State v. Ewing

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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. PHILLIP MATTHEW EWING, Appellant. 1 CA-CR 10-0903 DIVISION ONE FILED: 11/29/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. P1300CR200901150 The Honorable William T. Kiger, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel and Sarah E. Heckathorne, Assistant Attorney General Criminal Appeals/Capital Litigation Division Attorneys for Appellee David Goldberg, Esq. Attorney for Appellant Fort Collins, CO B A R K E R, Judge ¶1 Phillip Matthew Ewing appeals his convictions and sentences for attempted first degree murder, aggravated assault, and misconduct involving weapons. Ewing argues there is insufficient evidence to support his convictions for both attempted first degree murder and misconduct involving weapons; his convictions for attempted murder and misconduct involving weapons are multiplicitous; the trial court did not properly instruct the jury involving weapons; sentencing regarding and errors. attempted the trial the reasons For murder court or misconduct committed that follow, various we affirm Ewing s convictions and sentences. Background ¶2 The State charged Ewing with attempted first degree murder, aggravated assault, and misconduct involving weapons after Ewing stabbed the victim in the lower back as she worked in her retail shop in Prescott. At trial, Ewing conceded he stabbed the victim, but argued he did not intend to kill her. We discuss additional details of the offenses in the context of the issues addressed below. ¶3 A jury convicted Ewing as charged. The trial court imposed an aggravated sentence of 23.1 years imprisonment for attempted first degree murder; a concurrent, aggravated sentence of 16.25 years presumptive weapons. for sentence aggravated of 4.5 Ewing now appeals. assault; years for and a consecutive, misconduct involving We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona 2 Revised Statutes ( A.R.S. ) sections 12-120.21(A) (2003), 13- 4031 (2010) and 13-4033 (2010). I. Sufficiency of the Evidence ¶4 his Ewing argues the evidence is insufficient to support convictions for either attempted misconduct involving weapons. first degree murder or Specifically, Ewing argues there was no evidence he intended to kill the victim or that the knife he used was a deadly weapon or prohibited weapon as defined under Arizona law. ¶5 Reversible error based evidence occurs where there only on is insufficiency a probative facts to support the conviction. complete of the absence of State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). 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 Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). question is whether, on the evidence presented, v. The rational factfinders could find guilt beyond a reasonable doubt. State v. Fulminante, 193 Ariz. 485, 493, ¶ 24, 975 P.2d 75, 83 (1999). ¶6 We construe 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). In our review of the record, we 3 resolve any conflict in the evidence in favor of sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). We do not weigh the evidence: that is the function of the jury. See id. A. Attempted First Degree Murder ¶7 A person commits attempted first degree murder if, acting with the kind of culpability otherwise required for the commission of first degree murder, the person intentionally does anything which, under the circumstances as that person believes them to be, is any step in a course of conduct culminate in the commission of first degree murder. § 13-1001(A)(2) (2009) ( attempt defined). As planned to See A.R.S. charged and instructed in this case, a person commits first degree murder if, [i]ntending or knowing that the person s conduct will cause death, the person causes the death of another person . . . with premeditation. ¶8 A.R.S. § 13-1105(A)(1) (2009). Ewing attacked the victim from behind and plunged a 2.5 inch by 7 inch knife blade 5 inches deep into her lower back. to Despite this, Ewing contends the evidence is insufficient support his conviction for attempted first degree murder because there is no evidence of a specific intent to kill the victim. 1 Relying on State v. Vitale, Ewing argues the fact he 1 Ewing does not challenge the sufficiency evidence to support any other element of the offense. 