Citation210 Ariz. 292,110 P.3d 1026
Decision Date29 April 2005
Docket NumberNo. 2 CA-CR 2003-0238.,2 CA-CR 2003-0238.
PartiesThe STATE of Arizona, Appellee, v. Matthew Erich MANZANEDO, Appellant.
CourtCourt of Appeals of Arizona

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Alan L. Amann, Tucson, for Appellee.

Harriette P. Levitt, Tucson, for Appellant.


FLÓREZ, Presiding Judge.

¶ 1 After a jury trial, Matthew Manzanedo was convicted of assault with intent to incite a riot or participation in a riot and criminal damage. The convictions stemmed from a prison riot at the Pinal County Detention Center in which two officers were assaulted and the prison sustained over $23,000 in damage.1 The trial court sentenced Manzanedo to concurrent, enhanced, aggravated prison terms of ten and twenty-two years. We affirm his convictions and sentences.

¶ 2 On appeal, Manzanedo argues that there was insufficient evidence to sustain his conviction for criminal damage and that his conviction under A.R.S. § 13-1207 is the product of a duplicitous indictment and a jury instruction that did not separate the offenses charged. See State v. Axley, 132 Ariz. 383, 646 P.2d 268 (1982)

. Manzanedo also argues that the trial court imposed aggravated sentences based on improper aggravating factors and in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Criminal Damage

¶ 3 We view the evidence in the light most favorable to sustaining Manzanedo's convictions and resolve all reasonable inferences against him. See State v. Rienhardt, 190 Ariz. 579, 951 P.2d 454 (1997)

. "A person commits criminal damage by recklessly... [d]efacing or damaging [the] property of another." A.R.S. § 13-1602. Manzanedo argues there was no substantial evidence to sustain his criminal damage conviction because of the conflicting evidence presented at trial. He concedes that one witness, Officer Glass, testified that Manzanedo had ripped a telephone out of a wall and had thrown a food tray during the riot, but asserts that "[n]one of the other officers testified that they [had] observed [him] cause any other damage." "[S]ubstantial evidence ... is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Edwards, 136 Ariz. 177, 186, 665 P.2d 59, 68 (1983). Officer Glass's testimony was sufficient to prove that Manzanedo had damaged the property of another. That other witnesses testified they had not seen Manzanedo damage any property does not render Officer Glass's testimony insubstantial, as Manzanedo suggests. The jury was entitled to believe whichever witnesses it found credible. See State v. Williams, 209 Ariz. 228, ¶ 6, 99 P.3d 43, 46 (App.2004) ("Although the record contains some conflicting evidence, it was for the jury to weigh the evidence and determine the credibility of the witnesses.").

¶ 4 To the extent Manzanedo also asserts that Officer Glass's testimony was insufficient to establish the amount of damage for a class four felony, see § 13-1602(B) (criminal damage is class four felony if damage is $10,000 or more), he fails to develop any argument on why the state could not rely on the total damages from the riot of $23,662.55, offering only the conclusory statement that he "cannot be held accountable for the actions of others." Because Manzanedo's argument does not comply with Rule 31.13(c), Ariz. R.Crim. P., 17 A.R.S., we do not address it.

Conviction under § 13-1207

¶ 5 Manzanedo next asserts that § 13-1207 "criminalizes two separate offenses in the same statute, to-wit: (1) assault with intent to incite a riot, and (2) participation in a riot." Based on this assertion, he argues variously that the indictment was duplicitious, that the court's jury instruction failed to cure the effect of the duplicitious indictment, that the statute itself is duplicitous, and that the jury verdict was not unanimous.

¶ 6 We note first that Manzanedo did not raise these issues in the trial court. Although he objected to the instruction relating to § 13-1207, he asserted only that the statutory provisions were unclear. Therefore, he has waived the arguments on appeal absent fundamental error. See State v. Davis, 205 Ariz. 174, ¶ 32, 68 P.3d 127, 132 (App.2002) ("[A]bsent fundamental error, failure to raise issue at trial waives it on appeal."). Fundamental error is "`clear, egregious, and curable only via a new trial,'" State v. Lamar, 205 Ariz. 431, ¶ 50, 72 P.3d 831, 841 (2003), quoting State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991),

and is error that goes "to the foundation of the case," that "takes from the defendant a right essential to [the] defense," or that is "of such magnitude that the defendant could not possibly have received a fair trial." State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). To the extent Manzanedo has requested that we review the issue for fundamental error, we find no such error.

