Opinion
No. 2 CA-CR 2017-0295 No. 2 CA-CR 2018-0100 (Consolidated)
05-28-2019
THE STATE OF ARIZONA, Appellee, v. SCOTT ALLEN WOODINGTON, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, 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NOT FOR PUBLICATION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 Pima County
Nos. CR20151778001 and CR20153529001
The Honorable Christopher C. Browning, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee James Fullin, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Chief Judge:
¶1 Scott Woodington appeals from his convictions and sentences for second-degree murder, aggravated assault, aggravated driving under the influence (DUI) and related charges, criminal damage, and endangerment. He contends: (1) the trial court erred in precluding evidence of victim A.H.'s blood-alcohol concentration (BAC) on the night of the collision; (2) the court erred in denying Woodington's motion to preclude evidence of his erratic driving preceding the collision; (3) the evidence was insufficient to sustain his conviction for second-degree murder; (4) the cumulative effect of alleged prosecutorial misconduct during the state's closing argument denied him a fair trial; and (5) the court imposed double punishment in violation of A.R.S. § 13-116 by ordering that his sentence for second-degree murder be consecutive to his sentences for aggravated assault and aggravated DUI. We affirm Woodington's convictions but vacate his sentence for second-degree murder and remand that conviction for resentencing. His remaining sentences are otherwise affirmed.
Three separate appeals are at issue here. Two, consolidated under No. 2 CA-CR 2017-0295, are associated with superior court case No. CR20151778001, which culminated in Woodington's convictions for aggravated assault, aggravated DUI, and related crimes. The third, No. 2 CA-CR 2018-0100, is Woodington's appeal of his conviction for second-degree murder, associated with superior court case No. CR20153529001. Although the second-degree murder appeal is consolidated with the other two appeals under No. 2 CA-CR 2017-0295, it has a separate record under No. 2 CA-CR 2018-0100. The superior court cases were joined for purposes of trial.
Factual and Procedural Background
¶2 "We view the evidence in the light most favorable to sustaining the convictions." State v. Gay, 214 Ariz. 214, ¶ 2 (App. 2007). In May 2015, while driving with a suspended license and a BAC of .290, Woodington recklessly struck the back of A.H.'s motorcycle. The parties stipulated at trial that Woodington had five prior DUI convictions.
¶3 The accident reconstruction indicated that after striking A.H., Woodington accelerated, pushing her motorcycle down the road for over 270 feet while it "folded into" Woodington's car. The deputy further testified that Woodington was traveling over eighty miles per hour at the time of impact. The posted speed limit was fifty miles per hour.
¶4 At trial, several witnesses described Woodington's behavior and demeanor immediately before and after the collision. A.H. rode with two friends, one of whom testified that Woodington repeatedly approached from behind, "coming up very fast," and then bumped her motorcycle, briefly stopped, then "gunned the gas and took off." An off-duty certified emergency medical technician (EMT) stopped at the scene. When he approached Woodington's car, Woodington stated, "I think I hit something." A deputy called to the scene testified that Woodington was unable to stand and smelled strongly of intoxicants. Two additional deputies testified that Woodington smelled of intoxicants, had red, watery eyes, and spoke in a slurred and mumbled manner when they interacted with him after the crash.
¶5 A.H. was transported by helicopter to a hospital, where she was treated for severe trauma, including injuries to her brain and spinal cord resulting in paraplegia. She remained in the hospital for over three months before being relocated to a rehabilitation center. Within one week, A.H. was readmitted to the hospital and treated for a clostridium difficile (C-Diff) infection; she died shortly afterward from the infection and its complications. A.H.'s physician from the rehabilitation center testified that several injuries A.H. sustained, as well as several treatments she underwent for those injuries, may increase a patient's susceptibility to contracting an infection and that antibiotics and prolonged hospital stays are risk factors for contracting C-Diff. The physician who treated A.H. immediately before her death testified that she "died of [C-Diff] sepsis as a result of injuries sustained from her accident." A forensic pathologist similarly concluded that A.H. "died as a result of complications of the blunt force trauma she suffered" during the collision.
