Opinion
No. 2 CA-CR 2017-0255
10-03-2018
THE STATE OF ARIZONA, Appellee, v. ERIC DOUGLAS BRYAN, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Cochise County
No. CR201700052
The Honorable James L. Conlogue, Judge
AFFIRMED AS MODIFIED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Following a jury trial, appellant Eric Bryan was convicted of four counts of aggravated assault, five counts of discharging a firearm at a residential structure, one count of first-degree burglary, and one count of possession of burglary tools. The trial court found he had two or more historical prior felony convictions and sentenced him, as a category three repetitive offender, to a combination of concurrent and consecutive presumptive prison terms of 47.25 years.
¶2 Counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), stating she had reviewed the record and found no arguable question of law to raise on appeal. Consistent with Clark, she provided "a detailed factual and procedural history of the case with citations to the record," 196 Ariz. 530, ¶ 32, and she asked this court to search the record for error. Bryan did not file a supplemental brief.
¶3 In the course of our review, we identified arguable issues for appellate review and, pursuant to Penson v. Ohio, 488 U.S. 75, 83-84 (1988), we asked appellate counsel and the state for further briefing on the issues of whether any of Bryan's convictions for aggravated assault were the result of duplicitous charges and whether his consecutive sentence on the burglary charge was permissible under A.R.S. § 13-116. We also asked the parties to address whether Bryan's possession of a handgun, used to commit the aggravated assaults, was sufficient to support his conviction for possession of burglary tools. Upon further review, we modify his sentences for burglary and possession of burglary tools, and affirm his convictions and sentences as modified.
Factual and Procedural Background
We view the facts in the light most favorable to sustaining Bryan's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2 (App. 2013).
¶4 In the early morning hours of January 16, 2017, J.S. and M.R. were asleep in J.S.'s bedroom, in a mobile home he shared with his mother and brother, when they awoke to find Bryan standing in the bedroom, waving a handgun at them and asking J.S. "why [he] was f***ing [Bryan's] girlfriend." Bryan then fired a shot at the foot of the bed, and he left the bedroom after J.S. assured him he was not going to call the police. Seconds later, five shots were fired through J.S.'s window, and one of them struck M.R.
¶5 Bryan was charged with and convicted of first-degree burglary, possession of burglary tools, five counts of discharging a firearm at a residential structure, and four counts of aggravated assault. All four of the aggravated assaults were charged under A.R.S. § 13-1204(A)(2), which prohibits commission of an assault "us[ing] a deadly weapon or dangerous instrument." Count four charged Bryan with "point[ing] a handgun at M.R.," and count five charged him with shooting M.R. Counts two and three, respectively, alleged only that Bryan "[a]ssaulted M.R. with a Deadly Weapon, to wit: a handgun" and "[a]ssaulted J.S. with a Deadly Weapon, to wit: a handgun." At trial, a police lieutenant testified that after the police found Bryan, he said, "I didn't mean to hurt her. I was shooting at the outside of the house." But a defense witness, J.H., testified he had been in the area and had seen a woman—and not Bryan—shooting at the trailer and firing "about six [shots]."
Count five alleged that Bryan "shot M.R. in the face with a handgun." Evidence at trial suggested a bullet entered M.R.'s back and exited through her mouth.
¶6 In sentencing Bryan, the trial court identified three groups of offenses and imposed concurrent sentences within each, ordering that each group be served consecutively. Specifically, the court ordered concurrent sentences for counts two, four, and five—the aggravated assaults committed against M.R.—and counts six, seven, and eight—for the "first," "second," and "third time[s]" Bryan had discharged a firearm at a residential structure. Consecutive to those sentences, the court imposed concurrent prison terms for count three—the aggravated assault against J.S.—and counts nine and ten—for the fourth and fifth times Bryan had discharged a firearm at J.S.'s home. Finally, consecutive to those two groups of offenses, the court imposed concurrent terms for counts eleven and thirteen, first-degree burglary and possession of burglary tools.
