                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                 v.

                   MIGUEL FRANCISCO INZUNZA,
                           Appellant.

                      No. 2 CA-CR 2012-0273
                      Filed January 27, 2014

          Appeal from the Superior Court in Pima County
                       No. CR20111274001
             The Honorable Richard S. Fields, Judge

           AFFIRMED IN PART; VACATED IN PART


                            COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender
By David J. Euchner and Katherine A. Estavillo,
Assistant Public Defenders, Tucson
Counsel for Appellant
                        STATE v. INZUNZA
                        Opinion of the Court


                              OPINION

Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Espinosa concurred.


E C K E R S T R O M, Judge:

¶1           Following a jury trial, appellant Miguel Inzunza was
convicted of two counts of sexual abuse and sentenced to
consecutive prison terms totaling 4.5 years. On appeal, he contends
the trial court erred in denying his motion to suppress and in
precluding evidence relevant to his defense. He also challenges the
out-of-state conviction used to enhance his sentences. We affirm his
convictions and sentences but vacate the criminal restitution order
that was entered erroneously at sentencing.

                    Factual and Procedural Background

¶2           We view the evidence presented at trial in the light
most favorable to upholding the verdicts, drawing all reasonable
inferences from the evidence against the defendant. See State v.
Ramsey, 211 Ariz. 529, ¶ 2, 124 P.3d 756, 759 (App. 2005). At the time
of the offenses, the victim was a twenty-six-year-old woman who
was moderately intellectually disabled and required twenty-four-
hour care.1 She did not understand most of the events happening
around her, and she needed hands-on assistance for many daily
tasks such as crossing the street, preparing food, and using the
bathroom. Her communication skills were very limited, and the
three-word sentences she could formulate were difficult to
understand for someone who was unfamiliar with her. She was
friendly and outgoing, with no sense of boundaries between


      1Although the witnesses referred to the victim as being
“mentally retarded,” we use the current psychiatric term for this
condition. See Williams v. Cahill, 232 Ariz. 221, n.1, 303 P.3d 532, 533
n.1 (App. 2013).


                                   2
                        STATE v. INZUNZA
                        Opinion of the Court

strangers and non-strangers. The victim’s mother likened her to a
two-year-old child.

¶3          On the morning of February 20, 2011, the victim was left
alone in her mother’s apartment. The caregiver who was expected
to supervise her that day did not do so, and when the mother
returned home from work in the evening she found the victim
missing. Law enforcement officers then began a search that lasted
several hours.

¶4           At approximately 2:00 a.m. the next day, police entered
Inzunza’s apartment, which was in the same complex, and
discovered the victim lying next to him in his bedroom. The victim
was partially undressed, and Inzunza was asleep next to her. When
officers entered the bedroom, the victim jumped up, moved quickly
toward them, and began pulling up her pants. She also said, “My
baby, my baby,” and rubbed her belly. The victim had a bruise or
“hickey” visible on her neck, and a subsequent examination
revealed another on her breast. Tests revealed the presence of
Inzunza’s DNA2 on the victim’s breast, and the victim’s DNA was
found on Inzunza’s penis.

¶5           Inzunza’s brother and his girlfriend, Gloria R., had been
staying at Inzunza’s apartment on the date of the incident, and they
were sleeping on the living room floor when the police knocked and
entered. According to Gloria, the victim had wandered into the
apartment earlier in the evening when the door had been open, and
she did not speak to anyone once she was there. The victim simply
ate a plate of food Inzunza gave her, watched television, listened to
music, and then followed Inzunza into his bedroom. Gloria
described it as a “weird situation,” and she said the victim seemed
mentally disabled, because “all she did was laugh and wave.”

¶6          Inzunza was charged with one count of sexual assault
and one count of sexual abuse. In his defense, he maintained the
evidence was insufficient to show the vaginal penetration necessary
to sustain the sexual assault charge, and he claimed his sexual


      2Deoxyribonucleic   acid.


                                  3
                        STATE v. INZUNZA
                        Opinion of the Court

contact with the victim had been consensual. The jury failed to
reach a verdict on the sexual assault charge, but it found him guilty
of sexual abuse as a lesser-included offense, and it also found him
guilty of the other count of sexual abuse. The trial court imposed
enhanced sentences based on Inzunza’s prior felony conviction from
Washington, and this timely appeal followed.

