                                   IN THE
               ARIZONA COURT OF APPEALS
                               DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                      v.

                        BRIAN LEE HARM, Appellant.

                            No. 1 CA-CR 13-0737
                               FILED 1-13-2015

             Appeal from the Superior Court in Maricopa County
                          No. CR2012-140832-001
                   The Honorable Bruce R. Cohen, Judge

                                 AFFIRMED


                                 COUNSEL

Arizona Attorney General’s Office, Phoenix
By Craig W. Soland
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant

                      _______________________________

                                  OPINION

   Judge Kenton D. Jones delivered the Opinion of the Court, in which
   Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
                             STATE v. HARM
                            Opinion of the Court

J O N E S, Judge:

¶1             Defendant Brian Harm was indicted on one count of
threatening or intimidating “by word or conduct . . . [t]o cause physical
injury to another person . . . in order to promote, further or assist in the
interests of . . . a criminal street gang,” and one count of “assisting a
criminal street gang by committing any felony offense, whether completed
or preparatory for the benefit of, at the direction of or in association with
any criminal street gang.” Ariz. Rev. Stat. (A.R.S.) §§ 13-1202(A)(3)1
(threatening or intimidating), -2321(B) (assisting a criminal street gang). A
jury subsequently convicted Harm of threatening or intimidating in order
to “promote, further or assist” a criminal street gang, but found him not
guilty of having done so at the direction of or in association with a criminal
street gang. At sentencing, Harm’s conviction was enhanced pursuant to
A.R.S. § 13-714, which applies when a person “is convicted of committing
any felony offense with the intent to promote, further or assist any criminal
conduct by a criminal street gang.”

¶2            Harm now appeals his conviction and sentence, arguing
there is insufficient evidence to support his conviction and, additionally,
that enhancement of his sentence under A.R.S. § 13-714 violated double
jeopardy where he was acquitted of assisting a criminal street gang.
Because we find sufficient evidence supports his conviction, and the
enhancement of his sentence did not violate double jeopardy, we affirm.

                FACTS2 AND PROCEDURAL HISTORY

¶3            Shortly before 1:00 a.m. on August 2, 2012, law enforcement
officers observed Harm attempting to force open the doors of a commercial
building. A black police officer subsequently arrested him for trespassing,
at which point, Harm launched into a verbal tirade against the officer,
threatening him with violent retaliation by the Aryan Brotherhood, a white
supremacist gang of which Harm implied he was a “known member.”
Harm was subsequently indicted.



1       Absent material revisions after the relevant date, statutes cited refer
to the current version.

2       “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Valencia, 186 Ariz. 493, 495, 924 P.2d 497, 499 (App. 1996).


                                      2
                              STATE v. HARM
                             Opinion of the Court

¶4            At trial, defense counsel argued Harm was not, in fact, a
member of the Aryan Brotherhood, and acted only to further his own ill-
thought-out and short-sighted purposes. To undercut Harm’s defense, the
State offered into evidence statements Harm made to the officer during his
arrest, as testified to by the arresting officer and partially captured in a
forty-seven-minute audio recording, in which Harm was heard stating:

       I’m affiliated to the bone. I will have all my brotherhood
       brothers come to this neighborhood, and you’ll pay the
       ultimate price. . . . This is going to start trouble with the
       A[ryan] B[rotherhood] in this town, brother and you ain’t
       going to like it and your superiors ain’t going to like it. . . . I’m
       a known member of the AB. I’m going to have a council over
       this. . . . You want to be a punk n[-----] cop, there’s going to
       be some brothers looking for a punk n[-----] cop in the next
       few days. . . . I’m good at what I do, bro. I’m good in my
       organization. . . . I’m going to have as much shit done to you
       in your life because of what you just did to me in mine. . . .
       Our shit reaches as far as yours does, bro.

¶5            The State also presented expert testimony that Harm’s
declaration of membership and knowledge of the Aryan Brotherhood’s
inner workings were sufficient to establish Harm’s membership in the
gang. See A.R.S. § 13-105(9) (setting forth seven criteria indicative of street
gang membership, including self-proclamation, witness testimony, and
“[a]ny other indicia” of street gang membership not specifically listed).
The expert further testified the number one goal of the Aryan Brotherhood
is the promotion of fear and respect for the gang itself. Members or non-
members can promote the gang by word of mouth, taking action on behalf
of the gang, and instilling fear in potential victims. A member of the Aryan
Brotherhood could gain respect for himself, and the gang, by threatening
law enforcement, identified as the number one “rival” of the gang.

