State v. Duarte

438 P.3d 707, 246 Ariz. 338
Court of Appeals of Arizona·Decided November 29, 2018·No. No. 2 CA-CR 2017-0349·Published·Cited by 4 cases

Opinion

VÁSQUEZ, Presiding Judge:

¶1 After a jury trial, Alejandro Duarte was convicted of burglary, aggravated assault, and three counts of disorderly conduct. The trial court imposed concurrent prison terms, the longest of which was 3.25 years. On appeal, Duarte challenges the sufficiency of the evidence to support his burglary and aggravated assault convictions, arguing that under A.R.S. § 13-1204(A)(4) a "sleeping victim's capacity to resist is not substantially impaired." He also contends the court erred in precluding a victim's prior conviction for impeachment purposes. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to affirming Duarte's convictions. See State v. Brown , 233 Ariz. 153, ¶ 2, 310 P.3d 29 (App. 2013). Duarte and J.C. had been in an on-again, off-again relationship for several years and had three children, M.D., A.D.J., and A.D. One afternoon in May 2016, Duarte called J.C. several times, threatening to go to J.C.'s house to "[b]reak [her] stuff" and "hurt [her]." J.C. told him not to come over.

¶3 That evening, J.C., her friend V.M., A.D.J., and A.D. went to the mall and got dinner. After returning home, J.C. and A.D.J. went to sleep in J.C.'s bed, A.D. slept in her room, and V.M. fell asleep on the couch in the living room. Later that night, Duarte entered J.C.'s house through the unlocked back door. He went into J.C.'s room and began hitting her. Duarte demanded to "look through [her] phone," grabbed it, and refused J.C.'s requests to return it. He then went outside and threw it on the sidewalk, shattering it.

¶4 A grand jury indicted Duarte for one count of second-degree burglary, aggravated assault on an incapacitated victim (J.C.), and three counts of disorderly conduct (V.M., A.D.J., and A.D.). He was convicted as charged and sentenced as described above. We have jurisdiction over Duarte's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Sufficiency of the Evidence

¶5 Duarte argues his burglary and aggravated assault convictions "must be reversed because there was insufficient evidence that [J.C.] was incapacitated within the meaning of the statute defining aggravated assault." We review de novo the sufficiency of the evidence and issues of statutory interpretation. State v. Bon , 236 Ariz. 249, ¶ 5, 338 P.3d 989 (App. 2014) ; State v. Latham , 223 Ariz. 70, ¶ 9, 219 P.3d 280 (App. 2009).

¶6 Pursuant to § 13-1204(A)(4), "[a] person commits aggravated assault if the person commits assault as prescribed by [A.R.S.] § 13-1203... while the victim is bound or otherwise physically restrained or while the victim's capacity to resist is substantially impaired."1 Here, the state agreed J.C. was not *711bound or physically restrained; thus, the only issue was whether her capacity to resist was substantially impaired. Pursuant to A.R.S. § 13-1507(A), "[a] person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein." Here, the state argued the felony Duarte intended to commit was aggravated assault under § 13-1204(A)(4).2

¶7 As he did below, Duarte challenges the meaning of § 13-1204(A)(4), arguing that "[s]leep does not constitute substantial impairment of a victim's capacity to resist because it is a temporary and fleeting state." He reasons that "a sleeping victim's capacity to resist is not substantially impaired" because such a victim "has the ability to immediately awake[n] and defend [him or herself] as soon as the attack begins." This issue requires us to interpret the language of § 13-1204(A)(4).

¶8 When interpreting statutes, our duty "is 'to give effect to the legislature's intent.' " State v. Miller , 226 Ariz. 190, ¶ 12, 245 P.3d 454 (App. 2011) (quoting State v. Hinden , 224 Ariz. 508, ¶ 9, 233 P.3d 621 (App. 2010) ). In doing so, we first consider the language of the statute, State v. Derello , 199 Ariz. 435, ¶ 21, 18 P.3d 1234 (App. 2001), giving "every word and phrase its 'usual and commonly understood meaning unless the legislature clearly intended a different meaning,' " State v. Randles , 235 Ariz. 547, ¶ 8, 334 P.3d 730 (App. 2014) (quoting Bilke v. State , 206 Ariz. 462, ¶ 11, 80 P.3d 269 (2003) ); see also State v. Pena , 235 Ariz. 277, ¶ 6, 331 P.3d 412 (2014) (we may look to dictionaries for common meanings). "When the statute's language is plain and unambiguous, we must follow the text as written." Derello , 199 Ariz. 435, ¶ 21, 18 P.3d 1234.

¶9 The language at issue here is "while the victim's capacity to resist is substantially impaired." § 13-1204(A)(4).

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State v. Duarte, 438 P.3d 707, 246 Ariz. 338 (Ark. Ct. App. 2018).

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