State v. Knetzer
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. RICHARD LEE KNETZER, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0533 DIVISION ONE FILED: 11-09-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR 2008-0951 The Honorable Rick A. Williams, Judge AFFIRMED AS MODIFIED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Craig Soland, Assistant Attorney General Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender By Jill L. Evans, Deputy Public Defender Attorneys for Appellant Kingman H A L L, Judge ¶1 Richard Lee Knetzer appeals his convictions and sentences for negligent homicide and aggravated assault. On appeal, Knetzer argues the indictment was duplicitous; the trial court incorrectly instructed the jury on the duty to render aid; there was insufficient evidence to support the conviction for negligent homicide; the trial court erred when it found two aggravating factors for sentencing purposes; and the trial court erred when it imposed consecutive sentences. For the reasons that follow, we affirm Knetzer's convictions and sentences as modified. FACTUAL AND PROCEDURAL HISTORY ¶2 The victim, Knetzer's roommate, was Knetzer's residence with Knetzer present. found dead in The victim bled to death after he was shot through the right hand. The victim also had three newly-fractured ribs and multiple bruises, abrasions and lacerations on his body, head and face. Additional details are discussed in the context of the issues addressed below. ¶3 Knetzer was aggravated assault. found guilty of degree murder. charged with second-degree murder and After a five-day jury trial, Knetzer was aggravated assault but acquitted of second He was, however, found guilty of the lesser- included offense of negligent homicide. Knetzer was sentenced to a presumptive term of 7.5 years imprisonment for aggravated assault and a consecutive, imprisonment for pursuant Arizona to negligent presumptive homicide. Constitution, 2 term We Article of have 6, 2.5 years jurisdiction Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A) (2003), 13-4031 and -4033 (2010). DISCUSSION I. Duplicity of the Indictment ¶4 Knetzer titles the first issue on appeal as, "Appellant's dangerous Aggravated Assault conviction was based upon a duplicitous indictment which deprived him of his right to a unanimous charges verdict." separate "An crimes indictment in the is same duplicitous count. if it Duplicitous indictments are prohibited because they fail to give adequate notice of the charge, present a hazard of a non-unanimous jury verdict, impossible and in make the a precise event of pleading a later of double prosecution. jeopardy State v. Hamilton, 177 Ariz. 403, 410, 868 P.2d 986, 993 (App. 1993) (internal citations omitted). ¶5 Duplicity of the indictment, however, is not the issue Knetzer actually argues in his opening brief. Knetzer never explains how the actual language of the indictment was allegedly duplicitous or otherwise legally deficient and does not even quote the language of the indictment.1 1 Despite Knetzer's title The charge for aggravated assault read, "On or about the 22nd day of August, 2008, in the vicinity of 13088 Cove Parkway, Golden Shores, Mohave County Arizona, said Defendant, RICHARD LEE KNETZER, committed aggravated assault upon [the victim], all in violation of A.R.S. §§ 13-1204, 13-1203, 13-604, 3 of this issue and despite the fact that a great deal of the law cited by Knetzer deals with duplicitous indictments, the only issue actually argued in the context of the facts presented in this case assault. concerns the jury instruction regarding aggravated The instruction read: The crime of aggravated assault requires proof of the following: 1. The defendant committed an assault, and 2. The assault was aggravated by at least one of the following factors: - The defendant caused serious injury to another person; or - The defendant used a dangerous instrument; or deadly physical weapon or - The assault is committed by any means of force that causes temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part, or a fracture of any body part. (Emphasis in original.) (aggravated assault and assault). was given See A.R.S. § 13-1204(A)(1)-(3) (2008) The jury was definitions also of instructed "dangerous regarding instrument," "deadly weapon" and "serious physical injury." ¶6 Knetzer argues he was denied the right to a unanimous verdict on aggravated alleged three assault different because theories of 13-701 and 13-801, a Class 3 Felony." duplicitous. 