State v. George

79 P.3d 1050, 206 Ariz. 436, 413 Ariz. Adv. Rep. 3, 2003 Ariz. App. LEXIS 192
CourtCourt of Appeals of Arizona
DecidedNovember 26, 2003
Docket2 CA-CR 2002-0307
StatusPublished
Cited by46 cases

This text of 79 P.3d 1050 (State v. George) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. George, 79 P.3d 1050, 206 Ariz. 436, 413 Ariz. Adv. Rep. 3, 2003 Ariz. App. LEXIS 192 (Ark. Ct. App. 2003).

Opinion

OPINION

ECKERSTROM, J.

¶ 1 Appellant Christina Marie George was charged with attempted first-degree murder, aggravated assault with a deadly weapon, aggravated assault causing serious physical injury, kidnapping, and possession of a deadly weapon by a prohibited possessor. After a trial, a jury found George guilty of aggravated assault with a deadly weapon and aggravated assault causing serious physical injury, both class three felonies. The trial court sentenced her to concurrent, aggravated prison terms of fifteen and seven years. George contends her convictions should be reversed, arguing that (1) there was insufficient evidence to support her conviction on the charge of aggravated assault causing serious physical injury; (2) the trial court abused its discretion in denying a motion to strike a prospective juror for cause; (3) the trial court abused its discretion in admitting evidence without a proper foundation; and (4) the trial court erred in denying her motion for change of venue. We affirm in part, modify the judgment in part, and remand the case for resentencing.

Background

¶ 2 In April 2001, George and two companions went to a Tucson motel to talk to J. about a missing wallet. An altercation ensued and George shot J. in the neck. The bullet entered the right side of her neck and exited her right armpit. J. was hospitalized for two days and then released. When Pima County deputy sheriffs arrested George a few weeks later, she confessed that she had shot J. but claimed it had been an accident.

*440 Sufficiency of the Evidence

¶ 3 George contends the state presented insufficient evidence for rational jurors to have found her guilty of aggravated assault causing serious physical injury. In reviewing the sufficiency of evidence, we view the facts in the light most favorable to upholding the jury’s verdict and resolve all reasonable inferences against the defendant. State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992). We will not disturb a defendant’s conviction unless there is a complete absence of probative facts to support the verdict, State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987), and unless rational jurors could not have found the defendant guilty beyond a reasonable doubt. State v. Whalen, 192 Ariz. 103, 111, 961 P.2d 1051, 1059 (App.1997).

¶ 4 Section 13-105(34), A.R.S., defines “[sjerious physical injury” as an injury that “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.” The jury was instructed in accordance with this definition. The physician who had treated J. at the hospital testified that the bullet had entered the right posterior side of her neck and had exited through her right armpit, causing significant loss of blood. Although the wound did not cause any vascular damage, J. did lose some sensation, strength, and muscle control in her right arm. The doctor testified that J. had not regained full function of her arm during her two-day hospital stay. He refused to speculate on whether that impairment would be temporary, protracted, or permanent. George contends neither this nor any other evidence established beyond a reasonable doubt that J.’s injuries satisfied the statutory definition of serious physical injury. Given the applicable statutory scheme, the nature of J.’s injury, and the state’s failure to introduce substantial evidence about the extent and duration of that injury, we are compelled to agree.

¶ 5 The state presented no evidence that the injury itself had exposed J. to a reasonable risk of death or had caused her to suffer serious or permanent disfigurement. We must therefore determine whether the state presented sufficient evidence from which reasonable jurors could have concluded beyond a reasonable doubt that the injury had seriously impaired her health or caused her to suffer a protracted impairment of the use of her arm. To answer that question, we must first determine the meaning of the terms “serious impairment of health” and “protracted impairment” in § 13-105(34).

¶ 6 The interpretation of a statute poses a question of law subject to our de novo review. State v. Fell, 203 Ariz. 186, ¶ 6, 52 P.3d 218, ¶ 6 (App.2002). “[0]ur primary goal is to discern and give effect to the legislature’s intent.” Id. To do so, we first “examine the plain language of the statute and, if it is unclear, then consider other factors such as the statute’s context, history, subject matter, effects and consequences, spirit, and purpose.” Id. We must also try “to harmonize related statutes and ‘aim to achieve consistency among them’ within the context of the overall statutory scheme.” Id., quoting Bills v. Ariz. Prop. & Cas. Ins. Guar. Fund, 194 Ariz. 488, ¶ 18, 984 P.2d 574, ¶ 18 (App.1999); see also State v. Sweet, 143 Ariz. 266, 270-71, 693 P.2d 921, 925-26 (1985).

¶ 7 The term “serious” for an injury is defined in Black’s Law Dictionary 1371 (7th ed.1999) as “dangerous; potentially resulting in death or other severe consequences.” See also The American Heritage Dictionary 1120 (2d coll, ed.1991) (defining “serious” as “grave in character, quality or manner”). Thus, the plain meaning of “serious impairment of health” suggests that the degree of the impairment must be significant rather than minor. See, e.g., State v. Greene, 182 Ariz. 576, 582-83, 898 P.2d 954, 960-61 (1995) (for purposes of former version of § 13-105(34) and enhanced sentencing statute, sexual assault victim suffered serious physical injury to face and nose, but “pain, roughness, and scratching inflicted during” sexual assaults did not meet statutory definition of serious physical injury). The term “protracted,” which is used in connection with “impairment,” is defined as “lengthened] in time; prolong[ed].” The American Heritage Dictionary 997. Notwithstanding these definí *441 tions of the relevant terms, their precise meaning in the context of an assault is not entirely clear. We have not found any Arizona cases that analyze and apply these specific terms in the context presented here. See State v. Garcia, 138 Ariz. 211, 214, 673 P.2d 955, 958 (App.1983) (substantial impairment of health does not include emotional injuries; breaking of hymen not serious and permanent disfigurement); Greene, 182 Ariz. at 582-83, 898 P.2d at 960-61 (permanent change in appearance of nose caused by beating constituted serious and permanent disfigurement). To determine the legislature’s intent, we find guidance in the statutory scheme relating to assaults as a whole.

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Cite This Page — Counsel Stack

Bluebook (online)
79 P.3d 1050, 206 Ariz. 436, 413 Ariz. Adv. Rep. 3, 2003 Ariz. App. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-george-arizctapp-2003.