                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                  ERIC JAMES COULTER, Appellant.

                         No. 1 CA-CR 13-0319
                         FILED 12-11-2014


          Appeal from the Superior Court in Maricopa County
                       No. CR2011-153509-002
                The Honorable M. Scott McCoy, Judge

                      AFFIRMED AS MODIFIED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Stephen Whelihan
Counsel for Appellant



                              OPINION

Judge Samuel A. Thumma delivered the opinion of the Court, in which
Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined.
                           STATE V. COULTER
                           Opinion of the Court

T H U M M A, Judge:

¶1              Eric James Coulter appeals from his aggravated prison
sentence for manslaughter, challenging the application of the statutory
aggravating circumstance of “emotional or financial harm to the victim’s
immediate family” and the requirement he pay for his own DNA testing.
Although this court vacates the requirement that he pay for his own DNA
testing, in all other respects Coulter’s conviction and sentence are affirmed.

                 FACTS AND PROCEDURAL HISTORY

¶2            A jury convicted Coulter of manslaughter, a Class 2 felony
and a dangerous and domestic violence offense, after he killed his former
girlfriend by shooting her in the face with a rifle at close range. The jury
then found as an aggravating circumstance that, as a result of Coulter’s
conduct, “the victim’s immediate family suffered . . . emotional or financial
harm” pursuant to Arizona Revised Statutes (A.R.S.) section 13-701(D)(9)
(2014).1 Finding an aggravated sentence was appropriate, the superior court
sentenced Coulter to 21 years in prison. See A.R.S. §§ 13-1103(C); 13-704(A).
From Coulter’s timely appeal, this court has jurisdiction pursuant to the
Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A), 13-
4031 and -4033.

                               DISCUSSION

¶3           Coulter argues (1) “emotional or financial harm” is
unconstitutionally vague; (2) the State failed to present sufficient evidence
proving financial harm and (3) the verdict form listing “emotional or
financial harm” in a single finding deprived him of a unanimous verdict.2


1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

2 The jury also found the offense was “dangerous” and a “domestic
violence” offense. As noted by the superior court, these findings reflect the
nature of the offense, which defines the proper sentencing range. See A.R.S.
§§ 13-105(13) (defining “[d]angerous offense”); 13-704 (sentencing range for
“dangerous offense”); 13-3601(A) (defining “[d]omestic violence”).
Accordingly, this court rejects Coulter’s argument that the superior court
used the “dangerous” and “domestic violence” findings when imposing an
aggravated sentence (as opposed to determining the appropriate sentencing
range).



                                      2
                            STATE V. COULTER
                            Opinion of the Court

Because Coulter did not raise these issues with the superior court, the
review on appeal is for fundamental error. See State v. Henderson, 210 Ariz.
561, 568 ¶ 22, 115 P.3d 601, 608 (2005); Ariz. R. Crim. P. 21.3(c) cmt.
Accordingly, Coulter “bears the burden to establish that (1) error exists, (2)
the error is fundamental, and (3) the error caused him prejudice.” State v.
James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185 (App. 2013) (quotations and
citations omitted).

I.     The Constitutionality Of A.R.S. § 13-701(D)(9).

¶4             Coulter argues “emotional or financial harm” as used in
A.R.S. § 13-701(D)(9) is unconstitutionally vague because it fails to provide
fair notice of what the law forbids; allows for arbitrary and discriminatory
enforcement; and provides the fact-finder no standards for, and permits
unlimited discretion in, its application. “One to whose conduct a statute
clearly applies may not successfully challenge it for vagueness.” Parker v.
Levy, 417 U.S. 733, 756 (1974); accord State v. Musser, 194 Ariz. 31, 32 ¶ 5, 977
P.2d 131, 132 (1999) (citing cases). The State argues that the statute clearly
applies to Coulter and, although posing rhetorical questions about minimal
harms, Coulter does not argue the victim’s family here suffered minimal
harms. In the circumstances, however, and because the issue arises with
some frequency, this court assumes arguendo that Coulter has standing to
press his vagueness claim.

