State v. Hon. brain/hu

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA ex rel. WILLIAM
MONTGOMERY, Maricopa County Attorney,
Petitioner,

v.

THE HONORABLE MARK H. BRAIN,
Judge of the SUPERIOR COURT OF
THE STATE OF ARIZONA, in and for
the County of MARICOPA,
Respondent Judge,

SHUNDONG HU,
Real Party in Interest.

No. 1 CA-SA 17-0186
FILED 5-24-2018

Petition for Special Action from the Superior Court in Maricopa County
No. CR2017-100746-001
The Honorable Mark H. Brain, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Daniel Strange
Counsel for Petitioner

The Law Offices of David Michael Cantor, PC, Phoenix
By Michael Alarid, III
Counsel for Real Party in Interest
 STATE v. HON. BRAIN/HU
Opinion of the Court

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.

B R O W N, Judge:

¶1 In this special action, we hold that a person who uses a
dangerous instrument in committing an animal cruelty offense may not be
sentenced as a dangerous offender. Because we reject the State’s argument
that it may pursue enhancement of an animal cruelty crime as a dangerous
offense, we accept special action jurisdiction but deny relief.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Police responded to a report of animal cruelty. A witness
stated she heard a dog crying and went to her apartment complex’s
courtyard to see where the noise was coming from. She observed
Shundong Hu in his apartment using a rod to hit a dog that was inside a
pet enclosure. When police entered Hu’s apartment, they saw a puppy with
a bleeding mouth. The dog was taken to an animal care center for treatment
and the medical records indicated the dog suffered “[c]ranial trauma.”
Police obtained a warrant the next day to search Hu’s apartment and
discovered a metal rod under the bed that “appeared to have blood and dog
hair on it.”

¶3 As relevant here, the State charged Hu with intentionally or
knowingly subjecting an animal to cruel mistreatment, a class 6 felony, in
violation of Arizona Revised Statutes (“A.R.S.”) section 13-2910(A)(9). The
State also alleged the crime was a dangerous offense because it “involved
the discharge, use, or threatening exhibition of a pole and/or rod, a deadly
weapon or dangerous instrument, in violation of A.R.S. §§ 13-105 and
13-704.”

¶4 Hu moved to dismiss the dangerousness allegation, asserting
that as a matter of law “a dangerous offense cannot be committed against
an animal.” He did not dispute that the metal rod could constitute a
dangerous instrument; instead, he argued the legislature’s inclusion of the
phrase “on another person” in the statutory definition of dangerous
offense, A.R.S. § 13-105(13), means a dangerous offense may be committed
only against a person, not an animal. The State countered that the plain

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Opinion of the Court

language of § 13-105(13) indicates that a sentencing enhancement based on
the use of a dangerous instrument is not limited to circumstances involving
“another person.”

¶5 Focusing on the definition of dangerous instrument, the
superior court granted Hu’s motion, explaining as follows:

There are two ways to interpret the dangerous instrument
definition: (1) it could be limited to items being used in a way
readily capable of causing death or serious physical injury to a
person; or (2) it could encompass items being used in a way
readily capable of causing death or serious physical injury to
anything. Under the latter interpretation, poisoning
someone’s $1000 exotic fish tank with a gallon of bleach
would constitute the crime of criminal damage, a class 6
dangerous felony. Surely the legislature did not intend such
results.

¶6 The State petitioned for special action, asserting the superior
court erred by dismissing the allegation of dangerousness. We have
accepted jurisdiction because the State has no adequate remedy on appeal
and the petition presents a legal issue of statewide importance. See Ariz.
R.P. Spec. Act. 1(a); State ex rel. Montgomery v. Rogers, 237 Ariz. 419, 421, ¶ 5
(App. 2015).

DISCUSSION

¶7 We review the superior court’s interpretation of statutes de
novo. State v. Gates, 243 Ariz. 451, 453, ¶ 7 (2018). “In interpreting a statute,
our goal is to give effect to the legislature’s intent.” Id. “If the statutory
language is unambiguous, we apply it as written without further analysis.”
State v. Jurden, 239 Ariz. 526, 530, ¶ 15 (2016). Because “this case involves
the intersection of multiple statutes, we construe them together, seeking to
give meaning to all provisions.” State v. Francis, 243 Ariz. 434, 435, ¶ 6
(2018) (citation omitted). If we conclude the statutes are reasonably
susceptible to more than one interpretation, “we consider other factors,
including ‘the context of the statute, the language used, the subject matter,
its historical background, its effects and consequences, and its spirit and
purpose.’” Glazer v. State, 237 Ariz. 160, 163, ¶ 12 (2015) (quoting Wyatt v.
Wehmueller, 167 Ariz. 281, 284 (1991)).

