FILED BY CLERK
SEP 23 2013
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2012-0377
) DEPARTMENT B
Appellee, )
)
v. ) OPINION
)
ARMANDO PENA JR., )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20114301001
Honorable Howard Fell, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART; REMANDED FOR RESENTENCING
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz and Nicholas Klingerman Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By Abigail Jensen Tucson
Attorneys for Appellant
E S P I N O S A, Judge.
¶1 Armando Pena Jr. appeals from his convictions following a jury trial of one
count each of kidnapping and aggravated assault with a deadly weapon and three counts
of aggravated assault causing temporary and substantial disfigurement. He asserts there
was insufficient evidence supporting two of the three counts of aggravated assault
causing disfigurement and that the criminal restitution order (CRO) the trial court entered
at sentencing was improper. For the reasons set forth below, we reduce the conviction
for one count from aggravated assault to assault and remand for resentencing on that
count. We also vacate the CRO, and affirm Pena’s remaining convictions and sentences.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the jury’s
verdicts. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008).
On November 12, 2011, Pena repeatedly assaulted the victim, at times with a knife or
other sharp object, and at one point dragged her back into her home after she attempted to
flee. She sustained injuries to her leg, hand, and abdomen. The injury to her leg was a
“three to four inch[]” laceration “down into the fatty tissue and into the muscle.” Her
hand injury was a three-inch cut covering her “entire left palm,” and was “full thickness,
which means it went through all the layers of the skin” revealing muscle tissue. Her
abdominal injury was a puncture wound approximately two centimeters long, exposing
some “fatty tissue.”
¶3 Pena was charged and convicted as described above and the trial court
sentenced him to concurrent prison terms, the longest of which was 10.5 years for
2
kidnapping. The court ordered at sentencing that “all fines, fees, and assessments are
reduced to a [CRO], with no interest, penalties or collection fees to accrue while the
defendant is in the Department of Corrections.” This appeal followed.
Sufficiency of the Evidence
¶4 We review de novo the sufficiency of the evidence to support a conviction.
State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). We view the facts in the
light most favorable to upholding the jury’s verdict and resolve all conflicts in the
evidence against the defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301,
1307 (1983). “To set aside a jury verdict for insufficient evidence it must clearly appear
that upon no hypothesis whatever is there sufficient evidence to support the conclusion
reached by the jury.” State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).
To the extent our decision depends on the interpretation of a statute, our review is de
novo. State v. George, 206 Ariz. 436, ¶ 6, 79 P.3d 1050, 1054 (App. 2003).
¶5 Relevant here, a person commits aggravated assault if he or she commits
assault as defined by A.R.S. § 13-1203 and “causes temporary but substantial
disfigurement.”1 A.R.S. § 13-1204(A)(3). Because the state charged each of the three
wounds as separate counts of aggravated assault, we do not view the injuries collectively
when analyzing whether the state presented sufficient evidence of “temporary but
1
We note the state acknowledges it presented no evidence or argument that the
victim suffered “temporary but substantial loss or impairment of any body organ or part
or a fracture of any body part,” A.R.S. § 13-1204(A)(3). It is a well-established medical
fact, however, that the human skin constitutes an organ. See 101 Am. Jur. Trials § 109
(2006). Because neither side raised this issue below or on appeal, we do not address it.
3
substantial disfigurement”; rather, we consider whether the state presented sufficient
evidence as to each charged injury.
¶6 Pena contends the injuries to the victim’s hand and abdomen did not
constitute substantial disfigurement and the two separate convictions for those injuries
must be vacated. Specifically, he argues the state presented inadequate evidence from
which the jury could conclude those injuries affected the victim’s appearance sufficiently
to characterize them as substantially disfiguring. As to the puncture wound to the
victim’s abdomen, Pena emphasizes that the location of that injury is generally covered
by clothing and therefore could not be considered disfiguring under any circumstances.
To address these claims, we must consider what injuries may be properly characterized as
causing temporary but substantial disfigurement.
¶7 Neither “disfigurement” nor “substantial disfigurement” are defined in
Arizona statute, and Arizona courts have never addressed the meaning of those terms as
they are used in § 13-1204(A)(3). Under such circumstances, we must give statutory
language “its ordinary, common meaning.” Funk v. Indus. Comm’n, 167 Ariz. 466, 469,
808 P.2d 827, 830 (App. 1991). Accordingly, when our courts have had occasion to
clarify and apply either of those terms, they have done so with primary reference to
accepted dictionary definitions.
¶8 In State v. Garcia, this court addressed the meaning of “serious . . .
disfigurement” in relation to the definition of serious physical injury for aggravated
assault under § 13-1204(A)(1). 138 Ariz. 211, 214, 673 P.2d 955, 958 (App. 1983).
