                                                                 FILED BY CLERK
                           IN THE COURT OF APPEALS                   FEB 29 2008
                               STATE OF ARIZONA                      COURT OF APPEALS
                                 DIVISION TWO                          DIVISION TWO




THE STATE OF ARIZONA,                      )
                                           )
                              Appellee,    )       2 CA-CR 2006-0251
                                           )       DEPARTMENT B
                   v.                      )
                                           )       OPINION
DONALD ALLEN GUADAGNI,                     )
                                           )
                             Appellant.    )
                                           )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR20054436

                        Honorable Hector E. Campoy, Judge

          AFFIRMED IN PART, VACATED IN PART, AND REMANDED


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


E C K E R S T R O M, Presiding Judge.
¶1             Appellant Donald Allen Guadagni was convicted after a jury trial of one count

of bigamy, a class five felony, and ordered to pay restitution to the two women he had

married. On appeal, Guadagni argues the state presented insufficient evidence of his later

marriage to support his conviction. He also contends that his wife and putative spouse were

not victims eligible to receive restitution and that the court erred by ordering restitution after

a hearing at which neither he nor his counsel was present. We affirm Guadagni’s conviction

but vacate the restitution award and remand this matter to the trial court for a

redetermination of restitution.

                            Facts and Procedural Background

¶2             Guadagni was charged by indictment with bigamy, a class five felony, in

violation of A.R.S § 13-3606(A). The state offered evidence at trial showing Guadagni had

married Gail D. on October 4, 1990, and, while still married to and living with Gail, he

participated in a marriage ceremony with Sarah W. on September 1, 2000. Guadagni and

Sarah had obtained a marriage license earlier that day from the Pima County Superior Court,

and they both signed it following a solemnization ceremony held in Reid Park. The licensed

minister who presided over the ceremony also signed the license, along with two witnesses.

The minister then gave the license to Guadagni and Sarah at their request. Neither Guadagni

nor Sarah ever recorded the license.




                                                2
¶3            Sarah had known Guadagni had been married before, but Guadagni showed

her a document that convinced her he and Gail were divorced. Gail learned about the later

marriage when she discovered the license among Guadagni’s paperwork.

¶4            At the close of the state’s evidence, Guadagni moved for a judgment of

acquittal under Rule 20, Ariz. R. Crim. P. He argued, inter alia, that he was not married

to Sarah because neither he nor Sarah had ever recorded the license and that failure

demonstrated his lack of intent to marry. The trial court denied the motion and the jury

found Guadagni guilty of bigamy.

¶5            The trial court suspended the imposition of sentence, placed Guadagni on

three years’ supervised probation, and ordered him to serve fifteen days in jail as a condition

of probation. At the sentencing hearing, Sarah requested $2,000 in restitution for the cost

of obtaining an annulment; Gail requested $1,966.74 for lost wages and travel expenses

incurred as a result of Guadagni’s trial. Guadagni maintained Gail was not a victim under

Arizona law and requested a “hearing on the requested restitution.” The court scheduled

the hearing for September 11, 2006. Due to a scheduling conflict, the court continued the

hearing to September 25.

¶6            Neither Guadagni nor his attorney appeared on September 25. However,

Guadagni’s attorney, Anthony Knowles, had filed a “motion to withdraw as counsel of

record,” dated September 22, which was received by the court on September 25, the day of

the hearing. Nonetheless, the court proceeded with the hearing, stating at the outset:


                                              3
              I will note the absence of Mr. Knowles. He did call and left a
              message1 indicating that he had withdrawn from representing the
              defendant, at least at the Court of Appeals. I believe he is still
              of record in this case and we will proceed in his absence and in
              the absence of the defendant.

Although Gail appeared at the hearing and Sarah was available to testify telephonically from

her home in Canada, the court concluded that the matter was uncontested and required no

testimony from either of them. The court accepted supporting documentation from the state

and ordered restitution for the full amounts sought by Gail and Sarah totaling $4,164.88.2

This appeal followed.

                                 Sufficiency of the Evidence

¶7            Guadagni first argues the state presented insufficient evidence he and Sarah

were married because the couple took no action to record their marriage license, as required

by A.R.S. § 25-125(B). Guadagni maintains there consequently was no marriage under

Arizona law and, therefore, the trial court erred in denying his motion for a judgment of

acquittal pursuant to Rule 20.

¶8            We review a trial court’s denial of a motion for judgment of acquittal for an

abuse of discretion and will reverse only if no substantial evidence supports the conviction.

