                                                                    FILED BY CLERK
                                                                       SEP 23 2013
                              IN THE COURT OF APPEALS                   COURT OF APPEALS
                                  STATE OF ARIZONA                        DIVISION TWO

                                    DIVISION TWO


THE STATE OF ARIZONA,                           )     2 CA-CR 2012-0377
                                                )     DEPARTMENT B
                                    Appellee,   )
                                                )
                    v.                          )     OPINION
                                                )
ARMANDO PENA JR.,                               )
                                                )
                                   Appellant.   )
                                                )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR20114301001

                         Honorable Howard Fell, Judge Pro Tempore

 AFFIRMED IN PART; VACATED IN PART; REMANDED FOR RESENTENCING


Thomas C. Horne, Arizona Attorney General
 By Joseph T. Maziarz and Nicholas Klingerman                                  Tucson
                                                                Attorneys for Appellee

Lori J. Lefferts, Pima County Public Defender
 By Abigail Jensen                                                             Tucson
                                                               Attorneys for Appellant


E S P I N O S A, Judge.
¶1            Armando Pena Jr. appeals from his convictions following a jury trial of one

count each of kidnapping and aggravated assault with a deadly weapon and three counts

of aggravated assault causing temporary and substantial disfigurement. He asserts there

was insufficient evidence supporting two of the three counts of aggravated assault

causing disfigurement and that the criminal restitution order (CRO) the trial court entered

at sentencing was improper. For the reasons set forth below, we reduce the conviction

for one count from aggravated assault to assault and remand for resentencing on that

count. We also vacate the CRO, and affirm Pena’s remaining convictions and sentences.

                         Factual and Procedural Background

¶2            We view the evidence in the light most favorable to sustaining the jury’s

verdicts. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008).

On November 12, 2011, Pena repeatedly assaulted the victim, at times with a knife or

other sharp object, and at one point dragged her back into her home after she attempted to

flee. She sustained injuries to her leg, hand, and abdomen. The injury to her leg was a

“three to four inch[]” laceration “down into the fatty tissue and into the muscle.” Her

hand injury was a three-inch cut covering her “entire left palm,” and was “full thickness,

which means it went through all the layers of the skin” revealing muscle tissue. Her

abdominal injury was a puncture wound approximately two centimeters long, exposing

some “fatty tissue.”

¶3            Pena was charged and convicted as described above and the trial court

sentenced him to concurrent prison terms, the longest of which was 10.5 years for


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kidnapping. The court ordered at sentencing that “all fines, fees, and assessments are

reduced to a [CRO], with no interest, penalties or collection fees to accrue while the

defendant is in the Department of Corrections.” This appeal followed.

                              Sufficiency of the Evidence

¶4           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). We view the facts in the

light most favorable to upholding the jury’s verdict and resolve all conflicts in the

evidence against the defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301,

1307 (1983). “To set aside a jury verdict for insufficient evidence it must clearly appear

that upon no hypothesis whatever is there sufficient evidence to support the conclusion

reached by the jury.” State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).

To the extent our decision depends on the interpretation of a statute, our review is de

novo. State v. George, 206 Ariz. 436, ¶ 6, 79 P.3d 1050, 1054 (App. 2003).

¶5           Relevant here, a person commits aggravated assault if he or she commits

assault as defined by A.R.S. § 13-1203 and “causes temporary but substantial

disfigurement.”1 A.R.S. § 13-1204(A)(3). Because the state charged each of the three

wounds as separate counts of aggravated assault, we do not view the injuries collectively

when analyzing whether the state presented sufficient evidence of “temporary but


      1
        We note the state acknowledges it presented no evidence or argument that the
victim suffered “temporary but substantial loss or impairment of any body organ or part
or a fracture of any body part,” A.R.S. § 13-1204(A)(3). It is a well-established medical
fact, however, that the human skin constitutes an organ. See 101 Am. Jur. Trials § 109
(2006). Because neither side raised this issue below or on appeal, we do not address it.
                                            3
substantial disfigurement”; rather, we consider whether the state presented sufficient

evidence as to each charged injury.

¶6            Pena contends the injuries to the victim’s hand and abdomen did not

constitute substantial disfigurement and the two separate convictions for those injuries

must be vacated. Specifically, he argues the state presented inadequate evidence from

which the jury could conclude those injuries affected the victim’s appearance sufficiently

to characterize them as substantially disfiguring.    As to the puncture wound to the

victim’s abdomen, Pena emphasizes that the location of that injury is generally covered

by clothing and therefore could not be considered disfiguring under any circumstances.

To address these claims, we must consider what injuries may be properly characterized as

causing temporary but substantial disfigurement.

¶7            Neither “disfigurement” nor “substantial disfigurement” are defined in

Arizona statute, and Arizona courts have never addressed the meaning of those terms as

they are used in § 13-1204(A)(3). Under such circumstances, we must give statutory

language “its ordinary, common meaning.” Funk v. Indus. Comm’n, 167 Ariz. 466, 469,

808 P.2d 827, 830 (App. 1991). Accordingly, when our courts have had occasion to

clarify and apply either of those terms, they have done so with primary reference to

accepted dictionary definitions.