Discussion
¶7 Ordinarily we review de novo claims of legal error relating to duplicitous charges, consecutive sentences pursuant to § 13-116, and sufficiency of the evidence. See, e.g., State v. Snider, 233 Ariz. 243, ¶ 4 (App. 2013) (sufficiency of evidence); State v. Urquidez, 213 Ariz. 50, ¶ 6 (App. 2006) (consecutive sentence in compliance with § 13-116); State v. Ramsey, 211 Ariz. 529, ¶ 5 (App. 2005) (duplicitous indictment). Because Bryan did not raise these issues at trial, he has forfeited appellate review of those issues for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19, 20 (2005). "A defendant establishes fundamental error by showing that (1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." State v. Escalante, No. CR-17-0251-PR, 2018 WL 4374241, ¶ 21 (Ariz. Sept. 14, 2018).
Duplicitous Charges
¶8 A duplicitous charge arises when "the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge." State v. Klokic, 219 Ariz. 241, ¶ 12 (App. 2008). When this occurs, a trial court is usually required "'to take one of two remedial measures to insure that the defendant receives a unanimous jury verdict': (1) require the state to elect which of the alleged acts constitutes the crime or (2) instruct the jury that they must unanimously agree on the act that constitutes the crime." State v. West, 238 Ariz. 482, ¶ 33 (App. 2015) (quoting Klokic, 219 Ariz. 241, ¶ 14). Because a criminal defendant has a constitutional right to a unanimous jury verdict, the failure to remedy a duplicitous charge may constitute fundamental error. State v. Davis, 206 Ariz. 377, ¶¶ 61, 64 (2003). However, "it is not reversible error for a trial court to fail to take curative action in circumstances in which there is no reasonable basis for distinguishing between the acts admitted into evidence to establish a single charge," sometimes referred to as "the single transaction exception." Klokic, 219 Ariz. 241, ¶ 25. But "even when both events occur as part of a larger criminal episode," they "may not be considered part of the same criminal transaction if the defendant offers different defenses to each act or there is otherwise a reasonable basis for distinguishing between them." Id. ¶ 32.
¶9 In this case, the state produced evidence of multiple acts to satisfy the general allegations in counts two and three—that Bryan "[a]ssaulted" M.R. and J.S., respectively, "with a Deadly Weapon, to wit: a handgun." The state concedes the indictment failed to identify "with specificity the exact conduct" giving rise to each of those charges, and it further concedes the prosecutor failed to identify any such specific conduct during closing arguments. See State v. Paredes-Solano, 223 Ariz. 284, ¶¶ 17-18 (App. 2009) (duplicitous charge "may be cured when the basis for the jury's verdict is clear [or] when the state elects for the jury which act constitutes the crime").
¶10 Evidence of several different acts could have supported guilty verdicts for counts two and three, suggesting, at least initially, the risk of a non-unanimous verdict. With respect to M.R., Bryan was convicted of aggravated assault for pointing a gun at her, as charged in count four, and for actually shooting her, as charged in count five. Other evidence sufficient to prove count two included testimony that he had fired the gun at the foot of the bed while inside the home, as well as evidence of five shots fired at the home shortly after he left. With respect to J.S., the jury could have found aggravated assault based on Bryan's brandishing the weapon at J.S. after entering the bedroom, his firing a single shot while there, or any of the five shots fired into the bedroom window from outside the mobile home.
¶11 The state argues it "presumably would not have improperly double-charged Bryan," and so we should not construe count two as based on Bryan's pointing a gun at M.R. or actually shooting her, as those acts were already alleged in counts four and five. Noting that "the language in Count 3 pertaining to [J.S.] used the identical language as Count 2," the state then argued that, "by process of elimination," counts two and three "must . . . have pertained to the multiple times" Bryan shot at M.R. and J.S.—"once from within the trailer and five times from outside the trailer." But we cannot conclude the state's assumptions about charging decisions would have been clear to the jury or would have eliminated the risk of a non-unanimous verdict.