¶6 The state originally charged Woodington with two counts of aggravated assault, four felony DUI counts, criminal damage for the destruction of A.H.'s motorcycle, and the criminal endangerment of A.H.'s two riding companions. After A.H. died, the state brought a separate indictment for second-degree murder. A jury convicted Woodington of the murder charge, both counts of aggravated assault, all four felony drunk driving counts, criminal damage, and one count of criminal endangerment. The trial court sentenced him to twenty-five years' imprisonment for second-degree murder. It also imposed prison terms on the remaining convictions, the longest of which were substantially aggravated terms of twenty-two years for each aggravated assault charge, to run concurrently with each other but consecutive to the sentence for the murder conviction.
The jury found Woodington not guilty of the second criminal endangerment charge but guilty of the lesser-included offense of endangerment involving a substantial risk of imminent physical injury.
¶7 Woodington timely appealed all convictions except the second-degree murder conviction. The trial court granted his motion for a delayed appeal of the murder conviction and sentence, which Woodington timely filed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Preclusion of A.H.'s Blood-Alcohol Concentration
¶8 Woodington first argues the trial court erroneously precluded as irrelevant and unduly prejudicial evidence of A.H.'s BAC on the night of the collision, thereby denying his constitutional right to present a defense. The court ruled that because neither party intended to present evidence "that the victim was driving improperly or in some manner contributed to this accident," any evidence regarding A.H.'s BAC was "far, far more prejudicial than probative" and, in fact, carried "no probative value." The court also held there was no foundation for A.H.'s BAC "because there's nothing to correlate it to any kind of driving that she may have been doing or not doing that caused or contributed to this accident." "We review a trial court's ruling on the admissibility of evidence for an abuse of discretion." State v. Tucker, 215 Ariz. 298, ¶ 46 (2007). Because Woodington opposed the preclusion of this evidence, we review for harmless error. See State v. Armstrong, 218 Ariz. 451, ¶ 20 (2008) (preserved objections to evidentiary rulings reviewed under harmless error standard); State v. Henderson, 210 Ariz. 561, ¶ 8 (2005).
¶9 On appeal, Woodington argues that A.H.'s BAC was relevant to a central theory of his defense, specifically that he "was not the sole cause" of the collision, and thus he lacked the degree of recklessness necessary to sustain a second-degree murder charge. The threshold for relevance is low. State v. Leteve, 237 Ariz. 516, ¶ 48 (2015). Woodington presented evidence at trial that lighting, low visibility of A.H.'s black motorcycle, and the interaction between the motorcycle's tail light and city lights in the distance may all have contributed to the "causation paradigm" leading to the collision. Read in conjunction with this evidence, A.H.'s BAC—which demonstrated that she, too, may have been impaired by alcohol and therefore may have been driving erratically herself—supported Woodington's theory that factors other than his recklessness contributed to the collision. See, e.g., State v. Paxson, 203 Ariz. 38, ¶ 17 (App. 2002) (preclusion of speculative testimony regarding accident causation erroneous because evidence need not "be sufficient to support a finding of an ultimate fact"; it is relevant if it "would render the desired inference more probable." (quoting Reader v. Gen. Motors Corp., 107 Ariz. 149, 155 (1971))); State v. Aguilera, No. 1 CA-CR 2009-0371, 2010 WL 2926574, ¶¶ 6-7 (Ariz. App. July 27, 2010) (mem. decision) (evidence of victim's elevated BAC admissible because it tended to make more probable defendant's claim that motorcycle was hardly visible and victim was traveling slowly).
We separately analyze the probative weight of this evidence below.
¶10 But we need not resolve whether the trial court erred in precluding the evidence because any error was harmless. The state presented overwhelming evidence that Woodington acted recklessly and with extreme indifference to human life, the requisite mental state to support a second-degree murder conviction. See State v. Walton, 133 Ariz. 282, 291 (App. 1982) ("[R]eckless second degree murder requires . . . a showing of 'extreme indifference to human life' which created a 'grave risk of death' to another in addition to the requirement of recklessness." (quoting A.R.S. § 13-1104(A)(3))). Error "is harmless if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict." State v. Bible, 175 Ariz. 549, 588 (1993). The inquiry "is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). In other words, error is harmless "when the evidence against a defendant is so overwhelming that any reasonable jury could only have reached one conclusion." State v. Anthony, 218 Ariz. 439, ¶ 41 (2008).
