                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   SAMPSON YAZZIE WEBB, Appellant.

                             No. 1 CA-CR 13-0619
                               FILED 06-17-2014


           Appeal from the Superior Court in Coconino County
                          No. CR 2012-00397
                The Honorable Jacqueline Hatch, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele Ponce
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                            STATE v. WEBB
                          Decision of the Court



                     MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined.


G O U L D, Judge:

¶1          Sampson Yazzie Webb appeals the trial court’s imposition of
an aggravated prison sentence. Webb argues the trial court abused its
discretion by aggravating his sentence based on two aggravating
circumstances: (1) substantial physical harm to the victim, and (2)
emotional harm to the victim. Because we find no abuse of discretion, we
affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            This case stems from an altercation between Webb and
victim R.B. The confrontation escalated, and Webb stabbed R.B. with a
knife. Webb was ultimately convicted by a jury of aggravated assault for
intentionally, knowingly or recklessly causing physical injury using a
deadly weapon or dangerous instrument (a knife), pursuant to Arizona
Revised Statutes (“A.R.S.”) section 13-1204(A)(2), a class 3 dangerous
felony.1

¶3           At sentencing, the trial court determined that Webb would
be sentenced as a dangerous offender pursuant to A.R.S. § 13-704(A).
The trial court also found three aggravating circumstances: (1) Webb’s
extensive criminal history; (2) emotional harm to the victim; and (3)
substantial physical harm to the victim. After weighing the aggravating
and mitigating circumstances, the trial court decided to impose an
aggravated prison sentence of ten years. Webb filed a timely appeal.

                             DISCUSSION

¶4            Webb asserts the trial court abused its discretion in
sentencing him to an aggravated prison term because there was
insufficient evidence to support its finding of substantial physical harm

1     Absent material revisions after the relevant date, we cite to the
current versions of all statutes.



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                              STATE v. WEBB
                            Decision of the Court

and emotional harm as aggravating circumstances. Webb seeks to have
his sentence vacated and “remanded for sentencing without consideration
of substantial physical harm or emotional harm as aggravators.”

¶5            “We will not disturb a sentence that is within the statutory
range absent an abuse of the trial court’s discretion.” State v. Joyner, 215
Ariz. 134, 137, ¶ 5, 158 P.3d 263, 266 (App. 2007); see State v. Hernandez, 231
Ariz. 353, 355, ¶ 3, 295 P.3d 451, 453 (App. 2013). Moreover, “[we] will
find an abuse of sentencing discretion only if the court acted arbitrarily or
capriciously or failed to adequately investigate the facts relevant to
sentencing.” State v. Cazares, 205 Ariz. 425, 427, ¶ 6, 72 P.3d 355, 357 (App.
2003); see Hernandez, 231 Ariz. at 355, ¶ 3, 295 P.3d at 453. A trial court’s
finding of an aggravating circumstance must be (1) determined by a
preponderance of the evidence, and (2) based on evidence that is
substantiated in the record. A.R.S. § 13-701(F); State v. Jones, 147 Ariz. 353,
355, 710 P.2d 463, 465 (1985).

¶6            Webb concedes the trial court had discretion to sentence him
within the aggravated prison range based on its finding he was convicted
of a felony within ten years prior to the current offense. State v. Martinez,
210 Ariz. 578, 584-85, ¶¶ 21, 26, 115 P.3d 618, 624-25 (2005) (holding that a
finding of a single aggravating circumstance is sufficient to expose a
defendant to an aggravated prison range); A.R.S. §§ 13-701(C), -701(D)(11)
(aggravating factor that defendant has been convicted of a prior felony
within the past ten years may be found by a judge). 2 Webb also
acknowledges that the trial court’s reliance on “substantial physical
injury”3 as an aggravating circumstance pursuant to A.R.S. § 13-701(D)(9)
is proper, even though “physical injury” is an element of the underlying
offense of aggravated assault. State v. Alvarez, 205 Ariz. 110, 113 n.3, ¶¶ 6-
8, 67 P.3d 706, 709 n.3 (App. 2003) (holding that aggravating factors listed
in A.R.S. §13-702(C) (West 2001) may be used to aggravate a prison term

2      When Webb took the stand at trial, he admitted he had been
convicted of a prior felony in 2006. State v. Whitney, 159 Ariz. 476, 485, 168
P.2d 638, 647 (1989) (stating that there is sufficient proof of a prior felony
conviction for sentencing purposes if a “defendant admits the prior
conviction[] during his testimony at trial”). In addition, during Webb’s
sentencing hearing a certified copy of his prior felony conviction was
admitted into evidence.
3      Although the trial court used the phrase “substantial physical
injury” as an aggravating circumstance, A.R.S. § 13-701(D)(9), simply lists
“physical injury” as an aggravator.



