State v. Pena

• Decision Date: 23 September 2013
• Docket Number: No. 2 CA–CR 2012–0377.,2 CA–CR 2012–0377.
• Citation: 309 P.3d 936,670 Ariz. Adv. Rep. 8,233 Ariz. 112
• Parties: The STATE of Arizona, Appellee, v. Armando PENA Jr., Appellant.
• Court: Arizona Court of Appeals

233 Ariz. 112

309 P.3d 936

670 Ariz. Adv. Rep. 8

The STATE of Arizona, Appellee,

v.Armando PENA Jr., Appellant.

No. 2 CA–CR 2012–0377.

Court of Appeals of Arizona,

Division 2, Department B.

Sept. 23, 2013.

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Nicholas Klingerman, Tucson, Attorneys for Appellee.

Lori J. Lefferts, Pima County Public Defender By Abigail Jensen, Tucson, Attorneys for Appellant.

OPINION

ESPINOSA, Judge.

¶ 1 Armando Pena Jr. appeals from his convictions following a jury trial of one count each of kidnapping and aggravated assault with a deadly weapon and three counts of aggravated assault causing temporary and substantial disfigurement. He asserts there was insufficient evidence supporting two of the three counts of aggravated assault causing disfigurement and that the criminal restitution order (CRO) the trial court entered at sentencing was improper. For the reasons set forth below, we reduce the conviction for one count from aggravated assault to assault and remand for resentencing on that count. We also vacate the CRO, and affirm Pena's remaining convictions and sentences.

Factual and Procedural Background

¶ 2 We view the evidence in the light most favorable to sustaining the jury's verdicts. See State v. Haight–Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App.2008). On November 12, 2011, Pena repeatedly assaulted the victim, at times with a knife or other sharp object, and at one point dragged her back into her home after she attempted to flee. She sustained injuries to her leg, hand, and abdomen. The injury to her leg was a “three to four inch [ ]” laceration “down into the fatty tissue and into the muscle.” Her hand injury was a three-inch cut covering her “entire left palm,” and was “full thickness, which means it went through all the layers of the skin” revealing muscle tissue. Her abdominal injury was a puncture wound approximately two centimeters long, exposing some “fatty tissue.”

¶ 3 Pena was charged and convicted as described above and the trial court sentenced him to concurrent prison terms, the longest of which was 10.5 years for kidnapping. The court ordered at sentencing that “all fines, fees, and assessments are reduced to a[CRO], with no interest, penalties or collection fees to accrue while the defendant is in the Department of Corrections.” This appeal followed.

Sufficiency of the Evidence

¶ 4 We review de novo the sufficiency of the evidence to support a conviction. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). We view the facts in the light most favorable to upholding the jury's verdict and resolve all conflicts in the evidence against the defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). “To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury.” State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). To the extent our decision depends on the interpretation of a statute, our review is de novo. State v. George, 206 Ariz. 436, ¶ 6, 79 P.3d 1050, 1054 (App.2003).

¶ 5 Relevant here, a person commits aggravated assault if he or she commits assault as defined by A.R.S. § 13–1203 and “causes temporary but substantial disfigurement.” ¹A.R.S. § 13–1204(A)(3). Because the state charged each of the three wounds as separate counts of aggravated assault, we do not view the injuries collectively when analyzing whether the state presented sufficient evidence of “temporary but substantial disfigurement”; rather, we consider whether the state presented sufficient evidence as to each charged injury.

¶ 6 Pena contends the injuries to the victim's hand and abdomen did not constitute substantial disfigurement and the two separate convictions for those injuries must be vacated. Specifically, he argues the state presented inadequate evidence from which the jury could conclude those injuries affected the victim's appearance sufficiently to characterize them as substantially disfiguring. As to the puncture wound to the victim's abdomen, Pena emphasizes that the location of that injury is generally covered by clothing and therefore could not be considered disfiguring under any circumstances. To address these claims, we must consider what injuries may be properly characterized as causing temporary but substantial disfigurement.

¶ 7 Neither “disfigurement” nor “substantial disfigurement” are defined in Arizona statute, and Arizona courts have never addressed the meaning of those terms as they are used in § 13–1204(A)(3). Under such circumstances, we must give statutory language “its ordinary, common meaning.” Funk v. Indus. Comm'n, 167 Ariz. 466, 469, 808 P.2d 827, 830 (App.1991). Accordingly, when our courts have had occasion to clarify and apply either of those terms, they have done so with primary reference to accepted dictionary definitions.