¶ 17 We disagree with the premise common to all of Manzanedo's arguments on this issue — that § 13-1207 creates two separate offenses. Section 13-1207, entitled "Prisoners who commit assault with intent to incite to riot or participate in riot," states in pertinent part: "A person, while in the custody of the state department of corrections or a county or city jail, who commits assault upon another person with the intent to incite to riot or who participates in a riot is guilty of a class 2 felony." We conclude that, rather than creating two separate offenses, § 13-1207 creates a single offense that can be committed in alternate ways.

¶ 8 "`Various tests are applied in determining whether statutes are intended to create one or more offenses.'" People v. Hathaway, 27 Cal.App.3d 586, 103 Cal.Rptr. 638, 643 (1972), quoting Bealmear v. S. Cal. Edison Co., 22 Cal.2d 337, 139 P.2d 20, 23 (1943). In State v. Dixon, 127 Ariz. 554, 622 P.2d 501 (App.1981), we relied on the tests suggested by the Washington Supreme Court in State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976), and determined that Arizona's theft statute, A.R.S. § 13-1802, created a single offense that could be committed in different ways. We considered (1) the title of the statute, (2) whether there was "a readily perceivable connection between the various acts" listed in the statute, (3) whether those acts were "consistent with and not repugnant to each other," and (4) whether those acts might "inhere in the same transaction." Dixon, 127 Ariz. at 561, 622 P.2d at 508. We may conduct that same analysis here, but ultimately, we must determine whether the legislature intended to create separate offenses in enacting the statute. See State v. Fell, 209 Ariz. 77,

¶ 33, 97 P.3d 902, 911 (App.2004) ("In interpreting a statute, we must attempt to give effect to the legislature's intent.").

¶ 9 We note initially that, had the legislature intended to create two separate offenses, it could easily have done so by enacting separate statutes or, at least, separate subsections. And, although § 13-1207 lists two conceivably separate acts — assault and participation — these acts are connected by the central subject of the statute — prison riots. The act of assaulting another with intent to incite a riot and the act of participating in a riot both further a prison riot, the conduct the legislature obviously intended to discourage by enacting § 13-1207. See Bealmear (collecting cases and considering primary purpose in determining statute created single offense although listing multiple acts). Moreover, the listed acts are not repugnant to each other. "The varying ways by which a crime may be committed are not repugnant to each other unless the proof of one will disprove the other." Arndt, 553 P.2d at 1333. Proving either assault with intent to incite a riot or participation in a riot does not disprove the other.

¶ 10 Additionally, we agree with the following reasoning by the Washington Supreme Court:

Doubts in the construction of a penal statute will be resolved in favor of lenity and against a construction that would produce extremely harsh or incongruous results or impose punishments totally disproportionate to the gravity of the offense; so in case of ambiguity the construction will be against turning a single transaction into multiple offenses.

Id. at 1334. It is difficult to conceive of a situation in which a prisoner could assault someone with the intent to incite a riot, but not also participate in any ensuing riot. Under Manzanedo's construction of the statute, however, such behavior would constitute two separately punishable offenses. Given the wording of this statute, that is a result we are not confident the legislature intended.

¶ 11 Moreover, we find unpersuasive Manzanedo's reliance on State v. Lujan, 139 Ariz. 236, 677 P.2d 1344 (App.1984). There, we found an indictment duplicitous because the indictment had alleged in one count two actions expressly made separate offenses in the statute. That is not the case here. Accordingly, we affirm Manzanedo's convictions.

Sentencing Issues

¶ 12 Manzanedo argues the trial court illegally aggravated his sentences based on its findings of the financial loss to the assaulted officers and the state and the presence of an accomplice. First, Manzanedo argues that, because he was not convicted of assault, "[t]he officers were not victims of the crimes for which [he] was convicted," and therefore, financial loss to the officers was an improper aggravating factor. But it is uncontested that the officers were assaulted during the course of the riot Manzanedo incited or participated in; therefore, the trial court properly considered them victims not only of assault, but also of Manzanedo's violation of § 13-1207. That section must be read in conjunction with A.R.S. § 13-2903, which creates the offense of riot. Section 13-2903 provides that "[a] person commits riot if, with two or more other persons acting together, such...

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