                         Motion to Suppress

¶7           Inzunza first contends the trial court erred in denying
his motion to suppress that was based on the police officers’
warrantless entry into his apartment. In reviewing this issue, we
consider only the evidence presented at the suppression hearing,
which we view in the light most favorable to upholding the court’s
ruling. State v. Butler, 232 Ariz. 84, ¶ 8, 302 P.3d 609, 612 (2013). We
review the court’s ruling for an abuse of discretion, to the extent it
involves a discretionary issue, State v. Moody, 208 Ariz. 424, ¶ 62, 94
P.3d 1119, 1140 (2004), and we consequently defer to any factual
findings that are supported by the record. See State v. Davolt, 207
Ariz. 191, ¶ 21, 84 P.3d 456 (2004); State v. Rosengren, 199 Ariz. 112,
¶ 9, 14 P.3d 303, 307 (App. 2000). But we review de novo the court’s
legal conclusions drawn from the facts, as well as any constitutional
issues. See Moody, 208 Ariz. 424, ¶ 62, 94 P.3d at 1140.

¶8            In his motion, Inzunza sought to suppress all evidence
resulting from the warrantless entry under both the Fourth
Amendment to the United States Constitution and article II, § 8 of
the Arizona Constitution. The state maintained the search was
justified by the emergency aid exception to the warrant requirement.
The trial court agreed and denied the motion on this ground. On
appeal, Inzunza again contends the entry and search violated his
federal and state constitutional rights.

¶9           The record shows that police officers responded to the
report that the victim was missing just before 7:00 p.m. They were
informed that she was a vulnerable adult with capabilities similar to
a three-year-old child. The officers then went door to door in the
apartment complex seeking information about her. One witness
reported having seen a Hispanic man leading the victim around the



                                   4
                        STATE v. INZUNZA
                        Opinion of the Court

complex. At 1:49 a.m., another witness reported seeing the victim
earlier in Inzunza’s apartment.

¶10          Within five minutes of receiving this tip, officers
gathered outside Inzunza’s apartment and knocked loudly on the
door for several minutes. When they looked through the window,
they saw two people—a man and a woman—lying on the living
room floor. The officers could tell the people were breathing, but
they were unresponsive to the officers’ repeated knocks and yells.
Earlier in the evening, detectives had knocked on Inzunza’s door as
part of their canvassing effort, but no one had responded.
Concerned for the well-being of the individuals inside, and believing
that the victim might be in the apartment, the officers picked the
lock on the door and entered.

¶11          While one officer checked on the two people lying on
the floor, another officer went into the adjoining room of the one-
bedroom apartment, where he immediately found the victim and
Inzunza. The man and woman in the living room—Inzunza’s
brother and Gloria R.—subsequently were identified and found to
be highly intoxicated.

¶12          Warrantless entries into and searches of homes are
presumptively unreasonable and unconstitutional unless an exigent
circumstance or “other clear necessity” justifies the action. State v.
Cañez, 202 Ariz. 133, ¶ 52, 42 P.3d 564, 582 (2002). The emergency
aid exception permits a warrantless entry into a dwelling when law
enforcement officers “reasonably believe there is someone within in
need of immediate aid or assistance.” State v. Fisher, 141 Ariz. 227,
237, 686 P.2d 750, 760 (1984). The exception applies, in other words,
when (1) police have reasonable grounds to believe there is an
emergency that requires their immediate assistance to protect life or
property and (2) there is a reasonable basis to associate the
emergency with the place to be searched.3 Id.


      3Our   supreme court also has required, as a third condition,
that police “‘not be primarily motivated by intent to arrest and seize
evidence.’” Fisher, 141 Ariz. at 237-38, 686 P.2d at 760-61, quoting
People v. Mitchell, 347 N.E.2d 607, 609 (N.Y. 1976); accord State v.