¶5             Interpretation of a statute is a question of law, which this
court reviews de novo. Pima Cnty. v. Pima Cnty. Law Enforcement Merit Sys.
Council, 211 Ariz. 224, 227 ¶ 13, 119 P.3d 1027, 1030 (2005). “‘[T]he best and
most reliable index of a statute’s meaning is its language and, when the
language is clear and unequivocal, it is determinative of the statute’s
construction.’” State v. Hansen, 215 Ariz. 287, 289 ¶ 7, 160 P.3d 166, 168
(2007) (citation omitted). The court must assign to each word its “usual and
commonly understood meaning” unless the Legislature “clearly intended”
otherwise. Bilke v. State, 206 Ariz. 462, 464 ¶11, 80 P.3d 269, 271 (2003)
(quotations and citation omitted). Because the Legislature did not define
“emotional or financial harm,” the court “give[s] effect to the words and
phrases in accordance with their commonly accepted meaning.” State v.
Barr, 183 Ariz. 434, 438, 904 P.2d 1258, 1262 (App. 1995); accord A.R.S. § 1-
213 (“Words and phrases shall be construed according to the common and
approved use of the language.”). This court has an obligation to interpret
statutes so as to uphold their constitutionality when possible. State v. Getz,
189 Ariz. 561, 565, 944 P.2d 503, 507 (1997).




                                       3
                             STATE V. COULTER
                             Opinion of the Court

¶6              “A statute is unconstitutionally vague if it does not give
persons of ordinary intelligence a reasonable opportunity to learn what it
prohibits and does not provide explicit instructions for those who will
apply it.” State v. McMahon, 201 Ariz. 548, 551 ¶ 7, 38 P.3d 1213, 1216 (App.
2002) (citing Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972)).
Although due process requires fair notice, it “‘requires neither perfect
notice, absolute precision nor impossible standards. It requires only that the
language of a statute convey a definite warning of the proscribed conduct.’”
Bird v. State, 184 Ariz. 198, 203, 908 P.2d 12, 17 (App. 1995) (citation omitted).
The fact that a legislative body could have crafted a more precise and clear
statute does not mean the statute enacted is unconstitutionally vague.
United States v. Powell, 423 U.S. 87, 94 (1975). When, as here, there is no First
Amendment challenge, a vagueness claim “‘must be examined in the light
of the facts of the case at hand.’” Id. at 92 (quoting United States v. Mazurie,
419 U.S. 544, 550 (1975)).

¶7             Coulter argues “‘[e]motional harm’ is vague because the law
provides no definition of the term and because it means widely varying
things to different people.” As commonly understood, “emotion” includes
“‘a state of feeling’” or “‘a conscious mental reaction’” that one may
subjectively experience as a strong feeling, McCauley v. Univ. of the Virgin
Islands, 618 F.3d 232, 250 (3rd Cir. 2010) (citation omitted), and “harm”
includes to injure, hurt or damage, Babbitt v. Sweet Home Chapter of Comtys.
for a Great Oregon, 515 U.S. 687, 697 (1995). Both the Legislature, in statutes,
and the Arizona Supreme Court, in court rules, have used “emotional
harm” in various contexts without undue mischief.3 As commonly
understood in the civil law context, “‘[e]motional harm’ means impairment
or injury to a person’s emotional tranquility.” Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 45 (2012). “Emotional harm is
distinct from bodily harm. . . . [and] encompasses a variety of mental states,
including fright, fear, sadness, sorrow, despondency, anxiety, humiliation,
depression (and other mental illnesses), and a host of other detrimental—

3 See, e.g., A.R.S. § 13-3623(F)(3) (using “emotional harm” to define
“emotional abuse” in criminal vulnerable adult statute); A.R.S. § 25-
315(C)(1) (using threat of “emotional harm” as basis for injunctive relief in
family court); A.R.S. § 46-292(F)(1) (providing good cause for failure to
cooperate in child support enforcement efforts includes where cooperation
may result in “emotional harm”); Ariz. R. Fam. L.P. 7(A) (allowing
protection of party’s address to prevent “emotional harm”); Ariz. R. Fam.
L.P. 13(A) (allowing proceedings to be closed to protect parties from
“emotional harm”).