4 the how jury the instruction offense was The indictment was not committed and identify which Therefore, regarding the we verdict theory it address aggravated form did relied not upon only whether assault deprived require for the the Knetzer of to verdict.2 their jury jury instructions a unanimous verdict. ¶7 Knetzer did not object to the jury instruction below. "The failure to object to an instruction either before or at the time it is given waives any error, absent fundamental error." State v. (1986). Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 "To establish fundamental error, [a defendant] must show that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." 601, 608 State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d (2005). established, however, error was prejudicial. ¶8 Even a once defendant fundamental must still error has demonstrate been the Id. at 568, ¶ 26, 115 P.3d at 608. In addition to the above instructions, the jury was also instructed the State had offered evidence of more than one act to support a conviction for aggravated assault. The jury was further instructed Knetzer may be found guilty of aggravated assault only "if the proof shows beyond a reasonable doubt that 2 Knetzer concedes on appeal evidence to support all three theories. 5 there was sufficient he committed any one or more of the acts. However, in order to return a verdict of guilty [], all jurors must agree that he committed the particular same acts acts. agreed (Emphasis added.) It upon is be not necessary stated in your that the verdict." When more than one theory of conviction for a particular count is submitted to a jury, there is no risk of a non-unanimous verdict and, therefore, no error, if the jury is also instructed it must agree unanimously on the specific facts upon which its verdict is based. State v. Kelly, 149 Ariz. 115, 117, 716 P.2d 1052, 1054 (App. 1986); State v. Petrak, 198 Ariz. 260, 268, ¶ 28, 8 P.3d 1174, 1182 (App. 2000); State v. ParedesSolano, 223 Ariz. 284, 290, ¶ 17, 222 P.3d 900, 906 (App. 2009). "Juries are presumed to follow their instructions." Dunlap, 187 Knetzer's Ariz. claim 441, that 461, the 930 P.2d 518, jury may have 538 State v. (App. 1996). disregarded its instructions and may have failed to agree upon the theory of conviction as instructed is pure speculation. ¶9 Within his argument on this issue, Knetzer further asserts that because the jury was not required to identify which of the three theories its verdict was based upon, it is impossible to determine whether the jury convicted him of a class 3 felony (aggravated assault based on causing a serious physical injury or use of a deadly weapon) or a class 4 felony (aggravated assault based on causing disfigurement, impairment 6 or fracture). See A.R.S. § 13-1204(A)(1)-(3). Even assuming the trial court erred by including the theory predicated on a class 4 with the theories predicated on a class 3, under the facts of this case, there was no prejudice because the jury's additional determination that the offense was dangerous limited the applicable theory of conviction to a class 3 offense. The jury was instructed that an offense is dangerous "if it involved the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument, or the intentional infliction of a serious physical injury." 105(13) (2008) ("dangerous offense" or knowing See A.R.S. § 13- defined). Therefore, in order to find the offense was dangerous, the jury was required to find the offense was committed in one of the two manners that constitute a class 3 felony. Because the jury found the offense was dangerous, the jury necessarily convicted Knetzer of a class 3 felony. ¶10 Finally, Knetzer argues the jury's determination that the offense was dangerous may not have been unanimous because the instructions did not require the jury to identify which theory supported its determination of dangerousness and "there could have been disagreement" among the jurors over whether the offense was dangerous because it involved the use of a deadly weapon or because it involved the infliction of serious physical injury. Again, Knetzer did not object. 