                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                  TYTRELL TREVON BRYANT, Appellant.

                             No. 1 CA-CR 18-0057
                               FILED 2-21-2019

           Appeal from the Superior Court in Maricopa County
                        No. CR2017-107856-001
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                              STATE v. BRYANT
                             Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.


M c M U R D I E, Judge:

¶1           Tytrell Trevon Bryant appeals from his convictions and
sentences for aggravated assault, unlawful discharge of a firearm, and
misconduct involving weapons. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND 1

¶2              In February 2017, Bryant and another man confronted the
victim as he was seated in the front passenger seat of a friend’s vehicle.
After exchanging words with the victim, Bryant allegedly struck him in the
head with a gun. Bleeding from the blow to his head, the victim attempted
to flee but fell shortly after exiting the vehicle. Bryant then approached the
victim as he lay on the ground and shot him. The bullet penetrated and
went through the victim’s arm. Despite his injuries, the victim managed to
get to his feet and escape.

¶3             Bryant was subsequently arrested and indicted on four
counts: (1) one count of aggravated assault with a deadly weapon, a class 3
dangerous felony, for striking the victim in the head with a gun; (2) a
second count of aggravated assault with a deadly weapon, a class 3
dangerous felony, for shooting the victim; (3) one count of misconduct
involving weapons, a class 4 dangerous felony, for possessing a handgun
as a prohibited possessor; and (4) one count of unlawful discharge of a
firearm, a class 6 dangerous felony, for firing the gun during the
confrontation with the victim. The State also alleged Bryant had two
historical prior felony convictions, committed the offenses charged in the




1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Bryant. State v. Harm,
236 Ariz. 402, 404, ¶ 2, n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493,
495 (App. 1996)).



                                        2
                             STATE v. BRYANT
                            Decision of the Court

indictment while on release from confinement, and the offenses involved
several aggravating circumstances.

¶4             After a four-day trial, a jury found Bryant guilty of the second
count of aggravated assault, unlawful discharge of a firearm, and
misconduct involving weapons, but could not reach a verdict on the first
count of aggravated assault. The trial then moved to the aggravation phase.
In this phase, the jury had to determine whether: (1) the offenses involved
the infliction or threatened infliction of serious physical injury, Ariz. Rev.
Stat. (“A.R.S.”) § 13-701(D)(1); and (2) the offenses caused physical harm to
the victim, A.R.S. § 13-701(D)(9). The jury also had to determine whether
Bryant was on release at the time of the offenses. However, the jury was not
instructed on the statutory definition of “serious physical injury.” A.R.S.
§ 13-105(39). The jury found the three allegations proven for all three
offenses beyond a reasonable doubt.

¶5            The court sentenced Bryant to an aggravated term of 17.5
years’ imprisonment on the second aggravated assault count. The court also
sentenced Bryant to 12 years’ imprisonment on the misconduct involving
weapons count and 4.5 years’ imprisonment on the unlawful discharge of
a firearm count, to be served concurrently with the aggravated-assault
sentence. Bryant timely appealed, and we have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                               DISCUSSION

A.     The Superior Court Did Not Commit Fundamental Error by
       Failing to Define “Serious Physical Injury.”

¶6            Bryant argues the superior court erred by failing to instruct
the jury regarding the statutory definition of “serious physical injury,” see
A.R.S. § 13-105(39), before the jury considered the aggravating
circumstance of whether Bryant’s criminal conduct involved the “infliction
or threatened infliction of serious physical injury,” see A.R.S. § 13-701(D)(1).
Bryant contends the failure to define serious physical injury “lessened the
burden that the State had to carry,” because the jury was instructed as to
the definition of “physical injury” at a separate phase of the trial. We
disagree.