¶12 Moreover, although the state suggests that Bryan "did not offer different [defenses] that could have been separately believed or disbelieved" by the jury, Bryan did provide a distinct defense for the five shots fired from outside the home that distinguishes them from the shot fired at the foot of the bed—arguing that the state "has no eyewitnesses to the shooting that occurred outside the trailer" and emphasizing J.H.'s testimony that he had seen a woman firing those shots. These differing defenses provided a reasonable basis for the jury to distinguish between the "indoor" and "outdoor" events; accordingly, we cannot agree with the state's apparent suggestion that all six shots were part of the "single transaction exception" identified in Klokic, 219 Ariz. 241, ¶ 25. Because some jurors could have believed J.H. and returned a guilty verdict based on the shot fired indoors, while others disbelieved him and relied on one of the shots fired outside, the submission of these charges, without an election by the state or a unanimity instruction from the court, created the possibility of a non-unanimous verdict. See id. ¶ 32.
With respect to events that occurred inside the home, Bryan had argued only that J.S. was not a credible witness.
In contrast, we reject Bryan's argument in his supplemental brief that count four—in which the state alleged that he had "pointed a handgun" at M.R.—could have been proved by multiple acts and therefore created a risk of a non-unanimous verdict as to that count. Although Bryan may have pointed the weapon at M.R. more than once while he was inside the bedroom, he did not offer different defenses to any of the acts committed inside the home and "there [wa]s otherwise [no] reasonable basis for distinguishing between them." Klokic, 219 Ariz. 241, ¶¶ 25, 32. However, arguments relevant to count two, as to M.R., are equally relevant to count three, which contains identical allegations as to J.S. We therefore reject the state's suggestion that we regard those arguments, as applied to count three, as waived. See, e.g., State v. Fernandez, 216 Ariz. 545, ¶ 32 (App. 2007) (court will not ignore fundamental error if it sees it).
¶13 However, we agree with the state that, in the context of this case, Bryan has failed to establish any prejudice that would require reversal of any convictions. Cf. State v. Kelly, 149 Ariz. 115, 117 (App. 1986) (duplicitous indictment did not cause reversible error in absence of prejudice "when considered in conjunction with all the evidence in the case"). In Kelly, this court suggested a curative instruction could have been given to inform jurors they could only return a guilty verdict on a duplicitous count "if they unanimously found beyond a reasonable doubt that the defendant pointed a gun at the victim, or if they unanimously found that the defendant caused serious physical injury, or if they unanimously found that both were true." Id. But we concluded there was no prejudice where "overwhelming evidence" established both acts occurred. Id.
¶14 Similarly, in State v. Waller, we pointed out that "not every error requires reversal" and determined the defendant had suffered no prejudice from a duplicitous charge of aggravated assault. 235 Ariz. 479, ¶¶ 34-36 (App. 2014). In that case, the victim testified Waller had appeared in his driveway and confronted him about loud music, struck him in the face, and "pushed a gun 'in[to his] gut.'" Id. ¶¶ 3, 35. In contrast, Waller's defense was that he had only "showed" the weapon to the victim. Id. ¶ 36. We reasoned that either version of events "amply support[ed] a jury finding that Waller '[i]ntentionally plac[ed] another person in reasonable apprehension of imminent physical injury' pursuant to [A.R.S.] § 13-1203(A)(2)." Id. ¶ 36. We further concluded that, under the circumstances, "no juror who convicted Waller based on a belief that he had touched [the victim] with a gun," see § 13-1203(A)(3), "could reasonably have acquitted him of intentionally placing [the victim] in reasonable fear of imminent physical injury" under § 13-1203(A)(2). Id.
