State v. Duong

Opinion

NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

VINH H. DUONG, Appellant.

No. 1 CA-CR 25-0022

FILED 08-17-2026

Appeal from the Superior Court in Yavapai County No. S1300CR202300705

The Honorable Krista M. Carman, Judge

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix By Michael J. Woodburn Counsel for Appellee

The Zickerman Law Office, PLLC, Flagstaff By Adam Zickerman Counsel for Appellant

STATE v. DUONG Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which Presiding Judge Daniel J. Kiley and Judge D. Steven Williams joined.

B A I L E Y, Judge:

¶1 Vinh H. Duong appeals his convictions and sentences for sale or transportation of narcotic drugs, sale or transportation of dangerous drugs, child abuse, misconduct involving weapons, and possession of drug paraphernalia. Duong’s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), stating counsel searched the record on appeal and “[n]o arguable question of law has been found on any issue.” Counsel requests we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999) (stating that this court reviews the entire record for reversible error). We allowed Duong to file a supplemental brief in propria persona, but he did not do so. After reviewing Duong’s brief, we ordered supplemental briefing from both parties pursuant to Penson v. Ohio, 488 U.S. 75 (1988). Because insufficient evidence supports his conviction for child abuse but does support a necessarily lesser-included offense, we remand for resentencing on that count. We otherwise affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In June 2023, a police officer pulled over a car for having illegally tinted windows. Duong was in the passenger seat, and his sevenyear -old son and one other child were in the back seat. The officer’s drugsniffing dog alerted during the stop. The officer searched the car and found an unloaded gun, a loaded magazine, a kilogram of cocaine in a mostly sealed package with an open corner, and a bag of around 1,000 methamphetamine pills in the trunk, and small bindle baggies in the interior center console. Duong was arrested and a search of his phone revealed messages discussing the purchase and sale of drugs.

¶3 Duong was charged with sale or transportation of narcotic drugs (Count 1), sale or transportation of dangerous drugs (Count 2), child abuse under circumstances likely to produce death or serious physical injury (Count 3), misconduct involving weapons (Count 4), and possession

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STATE v. DUONG Decision of the Court

of drug paraphernalia (Count 5). Duong’s first trial ended in a mistrial. He was re-tried and the second jury found him guilty as charged.

¶4 The superior court sentenced Duong to concurrent sentences for counts 1, 2, 4, and 5, the longest of which was seven years; five years of supervised probation for count 3; and credited him with 70 days’ presentence incarceration.

¶5 Duong timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and 13-4033.

DISCUSSION

¶6 After reviewing the record, we discern error related to the sufficiency of the evidence for Duong’s child abuse conviction. A conviction must be supported by sufficient evidence to allow a rational trier of fact to find guilt beyond a reasonable doubt. State v. Cox, 217 Ariz. 353, 357, ¶ 22 (2007). We examine the evidence in the light most favorable to sustaining the verdict and resolve all reasonable inferences against the defendant. State v. Allen, 253 Ariz. 306, 341, ¶ 109 (2022). We reverse “only where there is a complete absence of probative facts to support the conviction.” Id. (citation omitted).

¶7 Duong was convicted of child abuse pursuant to A.R.S. § 13- 3623(A)(2), which provides:

Under circumstances likely to produce death or serious physical injury, any person who causes a child or vulnerable adult to suffer physical injury or, having the care or custody of a child or vulnerable adult, who causes or permits the person or health of the child or vulnerable adult to be injured or who causes or permits a child or vulnerable adult to be placed in a situation where the person or health of the child or vulnerable adult is endangered is guilty of an offense as follows:

....

2. If done recklessly, the offense is a class 3 felony.

“Serious physical injury” is “physical injury that creates a reasonable risk of death or that causes serious or permanent disfigurement, serious

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STATE v. DUONG Decision of the Court

impairment of health or loss or protracted impairment of the function of any bodily organ or limb.” A.R.S. § 13-3623(F)(5).

I. There was insufficient evidence to convict Duong of committing child abuse under circumstances likely to produce death or serious physical injury.

¶8 At issue here is whether Duong placed a child in circumstances likely to produce death or serious physical injury. “‘Likely’ has been interpreted literally and means ‘probable’ as compared to ‘possible.’” State v. Johnson, 181 Ariz. 346, 350 (App. 1995).

¶9 The State presented evidence that an unloaded gun, ammunition, a wrapped kilogram of cocaine, and a sealed bag of around 1,000 methamphetamine pills were found in the trunk of the car in which Duong and his child were passengers. The State also introduced evidence that Duong planned to engage in a drug transaction. An officer testified about the risk of violence associated with drug transactions, including the risk of robbery or assault. The jury also heard testimony that transporting drugs in a car risks exposing its occupants to the drugs via residue transfer or the vehicle’s air circulation.