4 of the plunged a knife 5 inches deep into the victim s lower back is, by itself, insufficient to establish the intent to kill. Ewing argues the State must prove intent with evidence independent of the act of stabbing the victim. See State v. Vitale, 23 Ariz. App. 37, 44, 530 P.2d 394, 401 (1975) ( The crime of attempt requires proof of an overt act and specific intent, which must be proven by evidence other than the overt act itself. ). ¶9 The evidence is sufficient to support conviction for attempted first degree murder. upon Vitale is unavailing. Vitale relied Ewing s Ewing s reliance upon Elfbrandt v. Russell, 97 Ariz. 140, 146, 397 P.2d 944, 948 (1964) rev d on other grounds, 384 U.S. 11 (1966), which in turn relied upon the California case of People v. Snyder, 104 P.2d 639 (Cal. 1940). Vitale, 23 Ariz. App. at 44, 530 P.2d at 401. Rodriguez, refuse[d] decided to shortly adopt proposition of law. 560 P.2d 1238, 1240 the after holding Vitale, in our Snyder In State v. supreme as an court abstract State v. Rodriguez, 114 Ariz. 331, 333, (1977). Instead, our supreme court reaffirmed: The law in Arizona is that a specific intent to do an act may be inferred from the circumstances of the doing of the act itself. Id. Intent may be implied from the facts that establish the doing of the act, and a specific intent may at times be presumed from the conduct of the accused in the doing of the act, as in cases involving an intent to kill. 5 Id. (quoting State v. White, 102 Ariz. 97, 98, 425 P.2d 424, 425 (1967)) (emphasis added). ¶10 We also disapproved of Vitale over thirty years ago. the overbroad language in See State v. Wilson, 120 Ariz. 72, 74, 584 P.2d 53, 55 (App. 1978) ( Vitale should not, . . . in our opinion, be blindly followed as an abstract principle of law. ). We further distinguished Vitale by noting Vitale involved the offense of attempted receipt of stolen property, and our supreme court had held many years prior that merely possessing stolen property was legally insufficient to establish the possessor knew the property was stolen or had the intent to possess stolen property. Id. Therefore, evidence separate and apart from receipt was necessary to establish guilt in Vitale. Id. ¶11 This is not the case with attempted first degree murder. We acknowledge a person, with only mischief in his mind, may actually take a step in the direction of a criminal offense without attempting to commit that crime if his state of mind does not include an intent to commit it. Id. that intent is present is a matter for the jury. Whether The law in Arizona, however, is clear: [T]here are times when intent may be inferred from conduct where it is plainly indicated as a matter of logical probability. case where the intent to commit Id. The instant matter is a first degree murder plainly indicated as a matter of logical probability. 6 may be The use of an instrument capable of producing a result and in a manner calculated actual to have that intent even in reasonable explanation. result the will absence Id. support of any an inference of evidence or other More specific to this case, The use of a deadly weapon . . . gives rise to presumption of the intent to kill. State v. Dixon, 107 Ariz. 415, 420, 489 P.2d 225, 230 (1971). A knife qualifies as a deadly weapon. v. Clevidence, 1987). The 153 Ariz. evidence, 295, 301, therefore, 736 is P.2d 379, sufficient State 385 to (App. support Ewing s conviction for attempted first degree murder. B. Misconduct Involving Weapons ¶12 Ewing argues the evidence is also insufficient support his conviction for misconduct involving weapons. charged weapons in if this they case, a person knowingly commits possess a misconduct deadly to As involving weapon or prohibited weapon and the person is a prohibited possessor. A.R.S. § 13-3102(A)(4) (2009). Deadly weapon means anything that is designed for lethal use. The term includes a firearm. A.R.S. § 13-3101(A)(1) (2009). 2 Ewing argues the evidence is insufficient to support his conviction for misconduct involving 2 As discussed more fully below, the jury instructions did not include the definition of prohibited weapon. See A.R.S. § 13-3101(A)(8) ( prohibited weapon defined). 7 weapons because a knife is neither a deadly weapon nor a prohibited weapon. 3 ¶13 When interpreting a statute, we attempt to fulfill the intent of the drafters, and we look to the plain language of the statute as the best indicator of that intent. Zamora Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). give the words and phrases of the statute their v. We commonly accepted meaning unless the drafters provide special definitions or a special meaning is apparent from the text. State v. Barr, 183 Ariz. 434, 438, 904 P.2d 1258, 1262 (App. 1995). language is language clear and construction. do and unambiguous, not employ we other give effect methods of If the to that statutory State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997). ¶14 The evidence is sufficient to support Ewing s conviction for misconduct involving weapons. Again, a deadly weapon is anything designed for lethal use. A knife clearly qualifies as a deadly weapon under A.R.S. Clevidence, 153 Ariz. at 301, 736 P.2d at 385. § 13-3101. That a knife is not included in the definition of prohibited weapon does not exclude a knife from the definition of deadly weapon. Further, defining deadly weapon to include a firearm does not 3 Ewing does not challenge the sufficiency evidence to support any other element of the offense. 