                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                v.

                        LOUIS JOHN FELIX,
                           Appellant.

                      No. 2 CA-CR 2012-0214
                      Filed February 12, 2014


         Appeal from the Superior Court in Pima County
                      No. CR20112635001
            The Honorable Richard S. Fields, Judge

           AFFIRMED IN PART; VACATED IN PART


                            COUNSEL

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

Isabel G. Garcia, Pima County Legal Defender, Tucson
By Scott A. Martin, Assistant Legal Defender
Counsel for Appellant
                          STATE v. FELIX
                         Opinion of the Court



                              OPINION

Judge Miller authored the decision of the Court, in which Presiding
Judge Vásquez and Chief Judge Howard concurred.


M I L L E R, Judge:

¶1           Louis Felix was convicted after a jury trial of one count
of kidnapping, two counts of endangerment, four counts of
disorderly conduct, and one count of possession of a deadly weapon
by a prohibited possessor. On appeal, Felix contends there was
insufficient evidence to support his kidnapping conviction because
the victim’s mother consented to the victim’s confinement, and the
trial court erred in designating the kidnapping a class two felony
because Felix released the victim pursuant to an agreement with the
state. For the following reasons, we affirm Felix’s convictions and
sentences but vacate the trial court’s criminal restitution order.

                Factual and Procedural Background

¶2            We view the facts in the light most favorable to
sustaining the jury’s verdicts and resolve all inferences against Felix.
See State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 914 (2005). In
July 2011, Felix had an active warrant for his arrest in a different
case, had “jumped bond,” and knew that bail bondsmen had been
looking for him. He met his girlfriend, J.V., and her seven-year-old
son, K.S., at a hotel, and stayed with them in a room booked under a
different name. Two bail bondsmen contacted J.V. and members of
Felix’s family and learned that Felix was at the hotel.

¶3          The two bail bondsmen went to the hotel room to find
Felix, but there was no response from the room.                After
unsuccessfully trying to open the door, they began spraying pepper
spray under the door and shooting pepper balls into the air
conditioning unit. Felix fired several shots from a handgun, and the
bondsmen had the hotel security guard call 911. Pima County



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                          STATE v. FELIX
                         Opinion of the Court

Sheriff’s deputies arrived, followed by a SWAT1 team and hostage
negotiators. After about ten hours, Felix surrendered, and J.V. and
K.S. exited the room. Investigators found three handguns inside.

¶4            Felix was charged with two counts of kidnapping, two
counts of endangerment, and one count of disorderly conduct
related to J.V. and K.S.; two counts of aggravated assault against the
bail bondsmen; one count of disorderly conduct related to a reckless
discharge of his gun toward the SWAT team during the
negotiations; and one count of possession of a deadly weapon by a
prohibited possessor. The jury acquitted Felix of kidnapping J.V.; it
also acquitted on the aggravated assault charges but found him
guilty of the lesser-included offense of disorderly conduct. The jury
found Felix guilty of all other charges except the prohibited
possessor charge, which the trial court found proved after Felix
waived his right to a jury trial on that count. He was sentenced to a
combination of concurrent and consecutive terms totaling thirty-two
years’ imprisonment, and the trial court imposed a restitution order.
This appeal followed.

                     Sufficiency of the Evidence

¶5          Felix contends there was insufficient evidence to convict
him for kidnapping K.S. because K.S.’s mother, J.V., consented to the
minor’s confinement in the room.

¶6           We review de novo the sufficiency of the evidence to
support a conviction. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d
1188, 1191 (2011). “‘[T]he 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.’” Id. ¶ 16, quoting State v.
Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). The applicable
element here, restraint, can be accomplished by any means, such as
physical force or even acquiescence when the victim is under the age
of eighteen, “and the victim’s lawful custodian has not acquiesced in



      1   Special Weapons and Tactics


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                         STATE v. FELIX
                        Opinion of the Court

the movement or confinement.” A.R.S. §§ 13-1301(2), 13-1304(A)
(requiring defendant “knowingly restrain[] another person”).

