                                IN THE
              ARIZONA COURT OF APPEALS
                              DIVISION TWO


                       THE STATE OF ARIZONA,
                              Appellee,

                                   v.

                 GEORGE ANTHONY DOMINGUEZ JR.,
                           Appellant.

                      No. 2 CA-CR 2014-0015
                      Filed November 19, 2014


        Appeal from the Superior Court in Graham County
                        No. CR201200184
             The Honorable R. Douglas Holt, Judge

                    AFFIRMED AS MODIFIED


                               COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee

Harriette P. Levitt, Tucson
Counsel for Appellant


                               OPINION

Chief Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Miller and Judge Espinosa concurred.
                      STATE v. DOMINGUEZ
                        Opinion of the Court

E C K E R S T R O M, Chief Judge:

¶1           Following a jury trial, appellant George Dominguez Jr.
was convicted of manslaughter, endangerment, discharging a
firearm at a residential structure, second-degree burglary, theft of a
firearm, and second-degree trafficking in stolen property. The trial
court imposed a combination of concurrent and consecutive prison
terms totaling twenty-one years, followed by concurrent five-year
terms of probation upon his release from prison. On appeal,
Dominguez argues his conviction for endangerment constitutes
double jeopardy. He also contends the trial court erred in denying
his motion for a new trial and imposing aggravated sentences. We
affirm the convictions and sentences, as corrected, but vacate an
unauthorized fee imposed at sentencing.

                Factual and Procedural Background

¶2           We view the evidence in the light most favorable to
upholding the verdicts. See State v. Chappell, 225 Ariz. 229, n.1, 236
P.3d 1176, 1180 n.1 (2010). In January 2012, Dominguez was
carrying a rifle while searching for marijuana plants in a rural area
of Graham County with some of his friends. When Dominguez and
another friend came across an occupied “shack,” Dominguez fired a
shot into it that killed the victim. Dominguez returned with the
same friend the following day to burglarize the victim’s shack and
take a shotgun from it. He later admitted to several people that he
had shot the victim and taken the shotgun, which Dominguez
turned into a “sawed-off” gun in order to make it less identifiable.
He was convicted as noted above, and this appeal followed the
imposition of sentence.

                          Double Jeopardy

¶3          Dominguez     first   asserts   his    conviction   for
endangerment violates his constitutional protections against double
jeopardy. 1 His argument is based on the premise that felony

      1As  the state points out, Dominguez does not specify whether
he is asserting a state or federal constitutional claim. Yet Arizona’s

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                       STATE v. DOMINGUEZ
                         Opinion of the Court

endangerment under A.R.S. § 13-1201 is a lesser-included offense of
manslaughter under A.R.S. § 13-1103(A)(1), and both offenses here
were based on the same act against the same victim. See State v.
Ortega, 220 Ariz. 320, ¶ 9, 206 P.3d 769, 773 (App. 2008) (recognizing
“a defendant may not be convicted for both an offense and its lesser
included offense”). We will find one crime to be a lesser-included
offense of another if it is “composed solely of some but not all of the
elements of the greater crime so that it is impossible to have
committed the [greater] crime . . . without having committed the
lesser one.” State v. Ramirez, 142 Ariz. 171, 175, 688 P.2d 1063, 1067
(App. 1984); accord State v. Anderson, 210 Ariz. 327, ¶ 139, 111 P.3d
369, 399 (2005).