¶7             Because Bryant did not object to the failure to give the
instruction, we review only for fundamental error. State v. Valles, 162 Ariz.
1, 6 (1989). Our supreme court has recently described a defendant’s burden
on fundamental error review as follows:



                                       3
                             STATE v. BRYANT
                            Decision of the Court

       A defendant establishes fundamental error by showing that
       (1) the error went to the foundation of the case, (2) the error
       took from the defendant a right essential to his defense, or (3)
       the error was so egregious that he could not possibly have
       received a fair trial. If the defendant establishes fundamental
       error under prongs one or two, he must make a separate
       showing of prejudice, which also “involves a fact-intensive
       inquiry.” If the defendant establishes the third prong, he has
       shown both fundamental error and prejudice, and a new trial
       must be granted.

State v. Escalante, 245 Ariz. 135, 141, ¶ 21 (2018) (citation omitted) (quoting
State v. Henderson, 210 Ariz. 561, 568, ¶ 26 (2005)). With respect to jury
instructions, “the test is whether the instructions adequately set forth the
law applicable to the case.” State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16 (1998).
“We view jury instructions in their entirety when determining whether they
adequately reflect the law.” Id. at 61–62, ¶ 16.

¶8             At the outset, we reject the implication of Bryant’s argument
that without instruction on the statutory definition of “serious physical
injury,” the jury equated “physical injury” with “serious physical injury.”
During the guilt phase of the trial, the jury was instructed to determine
whether Bryant “intentionally, knowingly or recklessly caused a physical
injury to another person.” See A.R.S. § 13-1203(A)(1). The jury was also
instructed on the statutory definition of “physical injury,” which means
“the impairment of physical condition.” See A.R.S. § 13-105(33). At the
aggravation phase of the trial, the jury was instructed to determine whether
the offenses “involved the infliction or threatened infliction of serious
physical injury,” A.R.S. § 13-701(D)(1) (emphasis added). The jury was also
instructed to “decide each aggravating factor separately on the evidence
with the law applicable to it.” We presume the jurors read and followed
these instructions. See State v. Newell, 212 Ariz. 389, 403, ¶ 69 (2006). The
question then is not whether the jury improperly equated “physical injury”
with “serious physical injury.” Instead, we must determine whether the
common meaning of the word “serious,” coupled with the statutory
definition of “physical injury” available to the jury, has essentially the same
meaning as the statutory definition of “serious physical injury.” See State v.
Zaragoza, 135 Ariz. 63, 66 (1983) (when statutory definition and common
definition are “essentially the same,” failure to include statutory definition
in jury instructions is not fundamental error); Valles, 162 Ariz. at 6–7
(finding no error in failure to define “deadly weapon” when the common
definition and statutory meaning of “deadly weapon” were essentially the
same).


                                      4
                             STATE v. BRYANT
                            Decision of the Court

¶9            A common definition of “serious” in the context of an injury
is “having important or dangerous possible consequences.”
Merriam-Webster’s Collegiate Dictionary 1136 (11th ed. 2012); see also
Webster’s Third New International Dictionary 2073 (1969) (defining
“serious” as “grave in disposition, appearance, or manner”). Black’s Law
Dictionary further defines the term “serious” for an injury as “dangerous;
potentially resulting in death or other severe consequences.” Serious,
Black’s Law Dictionary (10th ed. 2014). The common meaning of the term
“serious,” combined with the statutory definition of physical injury, tracks
with the statutory definition of “serious physical injury,” which “includes
physical injury that creates a reasonable risk of death, or that causes serious
and permanent disfigurement, serious impairment of health or loss or
protracted impairment of the function of any bodily organ or limb.” A.R.S.
§ 13-105(39). Consequently, there was no danger that the failure to instruct
the jury on the definition of “serious physical injury” lowered the State’s
burden to prove the offenses involved the infliction or threatened infliction
of serious physical injury, and we find no fundamental error here.