¶7           At trial, there was conflicting evidence about J.V.’s
acquiescence to K.S.’s confinement. J.V. testified she could have left
the room “[i]f [she] wanted to” and could have directed K.S. to leave
at any time. Her testimony, however, conflicted with statements she
had made during the incident and in a later interview with
detectives. When sheriff’s deputies arrived, one deputy spoke with
J.V. on the hotel room telephone. She told him she already had
called her mother to come to the hotel to pick up K.S. She also
discussed with the deputy how she “was going to get the baby2 to
[her family].”

¶8           Later, a hostage negotiator asked J.V., “If you haven’t
done anything, why are you still in there?” Felix answered instead,
stating, “Because I want to barricade the door.” When the
negotiator asked if J.V. wanted to leave, Felix answered, “[I]f she can
move the two dressers out of the way I guess she could leave.” The
negotiator asked J.V., “[I]s that something you want to do?” J.V.
answered, “That’s probably not going to happen. You, that, ah,
sh--’s heavy. There’s no way I’m going to be able to move that sh--.”
The negotiator later asked why “the kids”3 could not come out of the
room. J.V. answered, “It’s not my choice.”

¶9           After Felix surrendered, detectives interviewed J.V. She
stated Felix had a gun in his hand during the entire incident and she
could not leave because “[h]e had the whole room barricaded.” She
also said, “There was no way he was letting us out of there . . . .
Especially the baby . . . . That was the only leverage that he had. He
knew that you guys weren’t going to go in there if the baby was . . .


      2Although  J.V. testified K.S. was seven years old at the time of
the offense, she referred to him as “the baby” in testimony and
communications with law enforcement.
      3Throughout   the incident, Felix told law enforcement officers
that two of his daughters and K.S. were with him in the room. But
K.S. was the only child in the room.


                                  4
                          STATE v. FELIX
                         Opinion of the Court

in there.” When impeached with these statements during her trial
testimony, J.V. explained she “had to play like [she] was a victim
most of the time. Because [she] knew that [child protective services]
was going to get involved, and . . . they were going to take [her]
kids.”

¶10          Resolving all conflicts against Felix, see State v.
Bustamante, 229 Ariz. 256, ¶ 5, 274 P.3d 526, 528 (App. 2012), the
evidence was sufficient to support his kidnapping conviction. J.V.’s
statements to law enforcement implied she had wanted to get K.S.
out of the hotel room, but could not because the door was
barricaded, and Felix was holding a gun. The jury could reasonably
conclude J.V.’s earlier statements were credible and she changed her
story at trial to protect Felix, who was still her boyfriend. How
much weight to afford the conflicting statements was for the jury to
decide, and as long as there is substantial supporting evidence, we
will not disturb its determination. See State v. Soto-Fong, 187 Ariz.
186, 200, 928 P.2d 610, 624 (1996).

¶11          Felix contends, however, that the jury effectively found
J.V. had consented to K.S.’s confinement when it did not return a
guilty verdict on the charge of kidnapping J.V. Instead, the jury
wrote “inconclusive” on the verdict form. Felix appears to argue
that the two kidnapping verdicts were inconsistent. But this
argument is without merit because juries may provide inconsistent
verdicts in Arizona. State v. DiGiulio, 172 Ariz. 156, 162, 835 P.2d
488, 494 (App. 1992) (conviction for trafficking need not be vacated
where defendant acquitted of theft); see also State v. Helmick, 112
Ariz. 166, 168-69, 540 P.2d 638, 640-41 (1975) (upholding verdicts of
not guilty by reason of insanity as to one count but guilty as to
others in charges arising out of single incident).