Because we find any error as to this issue harmless, we do not address the trial court's determination, pursuant to Rule 403, Ariz. R. Evid., that evidence of the victim's BAC would be far more prejudicial than probative.
¶11 Here, the state presented evidence that many people observed Woodington's dangerous driving and at least three of them called 9-1-1 to report it. At trial, five witnesses provided details of Woodington's driving. Two of those witnesses testified that Woodington repeatedly approached their vehicles at high speeds, ultimately making contact with their vehicles before speeding off again. One of those witnesses also testified that Woodington exhibited obviously impaired physical behavior while briefly stopped by the road. Woodington's BAC, tested shortly after the collision, was .290, over three times the legal limit. Finally, the state offered evidence that A.H. was driving within her own lane of traffic, that Woodington hit her from behind, and that he accelerated and pushed her motorcycle over 270 feet.
¶12 Not only was the state's evidence that Woodington was both acutely intoxicated and driving with extreme indifference to the safety of other drivers overwhelming, the probative value of A.H.'s more modest potential impairment by alcohol was marginal at best. Woodington presented no evidence from either accident reconstruction or eyewitness testimony that A.H.'s driving played any causal role in the collision. For these reasons, we conclude beyond a reasonable doubt that any error in precluding A.H.'s BAC evidence did not affect the verdict and was, therefore, harmless. Bible, 175 Ariz. at 588.
Woodington also asserts the trial court's preclusion of A.H.'s BAC violated due process and his Sixth Amendment right to present a defense. Any such error would, for the same reasons, be harmless.
Admission of Woodington's Driving Prior to Collision
¶13 Woodington next contends the trial court erred in denying his motion to preclude evidence of his dangerous driving immediately prior to his collision with A.H. Specifically, he argues the state presented evidence of his earlier driving to establish a propensity for reckless driving, in violation of the prohibition on character evidence in Rule 404(a) and (b), Ariz. R. Evid. Woodington further argues this evidence was overly prejudicial under Rule 403, Ariz. R. Evid. The court found the evidence relevant for the purpose of proving both Woodington's impairment and his mental state of "recklessness under circumstances manifesting extreme indifference to human life." As discussed above, we review the "trial court's ruling on the admissibility of evidence for an abuse of discretion." Tucker, 215 Ariz. 298, ¶ 46. Under that standard, "we uphold a decision if there is any reasonable evidence in the record to sustain it." State v. Butler, 230 Ariz. 465, ¶ 28 (App. 2012) (quoting State v. Morris, 215 Ariz. 324, ¶ 77 (2007)). Additionally, when reviewing a trial court's Rule 403 determination, "we must look at the evidence in the light most favorable to the proponent, maximizing its probative value and minimizing its prejudicial effect." State v. Kiper, 181 Ariz. 62, 66 (App. 1994).
¶14 The state contends the details of Woodington's dangerous driving on the night of the incident were intrinsic evidence directly proving he was impaired to the slightest degree, as well as the recklessness element of the murder, assault, endangerment, and criminal damage charges. Intrinsic evidence either "(1) directly proves the charged act, or (2) is performed contemporaneously with and directly facilitates commission of the charged act." State v. Ferrero, 229 Ariz. 239, ¶ 20 (2012). "Intrinsic evidence is admissible without regard to Rule 404(b) because the 'acts are so closely related to the charged act that they cannot fairly be considered "other" acts, but rather are part of the charged act itself.'" State v. Salamanca, 233 Ariz. 292, ¶ 11 (App. 2013) (quoting Ferrero, 229 Ariz. 239, ¶ 14). This includes evidence that "may 'directly prove' a defendant's mens rea (e.g., that the defendant drove recklessly)." Id. ¶ 13.
¶15 Here, evidence of Woodington's erratic and dangerous driving shortly before his collision with A.H. is intrinsic because it directly indicates both his mental state of extreme recklessness, as required for the second-degree murder charge, and his impairment to the slightest degree, as required for the DUI counts. The state charged Woodington with driving "while he was impaired to the slightest degree" "on or about May 2, 2015," a time period that encompasses his driving prior to the accident. As discussed above, the state presented testimony from numerous witnesses, three of whom called 9-1-1 to report Woodington's dangerous driving, and two of whom testified that Woodington hit their vehicles with his car. This evidence goes directly to proving that Woodington acted recklessly, with extreme indifference to human life. And evidence of his driving and behavior after the accident demonstrated he was impaired to the slightest degree, including witness testimony that Woodington swerved across lanes of traffic, drove at inconsistent speeds, and appeared unstable when he exited his vehicle.