¶4           A close examination of the elements of manslaughter
and felony endangerment reveals that the latter is not included in
the former. A person commits manslaughter by “recklessly causing
the death of another person,” § 13-1103(A)(1)—that is, by killing
another person after consciously disregarding a “substantial and
unjustifiable risk” of death, A.R.S. § 13-105(10)(c). 2 Felony
endangerment, on the other hand, occurs when one person
recklessly creates “a substantial risk of imminent death” to another.
§ 13-2101(B) (emphasis added); accord State v. Doss, 192 Ariz. 408,
¶ 7, 966 P.2d 1012, 1015 (App. 1998). The word “imminent” means
“about to occur” or “impending.” The American Heritage Dictionary
879 (5th ed. 2011); accord Little v. All Phx. S. Comm. Mental Health Ctr.,
Inc., 186 Ariz. 97, 102, 919 P.2d 1368, 1373 (App. 1995). We do not
interpret any words in a statute to be meaningless or trivial, Mejak v.
Granville, 212 Ariz. 555, ¶ 9, 136 P.3d 874, 876 (2006), but rather give
operation and effect to each one. State ex rel. Dep’t of Econ. Sec. v.
Hayden, 210 Ariz. 522, ¶ 7, 115 P.3d 116, 117 (2005). Thus, the
endangerment statute requires proof of a “substantial risk” of a

constitution has been held to offer the same protection against
double jeopardy as its federal counterpart. State v. Sprang, 227 Ariz.
10, ¶ 19, 251 P.3d 389, 394 (App. 2011).
      2Throughout    this opinion, we cite the current versions of our
criminal statutes, as the relevant provisions have not changed since
Dominguez’s offenses in January 2012.


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                       STATE v. DOMINGUEZ
                         Opinion of the Court

particular harm, namely an “imminent death.” § 13-1201(B); cf. Me.
People’s Alliance v. Mallinckrodt, Inc., 471 F.3d 277, 279 & n.1 (1st Cir.
2006)     (construing      phrase      “‘imminent      and    substantial
endangerment’” in Resource Conservation and Recovery Act, 42
U.S.C. § 6972(a)(1)(B), to denote “serious, near-term threat,” but
distinguishing threat from perceived harm).

¶5           Although restricting felony endangerment to situations
involving “imminent death” may seem unintuitive at first blush, it is
an important feature of a statute that criminalizes conduct posing a
substantial risk rather than creating an observable result. See A.R.S.
§ 13-104 (requiring fair construction of statutes based on terms used
and object of law). Whereas our manslaughter statute criminalizes
reckless acts that actually result in death—including gradual or
delayed deaths, as with exposure to certain hazardous substances or
environmental toxins—our endangerment statute uses the
modifying adjective “imminent” to exclude deaths that are too
remote in time, even if the risks of such deaths might be considered
substantial and unjustified. With the qualifying word “imminent”
in place, our endangerment statute thus avoids criminal convictions
based on speculative or attenuated theories that could produce
uncertainty and unpredictability. Cf. W.R. Grace & Co. v. U.S. E.P.A.,
261 F.3d 330, 339-40 (3d Cir. 2001) (distinguishing imminent
endangerment from situations where risk of harm remote or
speculative).3

¶6           The “imminent death” language in § 13-1201(B) also is
similar to that found in our justification statute A.R.S. § 13-418(A),
which allows the use of deadly force against someone who creates
an “imminent peril of death or serious physical injury” to the
occupant of a home or vehicle. Our legislature is thus well aware of
the implications of including or omitting the word “imminent” in a
criminal statute. See Korzep v. Superior Court, 172 Ariz. 534, 537, 838



      3No  such temporal limitation is required in our manslaughter
statute, because the state must furnish substantial evidence of the
elements of both death and causation to secure a conviction.


                                    4
                       STATE v. DOMINGUEZ
                         Opinion of the Court

P.2d 1295, 1298 (App. 1991). The temporal component of imminence
is essential to both felony endangerment and justification.

¶7           Because a person can commit manslaughter by acts that
create a “substantial and unjustifiable risk” of death, § 13-105(10)(c),
though not necessarily “imminent death,” § 13-1201(B), felony
endangerment is not a lesser-included offense of manslaughter. We
therefore reject Dominguez’s double jeopardy argument. See State v.
Diaz, 223 Ariz. 358, ¶ 11, 224 P.3d 174, 176 (2010) (noting defendant
must first establish error under any standard of review).4

                              New Trial

¶8           Dominguez next claims the trial court erred by denying
his motion for a new trial. He does not cite any legal authority to
support this argument, apart from Rule 24.1(c)(4), Ariz. R. Crim. P.,
and a single case establishing that we review the trial court’s ruling
for an abuse of discretion. See State v. Bogard, 88 Ariz. 244, 246, 354
P.2d 862, 863 (1960). In his reply brief, Dominguez suggests his
citation to his motion for a new trial makes “all of the arguments
therein . . . incorporated by reference.” This is flatly incorrect.


