Court of Appeals of Arizona, Second Division, Department B
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20114301001 Honorable Howard Fell, Judge Pro Tempore
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Nicholas Klingerman Tucson Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender By Abigail Jensen Tucson Attorneys for Appellant
PHILIP G. ESPINOSA, Judge
¶1 Armando Pena Jr. appeals from his convictions following a jury trial of one count each of kidnapping and aggravated assault with a deadly weapon and three counts of aggravated assault causing temporary and substantial disfigurement. He asserts there was insufficient evidence supporting two of the three counts of aggravated assault causing disfigurement and that the criminal restitution order (CRO) the trial court entered at sentencing was improper. For the reasons set forth below, we reduce the conviction for one count from aggravated assault to assault and remand for resentencing on that count. We also vacate the CRO, and affirm Pena's remaining convictions and sentences.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the jury's verdicts. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). On November 12, 2011, Pena repeatedly assaulted the victim, at times with a knife or other sharp object, and at one point dragged her back into her home after she attempted to flee. She sustained injuries to her leg, hand, and abdomen. The injury to her leg was a "three to four inch" laceration "down into the fatty tissue and into the muscle." Her hand injury was a three-inch cut covering her "entire left palm, " and was "full thickness, which means it went through all the layers of the skin" revealing muscle tissue. Her abdominal injury was a puncture wound approximately two centimeters long, exposing some "fatty tissue."
¶3 Pena was charged and convicted as described above and the trial court sentenced him to concurrent prison terms, the longest of which was 10.5 years for kidnapping. The court ordered at sentencing that "all fines, fees, and assessments are reduced to a [CRO], with no interest, penalties or collection fees to accrue while the defendant is in the Department of Corrections." This appeal followed.
Sufficiency of the Evidence
¶4 We review de novo the sufficiency of the evidence to support a conviction. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). We view the facts in the light most favorable to upholding the jury's verdict and resolve all conflicts in the evidence against the defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). "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 v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). To the extent our decision depends on the interpretation of a statute, our review is de novo. State v. George, 206 Ariz. 436, ¶ 6, 79 P.3d 1050, 1054 (App. 2003).
¶5 Relevant here, a person commits aggravated assault if he or she commits assault as defined by A.R.S. § 13-1203 and "causes temporary but substantial disfigurement." A.R.S. § 13-1204(A)(3). Because the state charged each of the three wounds as separate counts of aggravated assault, we do not view the injuries collectively when analyzing whether the state presented sufficient evidence of "temporary but substantial disfigurement"; rather, we consider whether the state presented sufficient evidence as to each charged injury.
¶6 Pena contends the injuries to the victim's hand and abdomen did not constitute substantial disfigurement and the two separate convictions for those injuries must be vacated. Specifically, he argues the state presented inadequate evidence from which the jury could conclude those injuries affected the victim's appearance sufficiently to characterize them as substantially disfiguring. As to the puncture wound to the victim's abdomen, Pena emphasizes that the location of that injury is generally covered by clothing and therefore could not be considered disfiguring under any circumstances. To address these claims, we must consider what injuries may be properly characterized as causing temporary but substantial disfigurement.
¶7 Neither "disfigurement " nor "substantial disfigurement " are defined in Arizona statute, and Arizona courts have never addressed the meaning of those terms as they are used in § 13-1204(A)(3). Under such circumstances, we must give statutory language "its ordinary, common meaning." Funk v. Indus. Comm 'n, 167 Ariz. 466, 469, 808 P.2d 827, 830 (App. 1991). Accordingly, when our courts have had occasion to clarify and apply either of those terms, they have done so with primary reference to accepted dictionary definitions.
¶8 In State v. Garcia, this court addressed the meaning of "serious . . . disfigurement" in relation to the definition of serious physical injury for aggravated assault under § 13-1204(A)(1). 138 Ariz. 211, 214, 673 P.2d 955, 958 (App. 1983). There, we determined that, in order to constitute disfigurement, an injury must "impair the visible appearance of the victim." Id., citing Black's Law Dictionary (4th ed. 1968). We read these related provisions in pari materia, see State ex rel. Larson v. Farley, 106 Ariz. 119, 122, 471 P.2d 731, 734 (1970), making that ...