Ariz. R. Crim. P. 20(a); State v. Henry, 205 Ariz. 229, ¶ 11, 68 P.3d 455, 458 (App. 2003).



       The court’s minute entry shows the telephone message was left with the prosecuting
       1

attorney, not the court.
       2
        There is a $100 discrepancy between the court’s total restitution order ($4,164.88)
and its minute entry ($4,264.88).

                                              4
Substantial evidence is evidence that a reasonable jury can accept as sufficient to infer guilt

beyond a reasonable doubt. State v. Fulminante, 193 Ariz. 485, ¶ 24, 975 P. 2d 75, 83

(1999). If reasonable fact-finders could differ on the inferences to be drawn from the

evidence, we must accept those reasonable inferences that support the verdict. Id. ¶ 27;

Henry, 205 Ariz. 229, ¶ 11, 68 P.3d at 458. When, as here, we must construe the meaning

of a statute to determine whether sufficient evidence has been presented, we conduct that

part of our analysis de novo, and, in so doing, our principal aim is to effectuate legislative

intent. Henry, 205 Ariz. 229, ¶¶ 13-14, 68 P.3d at 459.

¶9            Arizona’s bigamy statute provides: “A person having a spouse living who

knowingly marries any other person is guilty of a class 5 felony.” § 13-3606(A). Thus, to

convict a person of that crime, the state must prove that a person knowingly has married

another person, and that the accused would have had a valid subsequent marriage under

Arizona civil law but for his or her earlier, ongoing marriage. See Ford v. State, 21 Ariz.

567, 570, 192 P. 1117, 1118 (1920) (bigamy charge must allege second marriage would

have been legal marriage but for existence of other spouse; state must prove details of second

marriage, including prima facie authority of person officiating); cf. United States v. Tenney,

2 Ariz. 127, 135, 11 P. 472, 475 (1886) (affirming federal bigamy conviction, holding

“marriage laws of Arizona would govern as the proof of marriage”).3




       We note that Arizona’s child bigamy statute, A.R.S. § 13-3609(A), (D)(1), allows
       3

prosecution for a “marriage” in which no marriage license was “issued.”

                                              5
¶10           Section 25-111, A.R.S., sets forth the requirements for a lawful marriage in

Arizona:

                    A. A marriage shall not be contracted by agreement
              without a marriage ceremony.

                     B. A marriage contracted within this state is not valid
              unless all of the following occur:

                     1. A license is issued as provided in this title.

                     2. The marriage is solemnized by a person authorized
              by law to solemnize marriages or by a person purporting to act
              in such capacity and believed in good faith by at least one of the
              parties to be so authorized.

                    3. The marriage is solemnized before the expiration of
              the marriage license.

Section 25-125 further provides:

                     A. A valid marriage is contracted by a male person and a
              female person with a proper marriage license who participate in a
              ceremony conducted by and in the presence of a person who is
              authorized to solemnize marriages and at which at least two witnesses
              who are at least eighteen years of age participate.

                     B. A marriage license shall be signed by both persons married,
              two of the witnesses to the marriage ceremony and the person who
              solemnized the marriage, who shall return the signed marriage license
              to the clerk of the superior court for recording.

Although Guadagni is correct that § 25-125(B) requires that a marriage license be recorded,

nothing in that or any other pertinent statute establishes what effect, if any, the failure to

record has on the validity of a marriage.



                                              6
¶11           Notably, the requirement that a marriage license be filed and recorded is

directed at the official who solemnizes a marriage, not the parties to the marriage. § 25-125;

Barbosa-Johnson v. Johnson, 174 Ariz. 567, 569, 851 P.2d 866, 868 (App. 1993). And,

the only express sanction for the failure to file and record the license is likewise directed

exclusively at the official. See A.R.S. § 25-128(A)(3), (B) (official who has failed to record

license commits class two misdemeanor). Together those provisions suggest that the

legislature intended to enforce the recording requirement by creating incentives for the

relevant official to carry out that duty—rather than by invalidating the marriage altogether,

a sanction that would, under most circumstances, impose significant legal consequences on

the marrying parties for a mere ministerial oversight. See State v. Huskie, 202 Ariz. 283, ¶ 5,

44 P.3d 161, 163 (App. 2002) (in determining legislative intent, we consider, inter alia,

statute’s “‘consequences, spirit and purpose’”), quoting Hobson v. Mid-Century Ins. Co.,

199 Ariz. 525, ¶ 8, 19 P.3d 1241, 1245 (App. 2001). We therefore follow existing Arizona

jurisprudence and reject Gaudagni’s claim that the mere failure to record a marriage license

invalidates the marriage. See Barbosa-Johnson, 174 Ariz. at 568-69, 851 P.2d at 867-68

(finding marriage not invalidated by non-recording of license even when license remains in

parties’ control).