8 of the exclude everything else designed for lethal use that is not a firearm from the definition. ¶15 Despite Ewing s attempts to do so, Clevidence is not distinguishable. Again, Clevidence held a knife clearly qualifies as a deadly weapon under A.R.S. § 13-3101. Clevidence defined referred deadly [A]nything firearm. State v. to a weapon designed for version exactly the lethal same Williams in addition to the § way The Id. at 300, 736 P.2d at 384. 104, 515 P.2d 849 (1973). on A.R.S. use. render Clevidence distinguishable. rely of 13-3101 it term does Id. that now: includes a That Clevidence cited A.R.S. § 13-3101 does not State v. Williams, 110 Ariz. Williams did not, as argued by Ewing, interpretation unrelated criminal statute. of a completely different and Williams flatly held: A knife is a deadly weapon. Williams, 110 Ariz. at 105, 515 P.2d at 850. Williams interpret did not or even identify any statute in support of this holding, and Ewing does nothing to explain how this holding is no longer valid. II. Multiplicity ¶16 Ewing argues the counts of attempted murder and aggravated assault are multiplicitous. first degree Multiplicity is defined as charging a single offense in multiple counts. State v. Bruni, 129 Ariz. 312, 318, 630 P.2d 1044, 1050 (App. 1981). Ewing argues these counts are multiplicitous because 9 they involve the identical singular act of stabbing his victim in the back. issue below. Ewing, however, concedes he did not raise this Therefore, we review for fundamental error. See State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991) (failure to raise an issue at trial waives all but fundamental error). 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. State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005). Once fundamental error has been established, defendant must demonstrate the error was prejudicial. a Id. at ¶ 26. ¶17 The question is not, as implied by Ewing, simply whether an act may be punished under more than one provision of the criminal code. To determine if counts are multiplicitous, the question is whether each count requires proof of a fact that the other count does not. State v. Barber, 133 Ariz. 572, 576, 653 P.2d 29, 33 (App. 1982), aff d, 133 Ariz. 549, 653 P.2d 6 (1982). As charged in this case, a person commits aggravated assault if the person intentionally, knowingly, or recklessly causes any physical injury to another person and does so with a deadly weapon or dangerous instrument. 10 A.R.S. §§ 13-1203(A)(1) (2009), -1204(A)(2) (2009). attempted first culpability degree degree otherwise murder, the As noted above, a person commits murder if, required for person acting the intentionally with the commission does kind of anything of first which, under the circumstances as that person believes them to be, is any step in a course of conduct planned to culminate in the commission of first degree murder. See A.R.S. § 13-1001(A)(2). A person commits first degree murder if, intending or knowing the person s conduct will cause death, the person causes the death of another person with premeditation. See A.R.S. § 13- 1105(A)(1). ¶18 We find no error, fundamental or otherwise, because each offense requires proof of at least one fact the other count does not. It will suffice to note that attempted first degree murder requires intentionally doing anything that is a step in a course first of conduct degree planned murder. to culminate Aggravated committed knowingly or recklessly. case, a conviction for in the assault, commission however, can of be Further, as charged in this aggravated assault required the infliction of a physical injury to another person through the use of a deadly weapon or dangerous instrument. Attempted first degree murder does not require the infliction of an injury nor does it require instrument. the use of a deadly weapon or dangerous Because each count required proof of a fact the 11 other count did not, the counts for attempted first degree murder and aggravated assault were not multiplicitous. III. The Jury Instructions ¶19 Ewing argues the trial court erred when it failed to correctly instruct the jury regarding the elements of attempted first degree murder and misconduct involving weapons. We review