7 ¶11 Regardless, otherwise. we find no error, fundamental or As noted above, because the jury found the offense was dangerous, the jury convicted Knetzer of aggravated assault based on either the use of a deadly weapon or causing serious physical injury. The jury was instructed it had to agree on which one of these two acts constituted the offense. Further, the jury was also instructed its determination of whether the offense was dangerous must also be unanimous. Therefore, the instructions sufficiently informed the jury it must unanimously determine whether the offense was dangerous based on the use of a deadly weapon or the infliction of serious physical injury. We will not instructions speculate that that the expressly jury required failed to unanimity follow in the its determination. II. ¶12 The Duty to Render Aid As his second issue on appeal, Knetzer argues the jury was improperly instructed regarding his duty, if any, to render aid to the victim. Knetzer presents this issue only in the context of negligent homicide. The instruction read: Before the defendant can be found guilty of any of the offenses charged, there must exist a legal duty owed by the defendant to [the victim]. The defendant's failure to obtain or provide aid, by itself, does not establish a legal duty and does not establish criminal liability. A legal duty exists only if you find (1) the defendant's voluntary acts caused the injury that 8 placed [the victim's] health in peril, or (2) the defendant intentionally acted to prevent [the victim] from seeking aid or another person from taking action which the defendant knew to be necessary for the aid or protection of [the victim]. Knetzer argues the instruction misstated the law; relied on civil rather than criminal concepts of duty; misled the jury, and constituted an improper comment on the evidence.3 did not raise any of these objections below. review for fundamental error. Knetzer Therefore, we See Schrock, 149 Ariz. at 440, 719 P.2d at 1056. ¶13 The purpose of jury instructions is to inform the jury of the applicable law. State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). be faultless. A set of instructions need not The instructions, however, must not mislead the jury and must give the jury an understanding of the issues. id. See It is only when the instructions, taken as a whole, are such that it is reasonable to suppose the jury would be misled that a case should be reversed for error in the instructions. Schrock, 149 Ariz. at 440, 719 P.2d at 1056. ¶14 We find no error, fundamental or otherwise. "The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary omission to perform a duty imposed by law . . . ." 3 act or the A.R.S. § 13- Knetzer does not actually explain in his opening brief how the instruction commented on any evidence. 9 201 (2008). "Conduct" is accompanying mental state." "an act or omission A.R.S. § 13-105(5). and its In Arizona, a person has a legal duty to aid another person when they know or have reason to know their conduct harmed the other person and that person is in danger of further harm. La Raia v. Superior Court, 150 Ariz. 118, 122, 722 P.2d 286, 290 (1986) (citing Restatement (Second) of Torts, § 322 (1965)). The duty exists regardless of whether the person's conduct in causing or even contributing to the harm was "tortuous or innocent." Id. In such a situation, the person who caused or contributed to the harm is under a duty to exercise reasonable care to minimize the resulting harm and prevent further harm to the injured person. Id. Even though this duty is based on civil law, criminal liability based upon the failure to perform a duty imposed by law may be based upon the failure to perform a common law, statutory or other duty. State v. Far West Water & Sewer, Inc., 224 Ariz. 173, 185-86, ¶¶ 27-28, 228 P.3d 909, 921-22 (App. 2010); State v. Brown, 129 Ariz. 347, 349, 631 P.2d 129, 131 (App. 1981). ¶15 Therefore, Knetzer could be held criminally liable based on the failure to exercise reasonable care to minimize any harm to the victim and/or prevent further harm. The instruction at issue sufficiently informed the jury regarding the duty to render aid under Arizona law. 10 The instruction was not misleading, did not comment on the evidence and did not otherwise permit a conviction for negligent homicide even in the absence of criminal negligence and/or based solely on civil negligence. III. Sufficiency of the Evidence of Negligent Homicide ¶16 Knetzer next asserts there was insufficient evidence to support his conviction for negligent homicide. this case, criminal "[a] person negligence person[.]" the commits person negligent causes As charged in homicide the death if of with another A.R.S. § 13-1102(A) (2008). "Criminal negligence means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. A.R.S. § 13-105(10)(d). his part proximately Knetzer argues no act or omission on caused the victim's death; that the victim's death from the gunshot wound was not foreseeable; and that the proximate cause of the failure to get help for himself. death was the victim's own Knetzer goes so far as to argue, "[t]he shooting did not cause death." ¶17 "Reversible error based evidence occurs where there only on is insufficiency a probative facts to support the conviction." 