¶12           Having concluded the state need not prove that a marriage license was

recorded to demonstrate a person has “knowingly marrie[d]” in violation of § 13-3606(A),

we reject Guadagni’s claim that the state presented insufficient evidence of his guilt.


                                              7
Guadagni does not dispute that he was married to Gail at the time he participated in a

marriage ceremony with Sarah and that his marriage to Gail was valid. The state presented

evidence that Guadagni and Sarah had obtained a marriage license together, exchanged vows

in the presence of a minister and two suitable witnesses, and signed their names to the

license. Thus, Guadagni and Sarah did all that was statutorily required of them to marry

each other and, were it not for his ongoing marriage to Gail, Guadagni and Sarah would have

been legally married as a result of their Reid Park ceremony. Guadagni claims he lacked the

necessary intent to marry Sarah at the time of the ceremony, as evidenced by his failure to

return the license to the official to be recorded. But, even assuming arguendo that the state

was required to show such intent, see § 13-3606(A) (mental state for crime is “knowingly”),

the jury could reasonably infer such intent from his participation in the ceremony before

witnesses and his execution of the license. Because there was substantial evidence showing

Guadagni married Sarah while still married to Gail, the trial court did not abuse its discretion

by denying Guadagni’s motion for a judgment of acquittal.

                                         Restitution

¶13           Guadagni next contends that bigamy is not an offense for which a court may

impose restitution on behalf of a victim. He argues “[b]igamy . . . is not an offense against

anyone,” because fraud is not part of the crime, and the knowledge or complicity of either

spouse is irrelevant to the charge. From this, Guadagni concludes, “the parties’ welfare is

not the object of legislative protection—the institution of monogamous marriage is,” making


                                               8
bigamy a victimless crime meant to “promot[e] monogamous marriages and prohibit[] even

consensual polygamous marriages.” Guadagni had specifically argued below and to this

court that Gail, his legal wife, was not a statutory victim eligible to receive restitution.

Insofar as his argument presents a question of law and statutory interpretation, we review

this matter de novo. See State v. Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505 (1997).

¶14           Following a criminal conviction, the trial court must “require the convicted

person to make restitution to the person who is the victim of the crime . . . in the full amount

of the economic loss.” A.R.S. § 13-603(C). A victim is defined as “a person against whom

the criminal offense has been committed.”           Ariz. Const. art. II, § 2.1(C); A.R.S.

§ 13-4401(19). A crime, in turn, is any felony or misdemeanor, A.R.S. § 13-105(6), and an

offense is conduct punishable by imprisonment or fine under state or local law, A.R.S.

§ 13-105(23). See State ex rel. Thomas v. Klein, 214 Ariz. 205, ¶ 15, 150 P.3d 778, 782

(App. 2007) (holding unconstitutional definition of criminal offense in § 13-4401(6) insofar

as it narrowed definition of victim in effect when Victims’ Bill of Rights adopted). In other

words, only crimes that may be committed against someone will have victims.4

¶15           Although there may be instances in which bigamy is a “victimless

crime”—with all parties to a plural marriage fully informed, willing participants, and no


       4
        Statutes may, by defining “criminal offense,” A.R.S. § 13-4401(6), expand the class
of victims of a crime. See, e.g., State ex rel. Romley v. Superior Court, 184 Ariz. 409, 411,
909 P.2d 476, 478 (App. 1995) (finding owner of damaged car to be restitution-eligible
victim of intoxicated driver insofar as offense of driving under influence of intoxicant posed
“threat of physical injury” under § 13-4401(6)).

                                               9
one’s interests acted against, in any ordinary sense of the word—a hypothetical victimless

case does not render bigamy a victimless crime. As our supreme court has implicitly held,

the elements of a crime do not alone determine whether a particular person is entitled to

restitution. Rather, the facts underlying a conviction determine whether there are victims

of a specific crime as well as the amount of their recoverable loss. See, e.g., State v.

Wilkinson, 202 Ariz. 27, ¶¶ 5, 9, 14, 39 P.3d 1131, 1132-34 (2002) (finding party to a

contract a victim of offense of contracting without license; victim entitled to recovery to

extent “particular criminal conduct directly cause[d] the victim’s loss”).

