Court of Appeals of Arizona, Second Division, Department A
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20113700001 Honorable Jose H. Robles, Judge Honorable Richard D. Nichols, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Amy M. Thorson Tucson Attorneys for Appellee.
Harriette P. Levitt Tucson Attorney for Appellant.
JOSEPH W. HOWARD, Chief Judge.
¶1 Following a jury trial, appellant Amy Gustafson was convicted of aggravated robbery, kidnapping, assault, second-degree burglary, aggravated assault on an incapacitated victim, and theft of a credit card. The jury found the allegations of dangerousness proven as to the aggravated robbery and kidnapping charges, and the trial court imposed concurrent sentences, the longest of which is 10.5 years. Gustafson appeals solely from the convictions and sentences for aggravated robbery and kidnapping, for which she received enhanced sentences based on the use of a "Taser" stun gun. She argues the court improperly denied her motion to strike the allegation of dangerous nature, filed as part of her motion for a judgment of acquittal, and asks that we vacate the dangerous nature findings and the sentences imposed for aggravated robbery and kidnapping and remand for resentencing without the dangerous nature enhancement. Because the trial court did not err, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). In October 2011, a male intruder, later identified as Albert Lewis,  kicked in the door of the victim's home. Lewis "tased" the victim, and she "immediately dropped . . . [a]nd [could not] recall how long [she was] out." The victim testified that Lewis "got on top" of her, tied her hands behind her back, and placed duct tape on her ankles, eyes, and mouth. Although she was barely able to "see through the bottom of the duct tape, " the victim realized there was another person in the room whispering to Lewis; she recognized the voice of the other individual as Gustafson, who was a previous acquaintance. The victim testified "[Lewis] tried to pick me up and I got dropped on my head on my polished concrete floor and then [I was] rolling back to try to get back up, my head was backing off and I saw [Gustafson]." The victim said, "Amy?" and "got tased [and] fell to the floor again." The victim was then "picked up" and "thrown" onto her bed, "tied with the Ethernet cable around [her] neck and upper arms" binding her to the headboard of her bed, and a blanket was placed over her head.
¶3 "[A]s soon as [she] was tased, " the victim told the perpetrators she had a pacemaker, something Gustafson already "knew, " and stated, "[Y]ou don't want to kill me, you do not want to kill me." The victim was shocked with the stun gun "a minimum of three, maybe even four, five times, " and testified that she "[a]bsolutely" was shocked with the stun gun after she had told Gustafson and Lewis she had a pacemaker. The victim testified the intruders then looked at the bank statements in her desk and asked her how to "get " the money reflected on the statements; she provided "fake" bank information and believed she "might have been tased at some point " while she was answering the questions about her banking account. Lewis and Gustafson remained in the victim's home for approximately 1.5 to two hours, after which it took the victim "[a]t least an hour and a half to two hours" to free herself and call the police. When the police arrived, she gave them a description of Lewis and provided Gustafson's name. The victim declined medical attention.
¶4 The lead detective in the case testified that during a search of Gustafson's home, officers discovered several items, including duct tape, a box containing a stun gun and the victim's purse, and other items belonging to the victim. During his testimony, the detective described having found a box with a stun gun which also contained "the probes on top of the [stun gun]." He further explained: "And the way this device works, this particular one, . . . you plug it into the wall to charge it. . . . [A]nd you press the button and you contact the skin, preferably on the person that you want to tase, and it gives them a shock."
¶5 During the oral argument on her written motion for a judgment of acquittal/strike allegation of dangerous nature offense, Gustafson asked, inter alia, that the court strike the dangerous nature allegation regarding the aggravated robbery, kidnapping, and aggravated assault counts, and that it present the aggravated assault count to the jury as simple assault. Acknowledging that a stun gun could constitute a dangerous instrument, Gustafson nonetheless argued that because the victim did not sustain any serious injuries here, the stun gun did not rise to that level. The state pointed out that the victim, who had a heart condition, had "lost the ability to stand" and had fallen onto a concrete floor after she was first shocked with the stun gun. Thus, the state argued, it was up to the jury to decide if the stun gun, as used here, constituted a dangerous instrument. The trial court denied the Rule 20, Ariz. R. Crim. P., motion as to all counts and subsequently denied the motion to strike the dangerous nature allegations. The court noted, however, that it would give the jury a "serious physical injury" instruction and provide lesser-included offenses for unlawful imprisonment and assault.
Dangerous Nature Allegations
¶6 On appeal, Gustafson claims the trial court erred in denying her Rule 20 motion for a judgment of acquittal on the dangerous nature allegations of the aggravated robbery and kidnapping charges. She maintains a stun gun is not a deadly weapon or dangerous instrument under Arizona law, asserting this is a matter of first impression, and further argues the state did not present substantial evidence whether a stun gun, as used here, would qualify as a dangerous instrument. Gustafson further contends that, in the absence of evidence that the victim sustained any physical injury, the victim had no basis to support her fear that she might suffer a heart attack or to conclude that "the manner in which the taser was used" rendered it "readily capable of causing death or serious physical injury." (Emphasis omitted.) Therefore, Gustafson contends, the record contained no basis upon which to send a dangerousness allegation to the jury nor did the evidence support the jury's finding of a dangerous offense. She thus concludes the court erred in enhancing her sentences pursuant to A.R.S. § 13-704 (sentencing statute for dangerous offenders).
¶7 We review de novo the denial of a motion for a judgment of acquittal. State v. Tucker, 231 Ariz. 125, ¶ 27, 290 P.3d 1248, 1261 (App. 2012). On a motion for a judgment of acquittal "'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Parker, 231 Ariz. 391, ¶ 70, 296 P.3d 54, 70 (2013) (emphasis omitted), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). As long as the record contains substantial evidence establishing the elements of the offense, a motion for a judgment of acquittal must be denied. See id. Substantial evidence is "'such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. West, 226 Ariz. 559, ¶ 16, 250 P.3d 1188, 1191 (2011), quoting State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990).
¶8 To prove Gustafson committed aggravated robbery and kidnapping in a manner that would qualify those offenses as "dangerous, " the state was required to establish that she used a deadly weapon or dangerous instrument to commit the offenses as defined by A.R.S. §§ 13-105(13), 13-1902, 13-1903, and 13-1304(A). A "dangerous offense" for sentence enhancement purposes is one that involves, in relevant part, "the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument." § 13-105(13). A "dangerous instrument" is "anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury." § 13-105(12). "Serious physical injury" includes "physical injury [impairment of physical condition] that creates a reasonable risk of death, or that ...