State v. Pena

• Decision Date: 27 January 2005
• Docket Number: No. 1 CA-CR 03-0305.,1 CA-CR 03-0305.
• Citation: 104 P.3d 873,209 Ariz. 503
• Parties: STATE of Arizona, Appellee, v. Isac Paul PENA, Appellant.
• Court: Arizona Court of Appeals

104 P.3d 873

209 Ariz. 503

STATE of Arizona, Appellee, v. Isac Paul PENA, Appellant.

No. -0305.

Court of Appeals of Arizona, Division 1, Department D.

January 27, 2005.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Katia Mehu, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Dana P. Hlavac, Mohave County Public Defender By Jill L. Evans, Deputy Public Defender, Kingman, Attorneys for Appellant.

OPINION

LANKFORD, Judge.

¶ 1 Isac Paul Pena appeals from his conviction and sentence for aggravated assault. Defendant raises two issues on appeal. First, he asserts that his conviction for aggravated assault based on serious physical injury was unsupported by the evidence. Second, he argues that resentencing is required because the trial court improperly found aggravating circumstances. We affirm the conviction, vacate the sentence, and remand for resentencing.

¶ 2 Defendant and the victim were auto detailers who argued about which cars each would be assigned to detail. They were each paid by the car rather than hourly. After Defendant disparaged the victim, the victim confronted Defendant. A fight ensued.

¶ 3 Afterward, the victim noticed blood dripping from his face. The victim had a five- to six-inch cut on his face and a cut on his ear that separated the top part of the ear. In addition, he had a laceration to the nasal tip, and his face was swollen. The victim did not notice whether Defendant had a weapon.

¶ 4 The cut to the victim's ear penetrated all layers of skin, and police believed that it was a clean cut that must have been caused by a sharp object. The plastic surgeon who stitched the cuts noted no nerve or muscle damage and testified that the cut was consistent with a razor blade but not a fingernail or thumbnail. The healing process for scars takes eighteen months, during which the appearance of the scar would diminish, but the scar itself would not get smaller. At the time of trial, which occurred four months after the injury, the victim still had a scar on his face.

¶ 5 The victim testified that there were razor blades on the ground near the fight. Police located several razor blades but neither found nor retrieved any with blood. Officer Joel Freed testified, however, that sharp instruments would not always contain blood. Defendant denied using a weapon, and both he and the victim assumed that the cuts were caused by a fingernail.

¶ 6 Defendant moved for a judgment of acquittal, arguing that no evidence showed that he had wielded a razor blade and cut the victim. The court denied the motion and the jury found Defendant guilty of aggravated assault based on serious physical injury or dangerous instrument. The court sentenced him as a dangerous offender to a mitigated, seven-year term in prison. Defendant timely appealed.

¶ 7 On appeal, Defendant first contends that insufficient evidence supported his conviction for aggravated assault based on serious physical injury and that the conviction must be reduced to misdemeanor assault. In reviewing the denial of a motion for judgment of acquittal under Arizona Rule of Criminal Procedure 20, we view the evidence in the light most favorable to sustaining the verdict and reverse only if no substantial evidence supports the conviction. State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App.1996). "Substantial evidence... is such proof that `reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. DiGiulio, 172 Ariz. 156, 159, 835 P.2d 488, 491 (App.1992) (citation omitted). The substantial evidence required for conviction may be either circumstantial or direct. State v. Blevins, 128 Ariz. 64, 67, 623 P.2d 853, 856 (App.1981); State v. Webster, 170 Ariz. 372, 374, 824 P.2d 768, 770 (App.1991).

¶ 8 The sufficiency of the evidence must be tested against the statutorily required elements of the offense. Under Arizona Revised Statutes ("A.R.S.") section 13-1204(A) (Supp.2004), a person commits aggravated assault by committing assault as defined in A.R.S. § 13-1203 (2001)¹ and either (1) causing serious physical injury to another or (2) using a deadly weapon or dangerous instrument.² "Serious physical injury" is "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." A.R.S. § 13-105(34) (2001).

