State v. Molina

• Decision Date: 30 August 2005
• Docket Number: No. 2 CA-CR 2004-0222.,2 CA-CR 2004-0222.
• Parties: The STATE of Arizona, Appellee, v. Juan Manuel MOLINA, Appellant.
• Court: Arizona Supreme Court

Page 1094

118 P.3d 1094

211 Ariz. 130

The STATE of Arizona, Appellee, v. Juan Manuel MOLINA, Appellant.

No. 2 CA-CR 2004-0222.

Court of Appeals of Arizona, Division 2, Department A.

August 30, 2005.

COPYRIGHT MATERIAL OMITTED

Terry Goddard, Arizona Attorney General, By Randall M. Howe and David A. Sullivan, Tucson, for Appellee.

Creighton Cornell, P.C., By Creighton Cornell, Tucson, for Appellant.

OPINION

ECKERSTROM, J.

¶ 1 Appellant Juan Manuel Molina was convicted after a jury trial of unlawful imprisonment, a class six felony; aggravated assault with a deadly weapon or dangerous instrument, a class three felony; and aggravated assault causing temporary and substantial disfigurement, a class four felony. He was sentenced to concurrent, aggravated and partially aggravated terms of imprisonment, the longest of which was ten years. On appeal, Molina contends the trial court erred in denying his motion for judgment of acquittal on one of the two aggravated assault charges. He also challenges the sentences, claiming, inter alia, that the trial court erred by finding and considering aggravating circumstances, in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We affirm.

Factual and Procedural Background

¶ 2 "We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdicts." State v. Tamplin, 195Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App.1999). On an evening in December 2003, E. walked to the home of his friend, John Rozanski (the codefendant), so they could "hangout" and "drink a few beers." Molina arrived at Rozanski's house later that night and prepared two, three-quarter-inch or inch-long "lines" of powdered cocaine for consumption. E. inhaled both of the "lines."

¶ 3 Angry that E. had inhaled the entire amount, both Rozanski and Molina attacked E. Rozanski knocked E. to the ground, pinned him, and punched his face and head. At some point, E.'s legs were tied together with extension cords. While Rozanski continued to hold E. to the ground, Molina removed E.'s shoes, doused his socks with rubbing alcohol, and set fire to his bound feet. Molina also attacked E. by shocking him, pulling his pants down, and setting fire to his lower back, legs, and hands.

¶ 4 After beating and burning E., Molina and Rozanski dragged him into the bathroom and threatened him at gunpoint with further harm. E. testified that Rozanski and Molina then had "partied" through the rest of the night and had allowed E. to leave in the morning. E. walked home and immediately contacted the police.

¶ 5 As a result of the assault, E. suffered numerous bruises and facial fractures. He also received small burns on his hands, second-degree burns on his feet, and a third-degree burn on his lower back. The burns required medical treatment, including the use of antibiotic ointment; surgery was required to treat the burn on his back.

¶ 6 At the close of the state's case against him, Molina moved for a judgment of acquittal pursuant to Rule 20, Ariz. R.Crim. P., 17 A.R.S. The court denied the motion, and the jury found him guilty of the three offenses.

¶ 7 At sentencing, the trial court found the following aggravating circumstances: (1) Molina had been placed on probation "just a matter of weeks" before assaulting E.; (2) Molina had used cocaine on the night of the incident while on probation; (3) the manner in which Molina had attacked E. had caused him severe pain; (4) the fact that E. had required surgery after the assault; (5) Molina had been convicted of six prior misdemeanors, at least one of which involved the use of a firearm; and (6) Molina's lack of remorse. Based on those circumstances, the court sentenced Molina to a fully aggravated prison term on the unlawful imprisonment conviction and partially aggravated terms on both aggravated assault convictions.

Denial of Rule 20 Motion

¶ 8 Rule 20 requires the trial court to enter a judgment of acquittal before the verdict is rendered "if there is no substantial evidence to warrant a conviction." "`Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt."' State v. Hall, 204 Ariz. 442, ¶ 49, 65 P.3d 90, 102 (2003), quoting State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). "If reasonable minds could differ on the inferences to be drawn from the evidence," which we construe in favor of upholding the trial court's ruling, the motion for judgment of acquittal must be denied and the decision will be affirmed. State v. Sullivan, 205 Ariz. 285, ¶ 6, 69 P.3d 1006, 1008 (App.2003).