4
There, we determined that, in order to constitute disfigurement, an injury must “impair
the visible appearance of the victim.” Id., citing Black’s Law Dictionary (4th ed. 1968).
We read these related provisions in pari materia, see State ex rel. Larson v. Farley, 106
Ariz. 119, 122, 471 P.2d 731, 734 (1970), making that definition equally applicable to
“disfigurement” as used in § 13-1204(A)(3), the provision we address here.
¶9 In the context of addressing an injury under a workers’ compensation
statute, we likewise concluded that “disfigurement” involves marring or impairing a
person’s appearance. Funk, 167 Ariz. at 469, 808 P.2d at 830. We also noted that such
an injury must exist for some meaningful duration to meet the definition of the term. See
id. at 468-69, 808 P.2d at 829-30 (suggesting disfigurement involves “‘persistent
injuries’” impairing appearance), quoting Webster’s Ninth New Collegiate Dictionary
362 (1985). Although our legislature has specified that visible injuries need only be
“temporary” and need be neither permanent nor protracted to qualify as “disfigurement”
pursuant to § 13-1204(A)(3), the duration of a temporary injury remains an appropriate
factor to consider when evaluating whether a person has been disfigured. For example,
superficial injuries such as a minor bruise or bloody lip that return to normal in a few
days might briefly mar the appearance of a person’s face. Yet such blemishes, if only
ephemeral, cannot be reasonably characterized as substantially disfiguring.2
2
We do not suggest that either bruises or bloody lips can never be disfiguring.
Whether the individual injury in a particular case mars the appearance of a victim for
sufficient duration or degree to be considered substantially disfiguring will usually be a
jury question.
5
¶10 Although there are no Arizona cases expressly defining the term
“substantial” in the context of aggravated assault under § 13-1204(A)(3), we agree with
the Washington Supreme Court that the term as it applies here is most appropriately and
commonly understood to mean “‘considerable in amount, value, or worth.’” State v.
McKague, 262 P.3d 1225, 1227 (Wash. 2011) (addressing definition of “substantial
bodily harm” as used in assault statute), quoting Webster’s Third New Int’l Dictionary
2280 (2002). By including this term, our legislature has required that the state
demonstrate “some harm substantially greater than the minimum required for
‘disfigurement.’” People v. McKinnon, 937 N.E.2d 524, 526 (N.Y. 2010) (analyzing
meaning of “to disfigure . . . seriously”). Put another way, some visible disfiguring
injuries must be excluded by the word “substantial,” otherwise that language would serve
no purpose. See McKague, 262 P.3d at 1226-27.
¶11 Moreover, the accompanying language in § 13-1204(A)(3) concerning
fractures or impairments of body parts or organs suggests that the legislature intended
substantial disfigurement “to describe an injury of comparable importance.” McKinnon,
937 N.E.2d at 526; see Estate of Braden ex rel. Gabaldon v. State, 228 Ariz. 323, ¶ 13,
266 P.3d 349, 352 (2011) (principle of “noscitur a sociis . . . dictates that a statutory term
is interpreted in context of the accompanying words”). Hence, we conclude that minor
bruises, scratches, or lacerations do not amount to “substantial disfigurement” under this
provision because they are not comparable to fractures or temporary loss of the use of an
organ or body part. And, in fact, the record here reflects that the state properly did not
6
bring separate charges under § 13-1204(A)(3) for each minor laceration or bruise Pena
caused the victim, many of which are apparent from the photographs in evidence.
¶12 We do not purport here to present an exhaustive list of the factors that a
jury may reasonably consider when determining whether a victim has been substantially
disfigured. As the court in McKinnon observed when addressing analogous language in a
New York statute, “‘no conceivable standard’” can perfectly identify the boundary
separating ordinary and substantial disfigurement. 937 N.E.2d at 526, quoting Fleming v.
Graham, 886 N.E.2d 769, 773 (N.Y. 2008). We can, however, for the reasons stated
above, conclude that § 13-1204(A)(3) requires the inquiry to include both consideration
of the extent to which the injury is visually apparent and the degree to which that injury
must be considered a minor one. Those considerations may depend on numerous factors
such as the size of the injury, its location on the body, its level of contrast with the
surrounding tissue, and its relative persistence viewed through the lens of common
experience.3
¶13 We now apply these principles to the specific counts that Pena challenges.