                                  5
                        STATE v. INZUNZA
                        Opinion of the Court

¶13           Courts routinely apply the emergency aid exception to
searches for missing persons. E.g., People v. Wharton, 809 P.2d 290,
299-300, 324 (Cal. 1991) (upholding warrantless entry into apartment
to locate missing occupant); People v. Mitchell, 347 N.E.2d 607, 608-10
(N.Y. 1976) (affirming warrantless entry into hotel room to search for
missing chambermaid), abrogated on other grounds by Brigham City v.
Stuart, 547 U.S. 398, 402, 404-05 (2006). The exception also has been
applied when officers reasonably believed immediate medical
assistance might be required for a person visible in a dwelling. In
State v. Russell, 848 P.2d 657, 658-59 (Or. Ct. App. 1993), for example,
the appellate court upheld a warrantless entry when a mother could
not be awakened either by her young children, who were locked
inside the home with her, or by the repeated efforts of a relative and
a police officer, and the circumstances thus suggested she might
either be asleep or “unconscious . . . because of a drug overdose.”
As our own supreme court has explained, “[B]ecause we do not
want to deter police officers from engaging in searches for persons
in distress, the exclusionary rule has no place here.” Fisher, 141 Ariz.
at 240, 686 P.2d at 763.

¶14         In light of the circumstances here, which are equally if
not more indicative of an emergency than those in Russell, we
conclude the trial court did not abuse its discretion or otherwise err
in denying Inzunza’s motion to suppress. See Fisher, 141 Ariz. at 238,
686 P.2d at 761 (ruling will be upheld “absent clear and manifest
error”). The combined circumstances of the missing-person report,
the information obtained by police officers concerning the victim’s


Sharp, 193 Ariz. 414, ¶ 13, 973 P.2d 1171, 1176 (1999); State v. Jones,
188 Ariz. 388, 395, 937 P.2d 310, 317 (1997). But this factor has since
been rejected by the United States Supreme Court in Brigham City v.
Stuart, 547 U.S. 398, 404-05 (2006), which held that the Fourth
Amendment exclusively concerns whether the circumstances
confronting state officials provided an objectively reasonable basis
for the action. Assuming arguendo that this subjective factor still
has a place in an independent analysis under article II, § 8 of our
state constitution, this would not alter our reasoning or disposition
here, given the record before us.


                                   6
                        STATE v. INZUNZA
                        Opinion of the Court

vulnerable status and probable location, and their observations
outside Inzunza’s apartment, all justified both the warrantless entry
and the scope of the search.

¶15          The record supports findings that the police reasonably
believed the victim would be found in Inzunza’s apartment and that
she was in danger without a proper caretaker. Moreover, police had
knocked on the door of the apartment earlier in the evening, with no
response. And the fact that persons, including a woman who might
have been the victim, later appeared to be unconscious on the living
room floor, further suggested a need for immediate entry and
potential medical assistance. In sum, the police were justified in
entering the apartment without a warrant and searching the places
therein where the victim might reasonably be found.

                        Precluded Evidence

¶16          Inzunza next argues the trial court erred by excluding
certain evidence of the victim’s past. Before trial, the state filed a
motion to preclude any evidence of an unrelated sexual assault
against the victim in 2005. The motion was based, alternatively, on
Rules 401 through 403, Ariz. R. Evid., and Arizona’s rape shield
statute, A.R.S. § 13-1421. Inzunza opposed the motion, arguing the
victim’s reactions to the prior sexual assault differed significantly
from her reactions in the present case and thus served as a
contrasting example of “non-consent.”

¶17          In 2005, the victim ran out of an apartment when her
guardian arrived; she then began crying and reported that her
“secret hurts,” referring to her vagina; and when asked how it hurt,
she pointed to the apartment she had just left, saying, “Him.”
According to Inzunza, the prior incident therefore provided
admissible evidence about the victim’s ability to communicate and
her capacity to consent to sexual intercourse. The trial court
precluded the evidence without specifying the basis for its ruling.
The court later explained, “The ability on one isolated occasion
before to point out that she perceives pain does not indicate
anything about whether she’s capable of consenting to sexual
activity.”



                                  7
                          STATE v. INZUNZA
                          Opinion of the Court

¶18          We generally review a trial court’s evidentiary rulings
for an abuse of discretion, but we review de novo any questions of
statutory construction or constitutional law. State v. Armstrong, 218
Ariz. 451, ¶ 20, 189 P.3d 378, 385 (2008). We may affirm a court’s
evidentiary ruling on any basis supported by the record. State v.
Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987). Here, the court
was justified in precluding the prior incident under Rule 403. We
therefore do not reach Inzunza’s arguments concerning the rape
shield statute.