11 complete of absence the of State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted). "To set aside a jury verdict for insufficient evidence, it must clearly appear that under 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) (citation omitted). "[w]e construe the evidence In our review of the evidence, in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998) (citation omitted). We do not weigh the evidence, however, that is the function of the jury. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). ¶18 Knetzer and the victim lived together in a house owned by Knetzer. Knetzer, who had lost a leg in an accident, used a wheelchair and/or an electric scooter to get around. Knetzer had been angry with the victim because the victim failed to pay their utility bills with the money Knetzer had given him. Neighbors heard Knetzer yelling and swearing at the victim the morning of the date of the incident. At approximately 1:00 p.m., a neighbor heard what sounded like a gunshot. That night, Knetzer rode his electric scooter to a neighbor's house and asked him to call 911. Knetzer was unable to use his own phone because the service had been disconnected. 12 ¶19 Emergency personnel approximately 8:00 p.m. arrived at Knetzer's home at The victim was found dead on the floor of the living room with Knetzer sitting on the couch nearby. The victim had been dead measures were attempted. long enough that no life-saving The victim had suffered a contact or very near contact gunshot wound to his right hand. The bullet went through the victim's hand and caused multiple fractures, disrupted veins and arteries and nearly severed the victim's ring finger. The victim eventually bled to death as a result. It was apparent the victim had not died immediately because his blood was spread throughout Knetzer's home. ¶20 The victim multiple bruises, also had abrasions three and newly-fractured lacerations on ribs his and body, including his head and face. One witness described the victim as to being bruised "from head toe." The medical examiner determined most of these injuries were not consistent with a person fainting, falling or having seizures. A sheriff's deputy who spoke to the victim the morning of the day he died noted the victim had no injuries to his face, forehead, legs or arms at that time. The medical examiner, who described the gunshot wound as a "major injury," determined the cause of death was a gunshot wound to the hand that caused the victim to bleed to death. 13 ¶21 Blood and other cellular material from the victim were found on the barrel of one of Knetzer's handguns that was found locked in Knetzer's safe. A bullet removed from the soffit outside a rear entrance to the residence had been fired from that handgun. The victim's blood was found on the soffit near the bullet hole. ¶22 Knetzer Gunshot residue was found on Knetzer. spoke about the incident several times. Knetzer initially claimed the victim cut his hand on the rear door of the residence. There was, however, no blood on the rear door consistent with this story. Regardless, Knetzer, who had been trained as an emergency medical technician and had once worked in a hospital, acknowledged the victim was in a great deal of pain and that the injury was "really bad." Knetzer further it acknowledged the victim's finger looked like was "off" and that the victim was bleeding so badly he was "getting blood all over the damn house" and passed out several times.4 Knetzer acknowledged the bleeding never stopped even though he kept giving the victim rags to try to stop the bleeding. ¶23 A paramedic testified that anyone trained as an emergency medical technician would know how to recognize and treat profuse bleeding. Further, they would know that immediate emergency medical treatment was necessary and that the failure 4 The medical examiner testified that once a person faints from loss of blood, they do not regain consciousness. 