                                                                         FILED BY CLERK
                                                                            DEC 21 2005
                             IN THE COURT OF APPEALS
                                                                             COURT OF APPEALS
                                 STATE OF ARIZONA
                                                                               DIVISION TWO
                                   DIVISION TWO


THE STATE OF ARIZONA,                         )           2 CA-CR 2004-0043
                                              )           DEPARTMENT A
                                 Appellee,    )
                                              )           OPINION
                    v.                        )
                                              )
ANDREW JAMES RAYMOND                          )
BURDICK,                                      )
                                              )
                                Appellant.    )
                                              )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                 Cause No. CR20031191

                             Honorable John E. Davis, Judge

                                       AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Kathryn A. Damstra                                         Tucson
                                                                    Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
  By Stephan J. McCaffery                                                          Tucson
                                                                   Attorneys for Appellant


H O W A R D, Presiding Judge.


¶1            After a jury trial, appellant Andrew Burdick was convicted of four counts of

disorderly conduct. The trial court sentenced him to four aggravated, 1.5-year prison terms,
three of which were to be served consecutively. In a prior opinion filed February 11, 2005,

we affirmed Burdick’s convictions but vacated his aggravated sentences as improperly

imposed based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). State v.

Burdick, 209 Ariz. 452, 104 P.3d 183 (App. 2005). On review, the supreme court remanded

the case to us for reconsideration in light of State v. Martinez, 210 Ariz. 578, 115 P.3d 618

(2005), and State v. Henderson, 210 Ariz. 561, 115 P.3d 601 (2005). We have reconsidered

our earlier opinion, and vacate it. This opinion replaces it.

¶2            Burdick contends he committed only one act of disorderly conduct and,

therefore, the consecutive sentences violate A.R.S. § 13-116 and the Double Jeopardy

Clauses of the Arizona and United States Constitutions. Burdick further contends the trial

court erred by imposing aggravated sentences without having a jury determine the

aggravating factors. Finding no error, we affirm Burdick’s convictions and sentences.

                                          FACTS

¶3            We view the evidence and all reasonable inferences therefrom in the light most

favorable to sustaining the conviction. See State v. Riley, 196 Ariz. 40, ¶ 2, 992 P.2d 1135,

1137 (App. 1999). In April 2003, Burdick approached three people standing outside a

duplex apartment. He was asked to leave and became angry at the request. Staggering, he

removed a gun from his pocket and waved it in the direction of the group. After the three

individuals went inside the apartment, Burdick began banging on and shaking the door. A

police officer arrived, arrested Burdick, and found a revolver in his front pocket.




                                             2
¶4            Burdick was tried on three counts of aggravated assault with a deadly weapon

or dangerous instrument, one count for each victim, and on one count of aggravated assault

on an incapacitated victim because one of the victims was confined to a wheelchair. The trial

court instructed the jury that disorderly conduct by recklessly handling, displaying, or

discharging a deadly weapon or dangerous instrument is a lesser-included offense of

aggravated assault. Burdick was acquitted on all four aggravated assault charges but found

guilty of four counts of disorderly conduct.

                              DISORDERLY CONDUCT

¶5            Burdick first argues that the unit of prosecution for disorderly conduct is the

conduct, not the victims, and that the trial court violated § 13-116 and double jeopardy

principles by sentencing him to consecutive prison terms. Because he failed to raise this

claim below, he is only entitled to a review for fundamental error. Martinez, 210 Ariz. 578,

n.2, 115 P.3d at 620 n.2. But, as he points out, a sentence that violates the Double Jeopardy

Clause constitutes fundamental error. State v. Millanes, 180 Ariz. 418, 421, 85 P.2d 106, 109

(App. 1994). Whether a defendant can be punished for each victim of the crime of disorderly

conduct is an issue of legislative intent. State v. Siddle, 202 Ariz. 512, ¶ 9, 47 P.3d 1150,

1154 (App. 2002). We review this issue of law de novo. State v. Powers, 200 Ariz. 123, ¶ 5,

23 P.3d 668, 670 (App. 2001), aff’d, 200 Ariz. 363, 26 P.3d 1134 (2001).

¶6            The Double Jeopardy Clauses of the Arizona and United States Constitutions

provide the same basic protection and prohibit “multiple punishments for the same offense.”

