SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-03-0070-PR
Appellee/Respondent, )
) Court of Appeals
v. ) Division Two
) Nos. 2 CA-CR 01-0403 &
ABRAHAM DAVID SEPAHI, ) 2 CA-CR 02-0163 PRPC
) (Consolidated)
)
Appellant/Petitioner. )
) Pinal County Superior
) Court
) No. CR99025856
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court of Pinal County
The Honorable Boyd T. Johnson, Judge
AFFIRMED IN PART
Opinion of the Court of Appeals, Division Two
204 Ariz. 185, 61 P.3d 479
VACATED AND REMANDED
TERRY GODDARD, ATTORNEY GENERAL Phoenix
By: Randall M. Howe, Chief Counsel
Criminal Appeals Section
and Diane Leigh Hunt, Assistant Attorney General Tucson
Attorneys for Appellee
ROBERTS, ROWLEY, CHAPMAN, LTD. Mesa
By: Brian D. Strong
Attorneys for Appellant
H U R W I T Z, Justice
¶1 Abraham David Sepahi was convicted of two counts of
aggravated assault for shooting a fourteen-year-old victim in
the stomach. The superior court held that the crimes for which
Sepahi was convicted were dangerous crimes against a child and
therefore sentenced Sepahi under the special sentencing
provisions of Arizona Revised Statutes (“A.R.S.”) § 13-604.01(K)
(Supp. 1999). The court of appeals vacated those sentences,
holding that Sepahi had not committed a dangerous crime against
a child because there was no evidence that he was “peculiarly
dangerous to children” or that he “pose[s] a direct and
continuing threat to the children of Arizona.” State v. Sepahi,
204 Ariz. 185, 189 ¶ 14, 61 P.3d 479, 483 (App. 2003)
(alteration in original).
¶2 We granted review because the quantum of proof to
establish that a crime is a “dangerous crime against children”
under A.R.S. § 13-604.01 is an issue of statewide importance.
We have jurisdiction pursuant to Article 6, Section 5(3) of the
Arizona Constitution, and A.R.S. §§ 13-4031 and -4032(3) (2001).
Because this case involves interpretation of a statute, our
review is de novo. State v. Christian, 205 Ariz. 64, 66 ¶ 6, 66
P.3d 1241, 1243 (2003).
2
I.
¶3 In September of 1999, Abraham Sepahi and a friend
approached a young girl and an adult, both of whom were on the
front porch of the adult’s trailer. Sepahi’s friend conversed
with the adult about gang affiliations, and eventually the girl,
afraid that the situation could escalate into a fight, asked
Sepahi and his friend to leave. When they did not, she became
agitated and threatened to fight them both. Sepahi hit her on
the arm, and she responded by hitting him on the head. Sepahi
then pulled out a gun and fired one shot, hitting the girl in
the stomach.
¶4 Sepahi was fourteen at the time of the incident, as
was the victim. He was tried as an adult and convicted of
aggravated assault causing serious physical injury, A.R.S. § 13-
1204(A)(1) (Supp. 1999), and aggravated assault involving the
use of a deadly weapon or dangerous instrument, A.R.S. § 13-
1204(A)(2).1
¶5 The jury also found that, at the time of the incident,
the victim was under the age of fifteen. At sentencing, the
trial judge held that the offenses were dangerous crimes
committed against a child as defined in A.R.S. § 13-
1
Sepahi was also charged with attempted second degree
murder, but was acquitted of that charge.
3
604.01(L)(1)(b), and sentenced Sepahi pursuant to A.R.S. § 13-
604.01(K) to two consecutive ten-year terms of imprisonment.
¶6 The court of appeals vacated the sentences, holding
that the dangerous crimes against children statute did not apply
to this case. Sepahi, 204 Ariz. at 189-90 ¶¶ 14-15, 61 P.3d at
483-84. While finding that Sepahi’s conduct was directed at a
victim under the age of fifteen, the court of appeals read § 13-
604.01 as also requiring a showing that the defendant was
“‘peculiarly dangerous to children’” or otherwise “‘pose[s] a
direct and continuing threat to the children of Arizona.’” Id.
at 189 ¶ 14, 61 P.3d at 483 (alteration in original) (quoting
State v. Williams, 175 Ariz. 98, 102-03, 854 P.2d 131, 135-36
(1993)). Because the superior court had noted at sentencing
that the record in this case would not support such findings,
the court of appeals vacated the consecutive sentences imposed
under the dangerous crimes against children statute and remanded
for resentencing. Id. at 190 ¶ 15, 61 P.3d at 484.