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Opinion of the Court

A. Construction of Related Statutory Definitions

¶8 As provided in A.R.S. § 13-704, the legislature has mandated
increased punishment for a person convicted of a felony offense that is also
considered “dangerous.” A dangerous offense is “an offense involving the
discharge, use or threatening exhibition of a deadly weapon or dangerous
instrument or the intentional or knowing infliction of serious physical
injury on another person.” A.R.S. § 13-105(13) (emphasis added). A
“person” is defined in pertinent part as a “human being.” A.R.S.
§ 13-105(30). A dangerous instrument is “anything that under the
circumstances in which it is used, attempted to be used or threatened to be
used is readily capable of causing death or serious physical injury.” A.R.S.
§ 13-105(12). “‘Serious physical injury’ includes physical injury that creates
a reasonable risk of death, or that causes serious and permanent
disfigurement, serious impairment of health or loss or protracted
impairment of the function of any bodily organ or limb.” A.R.S.
§ 13-105(39). Finally, “‘[c]ruel mistreatment’ means to torture or otherwise
inflict unnecessary serious physical injury on an animal or to kill an animal
in a manner that causes protracted suffering to the animal.” A.R.S.
§ 13-2910(H)(2).

¶9 The State contends the word “or,” emphasized above in the
definition of dangerous offense, is clear in the sense that it must be read in
the disjunctive, meaning the second phrase “on another person” does not
apply to the first phrase involving a dangerous instrument. In other words,
the State argues the two phrases unambiguously constitute independent
clauses, meaning that when a dangerous instrument is used in committing
a felony, the State need only prove a dangerous instrument was discharged,
used, or threatened as part of the felony offense, regardless of whether it
was targeted against a person, an animal, or any other living organism.
Read in isolation, the State’s proffered construction is defensible. See State
v. Bowsher, 225 Ariz. 586, 587, ¶ 7 (2010) (“The word ‘or’ generally means
‘[a] disjunctive particle used to express an alternative or to give a choice of
one among two or more things.’” (quoting Black’s Law Dictionary 1095 (6th
ed. 1990))). However, we must construe the meaning of dangerous offense
in light of its related definitions to achieve harmony and thereby discern
legislative intent. See id. at 589, ¶ 14 (recognizing that in construing
multiple statutes, we seek to harmonize all the provisions).

¶10 Like the State, Hu does not offer an interpretation that
considers each of the definitions affecting the meaning of dangerous
offense. He focuses solely on the definition of dangerous instrument,
asserting that “the only way” to interpret this provision is to add the words

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Opinion of the Court

“to a person” at the end of the definition. Otherwise, he contends, the
statute would be interpreted to cover harm to anything, which would
require rewriting the statutory language and lead to absurd results.

¶11 Taking into account the parties’ competing arguments, we
must find the most sensible reading of the definition of dangerous offense
that is in harmony with the definitions of dangerous instrument and serious
physical injury, as well as other related statutes, including the dangerous
offense and animal cruelty statutes. See id. In doing so, we note that our
supreme court has recognized that not every crime involving the use of a
dangerous instrument may be enhanced as a dangerous offense. See State
v. Orduno, 159 Ariz. 564 (1989) (exempting felony driving under the
influence offenses from dangerous offense enhancements).

¶12 The definitions of dangerous instrument and serious physical
injury are silent as to whether they apply in situations involving non-
humans. Although both terms are “general” in nature, that does not mean
they encompass every conceivable crime. Cf. Phillips v. O’Neil, 243 Ariz.
299, 302, ¶ 11 (2017) (noting that the “general terms” canon of construction
“is based on the reality that it is possible and useful to formulate categories
(e.g., ‘dangerous weapons’) without knowing all the items that may fit—or
may later, once invented, come to fit—within those categories” (quoting
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 101 (2012))). Dangerous instrument and serious physical injury are
general in the sense they are broadly defined and would presumably
include many items or injuries that could fall within those general
categories. But the legislature did not use the same type of language to
define the scope of when those two categories apply; instead of defining a
general class, the legislature limited dangerous instrument and serious
physical injury to specific circumstances, failing to further specify who or
what must be the target of the dangerous instrument or the recipient of the
serious physical injury. Accordingly, the definitions of dangerous
instrument and serious physical injury are reasonably susceptible to more
than one interpretation as to whether they apply to offenses directed
toward non-humans, which also means the definition of dangerous offense
can be reasonably interpreted in more than one way.