      4 We  do not separately address Dominguez’s constitutional
claim with reference to the so-called “charging documents test.”
Ortega, 220 Ariz. 320, ¶¶ 12-13, 206 P.3d at 773-74. Our above
analysis of the elements of the offenses, however, utilizes the
charging document in this case to narrow the statutory basis of
Dominguez’s convictions. See id. ¶ 14; cf. State v. Crawford, 214 Ariz.
129, ¶ 11, 149 P.3d 753, 756 (2007) (considering charging document
when analyzing elements of foreign offense under former sentencing
enhancement statute). Although Dominguez also refers to our
double-punishment statute, he acknowledges that his sentences for
manslaughter and endangerment are concurrent. The statute
therefore does not support his challenge to his endangerment
conviction. See 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.”).


                                   5
                       STATE v. DOMINGUEZ
                         Opinion of the Court

Rule 31.13(c)(1)(vi), Ariz. R. Crim. P., requires arguments and
supporting authorities to be provided in the body of an opening
brief, State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995);
incorporation by reference is forbidden, State v. Rodgers, 134 Ariz.
296, 302, 655 P.2d 1348, 1354 (App. 1982).

¶9            In any event, we find no abuse of discretion on the
record before us.          Dominguez sought relief below under
Rule 24.1(c)(4), alleging the trial court had “erred in . . . a matter of
law” by refusing to admit the out-of-court statement of an
unavailable witness, M.H., who claimed he had seen a third party,
D.S., in possession of a sawed-off shotgun matching the description
of the one taken from the victim. Dominguez sought to admit
M.H.’s statement in order to show that the shotgun Dominguez had
admitted stealing and modifying had actually been stolen in an
earlier burglary of the same residence by M.H. and D.S. The trial
court correctly determined the statement was inadmissible hearsay,
see Ariz. R. Evid. 801(c), 802, and denied the motion.

¶10           Contrary to Dominguez’s suggestion, the statement was
not admissible under Rule 804(b)(3), Ariz. R. Evid. That provision
allows a hearsay statement to be admitted if it is contrary to the
declarant’s penal interest or subjects him to criminal liability such
that “a reasonable person in the declarant’s position would have
made [the statement] only if the person believed it to be true.” Id.
A statement must be individually self-inculpatory to fall within this
exception. State v. Soto-Fong, 187 Ariz. 186, 194, 928 P.2d 610, 618
(1996). “To determine if a statement is truly against interest requires
a fact-intensive inquiry of the surrounding circumstances[,] and each
declaration must be scrutinized to determine if it is self-inculpatory
in light of the totality of circumstances.” State v. Nieto, 186 Ariz. 449,
455, 924 P.2d 453, 459 (App. 1996).

¶11          M.H. made his statement during an interview with a
detective from the Graham County Sheriff’s Office concerning the
prior burglary. Their exchange was as follows:




                                    6
                       STATE v. DOMINGUEZ
                         Opinion of the Court

             [Detective]: . . . [H]ave you ever known
             D[.S.] to have a .12 gauge sawed off by
             chance?

             MH: Uhhh . . .

             [Detective]: Within the last

             MH: I think.

             [Detective]: say the last 18 month[s]?

             MH: I think I might’ve seen one.

             [Detective]: Yeah?

             MH: Well, a wooden handle one, look like
             it’s all broken up?

             [Detective]: Yeah, well it would’ve, the
             barrel would’ve been sawed off?

             MH: And the butt.