II.
¶7 Section 13-604.01 requires enhanced penalties for
persons convicted of a “dangerous crime against children.” The
statute defines such a crime as one of fifteen enumerated
offenses “that is committed against a minor who is under fifteen
years of age.” A.R.S. § 13-604.01(L)(1). Aggravated assault
4
resulting in serious injury or involving the discharge or use of
a weapon is among the offenses listed. Id. Sepahi was
convicted of two of the enumerated crimes, and it is undisputed
that his victim was under the age of fifteen.
¶8 As the court of appeals correctly recognized, however,
this does not end the inquiry under A.R.S. § 13-604.01. We held
in Williams that even when a defendant is convicted of one of
the statutorily enumerated crimes and the victim is younger than
fifteen, “something more” is required to activate the special
sentencing provisions of the statute. 175 Ariz. at 102, 854
P.2d at 135. Because the dispute in this case is about what
constitutes that “something more,” the appropriate starting
point in the analysis is our opinion in Williams.
A.
¶9 Williams involved a defendant who, while driving
drunk, crashed his truck into the back of a station wagon.
Williams, 175 Ariz. at 99, 854 P.2d at 132. A fourteen-year-old
boy was thrown from the station wagon and badly injured. Id.
Williams was convicted of aggravated assault involving physical
injury and use of a dangerous weapon. Finding the aggravated
assault to be a dangerous crime against a child, the superior
court sentenced Williams under the enhanced sentencing
5
provisions of § 13-604.01. Id. The court of appeals affirmed.
Id.
¶10 The issue before this court in Williams was whether an
offense enumerated in A.R.S. § 13-604.01(L)2 was a “dangerous
crime against children” whenever the victim was under the age of
fifteen. We began, as we must in any case involving statutory
interpretation, with the language of the statute involved.
Section 13-604.01(L) defines a “dangerous crime against
children” as one “committed against a minor under fifteen years
of age.” (Emphasis added.) Noting that the legislature had not
chosen to define a dangerous crime simply as one in which the
“victim is under fifteen years of age,” a phrase it had employed
in other criminal statutes, we then set out to determine what
the term “against a minor” meant. Williams, 175 Ariz. at 101,
103, 854 P.2d at 134, 136. We concluded that “the most natural
reading of the definition of a ‘dangerous crime against
children’ indicates that it refers to crimes that target or
focus upon children.” Id. at 102, 854 P.2d at 135.
2
Formerly A.R.S. § 13-604.01(K) (Supp. 1986). Section
13-604.01 has been amended several times since Williams was
decided. See 1993 Ariz. Sess. Laws, ch. 255, § 8; 1997 Ariz.
Sess. Laws, ch. 179, § 1; 1998 Ariz. Sess. Laws, ch. 281, § 1.
For ease of reference, we cite to the version now in effect,
which does not differ in any material respect from the statute
interpreted in Williams.
6
¶11 We found support for that conclusion in the
legislative history of § 13-604.01, which was “calculated to
reach criminals who specifically prey upon children” and
“predators who pose a direct and continuing threat to the
children of Arizona.” Id. Because the special penalties in the
statute were intended to punish and deter such persons, we
concluded that the legislature did not intend to apply § 13-
604.01 to persons like Williams, who “fortuitously injure
children by their unfocused conduct.” Id. at 103, 854 P.2d at
136. We consequently rejected the State’s contention that the
statute could be satisfied simply by proof of the age of the
victim.
¶12 We therefore held in Williams that “[b]ecause a
‘dangerous crime against children’ is defined as one ‘committed
against a minor under fifteen years of age,’ the defendant’s
conduct must be focused on, directed against, aimed at, or
target a victim under the age of fifteen.” Id. (emphasis
added). We stressed that the defendant need not know the
victim’s age to be subject to sentencing under § 13-604.01, but
rather held “only that the victim must be the person against
whom the crime is directed.” Id. Because Williams’ criminal
behavior was not “directed at or focused upon” a victim under
the age of fifteen, we held that the enhanced sentencing
7
provisions of § 13-604.01 did not apply. Id. at 104, 854 P.2d
at 137.