¶13 The State asserts that if “on another person” were to modify
the first clause of A.R.S. § 13-105(13), then no crime could be charged as a
dangerous offense absent “direct contact with another person.” But the
State construes the word “on” too narrowly, as it can function to identify a
variety of situations. See, e.g., Webster’s Ninth New Collegiate Dictionary 823-
24 (1988) (giving the following definitions of “on”: (1) “used . . . to indicate

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Opinion of the Court

position in close proximity with . . . ”; (2) “used
. . . to indicate the object of collision, opposition, or hostile action . . . ”; and (3) “used . . . to indicate destination or the focus of
some action, movement, or directed effort ”). These
varied definitions also defeat the State’s arguments that “[o]ne does not
discharge nor threateningly exhibit a dangerous instrument ‘on’ a person”
and that “a dangerous instrument would be discharged at another person
or threateningly exhibited to another person.” Given the broad meaning of
“on,” there is no grammatical inconsistency in the language the legislature
used to define a dangerous offense.

¶14 Moreover, the State’s interpretation that “on another person”
would not apply to the first clause absent direct contact with another person
is inconsistent with established case law. In State v. Borbon, 146 Ariz. 392
(1985), the defendant struck the door of a cashier booth with a tire iron so
violently the cashier thought the bulletproof glass door might break. 146
Ariz. at 394, 397. Our supreme court concluded sufficient evidence existed
to support the defendant’s conviction of attempted armed robbery based
on the use or threatened use of a dangerous instrument because the
defendant was “readily capable” of causing physical injury and the cashier
was afraid the defendant would break the glass and harm him. Id. at 397.
In State v. Gatliff, 209 Ariz. 362 (App. 2004), the defendant was convicted of
arson of an occupied structure, which requires proof that a human being is
either present or likely to be present when the fire occurs. 209 Ariz. at 362-
63, 365, ¶¶ 1, 14. We held that the use of fire, a dangerous instrument, is an
essential element of arson of an occupied structure and thus dangerousness
is inherent in the crime. Id. at 366, ¶ 18.

¶15 The State also ignores that threatened exhibition of a deadly
weapon or dangerous instrument can occur without any direct contact.
Because the definitions of dangerous instrument, dangerous offense, and
serious physical injury are reasonably susceptible to more than one
interpretation, we turn to secondary principles of statutory construction.

B. Statutory Purposes

¶16 We consider the policy behind these statutes and the evils
they were designed to remedy. State ex rel. Montgomery v. Harris, 237 Ariz.
98, 101, ¶ 13 (2014). The legislature has determined that crimes involving
deadly weapons or dangerous instruments are to be punished more
severely than other crimes, particularly when the crime involves the
potential of causing death or serious injury to human life. See State v. Bly,
127 Ariz. 370, 372 (1980) (“[T]he potential for serious bodily injury or loss

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of human life arises when a crime is committed with a dangerous weapon.
The crime itself is more reprehensible and for that reason a crime
committed with a dangerous weapon or instrument shall be punished more
severely . . . .”); cf. Orduno, 159 Ariz. at 566 (“The clear intent of [the
dangerous offense statutes] is to enhance sentencing when the use of a
deadly weapon or dangerous instrument or the intentional or knowing
infliction of serious physical injury increases the seriousness and
dangerousness of the underlying crime.”).

¶17 As set forth in A.R.S. § 13-704(A), “a person who is at least
eighteen years of age or who has been tried as an adult and who stands
convicted of a felony that is a dangerous offense” must be sentenced in
accordance with the increased prison terms outlined in § 13-704. For
instance, a first-time conviction for a dangerous, class six felony offense
requires a presumptive sentence that is more than double that for a first-
time conviction for a non-dangerous, class six felony offense. Compare
A.R.S. § 13-702(D) (one year), with A.R.S. § 13-704(A) (two and one-quarter
years). The conviction will also have a greater impact on subsequent crimes
for which the defendant is convicted based on having a prior historical
dangerous felony conviction. A.R.S. § 13-704(B)-(E). Further, the defendant
is not eligible “for suspension of sentence, probation, pardon or release
from confinement on any basis, except as specifically authorized.” A.R.S.
§ 13-704(G). Finally, a defendant cannot seek to set aside the conviction.
See A.R.S. § 13-907(E)(1).