14 to get such treatment could result in death. Despite all this, Knetzer claimed he eventually laid down on the couch to take a nap. He awoke that night to find the victim dead on the floor. After waiting approximately one more hour, Knetzer went to the neighbor's to seek help. ¶24 Knetzer Knetzer's later version claimed the of events victim shot evolved himself with in time. the accidentally when he dropped one of Knetzer's handguns. hand Even when he told this version of events, Knetzer still acknowledged the victim was in a great deal of pain, was bleeding profusely and that blood was going "everywhere." Knetzer claimed the victim told him not to call for help because he had once worked in a gun shop and was too embarrassed to let people know he accidentally shot himself. ¶25 Knetzer later changed his story again. latest version of events was, however, inconsistent. Knetzer's Knetzer first told deputies he and the victim "were screwing around, wrestling for the gun at the back door" and that while doing so, the gun "went off and it hit his finger." Knetzer initially claimed this occurred during an argument in which Knetzer took the gun from the victim. Knetzer claimed the gun went off when the victim then tried to take the gun back from Knetzer. Even this version of events, however, evolved within moments of its telling. Knetzer then claimed he and the victim had an argument 15 because the Knetzer. victim initially refused to do an errand for Knetzer claimed the victim, who was carrying one of Knetzer's guns, finally acquiesced and tried to give Knetzer the gun because he did not want to walk "down there with this." In response, Knetzer allegedly told the victim he did not want the gun. The two began to wrestle over the gun that Knetzer now claimed neither he nor the victim wanted, during which the gun went off. As in previous versions of events, Knetzer again acknowledged he knew the victim was losing a lot of blood and the bleeding was so severe the victim fainted several times. ¶26 Knetzer claimed he tried to get help for the victim while he was still alive. The day after the incident, Knetzer's next-door neighbors found two notes in their yard. Knetzer claimed he wrote those notes and put them on the neighbors' property at approximately 3:00 p.m. the date of the incident. The first note was found in the neighbors' back yard. The note had been written on a piece of poster board approximately twenty by twenty-two inches in size and read, "[C] or [B], please help me. door. My doors are open. Thank you." I need your [sic] ASAP! The second note was found written on a piece of paper attached to the neighbors' fence. read, "[C] or [B], please come over. your [sic]! Ric." Ric from next The second note My door's open. I need The note found on the fence does not appear in a photograph of that area taken by investigators the day of 16 the incident, and one of the neighbors who saw the fence that night said the note was not there the date of the incident. ¶27 The evidence admitted at trial was sufficient support Knetzer's conviction for negligent homicide. to While some of the evidence may have been circumstantial, "The probative value of evidence is not reduced because it is circumstantial." State v. Murray, 184 Ariz. 9, 31, 906 P.2d 542, 564 (1995). Reasonable jurors could find that Knetzer caused the death of the victim through criminal negligence. We cannot, and need not, determine exactly what the jury believed happened. The evidence supports several theories of how Knetzer could have negligently caused the death of the victim regardless of any failure to aid the victim. and the victim struggled during that struggle. Knetzer admitted, however, that he over a gun and the gun discharged The jury could reasonably find Knetzer caused an injury to the victim; that as a result he had a legal duty to take reasonable steps to aid the victim; and that the failure to do so constituted criminal negligence. Finally, and despite the Knetzer's assertion to the contrary, medical examiner testified the cause of death was the gunshot wound and the profuse bleeding which resulted. 17 That a person could bleed to death from a gunshot wound that caused profuse bleeding is not unforeseeable, abnormal or extraordinary.5 IV. Aggravating Factors ¶28 As the fourth issue on appeal, Knetzer argues the trial court improperly considered certain aggravating factors for sentencing purposes.6 For aggravated assault, the trial court found the "significant injury suffered by the victim" and the emotional trauma aggravating factors. suffered by the victim's family to be For negligent homicide, the court found as aggravating factors the offense was committed in a "cruel and callus [sic] fashion" because Knetzer failed to do anything to help the victim for a "significant length of time[,]" as well as the emotional mitigating trauma factors suffered for both by the offenses, victim's the family. court found As the support of Knetzer's family and his lack of a prior criminal record. The court found the aggravating and mitigating factors 5 The jury was instructed regarding superseding/ intervening cause and that the State must prove beyond a reasonable doubt that a superseding/intervening cause did not cause the injury or death. 