¶15 Here, based on the jury's verdicts on other counts, we conclude Bryan was not prejudiced by convictions based on duplicitous charges. As noted above, evidence suggested Bryan had committed several acts of aggravated assault while inside J.S.'s bedroom. See supra note 4. The jury convicted Bryan of first-degree burglary, which required finding that he had entered J.S.'s home unlawfully with the intent to commit aggravated assault, see A.R.S. § 13-1507, and that he had "knowingly possesse[d] . . . a deadly weapon . . . in the course of committing" aggravated assault, A.R.S. § 13-1508. And of course, the jury specifically found Bryan had committed aggravated assault by pointing a gun at M.R., as charged in count four. The evidence was undisputed that J.S. had been in bed beside M.R. when this occurred, and no reasonable jury could have failed to find this act also placed him in reasonable fear of imminent physical injury. Or the jury may have found additional aggravated assaults, as alleged in counts two and three, based on evidence that Bryan had fired a shot at the foot of the bed while he was inside. But there is no possibility of a non-unanimous verdict as to aggravated assaults committed inside the house, as all of these acts were part of "the same criminal transaction"; Bryan offered no separate defenses to the acts and there is no other "reasonable basis for distinguishing between them." Klokic, 219 Ariz. 241, ¶ 32.
¶16 Similarly, because the jury convicted Bryan of five counts of discharging a firearm at a residential structure after he left the mobile home, he was not prejudiced by the risk of a non-unanimous aggravated assault verdict that may have been based on that conduct. These shots, fired from outside after Bryan left the mobile home, constituted a separate criminal episode to which Bryan offered a single defense, based on the testimony of J.H., and there is no reasonable basis for distinguishing between the individual shots. Thus, while Bryan's reliance on J.H.'s testimony may have created the possibility of a non-unanimous verdict, see supra ¶ 12, the jury's guilty verdicts on these offenses, notwithstanding J.H.'s account of events, eliminated that risk. In light of Bryan's convictions for discharging a firearm, committed just after a first-degree burglary based on aggravated assault, we conclude no reasonable jury could have failed to find that the resulting "bullets . . . flying through [J.S.'s] window" were intended to place M.R. and J.S. in reasonable fear of imminent physical injury.
¶17 In other words, we see no possibility of a different result had the trial court instructed this jury that they could return a guilty verdict for counts two and three if they unanimously agreed that one or more acts in evidence constituted aggravated assault for each charge. See Kelly, 149 Ariz. at 117. Based on their other verdicts, no rational jury, had it been properly instructed, could have failed to find the multiple acts in evidence, committed inside and outside the mobile home, constituted aggravated assault as to counts two and three. Under these circumstances, Bryan's convictions were not tainted by the risk of a non-unanimous verdict. See id. Section 13-116, A.R.S.
¶18 We reach a different conclusion, however, with respect to whether the error in duplicitous charging prejudiced Bryan at sentencing, when his sentences for first-degree burglary and possession of burglary tools were imposed consecutively to those for all other charges, including his sentence for pointing a handgun at M.R. as alleged in count four, the only aggravated assault expressly charged as having been committed in the mobile home. Section 13-116 provides, in relevant part, "An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent." To determine whether two convictions arise out of a single "act" for purposes of § 13-116, we apply a "modified identical elements test" set forth in State v. Gordon, 161 Ariz. 308, 314-15 (1989). State v. Viramontes, 163 Ariz. 334, 339 (1990).
¶19 In Gordon, our supreme court first identified "the identical elements test" then in use "to determine whether a constellation of facts constitutes a single act, which requires concurrent sentences, or multiple acts, which permit consecutive sentences." Gordon, 161 Ariz. at 312 (citing State v. Tinghitella, 108 Ariz. 1, 3 (1971)). Under this test, "[t]he offender's conduct is deemed a single act if, after eliminating evidence supporting elements of one charge, remaining evidence will not support elements of additional charges." State v., 152 Ariz. 284, 286 (1987).
¶20 In Noble, the court had applied this test and affirmed consecutive sentences for kidnapping and child molestation based on evidence that the defendant had "dragged [his victim] some distance into some bushes, committed the sexual offense, then 'walked with [her] for a few blocks and released her.'" Gordon, 161 Ariz. at 313 (quoting Noble, 152 Ariz. at 285). But the court in Noble noted that, "in some cases a kidnapping is merely incidental to or inherent in the nature of additionally charged crimes," and it declined to address the "more difficult issue" of "[w]hether moving a victim a slight distance to facilitate commission of another crime is sufficient to support a separate act"—and, thus, a consecutive sentence. Id. (quoting Noble, 152 Ariz. at 287 n.2).