¶ 9 The state charged Molina with two counts of aggravated assault. The first charge, aggravated assault with a dangerous instrument or deadly weapon, was based on the theory that a burning, flammable liquid had been used as a dangerous instrument. See A.R.S. § 13-1204(A)(2). A dangerous instrument is "anything that under the circumstances in which it is used... is readily capable of creating a substantial risk of causing death or serious physical injury." A.R.S. § 13-105(11). On appeal, Molina contends the state presented insufficient evidence that the ignited alcohol had been used in a manner consistent with the statutory definition of "dangerous instrument" because no serious physical injury resulted from the assault. We disagree.

¶ 10 Whether a victim actually suffered a serious physical injury is not an essential element of aggravated assault under § 13-1204(A)(2). Rather, the jury could conclude that Molina committed aggravated assault if he used a dangerous instrument to inflict "any physical injury to another person." § 13-1203(A)(1) (emphasis added); see also § 13-1204(A)(2). A physical injury is any "impairment of physical condition." § 13-105(29).

¶ 11 Here, the state presented substantial evidence to support the jury's finding that (1) Molina's assault with the flammable liquid was, under the circumstances in which it had been used, readily capable of creating a substantial risk of causing death or serious physical injury, and (2) that it did, in fact, cause some physical injury. A state criminalist testified that rubbing alcohol had been found in the charred carpet samples taken from Rozanski's house and that the substance is a "flammable liquid ... like gasoline." According to E., Molina had "doused" E.'s socks with a liquid before setting fire to E.'s bound feet and lower back. E.'s physician Dr. Hekimian, testified that E. had sustained burns to his back and extremities, including a third-degree burn to his lower back and buttocks. According to Hekimian, second- and third-degree burns can be life threatening if left untreated and, even appropriately treated, third-degree burns like those sustained by E. could leave "unsightly scars."

¶ 12 From this evidence, the jury reasonably could have concluded that Molina had poured a flammable liquid on E., had ignited it, and that the liquid was capable of causing and did cause third-degree burns. The jury also could reasonably conclude from the physician's testimony that when used to cause third-degree burns, the flammable liquid was readily capable of causing serious physical injury — even if it arguably did not do so in the instant case. See A.R.S. § 13-105(34) (defining "serious physical injury" as a "physical injury which creates a reasonable risk of death, or which causes serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb"). Therefore, Molina's motion for judgment of acquittal was properly denied.

Sentencing Error

¶ 13 Molina alleges a variety of sentencing errors on appeal. He first urges this court to remand the case for resentencing because the aggravating circumstances were not found in conformity with Blakely's requirements. Molina also argues there was insufficient evidence to support a number of the aggravating circumstances the trial court found. Finally, Molina argues the court improperly double-counted the actual ignition of the rubbing alcohol as an aggravating circumstance because that act was an element of the underlying offense.

A. Blakely error

¶ 14 In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000), the Supreme Court held that the Sixth Amendment requires that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In Blakely, the Court refined Apprendi, holding that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at ___, 124 S.Ct. at 2537. In Arizona, the statutory maximum is the presumptive term. See State v. Brown, 209 Ariz. 200, ¶ 12, 99 P.3d 15, 18 (2004) (the "maximum sentence" under Apprendi is the presumptive sentence); State v. Johnson, 210 Ariz. 438, ¶ 10, 111 P.3d 1038, 1041 (App.2005) (same, with analysis). Blakely applies to cases, such as Molina's, that were pending on direct review when Blakely was decided. See State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 26, 99 P.3d 35, 41 (App.2004); see also Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 658 (1987) (new constitutional rules apply to cases that are not yet final).

¶ 15 Preliminarily, the state contends that Molina has waived his right to appeal his sentence under Blakely because, as it correctly observes, he failed to challenge his sentence on those grounds in the trial court. But, as our supreme court has recently noted: "Defendants who fail to object to error at trial do not, strictly speaking, `waive' their claims. Rather, defendants who fail to object to an error below forfeit the right to obtain appellate...