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State v. Hancock

ARIZONA COURT OF APPEALS DIVISION TWO
Jun 26, 2018
No. 2 CA-CR 2017-0228 (Ariz. Ct. App. Jun. 26, 2018)

Opinion

No. 2 CA-CR 2017-0228

06-26-2018

THE STATE OF ARIZONA, Appellee, v. BRIAN K. HANCOCK, Appellant.

COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Law Offices of Trent R. Buckallew P.C., Mesa By Trent R. Buckallew 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NOT FOR PUBLICATION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 Greenlee County
No. CR201400060
The Honorable Monica L. Stauffer, Judge

AFFIRMED

COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee Law Offices of Trent R. Buckallew P.C., Mesa
By Trent R. Buckallew
Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:

¶1 Brian Hancock appeals from his sentences for two counts of sexual abuse and one count of sexual conduct with a minor. He contends the trial court improperly allocated significant weight to a jury finding that his offenses caused the victim to suffer emotional harm, and that the court failed to make an adequate record to support finding emotional harm as an aggravating circumstance to impose maximum prison sentences. For the reasons that follow, we affirm Hancock's sentences.

Factual and Procedural Background

¶2 Between May and July 2013, Hancock engaged in sexual conduct with his then fifteen-year-old step-daughter, M.H. After a jury trial, he was convicted of two counts of sexual abuse and one count of sexual conduct with a minor. The trial court sentenced him to a maximum term of ten years for the sexual conduct count, a concurrent two-year term for one count of sexual abuse, and a consecutive two-year term for the other count of sexual abuse. See A.R.S. §§ 13-702(D), 13-1404(B), 13-1405(B).

We cite the current version of the applicable statutes because no revisions material to this decision have since occurred.

¶3 This court affirmed Hancock's convictions on appeal, but concluded the trial court had improperly relied on two aggravating circumstances—betrayal of trust and commission of the offenses in the presence of a child. State v. Hancock, 240 Ariz. 393, ¶¶ 22, 29 (App. 2016). We therefore remanded the case for resentencing, concluding it was impossible to say whether the court would have imposed the same sentences absent its reliance on inapplicable aggravating circumstances. Id. ¶¶ 29-30. On remand, the court weighed the two remaining aggravating circumstances—commission of a prior felony and emotional harm to the victim—giving "significant weight" to the latter. And, after considering the support of Hancock's family and friends as a mitigating factor, the court again imposed maximum sentences and ordered one of the two-year terms for sexual abuse to run consecutively to the ten-year term for sexual conduct. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(4).

Emotional Harm to Victim

¶4 Hancock argues that, at sentencing on remand, the trial court improperly allocated significant weight to the emotional harm suffered by M.H. Specifically, he asserts that the impact of the emotional harm suffered by a victim must be evaluated by determining the extent to which it exceeds the harm suffered by similarly situated victims. We review sentencing determinations for abuse of discretion. State v. Davolt, 207 Ariz. 191, ¶ 112 (2004).

¶5 Hancock bases his argument on State v. Germain, 150 Ariz. 287 (App. 1986), which addressed the determination of whether a trial court may find an aggravating circumstance not listed in the statute when it is also an element of the underlying offense. Id. at 290; see also A.R.S. § 13-701(D). Germain instructs that in such situations, a court should consider the "subjective question[]" of the degree of the defendant's misconduct, and may find an aggravating circumstance only when the degree of misconduct was greater than the minimum required to establish the elements of the offense. 150 Ariz. at 290.

¶6 Germain, however, does not apply where the legislature has specifically enumerated the aggravating circumstance that is also an element of the crime or that circumstance is not an element of the underlying crime. See State v. Lara, 171 Ariz. 282, 284 (1992). Emotional harm is explicitly listed as an aggravating circumstance, § 13-701(D)(9), and is not an element of sexual abuse, § 13-1404(A), or sexual conduct with a minor, § 13-1405(A). See also A.R.S. § 13-1401(2), (3).

¶7 Any emotional harm established beyond a reasonable doubt will constitute an aggravating circumstance for the purposes of imposing a maximum sentence, regardless of degree. § 13-701(C), (D)(9). Emotional harm is generally defined as subjectively experienced damage to one's state of mind that is distinct from physical harm, irrespective of the amount of damage or negative effects. State v. Coulter, 236 Ariz. 270, ¶ 7 (App. 2014).

¶8 The weight that an aggravating or mitigating circumstance has on sentencing is generally left to the discretion of the trial court. See State v. Harvey, 193 Ariz. 472, ¶ 24 (App. 1998). Further, to justify the imposition of a maximum sentence, the court need only rely on one aggravating circumstance. § 13-701(C). The circumstance, or circumstances, that the court relies on to impose a maximum sentence within the statutory limits only needs to be sufficient and appropriate. See State v. Gillies, 142 Ariz. 564, 573 (1984).

¶9 In this case, due to the sexual abuse inflicted by Hancock, the victim experienced emotional harm that was evinced by fear, crying, anxiety, and uneasiness about innocent physical contact. Accordingly, we conclude Hancock has not established that the court abused its discretion in applying the aggravating circumstance of emotional harm, as found by the jury, to impose a maximum sentence.

Factual Findings to Support Imposition of Maximum Sentence

¶10 Hancock also argues that, at the time of sentencing, the trial court erred in failing to provide specific factual findings, with support, related to the aggravating circumstance of emotional harm. Under § 13-701(C), however, trial courts are only required to identify their reasons for imposing a particular sentence at the time of sentencing. State v. Bonfiglio, 231 Ariz. 371, ¶ 12 (2013). This means courts must articulate the aggravating circumstances that the jury found and how they led to the sentence imposed. See id. ¶ 14.

The state argues that because Hancock did not raise this issue in the trial court, we should only review for fundamental error, and consider the issue waived because Hancock did not raise fundamental error on appeal. However, when, as here, there was no procedural opportunity to object to the sentence before the court pronounced it, a party does not waive alleged sentencing error by failing to object during sentencing. See State v. Vermuele, 226 Ariz. 399, ¶¶ 6-9 (App. 2011). --------

¶11 Here, the trial court explained that it relied on the aggravating circumstance of emotional harm, which was found by the jury. The court also explained how the "significant weight" afforded to the emotional harm, together with its consideration of Hancock's prior felony conviction and support from family and friends as additional factors, led it to impose the maximum sentences. See § 13-701(D)(9), (11), (E)(6). The court, therefore, did not abuse its discretion.

Disposition

¶12 For the foregoing reasons, we affirm Hancock's sentences.


Summaries of

State v. Hancock

ARIZONA COURT OF APPEALS DIVISION TWO
Jun 26, 2018
No. 2 CA-CR 2017-0228 (Ariz. Ct. App. Jun. 26, 2018)
Case details for

State v. Hancock

Case Details

Full title:THE STATE OF ARIZONA, Appellee, v. BRIAN K. HANCOCK, Appellant.

Court:ARIZONA COURT OF APPEALS DIVISION TWO

Date published: Jun 26, 2018

Citations

No. 2 CA-CR 2017-0228 (Ariz. Ct. App. Jun. 26, 2018)