State v. Hoyt
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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. ) ) RODNEY RAY HOYT, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 10-0771 DIVISION ONE FILED: 01/03/2012 RUTH A. WILLINGHAM, CLERK BY: GH DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-153655-001 SE The Honorable Kristin C. Hoffman, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Division Katia Méhu, Assistant Attorney General Attorneys for Appellee Phoenix Maricopa County Public Defender By Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix T H O M P S O N, Judge ¶1 Rodney Ray Hoyt (defendant) appeals from his sentence for second-degree-murder, a class one felony in violation of Arizona Revised Statutes (A.R.S.) section 13-1104. Defendant argues the trial court erred by relying on three aggravating factors found by the jury. As set forth below, we find no reversible error and therefore affirm the sentence imposed by the trial court. FACTUAL AND PROCEDURAL BACKGROUND ¶2 In second August degree (victim). 1 2009, murder The premeditation, the for State shooting indictment charged his next alleged that caused the intentionally defendant with door neighbor defendant without death of [victim], and/or knowing that his conduct would cause death or serious physical injury, circumstances recklessly caused the manifesting engaged in death extreme conduct of [victim], indifference which created to a death and thereby caused the death of [victim]. further alleged that the offense was and/or under human life, grave risk of The indictment dangerous because it involved the discharge, use, or threatening exhibition of a GUN, a deadly intentional or weapon knowing or dangerous infliction 1 of instrument serious and\or physical the injury Because defendant challenges only the trial judge s reliance on aggravating factors in the imposition of his sentence, we confine our discussion to the facts and proceedings relevant to that issue. 2 upon [victim]. The State alleged the following aggravating circumstances: (1) the infliction or threatened infliction of serious physical injury ; (2) the use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime, specifically a gun ; and (3) the offense caused physical, emotional or financial harm to the victim or, if the victim died as a result of the conduct of the defendant, caused emotional or financial harm to the victim s immediate family. ¶3 After a six day trial, a jury found defendant guilty of second degree murder and further found that the offense was dangerous. Victim s first-cousin, L.H., was the State s sole witness at the aggravation phase of defendant s trial. L.H. testified that victim s death had impacted him financially and that he had lost an older-brother-type figure. He also stated that victim s girlfriend of ten years had been emotionally and financially impacted and that she s lost a lot. Dillon. The jury found the State had proven Also her son all of the aggravating factors beyond a reasonable doubt. ¶4 At sentencing, victim s daughter, as well as several other extended family members, addressed the trial judge. The court then sentenced defendant to an aggravated term of twenty years in prison, stating: I ve considered the aggravators found by the jury, the obvious emotional harm to the victim s family 3 and I ve considered including the defendant s mitigation mental urged health by the his history, defense, age and physical ailments. ¶5 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-120.21 (2003). DISCUSSION ¶6 On appeal, defendant argues that the sentencing judge improperly relied on all the aggravating factors found by the jury because they were either not supported by the evidence or were improperly double-counted. he is entitled to the Thus, defendant contends that presumptive sentence. See State v. Martinez, 210 Ariz. 578, 583, ¶ 17, 115 P.3d 618, 623 (2005) (the statutory aggravating reasonable maximum factors doubt is sentence have the been in proved presumptive a case to a sentence in jury which no beyond established a by statute). ¶7 We review the court s use of the three aggravating factors found by the jury only for fundamental error because defendant did not raise these issues at the aggravation phase of trial or at sentencing. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). standard of review, a defendant must To prevail under this establish both that fundamental error exists and that the error in his case caused 4 him prejudice. Id. at ¶ 20. We will not disturb a sentence that is within the statutory range absent an abuse of the trial court s discretion. State v. Joyner, 215 Ariz. 134, 137, ¶ 5, 158 P.3d 263, 266 (App. 2007). 1. Deadly Weapon ¶8 We first address defendant s argument that the use of a deadly weapon, specifically a gun, could not be used as an aggravating factor finding that the asserts this that because offense it was resulted was a in a component dangerous improper of the felony. jury s Defendant double-counting. We conclude otherwise. ¶9 as A trial court can consider the use of a deadly weapon an aggravating essential element factor except of offense the if of this circumstance conviction or is has an been utilized to enhance the range of punishment under § 13-704. A.R.S. § 13-701(D)(2). The use, threatened use or possession of a deadly weapon is not an essential element of the crime of second degree murder. A.R.S. § 13-1104(A); See State v. King, 226 Ariz. 253, 259-60, ¶¶ 21-28, 245 P.3d 938, 944-45 (App. 2011) (possible to commit homicide without using deadly weapons or dangerous instruments). Furthermore, the sentencing statutes do not allow for enhancement of the range of punishment. Second degree murder is punished according to A.R.S. § 13-710, which does not include a provision for enhancing the sentencing range 5 based on a finding of dangerousness. As a class 1 felony, second degree murder cannot be sentenced as a dangerous offense pursuant to A.R.S. § 13-704. Consequently, the jury s dangerous finding did not enhance the sentence. See State v. Sammons, 156 Ariz. 51, 55, 749 P.2d 1372, 1376 (1988) (holding finding of dangerousness defendant s superfluous it had Therefore, sentence). because no the trial impact court on properly considered the use of a deadly weapon as an aggravating factor. ¶10 In Arizona, a single Blakely 2-compliant aggravating factor establishes the facts legally essential to punishment. Thus, because we find the use of a deadly weapon to be an appropriate statutory aggravating circumstance, the trial court had discretion to sentence defendant to an aggravated sentence with a maximum term of twenty-two years in prison. See A.R.S. § 13-710(A) (the maximum aggravated term for second degree murder is twenty-two years); State v. Brown, 212 Ariz. 225, 231, ¶ 28, 129 P.3d enumerated 947, 953 (2006) aggravating (if factor, jury finds defendant one exposed statutorily to maximum punishment); State v. Martinez, 209 Ariz. 280, 284, ¶ 16, 100 P.3d 30, 34 (App. 2004) ( Because the jury found at least one aggravating factor, aggravated sentence, defendant and was the eligible trial to court s receive an weighing of additional aggravating and mitigating circumstances to determine 2 Blakely v. Washington, 542 U.S. 296 (2004). 6 the appropriate sentence within the aggravated range was permissible. ). 2. ¶11 Immediate Family Defendant circumstance of next harm to alleges the that victim s the immediate aggravating family was unsupported by the evidence. He argues that L.H. and victim s girlfriend of are not members victim s immediate family, consequently, the State failed to admit evidence in support of this aggravating factor. Black s Law Dictionary defines immediate family as a person s parents, spouse, children, and siblings. 3 the Black s Law Dictionary 679 (9th ed. 2009). definitions relationships for such immediate as a family first-cousin relationships with a significant other. included or None of extended non-binding Therefore, we conclude that the financial and emotional harm to victim s cousin and live-in girlfriend are not specifically enumerated aggravating factors in § 13-701(D). ¶12 However, although distinct from the enumerated aggravating circumstance of A.R.S. § 13-701(D)(9), this evidence would fall within the catch-all of § 13-701(D)(24). That provision permits a trial court to consider as an aggravating 3 Both defendant and the State rely on definitions from A.R.S. § 13-4401 to support their arguments. However, the plain language of the statute states that these definitions apply to chapter forty; we therefore do not rely on these definitions in our analysis. 7 circumstance [a]ny other factor that the state alleges is relevant to the defendant s character or background or to the nature or circumstances of the crime. A.R.S. § 13-701(D)(24). We recognize that the trial court would have been prohibited from sentencing defendant to an aggravated term based solely on this catch-all factor. 