whether jury instructions properly state the law de novo. State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997). The purpose of jury instructions applicable law . . . . is to inform the jury of the State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). A set of instructions need not be faultless; however, they must not mislead the jury in any way and must give the jury an understanding of the issues. Id. It is only when the instructions, taken as a whole, are such that it thereby is that instructions. reasonable a case to suppose should be the jury reversed would for be error misled in the State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986) (quoting State v. McNair, 141 Ariz. 475, 481, 687 P.2d 1230, 1236 (1984)). A. Attempted First Degree Murder ¶20 The jury was instructed in relevant part that the crime of attempted first degree murder requires proof that the defendant intentionally committed any act that was a step in a course of conduct that Ewing planned or believed would result in 12 the commission of first degree murder. instructed in relevant part that the The jury was further crime of first degree murder requires proof that the defendant caused the death of another death person or knew and he that would the defendant cause the intended death. to Ewing cause the argues the instruction should not have included the knew he would cause the death language because the offense of attempt as charged in this case requires that the defendant act intentionally. A.R.S. § 13-1001(A)(2). See Ewing argues attempted first degree murder requires proof that he intentionally committed an act that was a step in a course of conduct that he believed would result in the intentionally, commission not first of first degree degree murder murder committed committed knowingly. Ewing argues that under Arizona law, one cannot intentionally attempt to commit a knowing first degree murder. ¶21 We find no error in attempted first degree murder. the instructions regarding We addressed this same issue in State v. Nunez, 159 Ariz. 594, 769 P.2d 1040 (App. 1989). After addressing the identical statutes at issue here, we held that a person may intentionally attempt degree murder under Arizona law. to commit a knowing first Id. at 597, 769 P.2d at 1043. This is because a conviction for attempt requires only that the defendant act intentionally in regard to the elements of attempt as defined in A.R.S. § 13-1001. 13 A conviction for attempt does not require that the defendant also act intentionally in regard to every element of the attempted offense unless itself the requisite mens rea for that offense. Id. intent is Therefore, the jury instructions in this case correctly stated the Arizona law regarding attempted first degree murder. B. Misconduct Involving Weapons ¶22 The jury instructions correctly stated the elements of misconduct involving 3102(A)(4). offense as identified in A.R.S. § 13- The instructions permitted a conviction for the based prohibited weapons on the weapon. possession The of instructions either also a deadly correctly or defined deadly weapon as anything that is designed for lethal use, but omitted additional The firearm. the sentence, instructions did The not, term includes a however, provide a definition for prohibited weapon. ¶23 without Ewing argues the omitted instructions left the jury adequate possession of a guidance knife involving weapons]. to determine satisfied the whether elements of Appellant s [misconduct Ewing s only specific claim of prejudice is that these omissions permitted the jury to convict him of a crime he did not commit because it is not a violation of the statute to possess a knife. Ewing concedes, however, that he failed to object to the omission of these instructions below. The failure to object to an instruction either before or at the 14 time it is given waives any error, absent fundamental error. Schrock, 149 Ariz. at 440, 719 P.2d at 1056. Therefore, we review for fundamental error. ¶24 We find no error. For the reasons previously explained, Ewing s sole claim regarding how he was prejudiced is simply wrong; a prohibited possessor may be convicted of misconduct involving weapons based on the possession of a knife as a deadly weapon. prejudice given alleged. adequately Ewing has, therefore, failed to prove the Despite informed the the omissions, jury of the the instructions applicable law regarding misconduct involving weapons based on the possession of a knife as a deadly weapon, gave the jury an understanding of the issues, and were not misleading. IV. Sentencing ¶25 Ewing argues the trial court erred when it imposed aggravated sentences aggravated assault. ordered the sentence for attempted first degree murder and He further argues the court erred when it for misconduct involving weapons to be served consecutively to the sentences for attempted murder and aggravated assault. A. Mitigating Factors ¶26 The trial court found Ewing s significant mental health problems throughout his life, the support of his family, and his remorse were mitigating factors for sentencing purposes. 