State v. Powers

• Citation: 200 Ariz. 123,23 P.3d 668
• Decision Date: 27 February 2001
• Docket Number: No. 2 CA-CR 00-0117.,2 CA-CR 00-0117.
• Parties: The STATE of Arizona, Appellee/Cross-Appellant, v. Dustin Ryan POWERS, Appellant/Cross-Appellee.
• Court: Court of Appeals of Arizona

23 P.3d 668

200 Ariz. 123

The STATE of Arizona, Appellee/Cross-Appellant, v. Dustin Ryan POWERS, Appellant/Cross-Appellee.

No. -0117.

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

February 27, 2001.

Review Granted May 23, 2001.

Janet Napolitano, Arizona Attorney General, by Paul J. McMurdie and Joseph L. Parkhurst, Tucson, for appellee/cross-appellant.

Hirsh, Bjorgaard & Rogers, P.L.C., by David L. Bjorgaard, Tucson, for appellant/cross-appellee.

OPINION

HOWARD, Presiding Judge.

¶ 1 Appellant Dustin Powers pled guilty to one count of leaving the scene of an accident and was convicted after a bench trial of a second count of leaving the scene of an accident arising from the same incident. He challenges the second conviction, claiming he left the scene of only one accident and could not therefore be twice convicted of the same offense. He also contends the trial court erred at sentencing by denying him a continuance and admitting improper evidence. Finding that only one offense occurred, we vacate the second conviction. But we find no abuse of discretion at sentencing. And, on the state's cross-appeal, we find no error in the trial court's permitting Powers to unilaterally plead guilty to only the first count.

BACKGROUND

¶ 2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions. State v. Riley, 196 Ariz. 40, ¶ 2, 992 P.2d 1135, ¶ 2 (App.1999). According to the stipulated facts at trial, Powers accidentally drove into the opposite lane of travel and struck a pedestrian and her infant daughter, who was being pushed in a stroller. Although aware that the accident had likely caused injury, Powers drove away. As a result of the accident, the pedestrian died and her infant daughter suffered serious physical injuries.

¶ 3 Powers was charged with two counts of leaving the scene of an accident in violation of A.R.S. § 28-661: leaving the scene of an accident causing the pedestrian's death and leaving the scene of an accident causing the infant's serious physical injuries. Powers moved to dismiss the second count, arguing that he had left the scene of only one accident. The trial court denied the motion. Over the state's objection, Powers then pled guilty to the count involving the pedestrian, and the plea was accepted. Before trial on the count involving the infant, Powers requested reconsideration of his motion to dismiss that count. The trial court again rejected the motion. After a bench trial, the court found Powers guilty of the count involving the infant and sentenced him to concurrent, presumptive prison terms of 3.5 years. This appeal followed.

DOUBLE JEOPARDY

¶ 4 Under § 28-661, a driver involved in an accident causing injury or death commits a felony by leaving the scene of the accident. The statute provides in pertinent part:

A. The driver of a vehicle involved in an accident resulting in injury to or death of a person shall:

1. Immediately stop the vehicle at the scene of the accident or as close to the accident scene as possible but shall immediately return to the accident scene.

2. Remain at the scene of the accident until the driver has fulfilled the requirements of [A.R.S.] § 28-663.

¶ 5 Powers contends there was only one accident scene, and therefore, the second count of leaving the scene of an accident was multiplicitous and barred by the prohibition against double jeopardy. Multiplicity occurs when an indictment charges a single offense in multiple counts. State v. O'Brien, 123 Ariz. 578, 582, 601 P.2d 341, 345 (App.1979); see also United States v. Chacko, 169 F.3d 140, 145 (2nd Cir.1999)

. Multiplicity raises the potential for multiple punishments, which implicates double jeopardy. United States v. Brechtel, 997 F.2d 1108, 1112 (5th Cir.1993); United States v. Bin Laden, 91 F.Supp.2d 600, 615 (S.D.N.Y.2000). The Double Jeopardy Clause bars a second prosecution for the same offense after conviction or acquittal and bars multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 497-98, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425, 432-33 (1984); Taylor v. Sherrill, 169 Ariz. 335, 338, 819 P.2d 921, 924 (1991); see also State v. Eagle, 196 Ariz. 188, ¶ 6, 994 P.2d 395, ¶ 6, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 60 (2000). We review de novo whether double jeopardy applies. State v. Rodriguez, 198 Ariz. 139, ¶ 3, 7 P.3d 148, ¶ 3 (App.2000); see also Brechtel, 997 F.2d at 1112 ("Like other determinations regarding double jeopardy, we review district court rulings on multiplicity claims de novo.").