B.
¶13 In this case, as the court of appeals acknowledged,
there was no doubt that Sepahi’s criminal conduct was “‘focused
on, directed against, aimed at, or target[ed] a victim under the
age of fifteen.’” Sepahi, 204 Ariz. at 188 ¶ 11, 61 P.3d at 482
(alteration in original) (quoting Williams, 175 Ariz. at 103,
854 P.2d at 136). Nonetheless, emphasizing the discussion in
Williams about the legislative history of § 13-604.01, the court
of appeals held that Sepahi did not commit a dangerous crime
against a child because there was no evidence that he is
“‘peculiarly dangerous to children,’ or otherwise ‘pose[s] a
direct and continuing threat to the children of Arizona.’”
Sepahi, 204 Ariz. at 189 ¶ 14, 61 P.3d at 483 (alteration in
original) (quoting Williams, 175 Ariz. at 102-03, 854 P.2d at
135-36). That conclusion misapprehends both Williams and the
language of § 13-604.01.
¶14 We noted in Williams that while “the most natural
reading of the definition of a ‘dangerous crime against
children’ indicates that it refers to crimes that target or
focus upon children, it can certainly be argued that the
language is not so plain that it admits of no other
8
interpretation.” Williams, 175 Ariz. at 102, 854 P.2d at 135.
Therefore, in order to decide whether to adopt either the “most
natural” reading of § 13-604.01 or the alternative
interpretation urged by the State — that the statute was
satisfied whenever the victim of an enumerated crime was under
the age of fifteen — we reviewed the legislative history of the
statute. Id. at 102-03, 854 P.2d 135-36. Because that history
demonstrated that the legislature was “attempting to respond
effectively to those predators who pose a direct and continuing
threat to the children of Arizona,” id., we concluded that the
legislature could not have intended the statute to apply to
“people like Williams who do not prey on helpless children but
who fortuitously injure children by their unfocused conduct,”
id. at 103, 854 P.2d at 136.
¶15 In other words, when choosing between two possible
interpretations of the words of the statute, we placed some
emphasis on the concern of legislative proponents of the statute
in determining that the “most natural” reading of § 13-604.01
was in fact appropriate. But it is a far step from that
conclusion to the one reached below — that is, that the statute
not only requires that the crime be “against” a child in the
sense that the child is the target of the crime, but also that
the perpetrator be shown to be “peculiarly dangerous” to
9
children or “pose a direct and continuing threat to children.”
Such an interpretation in effect amends the statute to require
proof of elements not set forth by the legislature, and thus
contravenes the “universal rule that courts will not enlarge,
stretch, or expand a statute to matters not falling within its
express provisions.” State ex rel. Morrison v. Anway, 87 Ariz.
206, 209, 349 P.2d 774, 776 (1960). “A departure from this rule
is to alter the statute and legislate, and not to interpret.”
Id.
¶16 In the end, a statute’s language is the most reliable
index of its meaning. State v. Thompson, 204 Ariz. 471, 481 ¶
37, 65 P.3d 420, 430 (2003). While, as Williams holds, the
phrase “committed against a minor under fifteen years of age”
can naturally and logically be read as requiring targeting of a
child, it stretches that statutory language beyond ordinary
bounds to read it as also necessitating proof of some sort of
special continuing dangerous status on the part of the
defendant. While the legislature could have rationally passed
such a statute, it did not do so, and we cannot rewrite the
statute to reach such a result.
¶17 Moreover, it is difficult to reconcile the notion that
§ 13-604.01 requires that the defendant pose “a direct and
continuing threat to children” with the clear statement in
10
Williams that the defendant need not know the age of the victim.
Williams, 175 Ariz. at 102-03, 854 P.2d at 135-36. Williams
thus plainly indicates that a defendant who intends to direct
his criminal conduct only at adults can nonetheless be subjected
to the special sentencing provisions of § 13-604.01 when his
victim turns out to be a child, even if the defendant quite
reasonably believed to the contrary at the time the crime was
committed. See id. at 103, 854 P.2d at 136 (“We hold only that
the victim must be the person against whom the crime is
directed, not that the accused must know the person is under
fifteen.”) (Emphasis added.)