¶10            We find further support for this conclusion in State v. Perry, 5
Ariz. App. 315 (1967). In Perry, this court found no error in the failure to
define the phrase “serious bodily injury” in jury instructions because the
superior court was not required to define “words of ordinary
significance . . . well understood by any jury of ordinary intelligence.” Id. at
318. The statutory definition of “serious physical injury” in A.R.S.
§ 13-105(39) parallels the definition of “serious bodily injury” in the Model
Penal Code, “upon which Arizona has based its criminal code.” State v.
George, 206 Ariz. 436, 442, ¶ 11 (App. 2003); Model Penal Code § 210.0(3)
(1962). Accordingly, we are confident that the jury in this case, like the jury
in Perry, was readily equipped to determine and apply the proper meaning
of “serious physical injury” even without a specific instruction defining it.
See State v. Dodd, 244 Ariz. 182, 186–87, ¶ 16 (App. 2017) (citing Perry, 5 Ariz.
App. at 317–18) (jury could use “their collective common sense” to
determine whether the evidence “satisfied the definition of ‘serious
physical injury’ in A.R.S. § 13-105(39)”).

B.     Sufficient Evidence Supports the Jury’s Finding that Bryant’s
       Criminal Conduct Involved the Infliction or Threatened Infliction
       of Serious Physical Injury.

¶11          Bryant also argues the jury lacked enough evidence to find,
beyond a reasonable doubt, that the offenses involved the “[i]nfliction or
threatened infliction of serious physical injury.” A.R.S. § 13-701(D)(1).
Bryant contends “the court would not have given a slightly aggravated


                                       5
                              STATE v. BRYANT
                             Decision of the Court

sentence” but for the jury’s erroneous finding of that aggravating
circumstance.

¶12           We review the sufficiency of evidence de novo. State v. West,
226 Ariz. 559, 562, ¶ 15 (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
[aggravating circumstance] beyond a reasonable doubt.” Id. at ¶ 16
(quotation omitted). “Substantial evidence . . . is such proof that reasonable
persons could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” Id. (quotation omitted).

¶13           In this case, the criminal offenses charged by the State
stemmed from a single series of events: Bryant attacking and then shooting
the victim. However, Bryant does not challenge the sufficiency of the
evidence supporting his convictions for this conduct. Instead, Bryant
argues that without evidence concerning the medical impact of the victim’s
gunshot wound, there is not sufficient proof that he inflicted serious
physical injury pursuant to A.R.S. § 13-701(D)(1). To support this assertion,
Bryant cites the definition of “serious physical injury” in A.R.S.
§ 13-105(39). He also cites George, which held that, absent evidence of the
serious impairment caused by the injury, a gunshot wound was not a
“serious physical injury” for proving aggravated assault under A.R.S.
§ 13-1204(A)(1). See George, 206 Ariz. at 442, ¶ 14.

¶14            Bryant’s argument ignores the fact that A.R.S. § 13-701(D)(1)
requires proof beyond a reasonable doubt that the defendant’s conduct
involved either the infliction or threatened infliction of serious physical injury
during the commission of the offense. George is thus inapposite as the
statute at issue in that case required the State to prove the defendant caused
serious physical injury. 206 Ariz. at 440, ¶ 3. The State here, on the other
hand, was only required to prove that Bryant’s criminal conduct involved
the threatened infliction of serious physical injury. 2 Indeed, during its
closing argument at the the aggravation phase, the State specifically
informed the jury that it only sought to prove that Bryant’s conduct
threatened the infliction of serious physical injury. The evidence the State

2     Although we need not address George further, we note that a recent
opinion of this court called into doubt George’s conclusion “that a gunshot
wound which penetrates the neck and exits through the armpit is not
necessarily a ‘serious physical injury.’” See Dodd, 244 Ariz. at 186, ¶ 16
(observing that the holding in George is “extraordinary”).



                                        6
                             STATE v. BRYANT
                            Decision of the Court

presented at trial established Bryant attacked the victim and shot him as he
attempted to flee. Based on their common sense and experience, reasonable
jurors certainly could conclude this conduct involved the threatened
infliction of serious physical injury; it would stretch the boundaries of belief
to say otherwise.

                               CONCLUSION

¶15           For the foregoing reasons, we affirm Bryant’s convictions and
sentences.




                            AMY M. WOOD • Clerk of the Court
                            FILED: AA




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