¶12         Finally, even if J.V. had decided K.S. should remain in
the room, our supreme court has held that “a lawful custodian’s
acquiescence to . . . confinement of a child for the purpose of their
own or another’s wrongdoing will not constitute the ‘consent’ that
would bar a kidnapping charge.” State v. Viramontes, 163 Ariz. 334,
337, 788 P.2d 67, 70 (1990); see also State v. Styers, 177 Ariz. 104, 111,
865 P.2d 765, 772 (1993). Felix argues Viramontes and Styers, when
read broadly, violate the separation of powers between the judicial

                                    5
                         STATE v. FELIX
                        Opinion of the Court

and legislative departments. He contends their holdings relieve the
state from proving “the victim’s lawful custodian has not
acquiesced” in the confinement. See A.R.S. § 13-1301(2)(b).

¶13          In Viramontes, the father of a newborn infant abandoned
the infant in a parking lot to avoid exposure of his sexual
relationship with the infant’s mother. 163 Ariz. at 335-37, 788 P.2d at
68-70. Reversing the court of appeals’ decision that the father could
not be convicted of kidnapping, our supreme court concluded a
parent’s “legal authority” does not extend to felonious acts against
the child, such as abandonment. Id. at 337-38, 788 P.2d at 70-71. The
Styers court extended Viramontes to include persons who conspire
with a parent for illegal purposes. Styers, 177 Ariz. at 111, 865 P.2d
at 772 (mother’s consent to take son to desert to be killed did not
confer legal authority on defendant to do so). Each case required the
state to prove that the parent’s purported acquiescence was negated
by the absence of legal authority. Moreover, Felix’s argument that
the holdings intruded on the legislature’s authority to define
separate factual predicates for kidnapping was addressed in
Viramontes:

            [P]arents do not have legal authority to
            subject their children to felonious acts.
            Although legal authority has not been
            defined by the legislature, under no
            imaginable circumstances could the
            legislature have intended that defendant’s
            intent in taking the child to abandon it be
            legally     authorized.         Defendant’s
            abandonment of a newborn child in a busy
            parking lot, protected only by a cardboard
            box, is not sanctioned by Arizona law.

State v. Viramontes, 163 Ariz. at 338, 788 P.2d at 71. We cannot agree
with Felix that either decision negated the state’s burden to prove
facts supporting a contention the parent lacked legal authority
because the parent intended felonious wrongful conduct against the
child.




                                  6
                          STATE v. FELIX
                         Opinion of the Court

¶14          As an alternative to his separation of powers argument,
Felix contends Viramontes and Styers should be limited to
circumstances where the parent is an active participant in the
kidnapping. He argues that if the jury found J.V. was free to leave, it
necessarily means she acquiesced to K.S. remaining in the room and
she had no illegal purpose. This argument might relieve Felix of
criminal liability if there were facts upon which the jury could find
the mother’s presence in the hotel room was entirely independent of
the events with the police. But here, J.V. knew Felix was being
pursued by bail bondsmen, he barricaded the room to keep out
police, he lied to police negotiators about the presence of other
children to serve as a shield against the SWAT team, and there was a
real danger that someone would be shot and seriously injured 4
before the siege ended. In contrast, Felix points to no evidence that
J.V. had an independent, non-criminal reason for remaining in the
hotel room during the ten-hour standoff. If J.V. allowed K.S.’s
confinement in the hotel room with Felix, she did so with a
conscious and felonious disregard for her son’s safety. From that
conclusion, Viramontes and Styers hold that J.V. acted without legal
authority; therefore, there could be no acquiescence pursuant to
§ 13-1301(2)(b).

¶15          In his reply brief Felix argues for the first time that the
jury should have been provided interrogatories to differentiate
between “alternative theories to prove a single offense” if the state
intended to prove lack of consent by either physical force and
intimidation pursuant to § 13-1301(2)(a) or by lack of parental
acquiescence pursuant to § 13-1301(2)(b). Felix, however, did not
object to the jury instruction which included both subsections; he
did not propose an interrogatory; and, he omitted this contention in
his opening brief. For these reasons, among others, Felix forfeited
the right to seek relief on this ground absent fundamental error.
State v. Henderson, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d 601, 607 (2005).
Additionally, because Felix does not argue that any error was


      4Atone point Felix accidently discharged his weapon, a bullet
fragment of which apparently bounced off the helmet of a law
enforcement officer.