                                        4
                            STATE V. COULTER
                            Opinion of the Court

from mildly unpleasant to disabling—mental conditions.” Id. § 45 cmt. a.
Although a broad phrase, any emotional harm found by the jury will suffice
to meet the requirement of A.R.S. § 13-701(D)(9). Accordingly, Coulter has
failed to show that the phrase is unconstitutionally vague.

¶8             Coulter argues “‘[f]inancial harm’ is unconstitutionally vague
because it includes no standards for determining what amount of financial
harm constitutes an aggravating circumstance,” allowing a jury to “find
financial harm” for “any financial loss, of even just a penny.” If the
Legislature wanted to set a minimum dollar value for a jury to find
“financial harm,” it clearly could have done so. See, e.g., A.R.S. §§ 13-1602(B)
(classifying criminal damage based on dollar value of damage); 13-1802(G)
(similar for theft); 13-2105(B) (similar for fraudulent use of credit card).
Because the Legislature did not do so, any pecuniary damage to the victim’s
family caused by a defendant will support a finding of financial harm under
A.R.S. § 13-701(D)(9). As with emotional harm, Coulter has failed to show
that the phrase financial harm, though broad, is unconstitutionally vague.

¶9             Coulter argues that “the results of virtually any crime
involving a victim include some sort of negative feelings and some amount
of financial loss.” By using “emotional or financial harm” as commonly
understood, the statute authorizes a finding of any harm of an emotional or
financial nature to the victim’s immediate family as an aggravating
circumstance for sentencing. Whether an arguably inconsequential or
otherwise de minimis harm will suffice is a question for the jury. A statute
is not vague simply because it is broad or that there may be difficulty in
deciding whether certain marginal conduct falls within the scope of the
statute. Parker v. Levy, 417 U.S. 733, 757 (1974).4

¶10         Finally, this is not a case where Coulter received an
aggravated sentence based on “‘[a]ny other factors which the court may
deem appropriate to the ends of justice.’” State v. Schmidt, 220 Ariz. 563, 566

4Relying on State v. Bly, 127 Ariz. 370, 372, 621 P.3d 279, 281 (1980), Coulter
claims such a reading of the statute would “run afoul of Arizona’s ‘complex,
multi-step sentencing scheme,’ under which the presumptive sentence ‘is
to be imposed on the vast majority of first offenders who commit the
crime.’” Here, however, the Legislature authorized the superior court to
exercise its discretion “in fitting punishment to the circumstances of the
particular crime and the individual defendant.” Bly, 127 Ariz. at 371–72, 621
P.2d at 280–81. Thus, the sentence imposed on Coulter, which is authorized
by statute, is consistent with the Legislature’s sentencing scheme.



                                       5
                            STATE V. COULTER
                            Opinion of the Court

¶¶ 8, 9, 208 P.3d 214, 217 (2009) (addressing “patently vague” catchall
sentencing aggravating circumstance in A.R.S. § 13-702(D)(13) (1991)).
Unlike Schmidt, neither the jury nor the superior court had “virtually
unlimited post hoc discretion to determine whether [Coulter’s] prior
conduct is the functional equivalent of an element of the aggravated
offense.” 220 Ariz. at 566 ¶ 10, 208 P.3d at 217. Coulter had fair notice, before
he killed the victim, that he could face an aggravated sentence if he caused
the victim’s family to suffer emotional or financial harm by committing the
offense. Accordingly, Coulter has not shown that the phrase “emotional or
financial harm” as used in A.R.S. § 13-701(D)(9) is unconstitutionally vague.

II.    Sufficiency Of The Evidence Of Financial Harm.

¶11            Coulter argues the evidence was insufficient to support a
verdict that the victim’s family suffered financial harm because “there was
a complete absence of any evidence of the amount of financial harm
resulting to anyone from the offenses.” Coulter asserts “that some evidence
of the amount of loss” is required and because no evidence was received
quantifying the loss, the jury’s verdict was not supported by sufficient
evidence.