¶8            In State v. Garcia, this court addressed the meaning of “serious . . .

disfigurement” in relation to the definition of serious physical injury for aggravated

assault under § 13-1204(A)(1). 138 Ariz. 211, 214, 673 P.2d 955, 958 (App. 1983).


                                            4
There, we determined that, in order to constitute disfigurement, an injury must “impair

the visible appearance of the victim.” Id., citing Black’s Law Dictionary (4th ed. 1968).

We read these related provisions in pari materia, see State ex rel. Larson v. Farley, 106

Ariz. 119, 122, 471 P.2d 731, 734 (1970), making that definition equally applicable to

“disfigurement” as used in § 13-1204(A)(3), the provision we address here.

¶9           In the context of addressing an injury under a workers’ compensation

statute, we likewise concluded that “disfigurement” involves marring or impairing a

person’s appearance. Funk, 167 Ariz. at 469, 808 P.2d at 830. We also noted that such

an injury must exist for some meaningful duration to meet the definition of the term. See

id. at 468-69, 808 P.2d at 829-30 (suggesting disfigurement involves “‘persistent

injuries’” impairing appearance), quoting Webster’s Ninth New Collegiate Dictionary

362 (1985). Although our legislature has specified that visible injuries need only be

“temporary” and need be neither permanent nor protracted to qualify as “disfigurement”

pursuant to § 13-1204(A)(3), the duration of a temporary injury remains an appropriate

factor to consider when evaluating whether a person has been disfigured. For example,

superficial injuries such as a minor bruise or bloody lip that return to normal in a few

days might briefly mar the appearance of a person’s face. Yet such blemishes, if only

ephemeral, cannot be reasonably characterized as substantially disfiguring.2


      2
        We do not suggest that either bruises or bloody lips can never be disfiguring.
Whether the individual injury in a particular case mars the appearance of a victim for
sufficient duration or degree to be considered substantially disfiguring will usually be a
jury question.

                                            5
¶10            Although there are no Arizona cases expressly defining the term

“substantial” in the context of aggravated assault under § 13-1204(A)(3), we agree with

the Washington Supreme Court that the term as it applies here is most appropriately and

commonly understood to mean “‘considerable in amount, value, or worth.’” State v.

McKague, 262 P.3d 1225, 1227 (Wash. 2011) (addressing definition of “substantial

bodily harm” as used in assault statute), quoting Webster’s Third New Int’l Dictionary

2280 (2002).     By including this term, our legislature has required that the state

demonstrate “some harm substantially greater than the minimum required for

‘disfigurement.’” People v. McKinnon, 937 N.E.2d 524, 526 (N.Y. 2010) (analyzing

meaning of “to disfigure . . . seriously”). Put another way, some visible disfiguring

injuries must be excluded by the word “substantial,” otherwise that language would serve

no purpose. See McKague, 262 P.3d at 1226-27.

¶11            Moreover, the accompanying language in § 13-1204(A)(3) concerning

fractures or impairments of body parts or organs suggests that the legislature intended

substantial disfigurement “to describe an injury of comparable importance.” McKinnon,

937 N.E.2d at 526; see Estate of Braden ex rel. Gabaldon v. State, 228 Ariz. 323, ¶ 13,

266 P.3d 349, 352 (2011) (principle of “noscitur a sociis . . . dictates that a statutory term

is interpreted in context of the accompanying words”). Hence, we conclude that minor

bruises, scratches, or lacerations do not amount to “substantial disfigurement” under this

provision because they are not comparable to fractures or temporary loss of the use of an

organ or body part. And, in fact, the record here reflects that the state properly did not


                                              6
bring separate charges under § 13-1204(A)(3) for each minor laceration or bruise Pena

caused the victim, many of which are apparent from the photographs in evidence.

¶12            We do not purport here to present an exhaustive list of the factors that a

jury may reasonably consider when determining whether a victim has been substantially

disfigured. As the court in McKinnon observed when addressing analogous language in a

New York statute, “‘no conceivable standard’” can perfectly identify the boundary

separating ordinary and substantial disfigurement. 937 N.E.2d at 526, quoting Fleming v.

Graham, 886 N.E.2d 769, 773 (N.Y. 2008). We can, however, for the reasons stated

above, conclude that § 13-1204(A)(3) requires the inquiry to include both consideration

of the extent to which the injury is visually apparent and the degree to which that injury

must be considered a minor one. Those considerations may depend on numerous factors

such as the size of the injury, its location on the body, its level of contrast with the

surrounding tissue, and its relative persistence viewed through the lens of common

experience.3

¶13            We now apply these principles to the specific counts that Pena challenges.