Id. ¶¶ 7-8. In determining what is the “same offense,” Arizona courts look at the result of

                                               3
the criminal act rather than the act itself. State v. Gunter, 132 Ariz. 64, 69, 643 P.2d 1034,

1039 (App. 1982). In Gunter, the court determined that “[w]here crimes against persons are

involved we believe a separate interest of society has been invaded with each victim and that,

therefore, where two persons are assaulted, there are two separate offenses.” Id. at 70, 643

P.2d at 1040. The court affirmed the imposition of two consecutive terms of imprisonment

for the single act of throwing acid because the act had injured two victims. Id.; see also State

v. Henley, 141 Ariz. 465, 467-68, 687 P.2d 1220, 1222-23 (1984) (no error in imposing

consecutive sentences for two counts of aggravated assault when bullet passed through first

victim and struck second); State v. Riley, 196 Ariz. 40, ¶ 21, 992 P.2d 1135, 1142 (App.

1999) (consecutive sentences allowed for multiple crimes committed against multiple

victims); State v. White, 160 Ariz. 377, 379-80, 773 P.2d 482, 484-85 (App. 1989)

(consecutive sentences upheld for single act causing separate criminal result to four victims);

State v. Devine, 150 Ariz. 507, 510, 724 P.2d 593, 596 (App. 1986) (no error in imposing

consecutive sentences for separate offenses committed against multiple victims on same

occasion).

¶7            Burdick was convicted of four counts of disorderly conduct, a lesser-included

offense of aggravated assault. Section 13-2904(A), A.R.S., defines disorderly conduct as

follows:

                     A person commits disorderly conduct if, with intent to
              disturb the peace or quiet of a neighborhood, family or person,
              or with knowledge of doing so, such person:

                      ....

                                               4
                   6. Recklessly handles, displays or discharges a deadly
              weapon or dangerous instrument.

¶8            Arizona courts have recognized that, depending on the type of victim, the state

must satisfy differently its burden of proof under § 13-2904. First, when a defendant is

charged with disorderly conduct for disturbing the peace of a particular person, the state is

required to prove that the defendant knowingly disturbed the victim’s peace, In re Julio L.,

197 Ariz. 1, ¶ 8, 3 P.3d 383, 385 (2000), or that the defendant intended to do so.1 State v.

Miranda, 200 Ariz. 67, ¶ 5, 22 P.3d 506, 508 (2001). Second, if the defendant is charged

with disorderly conduct for disturbing the peace of a neighborhood, the defendant’s conduct

may be measured against an objective standard, and the state need not prove that any

particular person was disturbed. Julio L., 197 Ariz. 1, ¶ 8, 3 P.3d at 385; State v. Johnson,

112 Ariz. 383, 385, 542 P.2d 808, 810 (1975).2

¶9            Furthermore, in Miranda, our supreme court held that a person cannot place

a victim in reasonable apprehension of imminent physical injury without also disturbing the

victim’s peace. 200 Ariz. 67, ¶ 3, 22 P.3d at 507. It held that disorderly conduct against a

person by recklessly handling a firearm is a lesser-included offense of aggravated assault




       1
        Burdick notes that Julio L., 197 Ariz. 1, ¶ 8, 3 P.3d at 385, stated that a person’s
peace must actually be disturbed, while Miranda, 200 Ariz. 67, ¶ 5, 22 P.3d at 508, pointed
out that A.R.S. § 13-2904 actually requires that the defendant act with either the intent to
disturb the peace of a person or knowledge of doing so. This point was not crucial to the
issue under consideration in either case and, in any event, does not support Burdick’s
argument that he can only be guilty of one offense.
       2
       Neither Julio L. nor Miranda involved disturbing the peace of a family.