The record on appeal contains only the above quotation from the
transcript of this interview. The record nevertheless suggests the
entire transcript was disclosed below, and we presume the missing
portions support the trial court’s action. See State v. Geeslin, 223 Ariz.
553, ¶ 5, 225 P.3d 1129, 1130 (2010).

¶12          The proffered statement here, at best, suggests D.S. had
possessed the shotgun M.H. described. A further inference perhaps
could be drawn from the context of the conversation that D.S. had
taken the shotgun by burglarizing the victim’s residence, although
such an inference does not necessarily follow. But neither the
statement itself nor the circumstances surrounding it would tend to
inculpate M.H. or expose him to criminal liability so as to ensure
that he believed his report was truthful when he made it.
Accordingly, M.H.’s statement was inadmissible under


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                       STATE v. DOMINGUEZ
                         Opinion of the Court

Rule 804(b)(3). That the statement also conflicted with other
evidence admitted at trial and might have represented an attempt by
M.H. to exculpate himself in a burglary likewise made the statement
untrustworthy and inadmissible under Rule 807, Ariz. R. Evid., the
residual exception to the hearsay rule.

¶13           In sum, Dominguez has failed to show the trial court
erred in denying his motion for a new trial. See Geeslin, 223 Ariz.
553, ¶ 5, 225 P.3d at 1130. We do not address his conclusory
assertion that the ruling infringed on his Fifth and Fourteenth
Amendment rights to present a defense, as he has failed to develop
and support a sufficient argument for appellate review of that issue.
See Bolton, 182 Ariz. at 298, 896 P.2d at 838.

                               Sentences

¶14         Last, Dominguez maintains the trial court erred in
imposing aggravated sentences for his convictions of manslaughter,
endangerment, discharging a firearm at a structure, and theft of a
firearm.    He specifically argues the court (1) “considered
aggravating factors which are legally improper” and (2) erroneously
found his “family support” to be a mitigating factor for some counts
but not others.5

¶15         The parties stipulated to two enumerated aggravating
circumstances, which Dominguez does not contest on appeal: the
presence of an accomplice, A.R.S. § 13-701(D)(4), and emotional
harm to the victim’s immediate family, § 13-701(D)(9). In addition to
these aggravators, the trial court determined that an aggravated
sentence was appropriate for Dominguez’s convictions of
manslaughter, endangerment, and discharging a firearm based on
his “return to the scene the next morning[,] callously stealing, not


      5We   do not address Dominguez’s other contentions, which he
states in conclusory fashion without any legal support, see Ariz. R.
Crim. P. 31.13(c)(1)(vi); Bolton, 182 Ariz. at 298, 896 P.2d at 838, other
than to say that even were they not waived on appeal, we would
reject them as meritless.


                                    8
                       STATE v. DOMINGUEZ
                         Opinion of the Court

seeking any attention [for, and] not reporting the death of[,] the
occupant of the home.”

¶16          Although Dominguez claims his actions after these
crimes are legally irrelevant, this argument is unfounded. Under the
catch-all provision of § 13-701(D)(25), a trial court may find as an
aggravator “[a]ny . . . factor that the state alleges is relevant to the
defendant’s character or background or to the nature or
circumstances of the crime.”          The state argued below that
Dominguez’s acts and omissions after the crimes showed his
“callous attitude and lack of remorse” and revealed his “scary . . .
two face[d]” personality. The trial court determined these facts were
indeed aggravating circumstances relevant to Dominguez’s
character. The court observed:

             [I]t shows that there is a part of your
             personality that absolutely disengages from
             empathy and kindness and the way others
             deserve to be treated. . . . [T]here’s a side of
             you that desperately needs to be
             suppressed and put into prison for this
             long time because you’re a danger to the
             community.

We find no error in the aggravating factors found by the court. See
Diaz, 223 Ariz. 358, ¶ 11, 224 P.3d at 176 (showing of error required
under any standard of appellate review).

