                       IN THE COURT OF APPEALS                     FILED BY CLERK
                           STATE OF ARIZONA
                             DIVISION TWO                             DEC 22 2010
                                                                       COURT OF APPEALS
                                                                         DIVISION TWO

THE STATE OF ARIZONA,                           )
                                                )
                              Respondent,       )   2 CA-CR 2010-0247-PR
                                                )   DEPARTMENT B
            v.                                  )
                                                )   OPINION
BIANCA R. BURGETT,                              )
                                                )
                                  Petitioner.   )
                                                )


PETITION FOR REVIEW FROM THE SUPERIOR COURT OF COCHISE COUNTY

                              Cause No. CR200900080

                        Honorable James L. Conlogue, Judge

                      REVIEW GRANTED; RELIEF DENIED


Edward G. Rheinheimer, Cochise County Attorney
 By Faisal H. Ullah                                                            Bisbee
                                                             Attorneys for Respondent

Mark A. Suagee, Cochise County Public Defender
 By Mark A. Suagee                                                             Bisbee
                                                              Attorneys for Petitioner


V Á S Q U E Z, Presiding Judge.
¶1            Pursuant to a plea agreement, petitioner Bianca Burgett was convicted of

aggravated assault. The trial court sentenced her to an aggravated prison term of fifteen

years, finding as aggravating circumstances the emotional harm suffered by the victim

and the fact that the offense had been committed in front of her children. Burgett sought

post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., challenging the court’s

reliance on the presence of children as an aggravating circumstance and claiming the

court erred in admitting hearsay at the aggravation/mitigation hearing.          The court

dismissed her petition, and this petition for review followed. Unless we find the court

abused its discretion, we will not disturb its ruling. State v. Swoopes, 216 Ariz. 390, ¶ 4,

166 P.3d 945, 948 (App. 2007). An abuse of discretion includes an error of law. State v.

Rubiano, 214 Ariz. 184, ¶ 5, 150 P.3d 271, 272 (App. 2007). We find no abuse of

discretion here.

¶2            As part of her plea agreement, Burgett waived any rights she might have

pursuant to Blakely v. Washington, 542 U.S. 296 (2004). She agreed that the trial court

could find any fact relevant to sentencing by a preponderance of the evidence and that, in

determining the existence of any such facts, the court was not bound by the rules of

evidence. Based on the record before us, which includes the change-of-plea hearing and

the aggravation/mitigation hearing, the relevant facts are as follows: The victim and

Burgett had two children together during their long-term relationship. At the time of the

offense, the children were living with the victim, and he and Burgett were separated. She

was involved with another man, but apparently had an altercation with him and had gone

to the victim seeking a place to stay.

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¶3            At some point during the night, Burgett left the room where she had been

sleeping with the children, went to the victim’s bedroom, and attacked him with a box

cutter. Burgett contends, as she did below, that under the circumstances of this case, the

offense was not committed in the presence of a child for purposes of A.R.S. § 13-

701(D)(18). In denying relief, the trial court found a preponderance of the evidence

established the offense had been committed in the presence of the children. That fact, the

court found, was established “without consideration of the child’s statements.” The court

also found it was not required to apply principles of statutory construction to determine

the meaning of “in the presence of a child” because its conclusion was based on the plain

meaning of the statute.

¶4            When interpreting a statute, “[o]ur goal . . . is to discern and implement the

intent of the legislature.” State v. Ontiveros, 206 Ariz. 539, ¶ 8, 81 P.3d 330, 332 (App.

2003). If the statute’s language is clear and unambiguous, it is determinative and we

therefore need not employ other methods of statutory construction. See State v. Hansen,

215 Ariz. 287, ¶ 7, 160 P.3d 166, 168 (2007). We agree with the trial court that § 13-

701(D)(18) clearly applies, and Burgett has not established she is entitled to relief.

¶5            Even if we assume, without deciding, that Burgett is correct that the term

“presence” as used in the statute “includes an element of immediacy, either in space or in

time,” we find the facts of this case support the trial court’s determination that Burgett

committed the crime in the children’s presence. Although neither child saw the actual

attack, the victim’s daughter saw Burgett’s predicate actions in leaving the room with the

box cutter immediately before the attack, she heard the victim’s screams, and both

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children saw the aftermath of Burgett’s assault when the bleeding victim immediately ran

from his bedroom into the living room. And, at most, the children were separated from

the attack by only a few yards. Under these circumstances, the children were “present”

during the commission of the offense, as that term is commonly used.

¶6            Moreover, we observe that § 13-701(D)(18) applies only to domestic

violence offenses as defined by A.R.S. § 13-3601(A).           Thus, by enacting § 13-

701(D)(18), the legislature plainly sought to punish more severely those who expose

children to domestic violence. Our conclusion here is consistent with that purpose.

Burgett’s interpretation of the statute would mean a child in the same room who slept

through an assault would be present, but a child in another room who was awake and

heard the assault through a closed door would not be.1 We cannot accept such an

interpretation. See Collins v. State, 166 Ariz. 409, 415, 803 P.2d 130, 136 (App. 1990)

(“Statutes must be given a sensible construction which accomplishes the legislative intent

behind them and which avoids absurd results.”).

¶7            To the extent Burgett suggests the trial court erred in relying on State v.

Carreon, 210 Ariz. 54, 107 P.3d 900 (2005), to support its interpretation of the statute,

we disagree. The aggravating factor our supreme court addressed in that case was not the

same, but was instead part of the prior capital sentencing statute: that “during the course

of the killing, the defendant knowingly engaged in conduct that created a real and

substantial likelihood that a specific person might suffer fatal injuries.” See former


      1
        There is no reason to view the statute as requiring the child be in some physical
danger in order to be considered present during the commission of an offense.
                                            4
A.R.S. § 13-703(F)(3). Although the court stated that the children in that case, who were

in another room, were not within the zone of danger, the shots having been fired in the

direction that was opposite their room, the court noted that the children “were present

during the attack on their mother.” 210 Ariz. 54, ¶ 64, 107 P.3d at 913. Thus, we agree

with the trial court that Carreon supports the proposition that children need not be in the

same room as an incident to be considered “present” for the purposes of the statute we

address here.

¶8              Nor has Burgett established the trial court abused its discretion when it

considered hearsay evidence at the aggravation/mitigation hearing. First, as the state

points out, Burgett agreed the rules of evidence would not apply to the court’s

determination of sentencing factors. And, second, the court found the fact that the

children were present had been established in any event, without regard to hearsay

statements.

¶9              The petition for review is granted and relief is denied.


                                                /s/ Garye L. Vásquez
                                                GARYE L. VÁSQUEZ, Presiding Judge

CONCURRING:


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


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

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