¶ 9 The evidence was sufficient to establish serious and permanent disfigurement. The evidence demonstrated that the victim's scar would diminish in appearance but would not disappear completely, creating a "serious and permanent disfigurement" that constitutes "serious physical injury." See State v. Greene, 182 Ariz. 576, 579-80, 898 P.2d 954, 957-58 (1995) (the victim's facial and nose disfigurement was a "serious physical injury").

¶ 10 Defendant also contended for the first time in his reply brief that insufficient evidence supported the verdict based on use of a dangerous instrument. New issues raised in a reply brief are waived. State v. Cohen, 191 Ariz. 471, 957 P.2d 1014 (App.1998). However, sufficient evidence supported a verdict resting on the use of razor blades to commit the assault. A "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(11). See State v. Gordon, 161 Ariz. 308, 310, 778 P.2d 1204, 1206 (1989) (citing State v. Bustamonte, 122 Ariz. 105, 107, 593 P.2d 659, 661 (1979)) (stating that, when an instrument is not inherently dangerous as a matter of law, "like a gun or knife," the jury can infer whether defendant used it in such a way as to make it a deadly weapon).

¶ 11 Defendant also argues that it would be reversible error to have failed to require the jury to unanimously find the use of a dangerous instrument or serious physical injury³ if the evidence were insufficient as to either element. We have determined that the evidence sufficiently demonstrated both elements.

¶ 12 Nor is there error based on the failure to require that the jury specifically find these elements. The jury necessarily had to unanimously find every element of aggravated assault beyond a reasonable doubt, as it was instructed to do. State v. Portillo, 182 Ariz. 592, 594, 898 P.2d 970, 972 (1995) (citations omitted); State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996) (citation omitted) (stating that jury is presumed to follow its instructions). The jury need not, however, have unanimously agreed on the manner in which Defendant committed aggravated assault as long as each juror found that Defendant committed aggravated assault based on either serious physical injury or use of a dangerous instrument. State v. Herrera, 176 Ariz. 9, 16, 859 P.2d 119, 126 (1993) (a defendant is entitled to a unanimous verdict regarding whether an offense has been committed but is not entitled to a unanimous verdict on the precise manner that an offense was committed).

¶ 13 Defendant also argues that we must remand for re-sentencing because the court improperly found the aggravating circumstances of serious physical injury and emotional harm to the victim. He argues that, by statute, an element of the offense cannot be used as an aggravating factor. Whether it is an element of the offense is a question of law that we review de novo. State v. Tschilar, 200 Ariz. 427, 432, ¶ 15, 27 P.3d 331, 336 (App.2001) (citations omitted).

¶ 14 Under A.R.S. § 13-702(C) (Supp.2004), the court can consider the following as aggravating factors when imposing a sentence:

1. Infliction or threatened infliction of serious physical injury, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment under § 13-604.

2. Use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment under § 13-604.

....

9. The physical, emotional and financial harm caused to the victim....

(Emphasis added.) Under the statute, infliction of serious physical injury or use of a dangerous instrument cannot be used as an aggravating factor if they were essential elements of the offense.

¶ 15 The State confesses error, conceding that the court "improperly utilized statutory elements as aggravating circumstances." However, the State argues that consideration of these factors was harmless because Defendant received a mitigated sentence.⁴ Error is harmless only if we can be certain that, absent the error, the court would have reached the same result. State v. Hardwick, 183 Ariz. 649, 656-57, 905 P.2d 1384, 1391-92 (App.1995) (citing State v. Ojeda, 159 Ariz. 560, 562, 769 P.2d 1006, 1008 (1989)).

¶ 16 The court stated its reasons for finding both aggravating and mitigating factors as follows:

The Court finds as an aggravating factor in this case the emotional impact of the offense upon the victim although the Court finds this just barely and I am basing this upon the statements made by the victim at trial that he has to get up everyday and look in the mirror and see the scar which is a fairly prominent scar and the testimony from the plastic surgeon would suggest that that scar is going to be there for a while so, the Court is finding that as an aggravating factor although, again, just barely.

I am also finding — and this may be part of the same factor — I am finding that this is a case in which the victim suffered an actual injury. This is a crime that could have been committed if the Defendant exhibited a dangerous instrument in a threatening manner or a gun even which, obviously,

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