                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                         JAMES KORYOR, Appellant.

                             No. 1 CA-CR 18-0234
                               FILED 4-30-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-118047-001
                The Honorable Michael J. Herrod, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
                           STATE v. KORYOR
                           Decision of the Court


                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.


J O N E S, Judge:

¶1            James Koryor argues the combination of a prison sentence for
one count of negligent homicide and a suspended sentence for one count of
child abuse constitutes consecutive punishment for a single act in violation
of Arizona Revised Statutes (A.R.S.) § 13-116.1           Because Koryor’s
convictions arose out of separate acts, A.R.S. § 13-116 is inapplicable, and
we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            On April 20, 2015, Koryor’s two-and-a-half-year-old son,
A.K., died from heat exposure after Koryor left him unattended in a car.2
At trial, for one count each of manslaughter and child abuse the State
presented evidence that Koryor, his wife, A.K., and another son got into the
family vehicle, intending to procure haircuts for the children. Koryor, who
was intoxicated, had the car keys and sat in the driver’s seat. However,
before leaving the driveway, Koryor and his wife began arguing about his
alcohol consumption, and Koryor’s wife left the car and went back inside.
An hour later, Koryor returned to the house and fell asleep. His wife found
A.K. unresponsive an hour later, and attempts to resuscitate him were
unsuccessful.

¶3            The jury found Koryor guilty of negligent homicide, a class 4
felony and a lesser-included offense of manslaughter, and child abuse, a
class 3 felony. The jury also found the State proved three aggravating
circumstances for each count.



1      Absent material changes from the relevant date, we cite the current
versions of rules and statutes.

2      “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).


                                     2
                            STATE v. KORYOR
                            Decision of the Court

¶4             At sentencing, Koryor opposed the State’s recommendation
that he be sentenced to a term of imprisonment for the negligent homicide
conviction, followed by a term of supervised probation for the child abuse
conviction. Koryor argued the sentences would violate A.R.S. § 13-116’s
prohibition against consecutive sentences for convictions arising from a
single act. The State argued that, based upon the evidence presented at
trial, the jury could have found the negligent homicide and child abuse
“arose from a set of actions and omissions.” Although the State did not
elaborate what acts or omissions it was referring to, and the trial court did
not seek further elucidation of the issue, the court found that “the jury could
find two different crimes based on the whole course of events.”

¶5            The trial court then sentenced Koryor to a slightly aggravated
term of three years’ imprisonment for negligent homicide, with credit for
158 days of presentence incarceration. The court suspended the imposition
of sentence for child abuse and placed Koryor on eight years’ supervised
probation, to commence upon his release from prison. Koryor timely
appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1),
13-4031, and -4033(A)(4).

                               DISCUSSION

¶6            Koryor argues the imposition of probation following his
prison term is a consecutive sentence in violation of A.R.S. § 13-116, which
provides: “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.” We review de novo whether
a sentence violates A.R.S. § 13-116. See State v. Siddle, 202 Ariz. 512, 517,
¶ 16 (App. 2002) (citing State v. Belyeu, 164 Ariz. 586, 591 (App. 1990)).

¶7              Koryor argues the act of leaving A.K. in the vehicle was a
single event used to prove both negligent homicide and child abuse.
Koryor supports this argument with the following statement made by the
State in its closing:

       And here are the facts. The charges arise from the incident of
       the defendant taking the children to get haircuts and leaving
       [A.K.] behind. It’s not anything else. There is no other
       allegation. So the facts surrounding both charge[s] are very
       similar. So you see why the evidence that shows why he is
       guilty of manslaughter also is the same evidence which shows
       why the defendant is guilty of child abuse.




                                      3
                            STATE v. KORYOR
                            Decision of the Court

In response, the State side-steps the single-act issue, arguing instead that
A.R.S. § 13-116 is inapplicable to suspended sentences. However, we need
not address whether the imposition of a term of probation is a “sentence”
for purposes of A.R.S. § 13-116 in this case because, pursuant to our de novo
review, we reject Koryor’s contention that his criminal conduct constituted
a single act.

¶8              To determine whether a defendant’s criminal conduct
constitutes a single act for purposes of A.R.S. § 13-116, this Court applies
the modified identical elements test described in State v. Gordon, which
“focuses on the facts of the transaction.” 161 Ariz. 308, 313 n.5 & 315 (1989);
accord State v. Bush, 244 Ariz. 575, 595, ¶ 90 (2018). Applying Gordon’s three-
part test, we first “subtract[] from the factual transaction the evidence
necessary to convict on the ultimate charge” — here, child abuse3 — and
then determine whether “the remaining evidence satisfies the elements of
the other crime.” 161 Ariz. at 315. We then determine “whether . . . it was
factually impossible to commit the ultimate crime without also committing
the secondary crime.” Id. Finally, we “consider whether the defendant’s
conduct in committing the [secondary] crime caused the victim to suffer an
additional risk of harm beyond that inherent in the ultimate crime.” Id.

¶9            A person is guilty of child abuse if, “having the care or
custody of a child,” the person “causes or permits a child . . . to be placed
in a situation where the person or health of the child . . . is endangered.”
A.R.S. § 13-3623(A). The offense is a class 3 felony if done recklessly. A.R.S.
§ 13-3623(A)(2). The record here contains evidence sufficient to support a
conviction for reckless child abuse based upon Koryor physically
controlling a motor vehicle while intoxicated and with A.K. in the back seat.
See State v. Nereim, 234 Ariz. 105, 110, ¶ 18 (App. 2014) (finding sufficient
evidence to support the defendant’s child abuse conviction where the
defendant drove while under the influence of alcohol with children in the
car).