As to the victim’s hand injury, Pena asserts the victim had no resulting scar and there was
“no other evidence” that the injury affected her “visible appearance.” His argument,
however, is belied by the photographs of her injury, which show a deep and bloody
laceration covering the victim’s entire palm. The jury could reasonably conclude from
3
We do not propose or imply that a disfiguring injury must persist for any specific
or minimum amount of time, only that some evidence of duration is necessary to satisfy
the statutory requirement that the disfigurement be “substantial.”
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the location of the injury, its depth, and its size that it would be readily visible to the
casual observer during the process of healing. And the responding paramedic’s statement
that the laceration exposed muscle tissue would entitle a jury to infer that the injury’s
effect on the appearance of the victim’s hand would be more than fleeting and instead
would take some meaningful time to heal. See State v. Aguilar, 169 Ariz. 180, 182, 818
P.2d 165, 167 (App. 1991) (jury may rely on common sense and experience during
deliberations). Thus, the jury readily could conclude the victim had suffered a substantial
disfigurement. Despite Pena’s suggestion to the contrary, the fact that the laceration left
no permanent scar is irrelevant—the statute requires only temporary disfigurement. See
§ 13-1204(A)(3).
¶14 With respect to the victim’s abdominal injury, Pena claims it did not
constitute substantial disfigurement because “[it] was in an area normally covered by
clothing” and thus did not affect her visible appearance. We disagree with this
contention. The location of an injury can obviously be a relevant factor in evaluating the
degree of disfigurement caused by the injury. For example, an injury to the face will
usually be more disfiguring than the same injury to a part of the body typically covered
by clothes. But we reject the suggestion that an injury to a location of the body
“normally covered by clothing” can never be disfiguring. Cf. People v. Newton, 287
N.E.2d 485, 486 (Ill. App. Ct. 1972) (holding jury could find small scar hidden by hair
was permanent disfigurement). Indeed, parts of the body usually covered by clothing can
8
be no less important to an individual’s appearance in intimate or public contexts when
less clothing is worn.4
¶15 However, we agree with Pena that the state failed to present sufficient
evidence from which a jury could find beyond a reasonable doubt that the abdominal
injury here, while disfiguring, was substantially so. Photographs of that injury show a
bloody but diminutive teardrop-shaped puncture wound, between one and two
centimeters long, to an area above the victim’s left hip. Although the paramedic noted
the injury was deep enough to expose some tissue beneath the skin, he characterized it as
“superficial enough that it wasn’t a major concern,” and apparently did not consider it
sufficiently serious to even bandage at the scene. The photographs of the injury, taken
shortly after the incident and before the wound was closed, provide no indication of how
the wound eventually appeared after any treatment that might have been necessary. The
state presented no other evidence from which the jury could infer the length or brevity of
the healing process or how the wound would look during the stages of that process. And,
as Pena has observed, that injury did not occur to an especially visible part of the victim’s
anatomy. Finally, to the extent the victim addressed her wounds, she tended to minimize
their impact. Given the dearth of evidence presented, the jury was left to speculate about
the degree to which this particular wound would substantially disfigure the victim.
4
For this reason, Pena’s reliance on Garcia is unavailing. There, we determined
that an injury to a victim’s hymenal membrane did not constitute a disfiguring injury.
Garcia, 138 Ariz. at 214, 673 P.2d at 958. In the context of disfigurement, an injury to
an internal membrane plainly is not comparable to the external injury the victim sustained
here.
9
Accordingly, there was insufficient evidence to convict Pena of aggravated assault under
§ 13-1204(A)(3) as charged in count three of the indictment. We therefore reduce that
conviction to the lesser-included offense of assault. See A.R.S. § 13-1203(A)(1) (person
commits assault by “[i]ntentionally, knowingly or recklessly causing any physical injury
to another person”).
Criminal Restitution Order
¶16 Pena argues, and the state concedes, that the trial court erred in entering a
CRO at sentencing pursuant to A.R.S. § 13-805.5 Although Pena did not raise this claim
below, “the imposition of a CRO before the defendant’s probation or sentence has
expired ‘constitutes an illegal sentence, which is necessarily fundamental, reversible
error.’” State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State
v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). This error is not
made harmless by a court’s delaying the accrual of interest, penalties, or fees. Id. ¶ 5.
5
Section 13-805 was amended effective April 2013. See 2012 Ariz. Sess. Laws,
ch. 269, § 1. We refer to the version of the statute in effect at the time of Pena’s offenses
and sentencing.
10
Disposition
¶17 We reduce Pena’s conviction and sentence for aggravated assault under
count three of the indictment to the lesser-included offense of assault and remand the case
for resentencing on that count. We also vacate the CRO. Pena’s convictions and
sentences are otherwise affirmed.
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
CONCURRING:
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Presiding Judge
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge
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