¶6             Following presentation of the State’s evidence, Harm
unsuccessfully moved for a judgment of acquittal, claiming the State’s
evidence was insufficient to support a conviction. The jury found Harm
guilty only of threatening or intimidating “by word or conduct, . . . [t]o
cause physical injury to another person . . . in order to promote, further or
assist in the interests of . . . a criminal street gang,” a class 3 felony. A.R.S.
§ 13-1202(A)(3), (C).

¶7          Following the determination of guilt, the trial court
proceeded to the aggravation phase. The State alleged four aggravating


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                            STATE v. HARM
                           Opinion of the Court

factors, including that the offense was committed “with the intent to
promote, further or assist any criminal conduct by a criminal street gang.”
Although the court expressed concern as to whether that aggravator
invoked double jeopardy concerns in light of Harm’s acquittal of assisting
a criminal street gang, all four aggravators were submitted to the jury. The
jury found the State had proven beyond a reasonable doubt that the offense
“involved the infliction or threatened infliction of serious physical injury,”
“was a biased crime,” and was committed “with the intent to promote
further or assist any criminal conduct by a criminal street gang.”3 Harm
filed a motion for new trial, which was denied.

¶8          The trial court then sentenced Harm to a mitigated sentence
of 12.5 years’ imprisonment for threatening or intimidating, and
determined Harm was not eligible for suspension of sentence or probation,
based upon application of the proven aggravator that his conduct was
committed with the intent to “promote, further or assist” a criminal street
gang. A.R.S. § 13-714.

¶9          Harm filed a timely notice of appeal. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                              DISCUSSION

I.    Sufficiency of Evidence

¶10           Harm first argues the trial court erred in denying his motions
for judgment of acquittal and new trial. Although Harm does not dispute
having made numerous threats of violent retaliation by the Aryan
Brotherhood against the officer and his family, he argues the State failed to
establish that he was an actual member of the Aryan Brotherhood, or that
he invoked the power of the Aryan Brotherhood with the intent to promote
any interest beyond his own.

¶11           A directed verdict of acquittal is appropriate “if there is no
substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a).
“‘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.’” State v. West, 226 Ariz. 559, 562, ¶ 16,
250 P.3d 1188, 1191 (2011) (quoting State v. Mathers, 165 Ariz. 64, 67, 796
P.2d 866, 869 (1990)) (internal quotation marks omitted). We review de novo
the denial of a motion for judgment of acquittal and the sufficiency of the

3     The jury also found the State failed to prove beyond a reasonable
doubt that the offense caused the victim to suffer emotional harm.


                                      4
                             STATE v. HARM
                            Opinion of the Court

evidence to support a conviction. See id. at ¶ 15 (citing State v. Bible, 175
Ariz. 549, 595, 858 P.2d 1152, 1198 (1993)). In contrast, we review the denial
of a motion for new trial alleging insufficient evidence for an abuse of
discretion, and will affirm unless the evidence was not sufficient to support
the verdict. State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984); see also
Ariz. R. Crim. P. 24.1(c)(1). Under either standard, Harm’s argument fails.

¶12          First, actual membership in a criminal street gang is not an
element of the charge of threatening or intimidating, and therefore need
not be proven to secure a conviction. See A.R.S. § 13-1202(A)(3).

¶13           Second, intent may be proven by circumstantial evidence, as
a defendant’s state of mind “is seldom, if ever, susceptible of proof by
direct evidence.” State v. Lester, 11 Ariz. App. 408, 410, 464 P.2d 995, 997
(1970); see also State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983)
(“Criminal intent, being a state of mind, is shown by circumstantial
evidence. Defendant's conduct and comments are evidence of his state of
mind.”). Harm’s diatribe reflected knowledge of and support for the
Aryan Brotherhood’s white supremacist ideology. His lengthy and
forceful verbal attack upon the black police officer could have been
interpreted by the jury as intending to promote those ideals and the
reputation of the gang.