15 Ewing argues, however, that the trial court ignored and/or refused to consider other mitigating factors. Specifically, Ewing argues the court failed to consider uncontested evidence that he was intoxicated at the time he committed the offenses and that this intoxication lead directly to his illegal conduct; that Ewing was an alcoholic who self-medicated rather than take medication prescribed for his mental health issues; or that Ewing was mentally retarded and did not comprehend what he had done or why he had done it. ¶27 The trial court has the aggravating and mitigating factors. discretion to weigh State v. Harvey, 193 Ariz. 472, 477, ¶ 24, 974 P.2d 451, 456 (App. 1998). Because Ewing did not object to the court s alleged failure to consider these factors, we review for fundamental error. error, fundamental or otherwise. Even so, we find no A trial court need not find mitigating factors simply because evidence of those factors is presented; the court is only required to consider those factors. State v. Jenkins, 193 Ariz. 115, 121, ¶ 25, 970 P.2d 947, 953 (App. 1998). for the Ewing presented the following mitigating factors court s consideration: he was allegedly mentally retarded and had suffered unidentified mental illness and brain damage since he was a child, he had ADHD, he had been rejected by his mother and other members of his family early in his life, and he was an alcoholic who self-medicated. 16 Ewing also spoke at sentencing and claimed he was intoxicated when he committed the offenses. There is nothing in the record to suggest the trial court not did consider all of these factors, and, as noted above, nothing more was required. ¶28 Further, the trial court noted it considered all the trial testimony sentences. in its determination of the appropriate In regard to the mitigating factors Ewing claims the court failed and/or refused to consider, the evidence considered by the court included testimony that (1) Ewing was an alcoholic, (2) he was a high school dropout who had learning disabilities, (3) he was bipolar and had a split personality, (4) he sometimes displayed the mentality of a child, (5) he had been on medication for various mental conditions since he was a child, (6) he was in counseling, (7) he self-medicated and preferred to drink alcohol rather than take his medications, and (8) he had been admitted to mental hospitals twice in his lifetime. The evidence who also included testimony from a testified Ewing had mild mental retardation. it also considered an additional psychologist The court noted psychological Ewing that Ewing submitted as mitigating evidence. evaluation of Again, there is nothing in the record to suggest the trial court failed to consider any of these factors. ¶29 As far as the uncontested evidence that Ewing was intoxicated when he committed 17 the offenses and/or that intoxication contributed to or caused the offenses, the only evidence regarding intoxication admitted at trial was that Ewing s aunt saw him several hours after the attack and that he appeared intoxicated to her at that time. There was no evidence Ewing was intoxicated at the time he committed the offenses. Even so, there is nothing in the record to suggest the court refused and/or failed to otherwise consider Ewing s claim at sentencing that he was intoxicated when he committed the offenses. B. Aggravating Factors ¶30 Ewing next contends the trial court erred when it improperly considered various aggravating factors for sentencing purposes. We review the imposition of an aggravated sentence within the range established by the legislature for abuse of discretion. State v. Tschilar, 200 Ariz. 427, 435, ¶ 32, 27 P.3d 331, 339 (App. 2001). ¶31 The court found the attempted murder and the aggravated assault were especially heinous, cruel or depraved. See A.R.S. § 13-701(D)(5) (2009). Ewing first argues the trial court improperly considered this factor twice. The record shows the court did not consider this aggravating factor twice, but that the court simply gave more than one reason for why the offenses were especially heinous, cruel or depraved. 