                                   7
                          STATE v. FELIX
                         Opinion of the Court

fundamental and prejudicial, and we see none, he has waived our
review of his claim. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17,
185 P.3d 135, 140 (App. 2008) (concluding argument waived because
defendant “d[id] not argue the alleged error was fundamental,” and
although court will rectify fundamental error if apparent, none
observed).

                        Kidnapping Sentence

¶16           Felix contends the trial court erred in not designating
the kidnapping conviction as a class three felony pursuant to
§ 13-1304(B), which provides an exception to the usual class two
felony designation for kidnapping when a victim is released
unharmed pursuant to an agreement with the state. If designated a
class three felony, Felix argues he should receive a proportionally
reduced sentence. The court did not regard the designation as
important because “[W]hether I sentence you as a class two or a
class three, the outcome is the same. I’m going to sentence you to 21
years in the Arizona State Prison . . . [which] fit[s] within . . . class
two and class three with two nondangerous priors.” The sentencing
minute entry designated the kidnapping count a class two felony.

¶17           Whether the kidnapping of K.S. should be a class two or
three offense requires us, as a threshold matter, 5 to determine
whether the statute’s mitigation provision applies to victims under
the age of fifteen. We review questions of statutory interpretation
de novo. State v. Tschilar, 200 Ariz. 427, ¶ 25, 27 P.3d 331, 338 (App.
2001). First, we look to the statute’s language as the best indicator of
the legislature’s intent, and “‘when the language is clear and
unequivocal, it is determinative of the statute’s construction.’” State
v. Hansen, 215 Ariz. 287, ¶ 7, 160 P.3d 166, 168 (2007), quoting Deer
Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, ¶ 8, 152 P.3d
490, 493 (2007). In considering the plain language, we must “giv[e]
meaning to each word and phrase ‘so that no part is rendered void,
superfluous, contradictory or insignificant.’” State v. Windsor, 224

      5The  trial court never made an explicit finding that K.S. had
been released pursuant to an agreement with the state. We do not
address this issue, however, in view of our statutory reading.


                                   8
                         STATE v. FELIX
                        Opinion of the Court

Ariz. 103, ¶ 6, 227 P.3d 864, 865 (App. 2010), quoting State v. Larson,
222 Ariz. 341, ¶ 14, 214 P.3d 429, 432 (App. 2009).
Section 13-1304(B), provides:

            Kidnapping is a class 2 felony unless the
            victim is released voluntarily by the
            defendant without physical injury in a safe
            place     before      arrest    and     before
            accomplishing any of the further
            enumerated offenses in subsection A of this
            section in which case it is a class 4 felony.
            If the victim is released pursuant to an
            agreement with the state and without
            physical injury, it is a class 3 felony. If the
            victim is under fifteen years of age
            kidnapping is a class 2 felony punishable
            pursuant to [A.R.S.] § 13-705. The sentence
            for kidnapping of a victim under fifteen
            years of age shall run consecutively to any
            other sentence imposed on the defendant
            and to any undischarged term of
            imprisonment of the defendant.

¶18           The issue is whether the reduction to a class three
felony in the second sentence of subsection B applies to the third
sentence, which relates to victims under the age of fifteen.6 Based on
the plain language, we conclude it does not. The applicable sentence
states, “If the victim is under fifteen years of age kidnapping is a
class 2 felony punishable pursuant to § 13-705.” § 13-1304(B). There
is no language in that sentence, or the next sentence related to child
victims, indicating that the classification changes if the victim is
released. Thus, the plain language of the applicable clauses does not
provide an exception.