¶21 In Gordon, our supreme court revisited the issue in a case involving burglary, kidnapping, and rape. Id. at 309, 313. The court reasoned that, although "the restraint imposed on [a] victim in the ultimate crime [of rape] necessarily involves the technical commission of a kidnapping," "[t]o hold that consecutive sentences are possible in all such cases"—as they would be under the then-existing test—"circumvents the obvious legislative intent that a single act that violates multiple criminal statutes may be punished only under one of the statutes." Id. at 314. The court therefore expanded the identical-elements test by ad identical ding two concepts "useful in applying and improving the Tinghitella identical elements test." Id.
¶22 The court in Gordon explained that Arizona courts "will continue to apply Tinghitella and judge a defendant's eligibility for consecutive sentences by considering the facts of each crime separately, subtracting from the factual transaction the evidence necessary to convict on the ultimate charge." Id. at 315. "If the remaining evidence satisfies the elements of the other crime, then consecutive sentences may be permissible under A.R.S. § 13-116." Id. A reviewing court must "then consider whether, given the entire 'transaction,' it was factually impossible to commit the ultimate crime without also committing the secondary crime. If so, then the likelihood will increase that the defendant committed a single act," a determination that would preclude a consecutive sentence under § 13-116. Id. "We will then consider whether the defendant's conduct in committing the lesser crime caused the victim to suffer an additional risk of harm beyond that inherent in the ultimate crime. If so, then ordinarily the court should find that the defendant committed multiple acts and should receive consecutive sentences." Id.; see also State v. Boldrey, 176 Ariz. 378, 382-83 (App. 1993) (concluding "we need not even consider whether the other offenses increased [the victim's] risk of harm" when identical-elements and factual-impossibility factors suggest consecutive sentences "are permissible under § 13-116").
¶23 Thus, as the state acknowledges, a determination of the factual bases for the assault convictions is "a necessary prerequisite to the § 13-116 analysis." Without a clear understanding of the factual basis for the jury's verdicts on counts two and three, we are unable even to determine "a defendant's eligibility for consecutive sentences" under the identical-elements test. Gordon, 161 Ariz. at 315. As addressed above, we have concluded Bryan was not prejudiced by his convictions on duplicative charges, because the other guilty verdicts established acts he had committed both inside and outside the mobile home, and any rational jury would also have found him guilty of counts two and three based on any or all of those acts. But our analysis under § 13-116 presents a different question than what any rational jury—had they been properly instructed about unanimity—"would" have done, in light of their other verdicts. To determine whether convictions for the burglary and any of the aggravated assaults are based on the same "act," and consecutive sentences are therefore prohibited under § 13-116, we must know which acts the jury relied upon in convicting him of counts two and three. As our supreme court has observed, "[a]n appellate court cannot know what did or did not guide a particular jury's determination." Escalante, 2018 WL 4374241, ¶¶ 29-32 (in assessing fundamental-error prejudice from erroneously admitted evidence, court inquires whether objective, rational jury "could have" reached different result absent that evidence, not whether existing jury "would have" done so).
¶24 For example, although Bryan's convictions for counts two and three might have been based on the shot he fired while inside J.S.'s bedroom, when addressing potential error under § 13-116, the state asserts that those counts are "fully supported by just one of the five shots Bryan fired into the trailer following the burglary and his exit from the trailer." We do not disagree with that possible basis for the convictions; as addressed above, the state introduced evidence of multiple acts that would satisfy counts two and three, causing an error through duplicitous charging. But the state's assertion falls far short of establishing its conclusion that counts two, three, and five "did not occur until after the burglary was completed and Bryan had exited the trailer," and that, therefore, "consecutive sentences on the burglary conviction and each of [those] three assault convictions do not pose consecutive-sentencing concerns under § 13-116."