¶18 Two purposes of Arizona’s Criminal Code are “[t]o give fair
warning of the nature of the conduct proscribed and of the sentences
authorized upon conviction” and “[t]o differentiate on reasonable grounds
between serious and minor offenses and to prescribe proportionate
penalties for each.” A.R.S. § 13-101(2), (4). If it was the legislature’s intent,
as the State urges, to enhance animal cruelty offenses by allowing the State
to allege dangerousness, the legislature has not given fair warning of the
enhanced sentencing and the consequences related thereto. See A.R.S.
§ 13-104 (“The general rule that a penal statute is to be strictly construed
does not apply to this title, but the provisions herein must be construed
according to the fair meaning of their terms to promote justice and effect
the objects of the law, including the purposes stated in § 13-101.”).

¶19 Moreover, the State’s interpretation of the statute does not
differentiate on reasonable grounds between serious and minor offenses
and the proportionate penalties for each. The animal cruelty statutes were
structured to have tiered offenses. In re Jessie T., 242 Ariz. 556, 559, ¶ 16
(App. 2017). The legislature has classified cruel mistreatment as a felony

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offense, whereas the lesser-included offense of intentionally, knowingly, or
recklessly inflicting unnecessary physical injury to an animal is a class one
misdemeanor. Id. at 561, ¶ 23; A.R.S. § 13-2910(A)(3), (G). Thus, the
legislature already has accorded a more severe designation and
punishment for a more egregious act against an animal. By classifying
§ 13-2810(A)(9) as a felony because it causes unnecessary serious physical
injury on an animal, it is unlikely the legislature intended to increase the
punishment for cruel mistreatment beyond classifying it as a felony,
distinguishing it from less-serious animal cruelty offenses.

¶20 By comparison, other states, such as California and
Pennsylvania, have adopted provisions in similar contexts that include
more precise notice of how deadly weapon or dangerous instrument
sentencing enhancements may be applied. See Cal. Penal Code § 12022(a)(1)
(stating that a person using a firearm in the commission of a felony “shall
be punished by an additional and consecutive term of imprisonment”); 204
Pa. Code § 303.10(a)(1) (permitting sentence enhancement “[w]hen a court
determines that the offender possessed a deadly weapon during the
commission of the current conviction offense”); People v. Smith, 57 Cal. Rptr.
3d 926, 929 (Cal. Ct. App. 2007) (“The language of [the statute] prohibits the
use of a deadly or dangerous weapon ‘in the commission of a felony or
attempted felony,’ and states that an additional and consecutive one year
term shall be imposed for its violation. . . . Cruelty to an animal . . . is a
felony.”); Pennsylvania v. Hackenberger, 795 A.2d 1040, 1047, ¶ 22 (Pa. Super.
Ct. 2002), aff’d, 836 A.2d 2 (Pa. 2003) (“Here, it was appellant’s possession
of a firearm and use of a firearm in the furtherance of a crime [(cruelty to
animals)] that triggered the application of the deadly weapon enhancement
provisions of the Sentencing Guidelines.”). If the Arizona Legislature was
inclined to do so, it could have expressly stated that the dangerous offense
definition applies to all felonies where a dangerous instrument or deadly
weapon is discharged, used, or threatened, but it has not. See State v. Mott,
187 Ariz. 536, 541 (1997) (“[T]he legislature is responsible for promulgating
the criminal law.”).

C. Sensible Construction

¶21 We strive to construe statutes “sensibly to avoid reaching an
absurd conclusion.” Harris, 237 Ariz. at 101, ¶ 13. “A result is absurd if it
is so irrational, unnatural, or inconvenient that it cannot be supposed to
have been within the intention of persons with ordinary intelligence and
discretion.” State v. Estrada, 201 Ariz. 247, 251, ¶ 17 (2001) (internal
quotation omitted). Limiting application of the dangerous offense
enhancement to situations where a human is the target or potential target

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of a crime involving a deadly weapon or dangerous instrument avoids
absurd conclusions.

¶22 For example, as the superior court noted, a person may be
charged with criminal damage, a class six felony, for recklessly defacing or
damaging property of another valued at $1,000 or more. See A.R.S.
§ 13-1602(A)(1), (B)(4). That type of crime could arise when a person
recklessly sprays herbicide that drifts to neighboring property and kills
plants valued at $1,000 or more. Under the State’s interpretation, it could
properly allege dangerousness. Similarly, a person who recklessly uses
fireworks, destroying vegetation worth at least $1,000 would also be subject
to an enhanced sentence under A.R.S. § 13-704, regardless of whether any
human faced harm as a result of the crime. Recklessly using an ax to
destroy a valuable tree would also be subject to enhancement as a
dangerous offense. On the other hand, if a person destroyed valuable
plants by uprooting them with his hands, or by cutting off the water supply,
the State would be unable to charge the crime as a dangerous offense
because no deadly weapon or dangerous instrument was involved.