¶14            Sufficient evidence was submitted for the jury to reasonably
conclude beyond a reasonable doubt that Harm’s threats were made, at
least in part, to promote the interests of the Aryan Brotherhood in gaining
respect through intimidation. Accordingly, the trial court did not err in
denying the motion for judgment of acquittal, or abuse its discretion in
denying the motion for new trial.

II.   Enhancement of Sentence

¶15           Harm next argues the trial court improperly enhanced his
sentence for threatening or intimidating in violation of his statutory and
constitutional rights against double jeopardy and double punishment.
Specifically, Harm asserts the crime of assisting a criminal street gang,
A.R.S. § 13-2321(B), of which he was acquitted, and the statutory enhancer
for offenses committed with the intent to promote, further or assist a
criminal street gang, A.R.S. § 13-714, which was applied, “have identical
elements.” Consequently, Harm argues the constitutional prohibition
against double jeopardy, which “bars a second prosecution for the same
offense after conviction or acquittal and bars multiple punishments for the
same offense,” prohibits use of the enhancer. See State v. Siddle, 202 Ariz.



                                       5
                              STATE v. HARM
                             Opinion of the Court

512, 515, ¶ 8, 47 P.3d 1150, 1153 (App. 2002) (quoting State v. Powers, 200
Ariz. 123, 125, ¶ 5, 23 P.3d 668, 670 (App. 2001)). We review de novo
whether double jeopardy applies. Id. at ¶ 7 (citing Powers, 200 Ariz. at 125,
¶ 5, 23 P.3d at 670).

       A.     The Acquitted Offense and the Statutory Enhancer Do Not
              Have Identical Elements.

¶16           For purposes of double jeopardy, separate statutory
provisions “constitute the same offense if they are comprised of the same
elements.” Siddle, 202 Ariz. at 516, ¶ 10, 47 P.3d at 1154 (citing Brown v.
Ohio, 432 U.S. 161, 166 (1977)). To determine whether the two provisions
constitute one offense, we look to see whether “‘each provision requires
proof of an additional fact that the other does not.’” Id. (quoting Brown,
432 U.S. at 166). If so, the two are not the same offense. Id.; see State v.
Tinghitella, 108 Ariz. 1, 3, 491 P.2d 834, 836 (1971) (adopting “identical
elements” test to determine whether act or omission results in double
punishment).

¶17           Here, the enhancer applies to “any felony offense [committed]
with the intent to promote, further or assist any criminal conduct by a criminal
street gang.” A.R.S. § 13-714 (emphasis added). In contrast, the offense
Harm was acquitted of penalizes commission of “any felony offense,
whether completed or preparatory for the benefit of, at the direction of or in
association with any criminal street gang.” A.R.S. § 13-2321(B) (emphasis
added). In the absence of a comma separating “preparatory” from “for the
benefit of,” we must read the singular, unitary provision, “preparatory for
the benefit of,” as a non-restrictive clause modifying “any felony offense.”
See Pawn 1st, L.L.C. v. City of Phx., 231 Ariz. 309, 311, ¶ 16, 294 P.3d 147, 149
(App. 2013) (“The plain meaning of a statute ‘will typically heed the
commands of its punctuation.’”) (quoting U.S. Nat’l Bank v. Indep. Ins.
Agents of Am., Inc., 508 U.S. 439, 454 (1993)). The plain meaning does not
support an argument that “for the benefit of,” as contained within A.R.S.
§ 13-2321(B), could form a substantive basis for conviction (i.e., action
taken “for the benefit of” a criminal street gang).

¶18           It is clear that neither the words contained in the statutes, nor
their application, is identical. On the one hand, A.R.S. § 13-2321(B) requires
that any “assistance” to a criminal street gang through the commission of
a crime occur at the direction of or in association with the gang. On the
other hand, A.R.S. § 13-714 simply requires that the crime be committed
“in order to promote, further or assist any criminal conduct” of a criminal
street gang. The former implies some participation by the gang, while the


                                       6
                             STATE v. HARM
                            Opinion of the Court

latter addresses only the intent of the actor. Indeed, engaging in a felony
at the direction of or in association with any criminal street gang is
fundamentally different from engaging in that same act, without the
requisite direction or association, based solely upon the actor’s own intent
to promote, further or assist criminal conduct. Effectively, a person can
promote, further or assist a criminal street gang, without that conduct
being at the direction of or in association with the gang.