3       While at first blush, negligent homicide would appear to be the
ultimate charge, reckless child abuse is classified as the more serious
offense. Compare A.R.S. § 13-3623(A)(2) (defining reckless child abuse as a
class 3 felony), with A.R.S. § 13-1102(C) (defining negligent homicide as a
class 4 felony); see also State v. Roseberry, 210 Ariz. 360, 370-371, ¶ 59 (2005)
(using the class of felony to determine which charge is the ultimate offense).
Reckless child abuse also requires a more culpable mental state than
negligent homicide. See A.R.S. § 13-202(C) (establishing culpable mental
state hierarchy of intentionally, knowingly, recklessly, and negligently).


                                       4
                           STATE v. KORYOR
                           Decision of the Court

¶10            At trial, Koryor’s mother and daughter both testified Koryor
had said he was taking his sons to get haircuts. Koryor’s wife testified that
Koryor, while intoxicated, planned to take his two sons to get haircuts.
Koryor, his wife, and the two sons got into the car, with Koryor in the
driver’s seat and in possession of the keys. While the car was still in the
driveway, an argument ensued regarding Koryor’s drinking and his wife
left the car and went back inside the house. She did not see Koryor drive
away. An hour later, Koryor came back into the house and fell asleep.

¶11           Additionally, a forensic scientist testified that Koryor’s blood
alcohol concentration was somewhere between 0.179 and 0.325 at 1:30 p.m.,
the approximate time A.K. was left in the vehicle. Additionally, it is
generally accepted that individuals with a blood alcohol concentration of
0.08 or more are impaired for purposes of driving a motor vehicle. See also
A.R.S. § 28-1381(G)(3) (creating a presumption that a person with a blood
alcohol concentration of 0.08 or more is under the influence of intoxicating
liquor).

¶12            Although no one saw Koryor leave the driveway with the
children in the car, and Koryor denied doing so, the evidence is sufficient
for the jury to have determined beyond a reasonable doubt that Koryor was
intoxicated, had custody or control of A.K., and was in physical control of
the car while A.K. was in the back seat. See State v. Zaragoza, 221 Ariz. 49,
51, 54, ¶¶ 7, 21 (2009) (clarifying that Arizona criminalizes the actual
physical control of a motor vehicle while under the influence of alcohol,
which includes the “exercise of present or imminent control over the vehicle
while impaired”) (emphasis added). Although the State did not charge
Koryor with driving under the influence, these facts are sufficient to show
Koryor placed A.K. in a situation where his person or health was
endangered, which constitutes child abuse.

¶13           “A person commits negligent homicide if with criminal
negligence the person causes the death of another person.” A.R.S. § 13-
1102(A). For purposes of negligent homicide, “criminal negligence,” means
“a person fails to perceive a substantial and unjustifiable risk that the
[death] will occur.” A.R.S. § 13-105(10)(d). Having subtracted the evidence
necessary to convict Koryor of the child abuse count from the factual
transaction, we find sufficient remaining evidence to satisfy the elements of
negligent homicide. Specifically, the remaining evidence establishes that
Koryor left A.K. in a vehicle and exposed to the heat, which resulted in his
death. This second act caused A.K. to suffer additional harm — death —
beyond the mere risk of danger inherent in the child abuse. See Bush, 244
Ariz. at 595, ¶ 90; State v. Mahaney, 193 Ariz. 566, 569, ¶ 18 (App. 1999)


                                      5
                             STATE v. KORYOR
                             Decision of the Court

(defining “endanger” in child abuse statute to mean “subject to potential
harm”). Accordingly, the two convictions arose out of separate acts and
A.R.S. § 13-116 does not bar consecutive sentences.

¶14            Although the prosecutor, in closing arguments, chose to
emphasize Koryor’s act of leaving A.K. in the car to support conviction on
both negligent homicide and child abuse, the Gordon analysis does not turn
upon how the prosecutor emphasized the evidence presented at trial.
Rather, the question is whether the State produced sufficient evidence
showing two separate acts occurred. The jury was free to reject the State’s
emphasis and use any evidence presented to support the conviction.
Indeed, the jury was instructed that counsel’s comments during opening
and closing arguments were not evidence, and we presume it followed
those instructions. State v. Hidalgo, 241 Ariz. 543, 554, ¶ 43 (2017) (citing
State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006), and State v. Anderson, 210 Ariz.
327, 342, ¶ 50 (2005)). Nor are we concerned that the indictment did not
identify the specific method by which the State intended to prove Koryor
committed child abuse. See State v. Arnett, 158 Ariz. 15, 18 (1988) (“There is
no requirement that the defendant receive notice of how the State will prove
his responsibility for the alleged offense.”) (citing State v. Tison, 129 Ariz.
526, 538 (1981)). In any event, at trial, Koryor vigorously disputed his level
of intoxication and whether he was the last person to be in control of the
vehicle, and thus had an adequate opportunity to defend against the
charges.

                                CONCLUSION

¶15           We affirm.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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