¶16           This court has held that not all persons or entities who suffer financially as a

result of an offense are victims. See, e.g., State v. French, 166 Ariz. 247, 248-49, 801 P.2d

482, 483-84 (App. 1990) (motel owner not victim entitled to cleaning costs incurred as

result of sexual assault on premises); State v. Maupin, 166 Ariz. 250, 253, 801 P.2d 485,

488 (App. 1990) (state not victim entitled to recoup costs of prosecution). However, our

courts repeatedly have found persons to be “victims” of a crime when the elements of the

offense necessarily involve unlawful interaction with those persons or their property. See,

e.g., Wilkinson, 202 Ariz. 27, ¶ 1, 39 P.3d at 1132 (contracting without license; contractee

victim); In re William L., 211 Ariz. 236, ¶¶ 2-3, 119 P.3d 1039, 1041 (App. 2005)

(unlawful use of means of transportation; car owner victim); State v. Guilliams, 208 Ariz.

48, ¶¶ 3, 15, 90 P.3d 785, 787, 789-90 (App. 2004) (attempted escape; state prison victim);




                                             10
State v. Sorkhabi, 202 Ariz. 450, ¶¶ 11-13, 46 P.3d 1071, 1074 (App. 2002) (resisting

arrest; arresting officer victim).

¶17            Keeping these principles in mind, we conclude bigamy is a felony that, under

many circumstances, involves unlawful interaction with persons to their detriment. Bigamy

requires multiple marriages as an element of the offense. And marriage is an act that

necessarily requires another person’s involvement. Whether that act results in victims will,

like contracting without a license, depend on the circumstances of the case. Here, Gail and

Sarah clearly were victims. Both testified that they had not consented to Guadagni’s other

marriage. Guadagni therefore committed his crime “against” these two women, making them

both “victims” of his unlawful marriage as defined by our constitution. See Ariz. Const. art.

II, § 2.1(C) (“‘Victim’ means a person against whom the criminal offense has been

committed . . . except if the person is in custody for an offense or is the accused.”).5

¶18            Accordingly, Gail and Sarah are entitled to restitution for the economic losses

they suffered as a direct result of Guadagni’s unlawful marriage. See Wilkinson, 202 Ariz.

27, ¶ 7, 39 P.3d at 1133 (restitution statutes “direct a court to award restitution for those


       5
        We note that a victim’s comparative fault for an injury or potential criminal
culpability ordinarily is not relevant to his or her status and eligibility for restitution. See,
e.g., Knapp v. Martone, 170 Ariz. 237, 239, 823 P.2d 685, 687 (1992) (mother’s potential
criminal liability for children’s murder); State v. Clinton, 181 Ariz. 299, 299-300, 890 P.2d
74, 74-75 (App. 1995) (comparative fault for drinking with driver). Yet the putative victim’s
role in a crime may be a threshold question courts must answer in order to determine
whether the crime was committed against someone in “the plain language of . . . our
constitution.” Knapp, 170 Ariz. at 239, 823 P.2d at 687; see also State v. Roscoe, 185
Ariz. 68, 71, 912 P.2d 1297, 1300 (1996).

                                               11
damages that flow directly from the defendant’s criminal conduct, without the intervention

of additional causative factors”). Section 13-105(14), A.R.S., defines “economic loss” as

“any loss incurred by a person as a result of the commission of an offense . . . includ[ing]

lost earnings.” Wages lost due to voluntary attendance at trial are recoverable, State v.

Lindsley, 191 Ariz. 195, 198-99, 953 P.2d 1248, 1251-52 (App. 1997), as are a victim’s

travel expenses, State v. Madrid, 207 Ariz. 296, ¶ 10, 85 P.3d 1054, 1058 (App. 2004).

¶19           The record suggests that Gail sought restitution for her lost wages and travel

expenses related to the trial; Sarah sought restitution for her costs in obtaining an

annulment.6 Upon proper documentation of those events and the amounts arising therefrom,

the amounts these victims sought are recoverable as restitution pursuant to § 13-105(14),

flowing sufficiently from the defendant’s criminal conduct under the test set forth in

Wilkinson, 202 Ariz. 27, ¶ 7, 39 P.3d at 1133.

¶20           Last, Guadagni argues that “the [c]ourt’s restitution order is illegal because it

was entered after an ex parte proceeding in violation of Guadagni’s due process and

assistance of counsel rights.” We agree that the order was flawed for this reason and must

be vacated.