¶17          We likewise find no error concerning the trial court’s
determination of mitigating factors. A defendant’s “family support”
is not a statutorily enumerated mitigating factor under § 13-701(E)
that must be uniformly accepted or rejected for all counts, as
Dominguez suggests. An offender’s family support is mitigating
only to the extent a trial court considers it “relevant to the
defendant’s character or background” and “finds [it] to be
mitigating.” § 13-701(E)(6). A sentencing court need not consider
mitigating evidence unless it is specifically enumerated in § 13-
701(E), although the court retains the discretion to do so. See State v.
Long, 207 Ariz. 140, ¶ 41, 83 P.3d 618, 626 (App. 2004) (discussing


                                    9
                       STATE v. DOMINGUEZ
                         Opinion of the Court

predecessor statute); State v. Anderson, 199 Ariz. 187, ¶ 40, 16 P.3d
214, 221 (App. 2000) (same).

¶18           Here, the trial court found Dominguez’s family support
to be a mitigating circumstance for his convictions for burglary and
trafficking in stolen property (a guitar), for which the court imposed
only terms of probation.         The court explained, “[W]hen the
defendant gets out of prison, there will be a probation tail and he
will need significant family support. And I believe his family will be
there to help him.” The court declined to find family support as a
mitigating factor for Dominguez’s gun-related offenses of
manslaughter, endangerment, and discharge of a firearm, which all
resulted in prison terms. In explaining its decision, the court noted
that Dominguez’s family had provided him the rifle used to commit
the killing and had enabled his dangerous gun-related behavior.
The record thus supplies a reasonable basis for the trial court’s
treatment of Dominguez’s family support. It was not an “arbitrary
or capricious” sentencing decision representing an abuse of
discretion. State v. Fillmore, 187 Ariz. 174, 184, 927 P.2d 1303, 1313
(App. 1996).

¶19          While the trial court also listed Dominguez’s “family
support” as a mitigating factor for “Count . . . VII,” or theft of a
firearm, the record suggests this might have been an unintended
misstatement by the court. Later in the pronouncement of sentence,
the court found “the aggravators significantly outweigh the
mitigator” for “theft of the firearm,” suggesting the court found the
defendant’s young age to be the sole mitigating factor for this gun-
related offense. (Emphasis added.) In any event, shooting a firearm
is a dangerous activity that is distinct from simply stealing one. And
because the record demonstrates that the court considered and
balanced Dominguez’s family support as a plausible mitigating
circumstance, we find no abuse of discretion or reason to remand for
resentencing. See State v. Gallegos, 178 Ariz. 1, 23, 870 P.2d 1097, 1119
(1994).

¶20         The state raises an additional issue sua sponte, correctly
pointing out that the trial court erroneously ordered Dominguez to
“pay the applicable fee for the cost of th[e DNA] testing in


                                   10
                       STATE v. DOMINGUEZ
                         Opinion of the Court

accordance with A.R.S. [§] 13-610.” See State v. Reyes, 232 Ariz. 468,
¶ 14, 307 P.3d 35, 39 (App. 2013). We vacate this portion of the
sentencing minute entry, as the state requests. See id. 6 We also
correct page five of the sentencing minute entry by deleting
“December 17, 2013” as the commencement date for the prison
sentence on count seven, theft of a firearm. The court ordered this
sentence to be consecutive to the other sentences imposed on this
date, as the minute entry otherwise reflects, but it is “manifestly
impossible for consecutive sentences to both begin on the same
date.” State v. Young, 106 Ariz. 589, 591, 480 P.2d 345, 347 (1971); see
State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992).

                              Disposition

¶21         For the foregoing reasons, the convictions and sentences
are affirmed as modified.




      6 We  commend the Office of the Attorney General, and the
Assistant Attorney General in this case, for identifying such legal
errors even when they benefit the opposing party, thereby
upholding the finest traditions of professionalism and public
service. See E.R. 3.8 cmt., Ariz. R. Prof’l Conduct, Ariz. R. Sup. Ct. 42
(“A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate.”).


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