In count five, the state alleged Bryan had assaulted M.R. with a deadly weapon by shooting her. Evidence at trial established the shot that injured M.R. was fired from outside, shortly after Bryan left the mobile home.
¶25 Moreover, even were we to accept the state's conclusory premise, our following analysis would support a finding of both sentencing error and prejudice. Notwithstanding its assertions about counts two and three, the state acknowledges "further analysis" is required to determine whether consecutive sentences are permissible for the burglary alleged in count eleven and the aggravated assault alleged in count four. We agree with the state that the act alleged in count four—that Bryan had pointed a handgun at M.R., "could have occurred only when Bryan was in her presence in the trailer following his unlawful entry." But if we accept the state's construct and apply the analysis set forth in Gordon, beginning with the identical-elements test, the sentence for first-degree burglary cannot be consecutive to the sentence imposed for the aggravated assault charged in count four.
¶26 In the context of the charges and the evidence presented at trial, count four required the state to prove Bryan had used a deadly weapon to intentionally place M.R. in reasonable apprehension of imminent physical injury by pointing a handgun at her. See A.R.S. § 13-1203(A)(2); 13-1204(A)(2). And, to establish first-degree burglary, the state was required to prove that Bryan entered J.S.'s home unlawfully with the intent to commit aggravated assault, and also knowingly possessed a deadly weapon "in the course of committing" aggravated assault. A.R.S. § 13-1508(A); see also § 13-1507(A).
Sections 13-1507 and 13-1508 do not refer to aggravated assault, but to "any theft or any felony." In this case, aggravated assault was the only felony committed inside the home that was charged in the indictment or supported by the evidence.
¶27 Although first-degree burglary is the more serious of the two crimes by felony classification, we conclude the aggravated assault is the ultimate crime for this analysis, as it was "the primary object of the episode" and provides "a factual nexus to all the other crimes." State v. Alexander, 175 Ariz. 535, 537 (App. 1993). Subtracting the facts necessary to convict Bryan of the aggravated assault charged in count four, including the fact that he knowingly possessed a handgun that he pointed at M.R. to commit the assault, the remaining facts establish that Bryan knowingly (1) entered or remained unlawfully in the mobile home (2) with the intent to commit a felony therein. This remaining evidence would be sufficient to satisfy the elements of second-degree (residential) burglary, see § 13-1507, but it was insufficient to satisfy the additional element, required by § 13-1508(A), that Bryan knowingly possessed a deadly weapon or dangerous instrument in the course of committing a felony while inside the home. In other words, once we subtract evidence that Bryan was armed with a gun when he assaulted M.R., a fact necessary to convict him of aggravated assault based on his pointing a gun at her, no evidence remains to prove he knowingly possessed a deadly weapon or dangerous instrument when he committed that felony while in J.S.'s bedroom. Based on the identical-elements test, his convictions for aggravated assault under count four, and for burglary under count eleven, were thus based on a single act, precluding consecutive sentences. See State v. Lee, 185 Ariz. 549, 560 (1996) (under Gordon analysis, "[c]onduct amounts to a single act," precluding consecutive sentences, "if, after eliminating the evidence supporting the [ultimate] charge . . . , the remaining evidence is insufficient to support the elements of the additional charge").
In Bryan's supplemental brief, he asserts that first-degree burglary is the ultimate crime, and because that offense requires possession of a weapon, once that evidence is subtracted from the events, no evidence remains to satisfy the aggravated assaults. We agree that this alternate analysis would eliminate evidence available to convict him of any aggravated assaults committed inside the home, but, as addressed below, we cannot determine the evidentiary bases for his convictions on counts two and three. Moreover, although the first-degree burglary is the more serious offense, the aggravated assaults are at the nexus of these criminal transactions. See Gordon, 161 Ariz. at 315 (ultimate crime is "the one that is at the essence of the factual nexus and that will often be the most serious of the charges").