Sufficiency of the Evidence
¶16 Woodington also argues the trial court erred in denying his motion for a directed verdict pursuant to Rule 20, Ariz. R. Crim. P., because the state did not present sufficient evidence to establish he had the necessary mental state of extreme recklessness to sustain a conviction for second-degree murder. He made this motion both during trial and after the jury reached its verdicts. See State v. West, 226 Ariz. 559, ¶ 14 (2011) ("The standards for ruling on pre- and post-verdict motions for judgment of acquittal under Rule 20 are the same."). We review de novo whether sufficient evidence supports a conviction. Id. ¶ 15.
¶17 When determining whether the record contains "substantial evidence to support a conviction," Ariz. R. Crim. P. 20(a)(1), "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," West, 226 Ariz. 559, ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)). "To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316 (1987). "We resolve any conflicts in the evidence against the defendant and view all facts in the light most favorable to supporting the verdict." State v. Pena, 235 Ariz. 277, ¶ 5 (2014).
¶18 A person commits second-degree murder if, "[u]nder circumstances manifesting extreme indifference to human life, [he] recklessly engages in conduct that creates a grave risk of death and thereby causes the death of another person." A.R.S. § 13-1104(A)(3). "Recklessly" means the person was "aware of and consciously disregard[ed] a substantial and unjustifiable risk" that is "of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." A.R.S. § 13-105(10)(c). Both reckless second-degree murder and reckless manslaughter require a person to be aware of, and to consciously disregard, a substantial and unjustifiable risk of death. Walton, 133 Ariz. at 290. However, second-degree murder requires a "more culpable mental state," in which a person acts not only recklessly, but also under circumstances manifesting extreme indifference to human life. Id. at 290-91.
¶19 Here, the state presented ample evidence upon which the jury could conclude that Woodington acted with extreme indifference to human life when he engaged in conduct that created a risk of death to others and actually caused a collision leading to the death of A.H. Specifically, the state presented evidence that Woodington was traveling over eighty miles per hour in a fifty miles-per-hour zone; that he accelerated after hitting A.H.; and that in the time leading up to that collision, he swerved across lanes of traffic, bumped two other vehicles, and caused several people to call emergency services to report his dangerous driving. Under these facts, a reasonable jury could have found that Woodington did more than disregard known risks to others—he knowingly took actions that posed a high, direct risk to their lives.
Because Woodington concedes the trial evidence was "sufficient to establish the recklessness required for manslaughter," we presume without deciding that the evidence was sufficient to show Woodington was aware of, and consciously disregarded, the substantial and unjustifiable risk of death he presented to others. Furthermore, Woodington's five prior DUI convictions could serve as evidence allowing "the jurors reasonably to conclude" that he was "aware of the risks he posed to others in driving while under the influence." State v. Woody, 173 Ariz. 561, 563 (App. 1992); see also State v. Woodall, 155 Ariz. 1, 5 (App. 1987) (prior DUI conviction could be considered by jury tasked with determining whether defendant exhibited extreme indifference necessary for second-degree murder).
Cumulative Effect of State's Closing Argument
¶20 Fourth, Woodington argues the cumulative effect of three improper statements during the state's closing argument denied him a fair trial. Specifically, he alleges that the prosecutor (1) improperly shifted the burden of proof with respect to the causation of A.H.'s death by arguing there was no evidence that A.H. would have survived had she received proper medical care; (2) improperly commented on Woodington's "post-arrest" silence; and (3) improperly mischaracterized evidence of the victims' safety at the time of the accident.
Because a defendant need not show that a prosecutor intended to present an improper argument to be entitled to relief, Arizona courts' traditional reference to such claims as "prosecutorial misconduct" can be semantically misleading. Where possible, we therefore refer to them as "improper argument" claims. In so doing, we suggest no departure from the applicable law.
