State v. Tsinnijinnie

80 P.3d 284, 206 Ariz. 477, 414 Ariz. Adv. Rep. 8, 2003 Ariz. App. LEXIS 199
CourtCourt of Appeals of Arizona
DecidedDecember 11, 2003
DocketNo. 1 CA-CR 02-0958
StatusPublished
Cited by6 cases

This text of 80 P.3d 284 (State v. Tsinnijinnie) 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. Tsinnijinnie, 80 P.3d 284, 206 Ariz. 477, 414 Ariz. Adv. Rep. 8, 2003 Ariz. App. LEXIS 199 (Ark. Ct. App. 2003).

Opinion

OPINION

GEMMILL, Judge.

¶ 1 Arizona Revised Statutes (“A.R.S.”) section 13-604.01 (2001) requires that the defendant in this case be sentenced to consecutive sentences for his convictions for sexual assault and molestation of a child.

¶2 Michael Tsinnijinnie was convicted of one count of sexual assault and two counts of molestation of a child, all “dangerous crimes against children” under A.R.S. § 13-604.01. Tsinnijinnie appeals from his convictions and sentences. The State cross-appeals the trial court’s sentencing of Tsinnijinnie to concurrent sentences for Count 1, sexual assault, and Count 3, molestation of a child. See A.R.S. § 13-4032(5) (2001) (authorizing appeal by State of an illegal sentence). The State asserts that under § 13-604.01(K), the trial court was required to impose consecutive sentences for Counts 1 and 3. Because only our resolution of the sentencing issue raised by the State merits publication, we have addressed and affirmed in a separate memorandum decision Tsinnijinnie’s convictions on all counts and his sentence for Count 2, molestation of a child. See Ariz. R. Sup. Ct. 111(h); Ariz. R.Crim. P. 31.26. For the following reasons, we reverse the sentences [478]*478for Counts 1 and 3 and remand to the trial court for resentencing.

FACTS AND PROCEDURAL HISTORY

¶ 3 On January 9, 2002, Yvonne M. reported to the police that her grandchildren, Robert, a seven-year old child, and Tashina, his eleven-year old sister, told her that their uncle, Michael Tsinnijinnie, had molested Robert. Robert was examined and interviewed. During the interview, Robert said that on several occasions, his uncle had grabbed his “privates” and pulled them, causing them to hurt. Tashina was also interviewed and said that she witnessed her uncle molest her brother on several occasions. She recalled that these events occurred January 5, 2001 and one week prior to January 6, 2001. Tashina disclosed that Robert was afraid of Tsinnijinnie and begged her not to tell anyone, but she decided to tell her grandmother anyway.

¶4 Tsinnijinnie was indicted for sexually assaulting1 and molesting2 Robert on or about December 31, 2000 (Counts 1 and 2), and for molesting Robert on or about January 5, 2001 (Count 3). After a five-day trial, the jury found Tsinnijinnie guilty on all three counts.

¶ 5 At sentencing, the trial court found the existence of these aggravating factors: Tsinnijinnie caused severe emotional harm to Robert and violated a position of trust with him. The court also found these mitigating circumstances: Tsinnijinnie’s lack of a prior criminal history, his strong family support, and a lack of maturity despite his age. The court sentenced Tsinnijinnie to a mitigated term of seventeen years in prison for Count 1, sexual assault, and to presumptive terms of seventeen years in prison for Counts 2 and 3, child molestation. The Court ordered all sentences to be served concurrently.

ANALYSIS

¶ 6 The State argues that the trial court erred in ordering Tsinnijinnie’s sentences for Count 1, sexual assault on December 31, 2000, and Count 3, child molestation on January 5, 2001, to be served concurrently. The State asserts that under A.R.S. § 13-604.01(K), the trial court was required to impose consecutive sentences and had no discretion to impose concurrent sentences for Counts 1 and 3. The State does not challenge Tsinnijinnie’s sentence on the Count 2 conviction.3

¶ 7 Resolution of this sentencing issue presents a question of statutory interpretation that we review independently. See State v. Siner, 205 Ariz. 301, 303, ¶ 8, 69 P.3d 1022, 1024 (App.2003). Our goal in statutory interpretation is to discern and implement the intent of the legislature. See Abbott v. City of Tempe, 129 Ariz. 273, 275, 630 P.2d 569, 571 (App.1981). We look first to the language of the statute as “the best and most reliable index of a statute’s meaning.” State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993) (quoting Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991)). We assume that the legislature has given words their natural and obvious meanings unless otherwise stated. See A.R.S. § 1-213 (2002) (“Words and phrases shall be construed according to the common and approved use of the language.”).

¶ 8 The statutory provision at issue is part of the dangerous crimes against children legislation originally enacted in 1985 in response to a reported increase in sexual offenses committed against children. See State v. Arnoldi, 176 Ariz. 236, 242, 860 P.2d 503, 509 (App.1993). The legislature intended to impose severe punishments for dangerous crimes committed against children less than the age of fifteen. See State v. Boldrey, 176 Ariz. 378, 381, 861 P.2d 663, 666 (App.1993); see also Williams, 175 Ariz. at 101, 854 P.2d at 134 (discussing offenses constituting dangerous crimes against children).

¶ 9 The State argues that § 13-604.01(K) mandates that Tsinnijinnie’s sentence for [479]*479sexual assault (Count 1) must be served consecutively to his sentence for child molestation (Count 3). The State also asserts that State v. Zimmer, 178 Ariz. 407, 874 P.2d 964 (App.1993), which construed and applied the predecessor version of this subsection, is controlling. Tsinnijinnie, on the other hand, points out that subsection (K) was amended in 1997 and he contends that the two sentences now comprising subsection (K) are contradictory and that the provision is therefore unconstitutionally void for vagueness. Tsinnijinnie also argues that the amended provision violates his right to due process of law because it is inconsistent with its predecessor provision.

¶ 10 We agree with Tsinnijinnie that Zimmer is not dispositive because the court in that case construed the predecessor to subsection (K). The interpretation of this subsection, as amended, is therefore an issue of first impression in Arizona.

¶ 11 Section 13-604.01(K) states:

The sentence imposed on a person by the court for a dangerous crime against children under subsection D of this section involving child molestation or sexual abuse pursuant to subsection E of this section may be served concurrently with other sentences if the offense involved only one victim.

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Bluebook (online)
80 P.3d 284, 206 Ariz. 477, 414 Ariz. Adv. Rep. 8, 2003 Ariz. App. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tsinnijinnie-arizctapp-2003.