¶19            Moreover, when the legislature chooses different words
within a statutory scheme, we presume those distinctions are meaningful
and evidence an intent to give a different meaning and consequence to the
alternate language.4 Egan v. Fridlund-Horne, 221 Ariz. 229, 239, ¶ 37, 211
P.3d 1213, 1223 (App. 2009) (citing Comm. for Pres. of Established
Neighborhoods v. Riffel, 213 Ariz. 247, 249-50, ¶ 8, 141 P.3d 422, 424-25 (App.
2006)); see also State v. McDermott, 208 Ariz. 332, 334-35, ¶ 5, 93 P.3d 532,
534-35 (App. 2004) (“[W]e . . . presume that the legislature does not include
statutory ‘provisions which are redundant, . . . [or] superfluous . . . .’”)
(quoting State v. Moerman, 182 Ariz. 255, 260, 895 P.2d 1018, 1023 (App.
1994)). Although the language of A.R.S. § 13-714 may be similar to that of
A.R.S. § 13-2321(B), to adopt Harm’s position would ignore the
legislature’s decision to use different words to describe different conduct
at issue in each circumstance. Such an approach would run contrary to
established principles of statutory interpretation. Egan, 221 Ariz. at 239, ¶
37, 211 P.3d at 1223.

¶20           Applying the test adopted in Tinghitella, we conclude the
elements of the acquitted offense and the statutory enhancer are not
identical, and are therefore not the “same offense” for purposes of a double
jeopardy challenge.


4      That the legislature has used these similar but different phrases in
other sections of the Criminal Code is further evidence it understood and
intended a distinction between the phrases. Compare A.R.S. § 13-1202(A)(3)
(criminalizing threatening or intimidating with intent to “promote, further
or assist” a criminal street gang), A.R.S. § 13-2409 (same for obstructing
criminal investigations), A.R.S. § 13-1805(H) (same for shoplifting), A.R.S.
§ 13-2512(B)(2) (same for hindering prosecution), A.R.S. § 13-3102(A)(9),
(16) (same for misconduct involving weapons), and A.R.S. § 13-715
(enhancing sentence for felony offense committed with intent to “promote,
further or assist a human smuggling organization”), with A.R.S. § 13-
2323(B) (criminalizing felony offense committed “at the direction of or in
association with any human smuggling organization”).


                                      7
                               STATE v. HARM
                              Opinion of the Court

       B.      Application of the Statutory Enhancer is Consistent with
               the Crime for Which Harm Was Convicted.

¶21           Harm’s conviction for threatening or intimidating reinforces
our conclusion, as the charge for which Harm was convicted includes the
identical element that makes the statutory enhancer applicable. Compare
A.R.S. § 13-1202(A)(3) (criminalizing threatening or intimidating “in order
to promote, further or assist in the interests of or to cause, induce or solicit
another person to participate in a criminal street gang”) (emphasis added),
with A.R.S. § 13-714 (enhancing sentence of a person “convicted of
committing any felony offense with the intent to promote, further or assist
any criminal conduct by a criminal street gang”) (emphasis added). It
would be illogical to find Harm’s sentence was improperly enhanced
based upon an intent to “promote, further or assist” any criminal conduct
of a criminal street gang where the jury, in the same proceeding, convicted
Harm of a crime which required it to find that same intent. See State v.
Linsner, 105 Ariz. 488, 491, 467 P.2d 238, 241 (1970) (“[A] jury verdict is
conclusive.”) (citing Machibroda v. United States, 368 U.S. 487, 493 (1962)).

¶22              Specifically, the trial court instructed the jury that the crime
of threatening or intimidating “require[d] proof that [Harm] threatened or
intimidated by word or conduct to cause physical injury to another person
. . . in order to promote, further or assist in the interest [of] or to cause, induce,
or solicit another person to participate in a criminal street gang . . . .”
(Emphasis added). The jury was apparently able to distinguish “promote,
further or assist” from “at the direction of or in association with,”
convicting Harm of the former act (and finding the State had proven the
identical statutory enhancer) and acquitting him of the latter, without
seeking further clarification or guidance from the court on the issue. The
jury’s consistent determinations thereby belie any argument that the
statutes are indistinguishable or that Harm’s acquittal for A.R.S. § 13-
2321(B) is inconsistent with the express findings of the jury regarding
Harm’s intent.