¶10 The evidence clearly established that Duong placed his child at risk for harm but did not demonstrate that harm was likely. The State presented no evidence that violence was likely or probable to occur. It also presented no evidence that either the child or the passenger compartment of the vehicle suffered drug exposure. Although an officer testified that “the possibility of having an exposure is high when you have drugs in the vehicle,” that testimony alone, without further testimony on the degree of the possibility, the likely exposure amount, and the potential harm, is insufficient to establish that serious physical injury or death was likely. This is especially true because no evidence was presented that the child had access to the trunk where the gun and drugs were stored and the trunk was inaccessible from the back seat where the child was sitting. A.R.S. § 13- 3623(A)(2) calls for circumstances “likely” to cause death or serious physical injury, not merely the possibility that they will. Compare State v. Greene, 168 Ariz. 104 (App. 1991) (overturning a conviction under § 13- 3623(A)(2) where the State presented evidence of a potential for harm based on unsanitary conditions in a home but presented no evidence the harm was likely), with Johnson, 181 Ariz. at 346 (holding that death or serious physical injury was likely where children were left unsupervised in an active drug den where razor blades and syringes of liquid cocaine were easily accessible).

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STATE v. DUONG Decision of the Court

II. Duong committed a necessarily lesser-included child abuse offense.

¶11 The evidence was insufficient to establish that Duong’s child was placed in a circumstance likely to produce death or serious physical injury as required for Duong’s conviction under A.R.S. § 13-3623(A)(2). We next turn to whether there is sufficient evidence to convict Duong of a necessarily lesser-included child abuse offense.

¶12 “An appellate court may modify a judgment to one of conviction for a lesser-included offense and remand the case for resentencing if: (1) the evidence introduced at trial is not legally sufficient to establish the defendant’s guilt for the offense for which the defendant was convicted; but (2) the evidence is legally sufficient to establish defendant’s guilt of a necessarily lesser-included offense.” Ariz. R. Crim. P. 31.19(d). “An offense is a lesser-included offense if it is composed solely of some, but not all, of the elements of the greater offense so that it is impossible to commit the greater offense without also committing the lesser.” State v. Cisneroz, 190 Ariz. 315, 317 (App. 1997). And an offense is necessarily included “when it is lesser included” and “the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved.” State v. Wall, 212 Ariz. 1, 3,

¶ 14 (2006).

¶13 Duong was convicted of child abuse under A.R.S. § 13- 3623(A)(2). Section 13-3623(B)(2) is identical to § 13-3623(A)(2), except it does not require the abuse to occur under “circumstances likely to produce death or serious physical injury.” Thus, child abuse under § 13-3623(B)(2) is composed solely of elements also found in the greater offense of child abuse under § 13-3623(A)(2). And as the remaining elements are supported by sufficient evidence and were found by the jury at trial, child abuse under § 13-3623(B)(2) qualifies here as a necessarily lesser-included offense of child abuse under § 13-3623(A)(2). Accordingly, we modify Duong’s conviction to reflect he committed child abuse under A.R.S. § 13-3623(B)(2), a class 5 felony, and remand for resentencing.

III. We find no other error in the record.

¶14 We otherwise find no reversible error in the record. See Leon, 104 Ariz. at 300; Clark, 196 Ariz. at 537, ¶ 30. The evidence presented at trial for the other counts was substantial and supports the verdicts, and the sentences were within the statutory limits. Duong was represented by counsel at all stages of the proceedings and was given the opportunity to speak at sentencing. The proceedings were conducted in compliance with

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STATE v. DUONG Decision of the Court

Duong’s constitutional and statutory rights and the Arizona Rules of Criminal Procedure.

CONCLUSION

¶15 We vacate Duong’s conviction and sentence for child abuse under A.R.S. § 13-3623(A)(2) and remand for resentencing as a conviction under A.R.S. § 13-3623(B)(2). We otherwise affirm Duong’s convictions and sentences.

¶16 Upon filing of this decision, Duong’s counsel shall inform him of the status of his appeal and of his future options. Counsel has no further obligations unless, upon review, counsel finds an issue that may be appropriately submitted to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Duong has 30 days from the date of this decision to proceed, if he desires, with a pro per petition for review. See Ariz. R. Crim. P. 31.21(b)(2)(A). On the court’s own motion, Duong has 30 days from the date of this decision to file a motion for reconsideration. See Ariz. R. Crim. P. 31.20(c).

MATTHEW J. MARTIN • Clerk of the Court FILED: JR