from the Superior Court in Pima County No. CR20164314001 The
Honorable Casey F. McGinley, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
Feinman, Pima County Public Defender By Erin K. Sutherland,
Assistant Public Defender, Tucson Counsel for Appellant
Presiding Judge Vásquez authored the opinion of the
Court, in which Judge Espinosa and Judge Eppich concurred.
VÁSQUEZ, PRESIDING JUDGE
After a jury trial, Alejandro Duarte was convicted of
burglary, aggravated assault, and three counts of disorderly
conduct. The trial court imposed concurrent prison terms, the
longest of which was 3.25 years. On appeal, Duarte challenges
the sufficiency of the evidence to support his burglary and
aggravated assault convictions, arguing that under A.R.S.
§ 13-1204(A)(4) a "sleeping victim's capacity
to resist is not substantially impaired." He also
contends the court erred in precluding a victim's prior
conviction for impeachment purposes. For the following
reasons, we affirm.
and Procedural Background
We view the facts in the light most favorable to affirming
Duarte's convictions. See State v. Brown, 233
Ariz. 153, ¶ 2 (App. 2013). Duarte and J.C. had been in
an on-again, off-again relationship for several years and had
three children, M.D., A.D.J., and A.D. One afternoon in May
2016, Duarte called J.C. several times, threatening to go to
J.C.'s house to "[b]reak [her] stuff" and
"hurt [her]." J.C. told him not to come over.
That evening, J.C, her friend V.M., A.D.J., and A.D. went to
the mall and got dinner. After returning home, J.C. and
A.D.J. went to sleep in J.C.'s bed, A.D. slept in her
room, and V.M. fell asleep on the couch in the living room.
Later that night, Duarte entered J.C.'s house through the
unlocked back door. He went into J.C.'s room and began
hitting her. Duarte demanded to "look through [her]
phone," grabbed it, and refused J.C.'s requests to
return it. He then went outside and threw it on the sidewalk,
A grand jury indicted Duarte for one count of second-degree
burglary, aggravated assault on an incapacitated victim
(J.C), and three counts of disorderly conduct (V.M., A.D.J.,
and A.D.). He was convicted as charged and sentenced as
described above. We have jurisdiction over Duarte's
appeal pursuant to A.R.S. §§ 12-120.21(A)(1),
13-4031, and 13-4033(A)(1).
of the Evidence
Duarte argues his burglary and aggravated assault convictions
"must be reversed because there was insufficient
evidence that [J.C] was incapacitated within the meaning of
the statute defining aggravated assault." We review de
novo the sufficiency of the evidence and issues of statutory
interpretation. State v. Bon, 236 Ariz. 249, ¶
5 (App. 2014); State v. Latham, 223 Ariz. 70, ¶
9 (App. 2009).
Pursuant to § 13-1204(A)(4), "[a] person commits
aggravated assault if the person commits assault as
prescribed by [A.R.S.] § 13-1203 . . . while the victim
is bound or otherwise physically restrained or while the
victim's capacity to resist is substantially
impaired." Here, the state agreed J.C. was not bound
or physically restrained; thus, the only issue was whether
her capacity to resist was substantially impaired. Pursuant
to A.R.S. § 13-1507(A), "[a] person commits
burglary in the second degree by entering or remaining
unlawfully in or on a residential structure with the intent
to commit any theft or any felony therein." Here, the
state argued the felony Duarte intended to commit was
aggravated assault under § 13-1204(A)(4).
As he did below, Duarte challenges the meaning of §
13-1204(A)(4), arguing that "[s]leep does not constitute
substantial impairment of a victim's capacity to resist
because it is a temporary and fleeting state." He
reasons that "a sleeping victim's capacity to resist
is not substantially impaired" because such a victim
"has the ability to immediately awake[n] and defend [him
or herself] as soon as the attack begins." This issue
requires us to interpret the language of §
When interpreting statutes, our duty "is 'to give
effect to the legislature's intent.'" State
v. Miller, 226 Ariz. 190, ¶ 12 (App. 2011) (quoting
State v. Hinden, 224 Ariz. 508, ¶ 9 (App.