¶21 Because Woodington failed to timely object to the prosecutor's closing statements, we review this challenge only for fundamental error. State v. Hulsey, 243 Ariz. 367, ¶ 88 (2018). A defendant must first prove that error occurred. Henderson, 210 Ariz. 561, ¶ 23. If error exists, it is fundamental if, under the totality of the circumstances, it went to the foundation of the case, deprived the defendant of a right essential to the defense, or was so egregious that the defendant could not possibly have received a fair trial. State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). "If the defendant establishes fundamental error under prongs one or two, he must make a separate showing of prejudice . . . ." Id.
¶22 "We 'will reverse a conviction for prosecutorial misconduct if (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial.'" State v. Gallardo, 225 Ariz. 560, ¶ 34 (2010) (alteration in Gallardo) (quoting State v. Velazquez, 216 Ariz. 300, ¶ 45 (2007)). "We separately 'evaluate each instance of alleged misconduct.'" Id. ¶ 35 (quoting State v. Morris, 215 Ariz. 324, ¶ 47 (2007)).
¶23 First, Woodington argues the prosecutor improperly shifted the burden of proof with respect to the causation of A.H.'s death by arguing there was no evidence that she would have survived had she received proper medical care. Specifically, Woodington asks us to find the following statement improper:
Even if Dr. B[.] failed to recognize the infection at the precise moment when it came on, and there is no way to know when that was, ladies and gentlemen. There is zero evidence that if a Vancomycin enema had been given one day earlier, two days earlier, three days earlier, that [A.H.] would be alive today. Zero evidence.A prosecutor's "comments on a defendant's failure to present evidence to support his or her theory of the case" are "neither improper nor shift[] the burden of proof to the defendant so long as such comments are not intended to direct the jury's attention to the defendant's failure to testify." State v. Sarullo, 219 Ariz. 431, ¶ 24 (App. 2008). Here, the prosecutor's comment directly addressed Woodington's theory in closing argument that A.H.'s medical treatment may have been a superseding cause of her death. It did not direct the jury's attention to Woodington's failure to testify. Therefore, the statement was not improper.
¶24 Woodington also objects to the prosecutor's highlighting of what Woodington calls his "post-arrest silence." Specifically, he challenges the following statement:
Here is the last way we know that this is not just an unfortunate turn of events from an alcoholic who is powerless over the control of alcohol in his life. Because when he got out of the car,
when he had that human contact with [J.G., the off-duty EMT], he said "I think I hit something." [J.G.] said "Yeah, you hit something." He never said "What did I hit?"A defendant's pre-custody silence during an exchange with a civilian first responder is not covered by the United States Constitution's Fifth Amendment protection against self-incrimination. See State v. VanWinkle, 229 Ariz. 233, ¶ 15 (2012) ("[C]ustody and not interrogation is the triggering mechanism for the right of pretrial silence." (quoting United States v. Moore, 104 F.3d 377, 385 (D.C. Cir. 1997))). J.G.'s interaction with Woodington occurred before any law enforcement officer's arrival at the scene. Woodington's non-custodial, non-testimonial silence does not implicate any constitutional right under the Fifth Amendment. Consequently, it was not improper for the state to reiterate this exchange during closing arguments.
[J.G.] told him to go sit by the side of the road. Right there, there's a motorcycle on its side. And he never said "Was that it?" He never said "Is the other person okay?" There is zero evidence that the defendant shows any emotion whatsoever, any care or concern for whatever it was that he hit.
¶25 Woodington also maintains the state improperly mischaracterized evidence regarding the safety of Woodington's victims on the night of the collision. Woodington complains that, even though the state was aware A.H. had an elevated BAC, it misleadingly asserted that A.H. and her riding companions "would have been safe but for Woodington's driving that night." But Woodington misquotes the prosecutor's closing argument. In fact, the state argued that the victims who encountered Woodington—including A.H., her motorcycle companions, and the individuals who called 9-1-1 to report Woodington's dangerous driving—"should have all been safe from the defendant that night" because he should not have been driving, given his suspended driver license, and because he should not have been driving while intoxicated. Thus, these comments did not specifically refer to A.H. and, in context, did not suggest the victims were safe in absolute terms—but only that they should have been safe from Woodington specifically. Because the prosecutor's comments, accurately quoted, refer only to Woodington's effect on his victims' safety, they were not improper.