      6Although  the jury did not find proven the allegation that the
kidnapping was a dangerous crime against children, allowing for
sentencing under A.R.S. § 13-705, it did find him guilty of
“[k]idnapping of [K.S.], a minor under fifteen years of age.”


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                          STATE v. FELIX
                         Opinion of the Court

¶19          Applying the earlier-listed release exceptions to an
under-fifteen victim would render the applicable clause superfluous.
Each part of a statute must be given meaning so that no part is
rendered “superfluous, void, contradictory, or insignificant.”
Devenir Assocs. v. City of Phoenix, 169 Ariz. 500, 503, 821 P.2d 161, 164
(1991). The first sentence of subsection B already states that
kidnapping is a class two felony. § 13-1304(B) (“Kidnapping is a
class 2 felony unless the victim is released voluntarily . . . .”) There
is no reason to restate that kidnapping is a class two felony when the
victim is under fifteen if the first two sentences already apply to
victims under fifteen.7 Rather, the restatement of the classification,
without any mention of release exceptions, indicates it is a class two
felony with no applicable exceptions.8

¶20          Finally, in response to the state’s statutory
interpretation argument, Felix notes correctly that the release
provisions were promulgated to provide incentive for the safe
release of victims. See Rainwater v. State, 189 Ariz. 367, 368, 943 P.2d
727, 728 (1997). He further argues, “It would be absurd to conclude
that the legislature provided incentive for the safe release of adult
kidnapping victims, but not of child kidnapping victims,” and he
maintains the state’s arguments are “contrary to public policy and
the basic tenets of statutory construction.” But this is at its core a
policy argument for which the proper forum is the legislature. State
v. Milke, 177 Ariz. 118, 130, 865 P.2d 779, 791 (1993). The trial court
did not err in classifying the kidnapping charge a class two felony.

      7The   class two designation is unrelated to the last portion of
that sentence, that the felony is “punishable under [A.R.S.] § 13-705.”
§ 13-1304(B). The § 13-705 sentencing scheme for dangerous crimes
against children is categorized by enumerated offense, not felony
classification.
      8 The state did not make this argument below. However,
“[w]e are required to affirm a trial court’s ruling if legally correct for
any reason.” State v. Boteo-Flores, 230 Ariz. 551, ¶ 7, 288 P.3d 111, 113
(App. 2012); see also State v. Dean, 226 Ariz. 47, n.6, 243 P.3d 1029 n.6
(App. 2010) (affirming court’s probation modification despite
incorrect application of rule of lenity).


                                   10
                          STATE v. FELIX
                         Opinion of the Court

                     Criminal Restitution Order

¶21           Although Felix has not raised the issue on appeal, we
find fundamental error associated with the criminal restitution order
(CRO), and we will correct such error when it is apparent. See A.R.S.
§ 13-8059; Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140. In
its sentencing minute entry, the trial court ordered that “all fines,
fees, and/or assessments are reduced to a Criminal Restitution
Order, with no interest, penalties or collection fees to accrue while
[Felix] is in the Department of Corrections.” The trial court’s
imposition of the CRO before the expiration of Felix’s sentence
“‘constitute[d] an illegal sentence, which is necessarily fundamental,
reversible error.’” State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910
(App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207
P.3d 784, 789 (App. 2009). This remains true even though the court
ordered that the imposition of interest be delayed until after Felix’s
release. See id. ¶ 5.

                              Disposition

¶22         For the foregoing reasons, we vacate the CRO but
otherwise affirm Felix’s convictions and sentences.




      9Section 13-805 has been amended three times since the date of
the offenses. See 2012 Ariz. Sess. Laws, ch. 269, § 1; 2011 Ariz. Sess.
Laws, ch. 263, § 1 and ch. 99, § 4. We apply the version in effect at
the time of the crimes. See 2005 Ariz. Sess. Laws, ch. 260, § 6; State v.
Lopez, 231 Ariz. 561, n.1, 298 P.3d 909, 910 n.1 (App. 2013).


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