As to the victim’s hand injury, Pena asserts the victim had no resulting scar and there was

“no other evidence” that the injury affected her “visible appearance.” His argument,

however, is belied by the photographs of her injury, which show a deep and bloody

laceration covering the victim’s entire palm. The jury could reasonably conclude from


       3
         We do not propose or imply that a disfiguring injury must persist for any specific
or minimum amount of time, only that some evidence of duration is necessary to satisfy
the statutory requirement that the disfigurement be “substantial.”
                                            7
the location of the injury, its depth, and its size that it would be readily visible to the

casual observer during the process of healing. And the responding paramedic’s statement

that the laceration exposed muscle tissue would entitle a jury to infer that the injury’s

effect on the appearance of the victim’s hand would be more than fleeting and instead

would take some meaningful time to heal. See State v. Aguilar, 169 Ariz. 180, 182, 818

P.2d 165, 167 (App. 1991) (jury may rely on common sense and experience during

deliberations). Thus, the jury readily could conclude the victim had suffered a substantial

disfigurement. Despite Pena’s suggestion to the contrary, the fact that the laceration left

no permanent scar is irrelevant—the statute requires only temporary disfigurement. See

§ 13-1204(A)(3).

¶14           With respect to the victim’s abdominal injury, Pena claims it did not

constitute substantial disfigurement because “[it] was in an area normally covered by

clothing” and thus did not affect her visible appearance.         We disagree with this

contention. The location of an injury can obviously be a relevant factor in evaluating the

degree of disfigurement caused by the injury. For example, an injury to the face will

usually be more disfiguring than the same injury to a part of the body typically covered

by clothes.   But we reject the suggestion that an injury to a location of the body

“normally covered by clothing” can never be disfiguring. Cf. People v. Newton, 287

N.E.2d 485, 486 (Ill. App. Ct. 1972) (holding jury could find small scar hidden by hair

was permanent disfigurement). Indeed, parts of the body usually covered by clothing can




                                            8
be no less important to an individual’s appearance in intimate or public contexts when

less clothing is worn.4

¶15           However, we agree with Pena that the state failed to present sufficient

evidence from which a jury could find beyond a reasonable doubt that the abdominal

injury here, while disfiguring, was substantially so. Photographs of that injury show a

bloody but diminutive teardrop-shaped puncture wound, between one and two

centimeters long, to an area above the victim’s left hip. Although the paramedic noted

the injury was deep enough to expose some tissue beneath the skin, he characterized it as

“superficial enough that it wasn’t a major concern,” and apparently did not consider it

sufficiently serious to even bandage at the scene. The photographs of the injury, taken

shortly after the incident and before the wound was closed, provide no indication of how

the wound eventually appeared after any treatment that might have been necessary. The

state presented no other evidence from which the jury could infer the length or brevity of

the healing process or how the wound would look during the stages of that process. And,

as Pena has observed, that injury did not occur to an especially visible part of the victim’s

anatomy. Finally, to the extent the victim addressed her wounds, she tended to minimize

their impact. Given the dearth of evidence presented, the jury was left to speculate about

the degree to which this particular wound would substantially disfigure the victim.

       4
        For this reason, Pena’s reliance on Garcia is unavailing. There, we determined
that an injury to a victim’s hymenal membrane did not constitute a disfiguring injury.
Garcia, 138 Ariz. at 214, 673 P.2d at 958. In the context of disfigurement, an injury to
an internal membrane plainly is not comparable to the external injury the victim sustained
here.

                                             9
Accordingly, there was insufficient evidence to convict Pena of aggravated assault under

§ 13-1204(A)(3) as charged in count three of the indictment. We therefore reduce that

conviction to the lesser-included offense of assault. See A.R.S. § 13-1203(A)(1) (person

commits assault by “[i]ntentionally, knowingly or recklessly causing any physical injury

to another person”).

                               Criminal Restitution Order

¶16           Pena argues, and the state concedes, that the trial court erred in entering a

CRO at sentencing pursuant to A.R.S. § 13-805.5 Although Pena did not raise this claim

below, “the imposition of a CRO before the defendant’s probation or sentence has

expired ‘constitutes 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 error is not

made harmless by a court’s delaying the accrual of interest, penalties, or fees. Id. ¶ 5.




       5
        Section 13-805 was amended effective April 2013. See 2012 Ariz. Sess. Laws,
ch. 269, § 1. We refer to the version of the statute in effect at the time of Pena’s offenses
and sentencing.
                                             10
                                       Disposition

¶17           We reduce Pena’s conviction and sentence for aggravated assault under

count three of the indictment to the lesser-included offense of assault and remand the case

for resentencing on that count.     We also vacate the CRO.       Pena’s convictions and

sentences are otherwise affirmed.




                                             /s/ Philip G. Espinosa
                                             PHILIP G. ESPINOSA, Judge

CONCURRING:

/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Presiding Judge


/s/ Peter   J. Eckerstrom
PETER J. ECKERSTROM, Judge




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