Because we find no error in any of the challenged arguments, we need not analyze the cumulative effect of any alleged prosecutorial misconduct. --------
¶26 Even assuming for the sake of argument that any of these arguments were improper, Woodington cannot carry his burden of demonstrating prejudice given the magnitude of evidence against him, as outlined above. See Henderson, 210 Ariz. 561, ¶¶ 26-27 (to prevail on fundamental error claim, defendant must show that, but for error, jury might have reached different result).
Consecutive Second-Degree Murder Sentence
¶27 The parties agree the trial court erred in ordering Woodington's sentence for second-degree murder to run consecutively with his sentences for aggravated assault. Although Woodington did not object to the imposition of consecutive sentences below, "[a]n illegal sentence constitutes fundamental error," which we will reverse on appeal "despite a lack of objection in the trial court." State v. Cox, 201 Ariz. 464, 468 (App. 2002).
¶28 Arizona law proscribes the imposition of consecutive sentences for a defendant's single criminal act. A.R.S. § 13-116 ("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."). Two or more offenses constitute a single act under § 13-116 if, after "subtracting from the factual transaction the evidence necessary to convict on the ultimate charge," the remaining evidence cannot support the elements of another crime. State v. Gordon, 161 Ariz. 308, 315 (1989). We consider "whether, given the entire 'transaction,' it was factually impossible to commit the ultimate crime without also committing the secondary crime," in which case "the likelihood will increase that the defendant committed a single act under § 13-116." Id. However, if "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," consecutive sentences are appropriate. Id.
¶29 Here, the secondary crimes of aggravated assault against A.H. comprise a single offense with the "ultimate crime" of second-degree murder. To secure a second-degree murder conviction, the state had to prove that Woodington intentionally, knowingly, or recklessly caused A.H.'s death. A.R.S. § 13-1104. To secure a conviction for aggravated assault, the state had to prove that Woodington intentionally, knowingly, or recklessly caused physical injury to A.H. under any of the aggravating conditions enumerated in A.R.S. § 13-1204, including causing serious physical injury to another. A.R.S. §§ 13-1203, 13-1204. At trial, the state presented evidence that, while driving under the influence of alcohol, Woodington struck and pushed A.H.'s motorcycle with his vehicle and that this collision caused the injuries that ultimately led to A.H.'s death. Subtracting the facts necessary to prove the elements of second-degree murder, no facts remain to convict Woodington of aggravated assault. See Gordon, 161 Ariz. at 315. Further, it was impossible for Woodington to commit murder by striking A.H. without also assaulting her by the same collision. See id. Thus, this single impact may count only toward the ultimate charge, in this case second-degree murder. Finally, the collision by which Woodington assaulted A.H. did not create any risk of harm beyond her death, the harm inherent in the second-degree murder charge. See id. We therefore agree with the parties that, under these facts, the imposition of consecutive sentences for aggravated assault and second-degree murder violates § 13-116 and must be reversed as fundamental error. State v. Viramontes, 163 Ariz. 334, 340 (1990) ("Because we are unable to determine from the record before us that the trial court would have imposed the same sentences if it had been aware that consecutive sentences were not available, we must remand for resentencing.").
¶30 However, we reject Woodington's argument that it was likewise error for the trial court to order that the second-degree murder sentence be consecutive to the sentences for aggravated DUI. Unlike the convictions for second-degree murder and aggravated assault, which both require the fact of the collision for completion, Woodington's actions underlying his aggravated DUI convictions were complete before he struck A.H. See State v. Devine, 150 Ariz. 507, 510 (App. 1986) (consecutive sentences permissible where "each felonious act was committed independent of the other and was completed prior to the beginning of the next act"). These convictions required proof that Woodington (1) drove a motor vehicle (2) while impaired to the slightest degree or while having a BAC of .08 or more within two hours of driving the vehicle, aggravated by doing so (3) while his driver license or privilege to drive was suspended or (4) within eighty-four months of two or more prior DUI convictions. A.R.S. §§ 28-1381(A)(1), (2), 28-1383(A)(1), (2). The state presented sufficient evidence at trial, including witness testimony describing Woodington's driving leading up to the collision and his exceptionally high BAC shortly after the collision, to support a finding that he completed the DUI offenses well before the collision occurred.
Disposition
¶31 For the reasons stated above, we affirm Woodington's convictions. However, we vacate his sentence for second-degree murder and remand to the trial court for resentencing consistent with this decision. We otherwise affirm his sentences.