 1174, 1178 (App. 2000).
¶9 With respect to count four of the amended indictment—concerning the injury to C.P.'s tooth—the trial court instructed the jury:
Harper contends the trial court's definition of "serious physical injury" as including "fracture of any body part" was reversible error. The state concedes error on appeal.
¶10 "Serious physical injury" is defined in A.R.S. § 13-105(39) as a "physical injury that creates a reasonable risk of death, or that causes serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb." Such an assault is a class three felony. See A.R.S. § 13-1204(A)(1), (D). In contrast, an aggravated assault that causes "temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any body part" is a class four felony. § 13-1204(A)(3), (D) (emphasis added).
¶11 Here, during Harper's oral motion pursuant to Rule 20, Ariz. R. Crim. P., the parties discussed C.P.'s injuries and the statutory definitions in relation to the proposed jury instructions. The state agreed the language in the instructions should mirror that of the statutes, but the change was not made. By including "a fracture of any body part" in the instruction, the court allowed the jury to apply an element of a class four felony to find Harper guilty of a class three felony.
¶12 Instructional errors are subject to a harmless error analysis, and will be deemed innocuous if it appears "'beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained.'" State v. Dann, 205 Ariz. 557, ¶ 18, 74 P.3d 231, 239 (2003), quoting Chapman v. California, 386 U.S. 18, 24 (1967). Although there was medical evidence at trial that a tooth is an organ, Harper urged the jury it was not required to accept that assessment, asserting It cannot be determined whether the jury relied on the doctor's testimony or instead Harper's theory relating to the "fracture of any body part" when it found him guilty of committing the serious physical injury. The state concedes the error cannot be characterized as harmless, agreeing the guilty verdict was likely premised on the erroneous portion of the instruction.
¶13 Harper argues the erroneous instruction merits reversal of his conviction and a remand for a new trial. The state suggests there was more than sufficient evidence to support a conviction for aggravated assault causing temporary but substantial injury, and argues the proper remedy is modification of the judgment to reflect conviction of the class four felony and remand to the trial court for resentencing. We agree with the state.
¶14 In State v. George, this court held that although the jury "could not have lawfully found George guilty beyond a reasonable doubt of aggravated assault resulting in serious physical injury," the evidence "was more than adequate to support a conviction for the necessarily included offense of aggravated assault causing temporary but substantial impairment . . . , a class four felony." 206 Ariz. 436, ¶ 14, 79 P.3d 1050, 1056-57 (App. 2003). As in George, the state in this case presented sufficient evidence from which a jury reasonably could have concluded that C.P.'s fractured tooth was a temporary but substantial injury, even if it did not qualify as a serious physical injury. Accordingly, we modify the judgment to reflect Harper's conviction for the necessarily included lesser offense and remand that count to the trial court for resentencing. See Ariz. R. Crim. P. 31.17(d); George, 206 Ariz. 436, ¶ 11, 79 P.3d at 1056-57.
¶15 Harper next maintains the state presented insufficient evidence to support a conviction for criminal damage in excess of $10,000. He argues the evidence presented at trial showed total damages of only $9,896, and thus the trial court erred in denying his motion for a judgment of acquittal on the criminal damage charge.
We review this issue de novo, considering the evidence and inferences drawn from it in the light most...
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