¶28 Citing State v. Henley, 141 Ariz. 465, 467 (1984), the state argues "the preclusive effect of the Gordon test . . . narrowly applies to a single transaction involving a single victim and a single 'harm' inflicted on that victim, whether or not that harmful conduct supports separate criminal charges." But Henley involved a defendant's convictions for two aggravated assaults based on a single shot that happened to injure two victims. See id. at 466-67. In that case, our supreme court recognized the defendant was "responsible for two separate and distinct injuries and therefore has committed two assaults," but it further noted, "Because both counts are punishable under the same sections of the law, consecutive sentences would not have constituted double punishment in violation of . . . § 13-116." Id. at 467.
¶29 Accordingly, Henley has little relevance to the issues identified in our briefing order. Were we able to determine the evidentiary basis for the jury's verdict on the single aggravated assault against J.S. charged in count three, and also able to determine that the jury relied on the same evidentiary basis to convict Bryan of the general aggravated assault against M.R. alleged in count two, we would agree that, pursuant to Henley, consecutive sentences could be imposed for those two counts without violating § 13-116. Applying the state's suggestion that counts two and three, like the shot that struck M.R. alleged in count five, were committed after Bryan left the mobile home, we are instead concerned with whether Bryan's conduct of pointing a handgun at M.R. may be punished separately for aggravated assault under § 13-1204 and for first-degree burglary under § 13-1508—when the latter crime requires commission of a predicate felony while in possession of a weapon.
¶30 Moreover, in suggesting consecutive sentences are available based on an increased risk of harm to others, in addition to the victim, "whether or not that harmful conduct supports separate criminal charges," the state has conflated the first portion of the Gordon analysis—the identical-elements test—with the last portion, in which we inquire whether a victim has been exposed to an "additional risk of harm" not inherent in the ultimate offense. Gordon, 161 Ariz. at 315. But, as Bryan argues, application of the identical-elements test establishes, in the first instance, that he is not "eligib[le]" for consecutive sentences. Id.; see also State v. Roseberry, 210 Ariz. 360, ¶ 58 (2005) (factual-impossibility and additional-risk-of-harm factors applicable after identical-elements test establishes "consecutive sentences are permissible"); Lee, 185 Ariz. at 560 (identical-elements test conclusively established offenses based on same act, prohibiting consecutive sentences under § 13-116; no additional Gordon factors considered); Alexander, 175 Ariz. at 537 (consecutive sentences "may be permissible" if separate evidence supports finding of separate acts under identical-elements test; separate Gordon factors considered only "[a]ssuming that this first step is satisfied").
We express no opinion on the merits of the state's assertion that courts may consider, in addressing the third prong of the Gordon analysis, whether persons other than the named victim were exposed to an additional risk of harm not inherent in the ultimate crime.
¶31 We recognize this identical-elements analysis is entirely dependent on how the jury reached its verdicts on counts two and three, which we cannot determine on this record. Were we to decline the state's invitation and posit instead that the jury's verdicts with respect to counts two and three were based on the single shot fired inside the home, the result of our analysis, at least with respect to the identical-elements test, would be different: After subtracting the evidence of one of the aggravated assaults, evidence of two other assaults would remain to satisfy the required element for first-degree burglary. Because the actual basis for the jury's verdicts on these counts are unknown and unknowable, however, both propositions are equally unreliable.
For example, in State v. Bush, our supreme court concluded a murder defendant's consecutive sentence for first-degree burglary "satisfies the identical elements test relative to . . . his murder convictions." 244 Ariz. 575, ¶¶ 1, 91, 93 (2018). But the defendant in that case was convicted of multiple felonies, including armed robbery and aggravated assaults, also committed inside a home. Id. at ¶¶ 2-8.
¶32 We thus reject the state's contention that Bryan has waived any assertion of prejudice because he has "made no meaningful attempt to determine the factual bases" of the aggravated assaults "or to even acknowledge which of the assaults, if any, actually occurred during the burglary and which occurred after the burglary." The state failed to elect the evidence on which it relied to prove the general allegations charged in counts two and three, and, as a result, the basis for the jury's verdict on each of those counts is indeterminable.