¶ 8 In State v. Garcia, this court addressed the meaning of “serious ... disfigurement” in relation to the definition of serious physical injury for aggravated assault under § 13–1204(A)(1). 138 Ariz. 211, 214, 673 P.2d 955, 958 (App.1983). There, we determined that, in order to constitute disfigurement, an injury must “impair the visible appearance of the victim.” Id., citing Black's Law Dictionary (4th ed.1968). We read these related provisions in pari materia, see State ex rel. Larson v. Farley, 106 Ariz. 119, 122, 471 P.2d 731, 734 (1970), making that definition equally applicable to “disfigurement” as used in § 13–1204(A)(3), the provision we address here.

¶ 9 In the context of addressing an injury under a workers' compensation statute, we likewise concluded that “disfigurement” involves marring or impairing a person's appearance. Funk, 167 Ariz. at 469, 808 P.2d at 830. We also noted that such an injury must exist for some meaningful duration to meet the definition of the term. See id. at 468–69, 808 P.2d at 829–30 (suggesting disfigurement involves “ ‘persistent injuries' ” impairing appearance), quoting Webster's Ninth New Collegiate Dictionary 362 (1985). Although our legislature has specified that visible injuries need only be “temporary” and need be neither permanent nor protracted to qualify as “disfigurement” pursuant to § 13–1204(A)(3), the duration of a temporary injury remains an appropriate factor to consider when evaluating whether a person has been disfigured. For example, superficial injuries such as a minor bruise or bloody lip that return to normal in a few days might briefly mar the appearance of a person's face. Yet such blemishes, if only ephemeral, cannot be reasonably characterized as substantially disfiguring.²

¶ 10 Although there are no Arizona cases expressly defining the term “substantial” in the context of aggravated assault under § 13–1204(A)(3), we agree with the Washington Supreme Court that the term as it applies here is most appropriately and commonly understood to mean “ ‘considerable in amount, value, or worth.’ ” State v. McKague, 172 Wash.2d 802, 262 P.3d 1225, 1227 (2011) (addressing definition of “substantial bodily harm” as used in assault statute), quoting Webster's Third New Int'l Dictionary 2280 (2002). By including this term, our legislature has required that the state demonstrate “some harm substantially greater than the minimum required for ‘disfigurement.’ ” People v. McKinnon, 15 N.Y.3d 311, 910 N.Y.S.2d 767, 937 N.E.2d 524, 526 (2010) (analyzing meaning of “to disfigure ... seriously”). Put another way, some visible disfiguring injuries must be excluded by the word “substantial,” otherwise that language would serve no purpose. See McKague, 262 P.3d at 1226–27.

¶ 11 Moreover, the accompanying language in § 13–1204(A)(3) concerning fractures or impairments of body parts or organs suggests that the legislature intended substantial disfigurement “to describe an injury of comparable importance.” McKinnon, 910 N.Y.S.2d 767, 937 N.E.2d at 526;see Estate of Braden ex rel. Gabaldon v. State, 228 Ariz. 323, ¶ 13, 266 P.3d 349, 352 (2011) (principle of “ noscitur a sociis ... dictates that a statutory term is interpreted in context of the accompanying words”). Hence, we conclude that minor bruises, scratches, or lacerations do not amount to “substantial disfigurement” under this provision because they are not comparable to fractures or temporary loss of the use of an organ or body part. And, in fact, the record here reflects that the state properly did not bring separate charges under § 13–1204(A)(3) for each minor laceration or bruise Pena caused the victim, many of which are apparent from the photographs in evidence.

¶ 12 We do not purport here to present an exhaustive list of the factors that a jury may reasonably consider when determining whether a victim has been substantially disfigured. As the court in McKinnon observed when addressing analogous language in a New York statute, “ ‘no conceivable standard’ ” can perfectly identify the boundary separating ordinary and substantial disfigurement. 910 N.Y.S.2d 767, 937 N.E.2d at 526,quoting Fleming v. Graham, 10 N.Y.3d 296, 857 N.Y.S.2d 8, 886 N.E.2d 769, 773 (N.Y.2008). We can, however, for the reasons stated above, conclude that § 13–1204(A)(3) requires the inquiry to include both consideration of the extent to which the injury is visually apparent and the degree to which that injury must be considered a minor one. Those considerations may depend on numerous factors such as the size of the injury, its location on the body, its level of contrast with the surrounding tissue, and its relative persistence viewed through the lens of common experience.³

¶ 13 We now apply these principles to the specific counts that Pena challenges. As to the victim's hand injury, Pena asserts the victim had no resulting scar and there was “no other evidence” that the injury affected her “visible appearance.” His argument, however, is belied by the photographs of...