                                      3
                             STATE v. WEBB
                           Decision of the Court

even if they also constitute elements of the offense); State v. Tschilar, 200
Ariz. 427, 435, ¶ 33, 27 P.3d 331, 339 (App. 2001) (same).4

¶7            Webb first claims the trial court abused its discretion in
finding substantial physical harm as an aggravating circumstance. Webb
argues that R.B.’s stab wound was minor and not life-threatening. In
addition, Webb asserts there is no evidence to support the court’s finding
that R.B.’s wound was “not that far from his heart.” We disagree.

¶8            The record reflects that R.B. was stabbed in the chest by
Webb, a few inches below R.B.’s heart. R.B. bled profusely from the
wound, causing him to lose consciousness. R.B. was taken to the hospital,
and it took approximately one and a half to two months for the wound to
heal. Accordingly, we conclude there was sufficient evidence for the trial
court to consider substantial physical harm as an aggravating
circumstance.

¶9            Next, Webb asserts there is no evidence to support the trial
court’s finding of emotional harm as an aggravating circumstance. While
Webb objected to the court’s finding of substantial physical harm as an
aggravating circumstance, he did not object to the court’s finding of
emotional harm as an aggravator; therefore, we review for fundamental
error only. State v. Henderson, 210 Ariz. 561, 567–68, ¶¶ 19–20, 115 P.3d
601, 607–08 (2005). Under a fundamental error standard, Webb must
demonstrate not only that fundamental error occurred, but also that he
suffered prejudice as a result of the error. Henderson, 210 Ariz. at 567–68,
¶ 20, 115 P.3d at 607–08.

¶10          We find no error, much less fundamental error. The record
shows that Webb stabbed R.B. in the driveway/front lawn of his girlfriend
M.C.’s house while R.B. was celebrating M.C.’s birthday with her family;
the stab wound was near R.B.’s heart, and several of M.C.’s family
members were present when the stabbing occurred. Considering all these
circumstances, we are unable to conclude the trial court erred in
determining that R.B. suffered emotional harm from this incident.




4       An exception to this rule exists for the aggravating factors listed in
A.R.S. §§ 13-701(D)(1) and 13-701(D)(2). Both of these statutes list factors
that may be considered as aggravating factors “except if this circumstance
is an essential element of the offense of conviction.”



                                      4
                             STATE v. WEBB
                           Decision of the Court

¶11           Finally, even if Webb were able to show the trial court erred
in finding emotional harm as an aggravating circumstance, Webb has
failed to show that he suffered any prejudice. Henderson, 210 Ariz. at 567–
68, ¶ 20, 115 P.3d at 607–08. Prejudice cannot be established merely by
speculating that a trial court may have imposed a lesser sentence absent
consideration of the erroneous aggravating circumstance.            State v.
Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006) (holding
that appellate court would not speculate as to whether the sentencing
judge might have sentenced defendant to a lesser sentence if it had not
considered an improper aggravating circumstance, where there was no
support in the record for such speculation).

¶12           Webb does not cite to any evidence indicating that the trial
court intended to impose a lesser prison term absent a finding of
emotional harm. Munninger, 213 Ariz. at 397, ¶ 14, 142 P.3d at 705 (“It is
plain from the transcript that the trial court intended to impose an
aggravated sentence.”). Indeed, emotional harm was not the only
aggravator found by the trial court. In addition to finding substantial
physical harm, the trial court stated that Webb’s extensive criminal history
was also an aggravating circumstance.           In making its sentencing
determination, the trial court stated that it placed “great weight” on the
fact that Webb had an extensive criminal history, consisting of “at least six
prior felonies” and “24 misdemeanors.”

                              CONCLUSION

¶13          For the reasons discussed above, we affirm Webb’s sentence.




                                   :gsh




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