¶ 6 Powers relies on State v. Tinajero, 188 Ariz. 350, 935 P.2d 928 (App.1997), to support his claim that only one accident occurred, involving two victims. In Tinajero, the defendant struck one vehicle containing three passengers and was convicted of three counts of leaving the scene of an accident. 188 Ariz. at 352-53, 935 P.2d at 930-31. Division One of this court vacated two of the convictions, finding there had only been one accident scene, regardless of the number of victims. Id. at 356, 935 P.2d at 934. The court described the offense as "geographical." Id.

¶ 7 Relying on State v. Hamblin, 165 Ariz. 211, 797 P.2d 1229 (App.1990), the state counters that Powers left the scene of two separate accidents, one involving the pedestrian and one involving the infant. In Hamblin, the defendant struck two pedestrians and, as part of a plea agreement that dismissed a negligent homicide count, pled guilty to two counts of leaving the scene of an accident. 165 Ariz. at 212,797 P.2d at 1230. Division One of this court concluded that the defendant had been involved in two accidents, had breached duties owed to two victims, and had properly received consecutive sentences. Id. at 213-14, 797 P.2d at 1231-32.

¶ 8 Whether one or more offenses occurred here requires us to interpret § 28-661. See generally Tinajero, 188 Ariz. at 355-56,

935 P.2d at 933-34. We review issues of statutory interpretation de novo. State v. Malvern, 192 Ariz. 154, ¶ 2, 962 P.2d 228, ¶ 2 (App.1998). In construing a statute, we attempt to ascertain and give effect to the legislature's intent. State v. Wagstaff, 164 Ariz. 485, 490, 794 P.2d 118, 123 (1990); see also State v. Leon, 197 Ariz. 48, ¶ 2, 3 P.3d 968, ¶ 2 (App.1999). We give clear and unambiguous statutory language its plain and ordinary meaning unless absurd consequences would result. Wagstaff, 164 Ariz. at 490,

794 P.2d at 123; see also Leon, 197 Ariz. 48, ¶ 2, 3 P.3d 968, ¶ 2. And we attempt to give unclear language a sensible construction. Wagstaff, 164 Ariz. at 490,

794 P.2d at 123. Moreover, we recognize that a judicial expansion of statutory language can violate a defendant's due process right to fair warning. See Bouie v. City of Columbia, 378 U.S. 347, 350-55, 84 S.Ct. 1697, 1701-03, 12 L.Ed.2d 894, 898-901 (1964); Reinesto v. Superior Court, 182 Ariz. 190, 193, 894 P.2d 733, 736 (App.1995) (expanding statutory language would "offend due process notions of fundamental fairness"); Vo v. Superior Court, 172 Ariz. 195, 200, 836 P.2d 408, 413 (App.1992) ("We may not expand the scope of a crime by judicial decision to punish a defendant for an act that was not criminal when it was performed."); see also A.R.S. ¶ 13-101(2) (public policy of state is "[t]o give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction").

¶ 9 The plain and ordinary meanings of the terms "accident" and "scene of the accident" do not depend on the number of victims. As commonly understood, only one accident scene exists even though accidents often involve multiple victims and impacts.¹ In the absence of compelling reasons, therefore, we give these terms their plain and ordinary meaning. See Wagstaff; Leon.

¶ 10 The statute itself does not express any legislative intent to adopt a different meaning. Section 28-661 imposes an affirmative duty on a driver to remain "at the scene of the accident," not to render aid to victims or provide them with information.² Although ¶ 28-661(A)(2) requires the driver to remain at the scene "until the driver has fulfilled the requirements of § 28-663," (emphasis added), that clause only establishes when the duty to remain at the scene terminates, it does not impose a duty to fulfill the requirements. Rather, § 28-663 is the statute that imposes an affirmative duty to perform those obligations. And a failure to perform the obligations of § 28-663 is an offense in and of itself. § 28-663(B). Moreover, basing the number of violations of leaving the scene of an accident on the number of violations of § 28-663 would, in effect, increase without legislative directive the penalty for a violation of § 28-663 from a misdemeanor to a felony in leaving-the-accident-scene cases. Compare § 28-661(B), (C) with § 28-663(B).

¶ 11 In addition, the state also claimed at oral argument that the legislature, in specifying that the severity of the injury suffered determines the class of felony committed, intended to permit multiple violations of ¶ 28-661 at a single accident. Specifically, the state notes that leaving the scene of an accident resulting in death or serious physical injury is a class four felony and leaving the scene of an accident that does not result in death or serious physical injury is a class six felony. § 28-661(B) and (C). Thus, the state argues, if a defendant leaves the scene of an accident resulting in a serious physical injury to one person and a minor injury to another, the defendant has committed a class four felony as to the first person and a class six felony as to the second.

¶ 12 First, we would hesitate to expand the ordinary and commonsense meaning of terms in a criminal statute based on inferential reasoning from the penalty provisions. See Bouie, 378 U.S. at 350-55,

84 S.Ct. at 1701-03,

12 L.Ed.2d at 898-901; Reinesto, 182 Ariz. at 193,

894 P.2d at 736. Second, we can interpret the penalty provisions...