       C.      No Double Jeopardy Violation Results from Use of the
               Statutory Enhancer.

¶23           Finally, even if we were to further entertain Harm’s position,
both the U.S. and Arizona Supreme Courts have held that a sentence
enhancement does not offend double jeopardy. United States v. Watts, 519
U.S. 148, 154-55 (1997); see also State v. Bly, 127 Ariz. 370, 373, 621 P.2d 279,
282 (1980), superseded by statute, A.R.S. § 13-702, as recognized in State v. Pitts,




                                          8
                              STATE v. HARM
                             Opinion of the Court

178 Ariz. 59, 63, 870 P.2d 1155, 1159 (App. 1993).5 The increase in
punishment results from the manner in which the crime was committed; it
is not additional punishment for a previous crime of which the defendant
was not convicted. Watts, 519 U.S. at 154-55; Bly, 127 Ariz. at 373, 621 P.2d
at 282 (“The punishment may be severe and it may be a single element of
the crime which mandates the legislative decision to make probation
unavailable and a minimum prison term mandatory, but that does not
mean a defendant is being punished time and time again for a single act.
It merely defines a single harsh punishment for a single severe crime.”).

¶24           Additionally, although the judiciary is granted discretion in
prescribing an appropriate punishment given the circumstances of a
particular crime, it can only act within the limits set forth by the legislature.
Bly, 127 Ariz. at 371-72, 621 P.2d at 280-81. Therefore, in situations where
double jeopardy is alleged to result from the mechanics of sentencing, “the
Double Jeopardy Clause does no more than prevent the sentencing court
from prescribing greater punishment than the legislature intended.”
Missouri v. Hunter, 459 U.S. 359, 366 (1983); see also State v. Snyder, 111 Ariz.
366, 367, 529 P.2d 1183, 1184 (1975) (“The rule of law is well established
that where . . . a sentence is clearly within the statutory limits provided for
the offense, a reviewing court will not disturb the sentence unless there is
a clear abuse of discretion.”) (citing State v. Rogers, 109 Ariz. 55, 56, 505 P.2d
226, 227 (1973), and State v. Fischer, 108 Ariz. 325, 326, 498 P.2d 147, 148
(1972)).

¶25           Here, A.R.S. § 13-714 does not contain any language limiting
its application or suggesting it may not operate independently from crimes
committed “at the direction of or in association with” a criminal street
gang. To the contrary, A.R.S. § 13-714 applies broadly by its terms to “[any]
person who is convicted of committing any felony offense with the intent to
promote, further or assist any criminal conduct by a criminal street gang.”
A.R.S. § 13-714 (emphasis added). The legislature has simply meted out

5       The legislature has since amended A.R.S. § 13-702 (now A.R.S. § 13-
701, see 2008 Ariz. Sess. Laws, ch. 301, § 23 (2nd Reg. Sess.)) to prohibit
consideration of infliction of serious physical injury or use of a deadly
weapon as aggravating factors where “this circumstance is an essential
element of the offense of conviction or has been used to enhance the range
of punishment” against dangerous offenders, effectively resolving any
doubt expressed in Bly as to how it intended those factors to be considered.
A.R.S. § 13-701(D)(1)-(2). However, the balance of the analysis in Bly, and
its deference to the legislature on these issues, remain sound.



                                        9
                           STATE v. HARM
                          Opinion of the Court

harsher penalties in circumstances involving crimes that provide
recognition to or promotion of a criminal street gang.

¶26          Harm’s conviction of a class 3 felony under A.R.S. § 13-
1202(A)(3) qualifies as “any felony offense,” and the jury consistently
found, both in its verdict and at the aggravation stage, that the crime was
committed with the “intent to promote, further or assist” a criminal street
gang. Where, as here, a statutory sentence enhancer has been created, the
consequence of its application cannot be said to constitute a greater
punishment than that anticipated by the legislature. We reject any
suggestion otherwise.

                             CONCLUSION

¶27         An acquittal under A.R.S. § 13-2321 does not preclude the
enhancement of a separate conviction under A.R.S. § 13-1202(A)(3)
pursuant to A.R.S. § 13-714. Substantial evidence was presented at trial to
support Harm’s conviction and the statutory enhancer. We therefore
affirm Harm’s conviction and sentence.




                                     :ama




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