¶18 Nor is a different conclusion compelled by our
observation in Williams that “a dangerous crime against a child
is a crime against a child qua child.” Williams, 175 Ariz. at
101, 854 P.2d at 134. That language directly follows and
explains this court’s statement that “a fair construction of the
statute is that it refers to crimes in which the child is the
target of the criminal conduct.” Id. Thus, the “child qua
child” language imposes no additional requirement over and above
that of targeting the victim; rather, it explains why the
statute requires such targeting, and not simply that the victim
be a child.
11
¶19 We therefore reaffirm the holding in Williams that in
order to prove that a defendant has committed a dangerous crime
against a child, the State must prove that the defendant
committed one of the statutorily enumerated crimes and that his
conduct was “focused on, directed against, aimed at, or
target[ed] a victim under the age of fifteen.” Williams, 175
Ariz. at 103, 854 P.2d at 136. Because there is no dispute in
this case that Sepahi directed, aimed at, and targeted his
criminal conduct against a victim under the age of fifteen, the
superior court correctly concluded that he was subject to the
special sentencing provisions of § 13-604.01.3
III.
¶20 Our conclusion that Sepahi’s offenses qualified as
dangerous crimes against children under § 13-604.01 requires us
3
Sepahi argued for the first time in his supplemental
brief in this court that § 13-604.01 runs afoul of the rule
announced in Apprendi v. New Jersey, 530 U.S. 466 (2000),
because the statute allows a judge, rather than a jury, to
determine whether a crime is a dangerous crime against a child.
This issue was not raised either in the superior court or the
court of appeals, and therefore was not preserved for our
review. See State v. Jones, 185 Ariz. 471, 480, 917 P.2d 200,
209 (1996).
In any event, in light of our holding today that § 13-
604.01 requires only that the defendant’s conduct be focused on,
directed against, aimed at, or targeted at a victim under the
age of fifteen, any Apprendi error would be harmless. See
United States v. Cotton, 535 U.S. 625, 632-33 (2002) (applying
“plain error” analysis to Apprendi claim not raised at trial).
Sepahi’s counsel quite correctly conceded at oral argument that
Sepahi’s conduct was directed at and targeted the minor victim.
12
to address briefly one other issue decided by the court of
appeals. Sepahi argued below that the double punishment
prohibition in A.R.S. § 13-116 (Supp. 1999) precluded the
imposition of consecutive sentences. The court of appeals
concluded that the two counts of aggravated assault for which
Sepahi was convicted constituted a single act for purposes of
sentencing, and that § 13-116 therefore prohibited consecutive
sentencing. Sepahi, 204 Ariz. at 190-91 ¶¶ 16-23, 61 P.3d at
484-85.
¶21 The State did not argue below that the aggravated
assault counts were separate acts for purposes of application of
§ 13-116. Id. at 190 n.2, 61 P.3d at 484 n.2. The State did
argue, however, that A.R.S. § 13-604.01(K) nonetheless required
the imposition of consecutive sentences. The court of appeals
did not address that argument, because it had concluded that the
dangerous crimes against children statute did not apply to this
case. Neither party has briefed this issue on appeal, and we
therefore remand to the court of appeals to consider the State’s
argument.4
4
As the court of appeals noted, State v. Arnoldi, 176
Ariz. 236, 242, 860 P.2d 503, 509 (App. 1993), held that Ҥ 13-
116 is paramount in the statutory scheme of sentencing,” and
prohibits consecutive sentences under § 13-604.01(K) when the
acts or omissions at issue constitute one act under the test set
forth in State v. Gordon, 161 Ariz. 308, 778 P.2d 1204 (1989).
See Sepahi, 204 Ariz. at 191 n.3, 61 P.3d at 485 n.3.
13
IV.
¶22 For the reasons above, we vacate the opinion of the
court of appeals and remand this case to the court of appeals
for further proceedings consistent with this opinion.
Andrew D. Hurwitz, Justice
CONCURRING:
_
Charles E. Jones, Chief Justice
______
Ruth V. McGregor, Vice Chief Justice
_
Rebecca White Berch, Justice
_
Michael D. Ryan, Justice
___________________________
Therefore, under the analysis in the opinion below, § 13-116
would prohibit the imposition of consecutive sentences on Sepahi
even if the dangerous crimes against children statute applies.
However, the court of appeals did not address the State’s
argument that Arnoldi was incorrectly decided, an argument that
the State is free to renew on remand. We express no opinion as
to the correct disposition of that argument.
14