18 ¶32 Ewing argues the trial court also improperly considered the victim s pain as an aggravating factor twice first as an unarticulated circumstance and then as an additional reason to find the offenses were especially heinous, cruel or depraved. The record shows the court considered the victim s pain in only one context - as a factor for why the offenses were especially heinous, cruel or depraved. While the court also found the physical, emotional and financial harm to the victim was an aggravating factor, physical harm is not synonymous with pain. Even if the court had considered the victim s pain twice, a single fact may be used to establish more than one aggravating factor. State v. Prince, 226 Ariz. 516, 537, ¶ 81, 250 P.3d 1145, 1166 (2011). The only prohibition is against weighing that single factor twice in the balance of the aggravating and mitigating circumstances. Id. There is no evidence the trial court weighed the victim s pain twice. ¶33 Ewing also argues the court considered the infliction of serious physical injury as an aggravating factor even though it was an element of the offense of aggravated assault. See A.R.S. § 13-701(D)(1) (infliction of serious physical injury may be considered as an aggravating factor unless it is an element of the offense or has been used for sentence enhancement). We review de novo whether an aggravating factor is an element of the offense and whether the trial court may consider that factor 19 for purposes of sentence aggravation. 435, ¶ 32, 27 P.3d at 339. Tschilar, 200 Ariz. at Here, we find no error. The assault in this case was aggravated because it involved the use of a deadly weapon. The infliction of serious physical injury was not an element of the offense. See A.R.S. § 13-1204(A)(2). Therefore, consider the trial court could the infliction of serious physical injury as an aggravating factor for sentencing purposes. 4 ¶34 Finally, Ewing argues the trial court improperly considered the possession of a deadly weapon as an aggravating factor for the count of aggravated assault because it was an element of the offense. See A.R.S. § 13-701(D)(2) (possession of a deadly weapon may be considered as an aggravating factor unless it is an element of the offense or has been used for purposes of sentence enhancement pursuant to § 13-704). trial court explained that it believed it could The consider possession of a deadly weapon as an aggravating factor because Ewing s sentences were enhanced based on the repetitive offender provisions of § 13-703, not the dangerous offender provisions of § 13-704. As noted above, A.R.S. § 13-701(D)(2) references sentence enhancement in the context of § 13-704, not § 13-703. 4 Below, Ewing expressly informed the trial court it could consider the infliction of serious physical injury as an aggravating factor for an aggravated assault based on the use of a deadly weapon. In fact, Ewing said, the court has to count it as an aggravator[.] 20 ¶35 We first note that the trial court found possession of a deadly weapon was an aggravating factor, while Ewing was charged with and found guilty of aggravated assault based on his use of a deadly weapon. same thing. use is Possession and use are not the Possession is a statutorily defined term, while not statutorily defined. See A.R.S. § 13-105(34) ( Possession means a voluntary act if the defendant knowingly exercised dominion or control over property. ). Further, mere possession of a deadly weapon is not an element of aggravated assault as defined in A.R.S. § 13-1204(A)(2). The State attempts to concede error and in turn argue that any error was harmless, but does so based on the erroneous contention that the court improperly considered the use of a deadly weapon as an aggravating factor. We further note that Ewing expressly informed the court at sentencing that the court could consider the use of a deadly weapon as an aggravating factor, even though use of a deadly weapon was an element of the offense. ¶36 We need not address whether a trial court may consider possession of a deadly weapon as an aggravating factor when use of a deadly weapon was an element of the offense, nor need we determine whether the trial court was actually attempting to make a distinction between possession of a deadly weapon and use of a deadly weapon for purposes of sentence aggravation. Where, as here, a defendant fails to object to a trial court s 21 consideration of an aggravating factor for sentencing purposes, the burden is on the defendant to prove prejudice resulted from the use of the allegedly improper factor. State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006). Here, Ewing has failed to prove he was prejudiced. ¶37 As aggravating factors for the aggravated assault as well as the attempted murder, the court found Ewing caused a great deal of physical, emotional, and financial harm to the victim and her