¶19           The crime of sexual abuse requires the state to prove
that the defendant engaged in sexual contact without the victim’s
consent. A.R.S. § 13-1404(A). Section 13-1401(5)(b), A.R.S., provides
that an act occurs “without consent” when the victim is incapable of
consent due to a “mental disorder, mental defect, . . . or any other
similar impairment of cognition” that is known or should
reasonably be known to a defendant. Our supreme court has
defined a “mental disorder” as a condition that prevents a victim
from understanding the nature of the sexual act and its possible
consequences. State v. Johnson, 155 Ariz. 23, 25-26, 745 P.2d 81, 83-84
(1987). Since the statute’s amendment in 1998,4 our legislature has
further specified that a victim has a “mental defect” preventing
consent if she “is unable to comprehend the distinctively sexual
nature of the conduct or is incapable of understanding or exercising
the right to refuse to engage in the conduct with another.” § 13-
1401(5)(b). Because this language follows case law from New Jersey,
see State v. Olivio, 589 A.2d 597, 599, 605 (N.J. 1991), we find
authority from that state instructive when interpreting the amended
§ 13-1401(5)(b). We agree, in particular, with New Jersey precedent
stating that “the alleged victim’s capacity to understand and consent
to the proffered sexual conduct must be considered in the context of
all of the surrounding circumstances in which it occurred.” Olivio,
589 A.2d at 606.

¶20        In light of the context here, and the victim’s evident and
undisputed mental deficits, the prior sexual assault had de minimis
probative value to issues that were material to this case. The

      41998   Ariz. Sess. Laws, ch. 281, § 2.


                                     8
                        STATE v. INZUNZA
                        Opinion of the Court

victim’s psychiatrist testified that the victim did not understand
most things, including sexuality, and that he could not discuss
anything directly with her. The victim’s case manager likewise
testified that the victim’s extreme communication limitations
prevented her from being understood by, and understanding, most
people. The victim’s mother further testified that the victim could
not verbally express her feelings. In addition, the nurse who had
performed the sexual assault examination in this case testified, by
deposition, that when she had explained this medical procedure and
had sought the victim’s consent for it, the victim appeared to lack
the ability to consent.

¶21           Thus, despite Inzunza’s assertions, the earlier sexual
assault is not especially probative on the question of the victim’s
legal capacity to consent to sexual activity. The prior incident did
not show the victim had “knowledge about sex and procreation,”
Johnson, 155 Ariz. at 26, 745 P.2d at 84; rather, it tended to show an
absence of such knowledge. Similarly, the earlier incident of
victimization neither demonstrated that the victim “understood that
her body was private and that she had a right to be free from the
invasions of others,” nor that she had the “ability to refuse to engage
in sexual activity.” Olivio, 589 A.2d at 604. The trial court was
therefore justified in excluding the evidence under Rule 403 on the
ground that any slight probative value of the evidence was
substantially outweighed by its potential to confuse the jury, waste
time, and cause unfair prejudice arising from a prior crime inflicted
against the same victim. Instead of showing a capacity to consent,
the prior incident demonstrated primarily that the victim was able to
report physical pain and attribute its cause, as the court indicated
here. Thus, we cannot conclude the court clearly abused its
discretion by ruling the evidence inadmissible. See State v. Williams,
133 Ariz. 220, 230, 650 P.2d 1202, 1212 (1982); see also Hudgins v. Sw.
Airlines, Co., 221 Ariz. 472, ¶ 13, 212 P.3d 810, 819 (App. 2009)
(observing “we accord substantial discretion to the trial court in the
Rule 403 weighing process”).

¶22          We recognize that “[t]he degree of intellectual
impairment varies widely among the retarded,” and the mere fact
that a person is intellectually disabled does not mean that the person


                                  9
                         STATE v. INZUNZA
                         Opinion of the Court

cannot lawfully consent to sex. Olivio, 589 A.2d at 604. As the
victim’s psychiatrist acknowledged here, and as Inzunza argued as a
defense, intellectually disabled people can have consensual sexual
relations. We also recognize that courts should be cautious when
precluding evidence bearing on a victim’s capacity to consent, as
“[t]he vital interests underlying the Rape Shield Law are subverted
if they are misapplied and misused to deny defendants a full and
fair trial.” State v. Cuni, 733 A.2d 414, 432 (N.J. 1999) (Stein, J.,
dissenting). The same is true when applying our rules of evidence.
See Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (rules of evidence
“may not be applied mechanistically to defeat the ends of justice”).
Here, although the state’s case depended on demonstrating that the
victim lacked the capacity to legally consent to sexual activity, the
evidence that was excluded had little, if any, probative value in
rebutting this fact. Therefore, the trial court did not err in implicitly
concluding that any probative value was substantially outweighed
by the risk of “unfair prejudice, confusing the issues, . . . [and]
wasting time.” Ariz. R. Evid. 403.