2010)). In doing so, we first consider the language of the
statute, State v. Derello, 199 Ariz. 435, ¶ 21
(App. 2001), giving "every word and phrase its
'usual and commonly understood meaning unless the
legislature clearly intended a different meaning, '"
State v. Randles, 235 Ariz. 547, ¶ 8 (App.
2014) (quoting Bilke v. State, 206 Ariz. 462, ¶
11 (2003)); see also State v. Pena, 235 Ariz. 277,
¶ 6 (2014) (we may look to dictionaries for common
meanings). "When the statute's language is plain and
unambiguous, we must follow the text as written."
Derello, 199 Ariz. 435, ¶ 21.
The language at issue here is "while the victim's
capacity to resist is substantially impaired." §
13-1204(A)(4). This court has previously interpreted that
language, applying the common meanings of the words. See
In re Maricopa Cty. Juv. Action No. JV123196, 172 Ariz.
74, 77-78 (App. 1992). Using a dictionary to guide our
analysis, we concluded the language also means while the
victim's ability to refuse to submit is considerably
weakened. See id. at 77 (citing
Webster's New World Dictionary 209, 703, 1210,
1420 (2d coll. ed. 1982)).
In Maricopa County Juvenile Action No. JV123196, we
concluded that § 13-1204(A)(4) did not apply when a
juvenile twice sprayed the victim in the face with an unknown
substance, "causing tears to form and a burning
sensation around the [victim's] eye." 172 Ariz. at 75,
78-79. The victim was able to flee on his bicycle after the
second spray. Id. at 75. Notwithstanding that the
victim was able to escape, we determined the trial court did
not abuse its discretion "in finding that the
victim's capacity to resist was substantially
impaired" because "after he was sprayed the second
time, the victim's vision was blurred to the point where
it was difficult for him to ride his bicycle."
Id. at 78. We explained, "The fact that he did
escape may bear on the degree of impairment, but it is not
determinative." Id. However, we concluded that
"even if the second spray did substantially impair him,
the assault was essentially over at that point" because
the short distance the juvenile chased the victim after the
second spray was "too closely tied to the original
assault, and too fleeting." Id. Accordingly, we
modified the juvenile's adjudication of delinquency to
simple assault rather than aggravated assault. Id.
State v. Barnett, 173 Ariz. 282 (App. 1991), is the
only other published decision addressing the meaning of
§ 13-1204(A)(4). In that case, the victim testified he
had been hit in his eye, dropped to his knees, and felt
someone on top of him followed by "a series of
electrical shocks on his chest underneath his heart."
Barnett, 173 Ariz. at 283. A majority of this court
affirmed the defendant's aggravated assault conviction
based upon an assault occurring "while the victim [was]
physically restrained." Id. at 285. However,
the dissenting judge believed the defendant's conviction
should have been reduced to simple assault because "the
statute requires something more substantial than the
momentary restraint that occurred in this case."
Id. at 287. As relevant here, the dissenting judge
also addressed "whether the victim's capacity to
resist was substantially impaired." Id. at 286.
"[T]he victim's capacity to resist was
impaired" but not "substantially
impaired" because "[t]here was no testimony that
the victim was ever rendered groggy and disoriented" and
the victim testified that he had "continue[d] to
Here, J.C. purportedly was incapacitated not by a chemical
spray to the face or a stun gun, but by sleeping. Sleep is
defined as "[a] natural periodic state of rest for the
mind and body, in which the eyes are usually close[d] and
consciousness is completely or partially lost, so that there
is a decrease in bodily movement and responsiveness to
external stimuli." The American Heritage
Dictionary 1646 (5th ed. 2011). Based on this common
definition, we conclude that sleeping plainly renders a
"victim's capacity to resist . . . substantially
impaired." § 13-1204(A)(4). Put another way, being