family. The court further found the offense was especially heinous, cruel or depraved because of the manner in which Ewing attacked the victim, the amount of pain he inflicted, the fact that Ewing relished both the stabbing and the infliction of pain, and the fact that Ewing later wrote a letter to his father in which he stated not only that he had no remorse for what another woman. he The did, but court that further he wished found he Ewing s misdemeanor convictions to be an aggravating factor. could stab 21 prior Finally, as noted above, the court found the infliction of a serious physical injury and the possession of a deadly weapon were aggravating factors. outweighed the The court found the aggravating factors mitigating factors 22 and that the aggravated assault warranted the aggravated term of 16.25 years imprisonment. 5 ¶38 The record shows the trial court s focus was on the harm Ewing caused the victim and the factors which rendered the offense especially possessed a heinous, deadly cruel weapon was or depraved. among the least That Ewing important factors if not the least important factor - in the court s consideration, and there is nothing in the record to indicate the possession of a deadly weapon was the factor which caused the court assault. to impose the aggravated sentence for aggravated Because Ewing has failed to show the trial court would have imposed a lesser sentence if this single additional factor were omitted from the court s consideration, Ewing has failed to show he was prejudiced. C. The Imposition of a Consecutive Sentence ¶39 For the offense of misconduct involving weapons, the trial court found no aggravating factors were applicable because the offense offenses. years was separate and distinct from the other two The court imposed the presumptive sentence of 4.5 imprisonment and ordered that the sentence be served consecutively to the concurrent sentences for attempted first 5 Ewing was sentenced pursuant to the version of A.R.S. § 13-703 that was revised in 2008 to provide defined mitigated, minimum, presumptive, maximum and aggravated terms of imprisonment. 23 degree murder and aggravated assault. As the last sentencing issue on appeal, Ewing argues the trial court erred when it ordered the sentence served consecutively. for misconduct involving weapons to be Ewing argues the court did not properly analyze the facts of the offense and contends that all three offenses were factually a single, impossible to indistinguishable commit murder without also possessing the knife. or act: that aggravated it was assault See A.R.S. § 13-116 (2009) (an act punishable under more than one section of the criminal code may be punished under both, but the sentences imposed must be concurrent). We review de novo whether consecutive sentences are permissible. State v. Siddle, 202 Ariz. 512, 517, ¶ 16, 47 P.3d 1150, 1155 (App. 2002). ¶40 assault were alleged and proven to have occurred on October 30, 2009. The offense The of attempted misconduct murder involving and aggravated weapons was alleged to have occurred on or between October 30, 2009 and November 4, 2009. While the victim testified she saw Ewing flee the store holding a knife, the evidence introduced at trial showed police found Ewing in possession of the knife when they searched his room on November 4, 2009. Based on this evidence, the trial court found the offense of misconduct involving weapons was a separate and distinct offense. 24 ¶41 We find no error. While the verdict form did not require the jury to identify the date Ewing possessed the knife, the date of the offense involving weapons. is not an element See A.R.S. § 13-3102(A)(4). of misconduct Therefore, it was not necessary to have the jury determine the date of the offense beyond a reasonable doubt. The evidence introduced at trial established Ewing possessed the knife on November 4, 2009. This was sufficient to permit the trial court to find the offense was a separate and distinct offense and, in turn, impose a consecutive sentence. 6 See A.R.S. § 13-711 (2008) (except as otherwise law, provided by multiple sentences shall run consecutively unless the court expressly directs otherwise and sets forth its reasons for doing so on the record). 6 Despite Ewing s assertion to the contrary, there is nothing in the record to suggest the trial court believed a consecutive sentence was mandatory. 25 Conclusion ¶42 Because we find no error, we affirm Ewing s convictions and sentences. /s/ ____________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ ANN A. SCOTT TIMMER, Presiding Judge /s/ ____________________________________ PATRICK IRVINE, Judge 26

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