¶23 Additionally, one could cause serious physical injury to an
animal with his fists but the State could not seek an enhancement based on
dangerousness because it is limited to “the intentional or knowing infliction
of serious physical injury on another person.” A.R.S. § 13-105(13); see State
v. Gordon, 161 Ariz. 308, 311 (1989) (“Because the Arizona statute increases
the punishment for the crime if the defendant either uses a dangerous
instrument or causes serious harm, no purpose exists for allowing the jury
to find that body parts are dangerous instruments just because they caused
serious bodily harm.”). But if a stick caused the injury, instead of fists, the
person hitting the animal with the stick would be subject to a
dangerousness enhancement. Moreover, taking at face value the State’s
contention that the legislature sought to treat equally humans and animals,
the State’s construction of the statutes would not do that—one who
punches a person’s eye, causing blindness, would be subject to an
enhancement while one who punches an animal and causes the same injury
would not.

¶24 Restricting application of the dangerousness enhancement to
humans does not yield irrational or unnatural results because the harm
resulting from various crimes is treated similarly under the law. If a person
uses a deadly weapon or dangerous instrument in any way to assault
another person, then it could be charged as a dangerous offense. And if no
deadly weapon or dangerous instrument is involved, but a person punches
someone so hard it causes serious physical injury, then the attacker’s

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conduct plainly fits within the dangerous offense definition. See Gordon,
161 Ariz. at 311. Unlike the scenarios involving plants, animals, or other
living organisms, these statutes work in harmony when they are applied to
situations involving actual or potential harm to humans. See Bowsher, 225
Ariz. at 589, ¶ 14 (“When construing two statutes, this Court will read them
in such a way as to harmonize and give effect to all of the provisions
involved.”).

¶25 Our conclusion is consistent with the only other reported
decision that has squarely addressed, based on similar statutes, whether a
deadly weapon sentencing enhancement applied to an animal cruelty
offense. See Prichard v. Texas, 533 S.W.3d 315, 317 (Tex. Crim. App. 2017).
In Texas, a sentence may be enhanced if the defendant “used or exhibited
[a deadly weapon] during the commission of a felony offense.” Id. at 320
(internal quotation omitted). “Deadly weapon” includes “anything that in
the manner of its use or intended use is capable of causing death or serious
bodily injury.” Tex. Penal Code § 1.07(a)(17)(B). Cruelty to non-livestock
animals is “intentionally, knowingly, or recklessly . . . tortur[ing] an animal
or in a cruel manner kill[ing] or caus[ing] serious bodily injury to an
animal.” Tex. Penal Code § 42.092(b)(1). “Serious bodily injury” is defined
as “bodily injury that creates a substantial risk of death or that causes death,
serious permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” Tex. Penal Code § 1.07(a)(46). In
Prichard, the defendant was convicted of cruelty to a non-livestock animal.
533 S.W.3d at 317. The state alleged, and the jury found, that the crime was
a deadly offense because Prichard used a shovel and water, either
individually or together, to harm his dog. Id. at 317-18. Prichard appealed
the sentencing enhancement, “argu[ing] that a deadly weapon finding is
improper when the only thing injured or killed as a result of a defendant’s
criminal conduct is an animal rather than a human being.” Id. at 317. An
intermediate appellate court upheld the deadly weapon finding but the
Texas Court of Criminal Appeals reversed, concluding “that a deadly
weapon finding may be made for human victims only.” Id.

¶26 Based on the foregoing analysis, we conclude that the
legislature’s purpose in drafting the dangerous offense definition and the
related statutes was to enhance crimes as “dangerous offenses” to protect
human life. Accordingly, we hold that the State cannot charge a crime as a
dangerous offense unless it involves the discharge, use, or threatened
exhibition of a deadly weapon or dangerous instrument against another
person.

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CONCLUSION

¶27 We affirm the superior court’s order granting Hu’s motion to
dismiss the State’s allegation of dangerousness because the use of a
dangerous instrument in the context of animal cruelty does not qualify as a
dangerous offense under A.R.S. § 13-105(13). We therefore accept
jurisdiction but deny relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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