Opinion
No. 2 CA-CR 2013-0406
10-28-2014
THE STATE OF ARIZONA, Appellee, v. SHAYNE PATRICK LUNDEEN, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy Pignatella Cain, Assistant Attorney General, Phoenix Counsel for Appellee John William Lovell, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20123635001
The Honorable Deborah Bernini, Judge
AFFIRMED
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Phoenix
Counsel for Appellee
John William Lovell, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Following a jury trial, appellant Shayne Lundeen was convicted of two counts of aggravated assault. On appeal, he argues the convictions were multiplicitous and thus violated the constitutional prohibition against double jeopardy. Because the convictions were not multiplicitous, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the convictions. State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). In September 2012, A.A. was preparing to ride his trike along a paved path when he heard Lundeen shouting nearby. Lundeen then "came right towards" A.A. while swinging a chain in one hand and a club in the other. A.A. raised his trike to block Lundeen, and the club and chain struck and injured his finger and damaged his trike.
A.A. described his trike as similar to a recumbent bicycle: "It's got three wheels. You put your feet on the two back wheels and the front wheel is hooked onto your handle bars. You go up and you just stand on it . . . and you maneuver . . . and it goes forward . . . ."
¶3 Lundeen was charged and convicted as noted above. The trial court sentenced him to mitigated, concurrent five-year prison terms. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Discussion
¶4 Lundeen argues on appeal that his convictions were multiplicitous, thus violating the constitutional prohibition against double jeopardy, and one of them should be vacated. He contends that "[t]he assault was one act," and therefore only one aggravated assault conviction is appropriate. Lundeen is raising this argument for the first time on appeal, but "the prohibition against double jeopardy is a fundamental right that is not waived by the failure to raise it in the trial court." State v. Millanes, 180 Ariz. 418, 421, 885 P.2d 106, 109 (App. 1994). And because multiplicity issues implicate double jeopardy, we conduct a de novo review. State v. Powers, 200 Ariz. 123, ¶ 5, 23 P.3d 668, 670 (App. 2001).
Because both counts are for aggravated assault with a deadly weapon or dangerous instrument, a class three felony, A.R.S. § 13-1204(D), Lundeen points out that "[i]t is, therefore, of no moment whether the conviction comprising Count One or the conviction comprising Count Two is vacated." See Merlina v. Jejna, 208 Ariz. 1, n.4, 90 P.3d 202, 205 n.4 (App. 2004) ("The principal danger in multiplicity—that the defendant will be given multiple sentences for the same offense—can be remedied at any time by merging the convictions and permitting only a single sentence.").
¶5 Multiplicitous convictions based on the same offense violate the Double Jeopardy Clauses of the United States and Arizona Constitutions. State v. Ortega, 220 Ariz. 320, ¶ 9, 206 P.3d 769, 772 (App. 2008); see also U.S. Const. amend. V; Ariz. Const. art. II, § 10. The general test for whether a defendant has been punished twice for the same offense is "to examine the elements of the crimes for which the individual was sentenced and determine 'whether each [offense] requires proof of an additional fact which the other does not.'" State v. Eagle, 196 Ariz. 188, ¶ 6, 994 P.2d 395, 397 (2000), quoting Blockburger v. United States, 284 U.S. 299, 304 (1932). Where the convictions stem from the violation of the same criminal statute, we must determine whether the convictions are based on separate and distinct acts or courses of conduct. See State v. Via, 146 Ariz. 108, 116, 704 P.2d 238, 246 (1985). Convictions stemming from separate and distinct acts or courses of conduct are not multiplicitous. See id.; see also Blockburger, 284 U.S. at 302-04 (if individual acts prohibited, each punishable separately); State v. Miranda, 198 Ariz. 426, 430, ¶ 20, 10 P.3d 1213, 1217 (App. 2000) (finding defendant's multiple convictions did not violate double jeopardy because defendant's three gun shots constituted three separate acts).
¶6 Here, Lundeen was convicted of two counts of aggravated assault pursuant to the same statute, A.R.S. § 13-1204(A)(2), and we therefore must determine whether each charge arose from separate and distinct acts. See Via, 146 Ariz. at 116, 704 P.2d at 246. Aggravated assault, as relevant here, occurs when a person commits assault and "uses a . . . dangerous instrument." § 13-1204(A)(2). Count One alleged that Lundeen committed aggravated assault with a chain and Count Two alleged that Lundeen committed aggravated assault with a club. Each count thus identified a "specific and separate" instrument and corresponded to a different act undertaken by Lundeen. Via, 146 Ariz. at 116, 704 P.2d at 246; Ortega, 220 Ariz. 320, ¶¶ 14-15, 206 P.3d at 774. Consequently, Lundeen was not convicted twice for the same act and the convictions are not multiplicitous. See Miranda, 198 Ariz. 426, ¶ 20, 10 P.3d at 1217; see also Via, 146 Ariz. at 116, 704 P.2d at 246.
¶7 To the extent Lundeen argues that testimony showed that the chain and club were a single item, as opposed to two distinct items, we reject this argument. "The credibility of witnesses and the weight given to their testimony are issues for the jury, not the court." State v. Bustamante, 229 Ariz. 256, ¶ 5, 274 P.3d 526, 528 (App. 2012). A.A. testified that Lundeen held the stick in one hand and the chain in the other. Lundeen testified that the chain was tied to, and wrapped around, the stick. The verdicts establish that the jury implicitly found A.A.'s testimony more credible than Lundeen's testimony, a determination to which we defer. See id.
Lundeen appears to contend we should defer to the trial court's remark during sentencing that it believed the assault "was a single act that involved a stick with a chain wrapped around it in this matter." While this comment was relevant to the court's sentencing considerations, it was for the jury, not the court, to determine which witness to believe and whether the state had met its burden of proof as to each element of each count. Bustamante, 229 Ariz. 256, ¶ 5, 274 P.3d at 528; see also State v. Preston, 197 Ariz. 461, ¶ 12, 4 P.3d 1004, 1009 (App. 2000). Consequently, we reject Lundeen's apparent suggestion that we defer to the court's comments during sentencing when reviewing this issue.
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Disposition
¶8 For the foregoing reasons, we affirm Lundeen's convictions and sentences.