566, ¶ 10, 208 P.3d See State v. Schmidt, 220 Ariz. 563, 214, 217 (2009). Nevertheless, where sufficient evidence supported the finding of use of a deadly weapon, a clearly enumerated aggravator, the court did not err in considering other aggravating factors or in imposing an aggravated sentence. See A.R.S. § 13-701(F) ( If the trier of fact one finds at least aggravating circumstance, the trial court may find by a preponderance of the evidence additional aggravating circumstances. ); Schmidt, 220 Ariz. at 566, ¶ 11, 208 P.3d enumerated at 217 factor (trial to court impose must aggravated find one statutorily sentence; thereafter, court may consider additional catch-all aggravators); see also State v. Bonfiglio, 623 Ariz. Adv. Rep. 7, ¶ 20 (App. Dec. 6, 2011). The court in Schmidt clarified that the [s]ubsequent reliance on other factors embraced by a catch-all provision to justify a sentence up to the statutory maximum comports with the traditional discretionary role afforded judges in sentencing. Schmidt, 220 Ariz. at 566, ¶ 11, 208 P.3d at 217. 8 ¶13 its The trial court thus was entitled to find and rely on determination girlfriend. 829-30 (App. of emotional harm to victim s cousin and State v. Poling, 125 Ariz. 9, 11-12, 606 P.2d 827, 1979) (court may consider any factor it deems appropriate to the ends of justice); Van Norman v. Schriro, 616 F. Supp. 2d 939, 954 (D. Ariz. 2007) (trial court s additional finding of danger to the public is a proper aggravating factor). ¶14 In addition, victim s trial judge at sentencing. daughter also addressed the She spoke of the emotional harm she suffered by losing the opportunity to ever meet her father. As a member of victim s immediate family, her statements provided support for the trial court s consideration of the harm caused to victim s family under the enumerated aggravating circumstance of § 13-701(D)(9). 4 3. Serious Physical Injury ¶15 Defendant also contends that the infliction of serious physical injury could not be used as because it is an element of the offense. second degree murder. an aggravating factor Death is an element of A.R.S. § 13-1104(A). The State concedes that serious physical injury is a necessarily included element of death. serious The physical trial court injury as can consider an aggravator 4 the infliction except if of the The defense attorney even articulated at sentencing that there was [a]bsolutely harm to the victim s family. 9 circumstance is an conviction or has punishment under essential been § element utilized 13-704. to of the enhance A.R.S. § offense the range 13-701(D)(1). of of We therefore accept the State s concession that the trial court could not, in this case, aggravate this sentence based on serious physical injury. ¶16 However, we find no reversible error. In State v. Munninger, 213 Ariz. 393, 397, ¶¶ 12-13, 142 P.3d 701, 705 (App. 2006), we found that the court s reliance on an improperly double-counted aggravator did not require reversal where, based on other proper aggravators, the same aggravated sentence would have been imposed. Here, valid aggravating factors other than serious physical injury were present, and there is no indication the court gave weight to the improper factor. Additionally, it is clear from the record that the court s decision to impose an aggravated sentence was not a close call. ¶17 Defendant has failed to meet his burden to prove the error caused him prejudice. Id. at ¶ 14. (defendant cannot demonstrate prejudice merely by speculating that he would have received a lesser sentence if the improper factor had not been considered); Henderson, 210 Ariz. at 568, ¶ 22, 115 P.3d at 608 (defendant has burden to demonstrate prejudice). In the case at hand, nothing in the record indicates the trial court would have imposed a lesser sentence had the jury not found a superfluous 10 aggravator. aggravated Defendant s range twenty-year prescribed for sentence second was degree within the murder, and defendant cannot prevail under fundamental error review. Thus, we decline to remand for resentencing. CONCLUSION ¶18 For the foregoing reasons, defendant s affirmed. /s/ JON W. THOMPSON, Presiding Judge CONCURRING: /s/ DANIEL A. BARKER, Judge /s/ ANN A. SCOTT TIMMER, Judge 11 sentence is
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