¶33 As a result of the state's error, Bryan has been denied the right, afforded by § 13-116, to be protected from multiple punishments for the same act. The error was fundamental because that right was "essential to his defense" at sentencing. Escalante, 2018 WL 4374241, ¶ 19. Moreover, we have recognized that imposition of a sentence in violation of § 13-116, like other illegal sentences, constitutes fundamental error. State v. Martinez, 226 Ariz. 221, ¶ 17 (App. 2011).
¶34 We are mindful that Bryan "bears the burden of persuasion" in showing prejudice, Escalante, 2018 WL 4374241, ¶ 21, but we will not fault him for a failure to "acknowledge" what the record does not show and cannot reveal. In the absence of instruction, the jury may simply have convicted Bryan on counts two and three based on conduct committed after the burglary was complete, as the state maintains in its answering brief, without considering evidence of other aggravated assaults. In these circumstances, the prejudice from the imposition of consecutive sentences for burglary and possession of a burglary tool is apparent: Bryan was sentenced to a consecutive 15.75-year prison term because the state failed to elect, at trial, what it now claims to be the evidentiary bases for his convictions on counts two and three. This was fundamental, prejudicial error.
Handgun as Burglary Tool
¶35 In our order for supplemental briefing, we also asked the parties to address the sufficiency of evidence to support Bryan's conviction for possession of burglary tools based on his possession of a handgun used to commit the aggravated assaults. "A person commits possession of burglary tools" by "[p]ossessing any explosive, tool, instrument or other article adapted or commonly used for committing any form of burglary as defined in [A.R.S.] §§ 13-1506, 13-1507 and 13-1508 and intending to use or permit the use of such an item in the commission of a burglary." A.R.S. § 13-1505(A)(1). "[W]hether . . . a tool is a burglary tool 'depends on the use to which the object is put.'" State v. O'Laughlin, 239 Ariz. 398, ¶ 16 (App. 2016) (quoting State v. Smith, 103 Ariz. 490, 492 (1968)).
¶36 After review of the arguments, we conclude sufficient evidence supported Bryan's conviction for possession of a burglary tool, based on his possession of a handgun during the burglary and in the commission of the aggravated assault charged in count four. Of course, a firearm may be possessed for other reasons, and, in the absence of an attempted or completed burglary, the state might have difficulty in proving a defendant's intent to use a weapon "in the commission of a burglary." § 13-1505(A)(1). But we agree with the state that "[f]irearms are clearly commonly used instrumentalities of home invasions and other types of burglaries" and that "Bryan's jury could reasonably have found that he brought a firearm to [J.R.]'s residence," at least in part, for the purpose of "gaining and sustaining entry" into the residence "in the event of potential human or canine interference." Indeed, as the state points out, Bryan's possession of the handgun was essential to his conviction of first-degree residential burglary under § 13-1508, one of the forms of burglary expressly identified in § 13-1505(A)(1).
¶37 Because evidence of the burglary itself was instrumental in proving Bryan possessed the handgun as a burglary tool, we further conclude the trial court correctly ordered his sentences for first-degree burglary and possession of burglary tools to be served concurrently, and we do not disturb that order. The state concedes that the only burglary tool Bryan used was a handgun. His possession of that handgun was also required to prove the aggravated assaults, including count four, committed inside J.S.'s bedroom, and the first-degree burglary charged in count eleven. Applying the identical-elements test and subtracting evidence of the handgun from the entire criminal transaction involving first-degree burglary leaves no evidence to support his possession of the handgun as a burglary tool.
Disposition
¶38 For the foregoing reasons, we affirm Bryan's convictions but modify his sentences on counts eleven and thirteen, for first-degree burglary and possession of burglary tools, by directing that they be served concurrently with his sentence for count four. See State v. Gourdin, 156 Ariz. 337, 339 (App. 1988) (Section 13-4037(A) "authorizes [court of appeals] to modify an illegal sentence imposed upon a lawful finding of guilt").
Pursuant to unmodified portions of the trial court's sentencing minute entry, these sentences will also be concurrent with those imposed for counts two, five, six, seven, and eight. --------