6 Even though the trial court rather than the jury determined the existence of aggravating factors for sentencing purposes, Knetzer does not present a claim pursuant to Blakely v. Washington, 542 U.S. 296 (2004). The court and counsel agreed that because the State had not alleged any aggravating factors, the maximum sentence that could be imposed for each count was the presumptive sentence. 18 balanced each other and imposed presumptive sentences as indicated above. ¶29 On appeal, Knetzer argues the trial court could not consider the significant physical injury to the victim as an aggravating factor for aggravated assault, nor find that the negligent homicide was, in Knetzer's words, "cruel, heinous or depraved." Because consideration of Knetzer any fundamental error. did not aggravating object factors, to the court's we review for Even when fundamental error exists, however, a defendant who fails to object to a trial court's consideration of an improper aggravating factor for sentencing purposes carries the burden of proving prejudice resulted from the use of the improper factor. State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006).7 ¶30 Knetzer first argues the significant injury suffered by the victim could not be considered as an aggravating factor for aggravated assault because it was an element of the offense and/or used to enhance his sentence. Infliction of serious physical injury may not be considered as an aggravating factor if it "is an essential element of the offense of conviction or has been utilized to enhance the 7 range of punishment under In support of his argument on this issue, Knetzer cites State v. Barraza, 217 Ariz. 44, 170 P.3d 293 (App. 2007). Barraza was depublished by order of the supreme court in September 2008. Id. 19 section 13-604." failed to error. A.R.S. § 13-702(C)(1) (2008). prove he was prejudiced and we Knetzer has otherwise find no First, serious physical injury was not an "essential element" of aggravated assault as charged in this case because, as addressed above, infliction of serious physical injury was not the only theory of aggravated assault submitted to the jury. Further, as also addressed above, infliction of serious physical injury was not the only basis upon which the jury could find the offense was a dangerous offense for enhancement purposes. We do not know which theory was utilized by the jury to make its determination speculate. guilt or dangerousness and we will not Therefore, Knetzer has failed to establish he was prejudiced improper of by factor the court's when it consideration imposed the of any allegedly sentence for aggravated assault. ¶31 Knetzer also argues the trial court could not find the negligent homicide was cruel depraved" manner or committed in pursuant an to "especially A.R.S. § heinous, 13-702(C)(5) because there was insufficient evidence the offense was heinous, cruel or depraved. We find no error. The trial court did not find the offense was committed in an "especially heinous, cruel or depraved" manner pursuant to § 13-702(C)(5). The trial court found Knetzer's failure to do anything to help the victim for a "significant length of time was 20 extremely cruel and callus [sic]. And so I find as an aggravating factor that the negligent homicide was committed in a cruel and callus fashion." The court's focus was on the failure to help the victim. failure to aid a helpless victim may be considered aggravating factor for sentencing purposes. The as an State v. Meador, 132 Ariz. 343, 347, 645 P.2d 1257, 1261 (App. 1982). The record indicates the trial court meant "cruel" and "callous" in their colloquial sense and did not equate those terms with a formal finding that the offense was committed in an especially heinous, cruel or depraved manner as found in § 13-702(C)(5). Those terms as used in § 13-702(C)(5) are terms of art that have been defined and require specific findings considered as aggravating factors. before they may be State v. Murdaugh, 209 Ariz. 19, 31-33, ¶¶ 57-67, 97 P.3d 844, 856-58 (2004).8 ¶32 We find no error in the trial court's consideration of any aggravating factors for sentencing purposes. V. The Imposition of Consecutive Sentences ¶33 As the final issue on appeal, Knetzer argues the trial court erred when it imposed consecutive rather than concurrent sentences. Knetzer argues that once the facts necessary to 8 We also note that when, as here, a trial court imposes a presumptive sentence, the court is not required to make any findings whatsoever regarding any aggravating or mitigation factors the court may have considered in its determination of the appropriate sentence. State v. Wideman, 165 Ariz. 364, 370, 798 P.2d 1373, 1379 (App. 1990). 