State v. Greene

866 P.2d 886, 177 Ariz. 218, 144 Ariz. Adv. Rep. 32, 1993 Ariz. App. LEXIS 142
CourtCourt of Appeals of Arizona
DecidedJuly 29, 1993
DocketNo. 1 CA-CR 91-1338
StatusPublished
Cited by2 cases

This text of 866 P.2d 886 (State v. Greene) 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. Greene, 866 P.2d 886, 177 Ariz. 218, 144 Ariz. Adv. Rep. 32, 1993 Ariz. App. LEXIS 142 (Ark. Ct. App. 1993).

Opinion

OPINION

JACOBSON, Judge.

Several issues have been raised in this appeal, only one of which is worthy .of being discussed in an opinion. See Fenn v. Fenn, 174 Ariz. 84, 847 P.2d 129 (App.1993). We therefore have disposed of other issues by memorandum decision and issue our opinion in this case on the issue whether a single “serious physical injury” that occurs in the course of committing sexual assault, aggravated assault, and kidnapping is sufficient to render all of these offenses “dangerous” for sentence enhancement purposes. We also determine whether making those sentences consecutive runs afoul of double punishment considerations.

FACTUAL BACKGROUND

Late in the evening of December 31,1985, T, then a 19-year old waitress at a Mesa restaurant, was sexually assaulted as she walked home from work. The assailant approached T from behind, grabbed her, then punched her repeatedly in the face. The assailant dragged T to bushes approximately 50 feet away. He sexually assaulted T by placing his fingers and his penis in her vagina. When he finished, the assailant apologized and stated, “I had a little too many Jack Daniels tonight.” When T turned to look at the assailant, he kicked her in the face and told her, “Don’t look at me, bitch. I told you not to look at me.”

T hailed a passing police car. She gave a description of the assailant that included the fact he was wearing a plastic Hawaiian lei. Despite a prompt response from officers at a substation near the scene of the assault, police were unable to locate the assailant that night.

Five days later, a Mesa police officer responded to a domestic violence call at defendant’s apartment. The apartment, in the same complex where T lived, was located near the scene of the sexual assault. The officer noted Hawaiian leis inside the apartment. Defendant was subsequently arrested. While defendant was in custody, a detective questioned him about the sexual assault of T. Defendant made a full confession, which was recorded on audiotape. Pursuant to a search warrant, a lei and a down vest were seized from defendant’s apartment. At trial T testified that the vest resembled the one worn by her assailant.

Defendant was indicted on two counts of sexual assault, one count of aggravated assault, and one count of kidnapping. The state alleged that each offense was a dangerous offense, that defendant had a prior felony conviction, and that the offenses were committed while defendant was on probation.

The jury found defendant guilty of all charges as dangerous offenses and determined that he had previously been convicted of a felony. The trial court found that defendant was on probation at the time of the offenses. Pursuant to A.R.S. § 13-604.02(A), the court imposed sentences of life imprisonment on each count. The court ordered the sentences for the two sexual assaults to be served concurrently but ordered the sentences for aggravated assault and kidnapping to be served consecutively to each other and to the sexual assault sentences.

Defendant filed a timely notice of appeal. As previously indicated, this opinion deals solely with the sentencing issues.

[220]*220DISCUSSION

In contending that consecutive sentences of life imprisonment were improperly imposed, defendant makes a somewhat intricate two-part argument. First, he contends that the “serious physical injury” inflicted on T supported a finding of dangerousness only on his conviction for aggravated assault. As a result, he asserts that he must be resentenced on the remaining charges as non-dangerous offenses. Second, he alternatively argues that, if the infliction of that injury supported a finding of dangerousness on all four offenses, the imposition of consecutive sentences for aggravated assault and kidnapping was improper under State v. Gordon, 161 Ariz. 308, 778 P.2d 1204 (1989). We consider these arguments separately.

1. Sentencing for “dangerous offenses."

Defendant does not dispute that T suffered “serious physical injury,” as defined by AR.S. § 13-105, when she was punched and kicked during the assault.1 However, he argues that the infliction of such an injury supported only the jury’s finding that aggravated assault was a dangerous offense. To prove the kidnapping and sexual assault counts dangerous, defendant argues, the state was required to establish the infliction of separate “serious” injuries dining each of those criminal acts.

This argument is novel but flawed in light of the relevant statutory language. The statute under which defendant was sentenced, AR.S. § 13-604.02(A), applies to “a person convicted of any felony offense involving ... the intentional or knowing infliction of serious physical injury upon another.” (Emphasis added.) “Involving” is an expansive term that is clearly sufficient to connect the injury inflicted to each of the crimes at issue in this case. Specifically, by punching T, defendant was able to accomplish sexual intercourse “without consent” as required by the sexual assault statute. See A.R.S. § 13-1406(A). Similarly, inflicting the punching injury to T enabled defendant to effect the element of “restraint” required for kidnapping. See AR.S. § 13-1304(A). We therefore hold that the trial court could properly consider the serious physical injury as being “dangerous” so as to enhance all of the offenses.

2. Propriety of consecutive sentences.

In challenging the imposition of consecutive life sentences, defendant does not argue that the facts surrounding the assault of T mandated concurrent sentences under AR.S. § 13-1162 and State v. Gordon. We have no difficulty in concluding that such an argument would fail because the offenses for which consecutive sentences were imposed— aggravated assault and kidnapping—did not constitute a single “act” under the test elaborated in Gordon. Rather, defendant directs his argument to the issue of sentence enhancement. He contends that, if the infliction of a single “serious physical injury” is sufficient to make all four offenses “dangerous,” then the “act” of inflicting those injuries may not be punished by imposition of consecutive sentences.

This argument, however, ignores the fact that the protection of A.R.S. § 13-116 against consecutive sentences, defined in Gordon, does not apply to sentence enhancement. We have made this clear in response to a variety of challenges. In State v. Rodriguez, 126 Ariz. 104, 106-07, 612 P.2d 1067, 1069-70 (App.1980), we rejected the contention that A.R.S. § 13-116 was implicated in a prosecution where the defendant’s use of a gun established both his guilt of aggravated assault and the dangerousness of the offense. We stated:

[221]

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Related

State v. Greene
898 P.2d 954 (Arizona Supreme Court, 1995)

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Bluebook (online)
866 P.2d 886, 177 Ariz. 218, 144 Ariz. Adv. Rep. 32, 1993 Ariz. App. LEXIS 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-greene-arizctapp-1993.