¶12           This court will affirm a verdict finding an aggravating
circumstance if the record contains substantial evidence to support the
finding, viewing the facts in a light most favorable to sustaining the verdict.
State v. Gunches, 225 Ariz. 22, 25 ¶ 14, 234 P.3d 590, 593 (2010). “‘Substantial
evidence is such proof that reasonable persons could accept as adequate
and sufficient to support a conclusion of [the] defendant’s guilt beyond a
reasonable doubt.’” Id. (quoting State v. Roque, 213 Ariz. 193, 218 ¶ 93, 141
P.3d 368, 393 (2006)).

¶13           Here, the victim’s mother testified that her family suffered
financial harm by paying for the costs associated with the victim’s funeral.
The victim’s mother was not asked about specific numbers when discussing
financial harm. She testified, however, that insurance did not cover all costs
associated with the victim’s funeral and that she paid for some of those
costs, including transportation of the victim’s body. This evidence was
adequate to support the jury’s finding beyond a reasonable doubt that the
victim’s family suffered financial harm.

III.   The Verdict Regarding Emotional Or Financial Harm.

¶14          The jury’s verdict tracked the statutory language in finding
that Coulter “caused emotional or financial harm to the victim’s family.”
Coulter argues that, because the verdict used the term “or,” it is impossible


                                       6
                           STATE V. COULTER
                           Opinion of the Court

to know whether individual jurors found the harm was financial, emotional
or both.

¶15           “A jury must find an aggravating circumstance
unanimously.” State v. Anderson, 210 Ariz. 327, 355 ¶ 126, 111 P.3d 369, 397
(2005). When the evidence is sufficient to satisfy each alternative prong of
an aggravating circumstance, there is no error in failing to have the jury
specify which alternative prong it relied upon to determine the existence of
that circumstance. See id. at 355–56 ¶¶ 127–30, 111 P.3d at 397–98. The
concern Coulter raises, however, could be obviated by requiring the jury to
make separate findings as to each alternative prong of the “emotional or
financial harm” aggravating circumstance. Id. at 356 ¶ 131, 111 P.3d at 398.
As noted in Anderson, the superior court “may easily avoid this problem by
requiring juries to make separate findings as to each prong,” i.e., separate
verdict inquiries addressing (1) emotional harm and (2) financial harm. Id.
Because that did not occur, however, the issue is whether the trial evidence
was sufficient to satisfy each alternative prong of the “emotional or
financial harm” aggravating circumstance.

¶16            The evidence regarding financial harm is summarized above.
For emotional harm, the jury heard evidence that the victim’s mother and
younger sister were distraught, crying and in shock when they learned of
the victim’s death. The victim’s mother testified her life had not been the
same after the death of her daughter; that she had trouble sleeping and
eating; that she had nightmares from which she woke up screaming and
that she had sought medical help and continued to participate in grief
therapy. The victim’s mother also testified about the impact the crime had
on the victim’s younger sister. Because the evidence was sufficient to prove
both emotional and financial harm beyond a reasonable doubt, there was no
error in the verdict finding Coulter caused emotional or financial harm to
the victim’s family. See id. at 355–56 ¶ 128, 111 P.3d at 397–98.




                                     7
                            STATE V. COULTER
                            Opinion of the Court



IV.    The Order To Pay For DNA Testing.

¶17           Coulter argues the superior court erred in ordering him to pay
for his own DNA testing pursuant to A.R.S. § 13-610. The State concedes
error on the point. See State v. Reyes, 232 Ariz. 468, 472 ¶ 14, 307 P.3d 35, 39
(App. 2013). Accordingly, pursuant to Reyes, which was issued after Coulter
was sentenced, the sentence is modified to delete the requirement that
Coulter pay for the cost of DNA testing

                               CONCLUSION

¶18           Although the requirement that Coulter pay for the cost of his
DNA testing is vacated, in all other respects Coulter’s conviction and
sentence are affirmed.




                                  :gsh




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