¶21           “The right to counsel in criminal proceedings is guaranteed by the Sixth

Amendment to the United States Constitution and Article 2, Section 24, of the Arizona



       6
       Although the state offered two exhibits to support these awards and the trial court
admitted them into evidence, these documents were not included in the record on appeal.

                                             12
Constitution.” State v. Taylor, 216 Ariz. 327, ¶ 13, 166 P.3d 118, 122 (App. 2007).

Restitution is part of sentencing, and a restitution hearing is therefore a criminal proceeding.

In re Stephanie B., 204 Ariz. 466, ¶ 15, 65 P.3d 114, 117-18 (App. 2003); State v. Lewus,

170 Ariz. 412, 414, 825 P.2d 471, 473 (App. 1992); State v. Scroggins, 168 Ariz. 8, 9, 810

P.2d 631, 632 (App. 1991); State v. Cummings, 120 Ariz. 69, 70-71, 583 P.2d 1389, 1390-

91 (App. 1978). Indeed, when a criminal defendant is ordered to pay restitution as a

condition of probation, as Guadagni was here, his failure to make timely court-ordered

payments could constitute a probation violation and result in jail time or imprisonment. See

State v. Robinson, 142 Ariz. 296, 297-98, 689 P.2d 555, 556-57 (App. 1984) (court may

revoke probation for failure to pay restitution after considering probationer’s ability to pay).

The potential loss of liberty associated with criminal restitution thus entitles a defendant

who is unable to afford an attorney to court-appointed counsel. See Ariz. R. Crim. P. 6.1(b)

(indigent defendant entitled to court-appointed counsel when “criminal proceeding . . . may

result in punishment by loss of liberty”); see also Galaz v. Carruth, 129 Ariz. 368, 369, 631

P.2d 523, 524 (1981) (constitutional right to counsel when defendant faces loss of liberty).

When a defendant is so entitled to the assistance of counsel under the Sixth Amendment,

“[a]ctual or constructive denial of th[at] assistance . . . is legally presumed to result in

prejudice.” Strickland v. Washington, 466 U.S. 668, 692 (1984).

¶22           The trial court’s actions, however well-intentioned to expedite Guadagni’s

case, deprived Guadagni of his right to counsel at the restitution hearing. Guadagni had


                                              13
specifically requested that such a hearing be held and his counsel expressed a clear intent

to represent Guadagni at that proceeding. Nonetheless, the court ultimately conducted the

hearing without Guadagni’s counsel present and entered an award against Guadagni at that

time. Even assuming arguendo that Guadagni’s absence at that hearing constituted sufficient

grounds for the court to conclude that he had knowingly, voluntarily, and intelligently

waived his right to personally appear, the state has not suggested, nor does the record

support, that Guadagni ever waived his right to have counsel represent him. See State v.

Hampton, 208 Ariz. 241, ¶ 7, 92 P.3d 871, 873-74 (2004) (defendant’s waiver of right to

counsel must be knowing, voluntary, and intelligent). And the record before us does not

eliminate the possibility that Guadagni’s failure to attend may have been motivated in whole,

or in part, by his belief that his counsel would appear and act competently on his behalf.

¶23           Moreover, the state offered evidence at Guadagni’s restitution hearing

supporting a higher award than the victims had sought at the sentencing hearing. By entering

its restitution order on the basis of new information that neither the defendant nor his

attorney had the opportunity to challenge, the trial court also violated Guadagni’s due

process right to contest the amount of restitution. See, e.g., Lewus, 170 Ariz. at 414, 825

P.2d at 473 (vacating restitution order entered by minute entry, not in open court with

defendant present, where counsel had previously addressed only legality of restitution).

Accordingly, we conclude the trial court erred when it conducted a restitution hearing in the

absence of Guadagni’s counsel. Because we presume prejudice when a criminal defendant


                                             14
has been denied the assistance of any counsel in a criminal proceeding, Strickland, 466 U.S.

at 692, we must vacate the restitution order.

¶24           We affirm Guadagni’s conviction and reject his contention that, as a matter of

law, Gail and Sarah are not victims and, therefore, not entitled to receive restitution. But

for the reasons stated herein, we vacate the order of restitution and remand this matter to the

trial court for further proceedings consistent with this opinion.




                                                ____________________________________
                                                PETER J. ECKERSTROM, Presiding Judge

CONCURRING:



____________________________________
PHILIP G. ESPINOSA, Judge



____________________________________
GARYE L. VÁSQUEZ, Judge




                                              15