21 convict him of aggravated assault are removed, the remaining facts are not sufficient to convict him of negligent homicide and, therefore, he could not be given consecutive sentences. The trial court found consecutive sentences were permissible because the aggravated assault could have been committed without the resultant death if Knezter had simply sought aid for the victim. The court found the failure to seek aid despite the duty do to so was consecutive sentences. a separate criminal act that permitted Knetzer did not raise this issue below. An illegal sentence, however, may be reversed on appeal even in the absence of an objection below. State v. Canion, 199 Ariz. 227, 230, ¶ 10, 16 P.3d 788, 791 (App. 2000). ¶34 In order to determine whether two offenses constitute a single act, thereby prohibiting the imposition of consecutive sentences, we apply the following test: The first step in the analysis is to determine which crime arising out of the incident is the ultimate crime. The ultimate crime is the crime which has the factual nexus to all the other crimes. The ultimate crime will usually be the primary object of the episode, and it will usually be the most serious crime committed on the given occasion. Once the ultimate crime is determined, the test to be applied is as follows. If, considering all of the facts of the incident and subtracting the facts necessary to convict of the ultimate crime, the remaining facts satisfy the elements of the remaining crime(s), then multiple punishments may be permissible. Assuming that this first step is satisfied, multiple punishments are ordinarily permissible only if (1) given the entire criminal episode, the defendant could have committed the ultimate crime without committing 22 the other crime(s) or (2) in committing the other crime(s), the defendant caused the victim to suffer additional risk or harm beyond that inherent in the ultimate crime. State v. Eagle, 196 Ariz. 27, 33, ¶ 27, 992 P.2d 1122, 1128 (App. 1998) (internal quotation omitted). ¶35 The parties agree aggravated assault was the "ultimate crime" for which Knetzer was convicted. It was the greater felony, carried the higher range of possible punishment and was the "factual nexus" to the two crimes. If we consider all of the facts of the incident and subtract the facts necessary to convict Knetzer of aggravated assault, the remaining facts do not satisfy the elements of negligent homicide. To convict Knetzer of aggravated assault, the jury first had to find he committed simple assault. The sole theory of simple assault submitted to the jury was that Knetzer intentionally, knowingly or recklessly caused physical injury to the victim. § 13-1203(A)(1) (2008). then had to find See A.R.S. As explained more fully above, the jury Knetzer committed an assault that caused serious physical injury to the victim or that he committed an assault by using a deadly weapon or dangerous instrument. A.R.S. § 13-1204(A)(1) and (2). See If we subtract the evidence that Knetzer caused physical injury to the victim, there is no remaining evidence that Knetzer caused the death of the victim through criminal negligence. This is so regardless of the mens 23 rea, regardless of whether a deadly weapon regardless of whether any injury was serious. the trial court focused on the duty to was used and Further, while obtain aid, if we subtract the evidence that any conduct of Knetzer caused injury to the victim, Knetzer had no legal duty to exercise reasonable care to minimize any resulting harm or prevent further harm to the victim. such a La Raia, 150 Ariz. at 122, 722 P.2d at 290. duty, Knetzer could not be convicted homicide based on the failure to render aid. of Absent negligent Therefore, because the remaining facts do not satisfy the elements of negligent homicide, multiple punishments are not permissible. Eagle, 196 Ariz. at 33, ¶ 27, 992 P.2d at 1128. ¶36 For the above reasons, we vacate that portion of the sentencing minute entry that ordered the sentences to be served consecutively and modify the sentencing minute entry to order the sentences be served concurrently. 24 CONCLUSION ¶37 For convictions. years' the reasons stated above, we affirm Knetzer's We further affirm the imposition of 7.5 and 2.5 imprisonment for homicide, respectively. aggravated assault and negligent We modify the sentencing minute entry to order that the sentences be served concurrently. PHILIP HALL, Presiding Judge CONCURRING: SHELDON H. WEISBERG, Judge PETER B. SWANN, Judge 25
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