                                             5
with a deadly weapon. Id. ¶ 5. The distinguishing element is the intent to place the victim

in reasonable apprehension of imminent physical injury. Id. ¶ 3.

¶10           Burdick could have received consecutive prison sentences if he had been found

guilty of the greater crime of aggravated assault. See Henley, 141 Ariz. at 467-68, 687 P.2d

at 1222-23; Riley, 196 Ariz. 40, ¶ 21, 992 P.2d at 1142; Gunter, 132 Ariz. at 70, 643 P.2d at

1040. Nothing in the distinguishing element, the intent to place the victim in reasonable

apprehension of imminent physical injury, Miranda, 200 Ariz. 67, ¶ 3, 22 P.3d at 507,

reflects a legislative intent that the defendant be subject to multiple punishments for the

greater crime, but not for the lesser. Accordingly, we hold that a defendant is subject to

multiple punishments for a single act3 of disorderly conduct by recklessly handling,

displaying, or discharging a firearm when that act constituted disorderly conduct committed

against multiple persons. Therefore, Burdick’s consecutive sentences do not violate the

Double Jeopardy Clauses of the United States or Arizona Constitutions.4

                                   BLAKELY ERROR

¶11           Burdick next argues the trial court abused its discretion by imposing

aggravated sentences without having the jury determine the aggravating factors, relying on

       3
      As the state points out, the jury could also have concluded that Burdick had
committed more than one act of disorderly conduct.
       4
        Burdick also argues his consecutive sentences violate A.R.S. § 13-116. Because he
failed to develop this argument as required by Rule 31.13(c)(1)(vi), Ariz. R. Crim. P., 17
A.R.S., he has waived the issue. See State v. Sanchez, 200 Ariz. 163, ¶ 8, 24 P.3d 610, 613
(App. 2001). Furthermore, we note that § 13-116 “does not apply to sentences imposed for
a single act that harms multiple victims.” State v. Riley, 196 Ariz. 40, ¶ 21, 992 P.2d 1135,
1142 (App. 1999).

                                             6
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). At the sentencing hearing, the

trial court found as aggravating factors Burdick’s “[c]riminal history with multiple

misdemeanor and felony convictions with multiple incarcerations and probation,” his history

of unsuccessful rehabilitation attempts, and his addiction to drugs and alcohol. The court

then found as mitigating circumstances Burdick’s mental and physical health. Finding that

the aggravating factors outweighed the mitigating factors, the trial court sentenced Burdick

to aggravated, consecutive terms of 1.5 years on three of the convictions and to an

aggravated, concurrent 1.5-year term on the fourth.

¶12           Because Burdick failed to object on this ground below, we review solely for

fundamental error. Martinez, 210 Ariz. 578, n.2, 115 P.3d at 620 n.2. Burdick therefore has

the burden to show that fundamental error occurred and that the error caused him prejudice.

Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. Fundamental error is “‘error going to the

foundation of the case, error that takes from the defendant a right essential to his defense, and

error of such magnitude that the defendant could not possibly have received a fair trial.’” Id.

¶ 19, 115 P.3d at 607, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984).

¶13           In Martinez, our supreme court held that one Blakely-compliant or Blakely-

exempt factor is enough to allow the trial court to consider other aggravating factors in

sentencing the defendant. 210 Ariz. 578, ¶ 26, 115 P.3d at 625. And a finding of prior

convictions is a Blakely-exempt aggravating circumstance. Blakely, 542 U.S. at 301, 124

S. Ct. at 2536. Accordingly, once the trial court found that Burdick’s prior convictions were




                                               7
an aggravating circumstance, the court was entitled to consider any other legal aggravating

factor in imposing sentence. We therefore find no error, fundamental or otherwise.

¶14          We affirm Burdick’s convictions and sentences.



                                             ____________________________________
                                             JOSEPH W. HOWARD, Presiding Judge



CONCURRING:


____________________________________
J. WILLIAM BRAMMER, JR., Judge



____________________________________
PETER J. ECKERSTROM, Judge




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