                           Prior Conviction

¶23         Inzunza further contends the trial court erred in
sentencing him as a category two repetitive offender and in finding
that his 1992 conviction from Washington was a “historical prior
felony conviction” under the former A.R.S. § 13-703 applicable to
this case. 2010 Ariz. Sess. Laws, ch. 194, § 2. Whether a foreign
conviction supports an enhanced sentence is a question of law we
review de novo. State v. Smith, 219 Ariz. 132, ¶ 10, 194 P.3d 399, 401
(2008).5

¶24          When Inzunza committed the present offenses, in
February 2011, § 13-703(M) subjected offenders to enhanced
sentences if they had been convicted in another jurisdiction of “an

      5We   find Inzunza’s appellate arguments on this issue to be
substantially the same as those he raised, and thus preserved, at the
prior convictions trial. But we would reach the merits of his claim in
any event, given that an illegal sentence constitutes fundamental,
prejudicial error. See Smith, 219 Ariz. 132, ¶ 22, 194 P.3d at 403.


                                   10
                        STATE v. INZUNZA
                        Opinion of the Court

offense that if committed in this state would be punishable as a
felony.” 2010 Ariz. Sess. Laws, ch. 194, § 2. Once a foreign
conviction passed this test, it could be used for sentencing
enhancement, regardless of the age of the prior offense, if it qualified
as a “[h]istorical prior felony conviction” under the former A.R.S.
§ 13-105(22)(a)(iii). 2008 Ariz. Sess. Laws, ch. 301, § 10. This
subsection defined the term to include “[a]ny prior felony conviction
for which the offense of conviction . . . involved the use or exhibition
of a deadly weapon or dangerous instrument.” Id.

Arizona Felony

¶25          In order to determine whether a foreign conviction
would be a felony in Arizona, the test is whether it “includes ‘every
element that would be required to prove an enumerated Arizona
offense.’” State v. Crawford, 214 Ariz. 129, ¶ 7, 149 P.3d 753, 755
(2007), quoting State v. Ault, 157 Ariz. 516, 521, 759 P.2d 1320, 1325
(1988). 6 “In other words, the foreign conviction must ‘entail[] a
finding by the former trier of fact, beyond a reasonable doubt,’ of all
the elements necessary for a specified Arizona offense.” State v.
Moran, 232 Ariz. 528, ¶ 16, 307 P.3d 95, 101 (App. 2013), quoting State
v. Norris, 221 Ariz. 158, ¶ 6, 211 P.3d 36, 38 (App. 2009). This
comparative analysis focuses exclusively on the statutory elements
of offenses and any relevant case law, as opposed to the factual basis
of a conviction. See State v. Colvin, 231 Ariz. 269, ¶ 9, 293 P.3d 545,
548-49 (App. 2013). Hence, “[a] charging document or judgment of
conviction may be used only to narrow the statutory basis of the
foreign conviction, not to establish the conduct underlying it.”
Moran, 232 Ariz. 528, ¶ 16, 307 P.3d at 101.


      6Although    in Crawford, 214 Ariz. 129, ¶ 1, 149 P.3d at 754, our
supreme court specifically discussed the former A.R.S. § 13-604(N),
2003 Ariz. Sess. Laws, ch. 11, § 1, that provision is the same, in
material part, as the former § 13-703(M) at issue here. See 2010 Ariz.
Sess. Laws, ch. 194, § 2. Statutory changes that have since
superseded Crawford are irrelevant to this decision. See State v.
Moran, 232 Ariz. 528, ¶ 21, 307 P.3d 95, 102 (App. 2013) (recognizing
2012 amendments as legislative attempt to “simplify[] the use of out-
of-state historical prior felony convictions”).

                                  11
                         STATE v. INZUNZA
                         Opinion of the Court

¶26           At the prior-convictions trial here, the state introduced
an information and judgment of conviction showing Inzunza had
been convicted of second-degree assault with a deadly weapon,
committed on December 14, 1991, in violation of the Revised Code
of Washington (“Wash. Rev. Code”) § 9A.36.021(1)(c) (1991). That
subsection provides: “A person is guilty of assault in the second
degree if he or she, under circumstances not amounting to assault in
the first degree . . . [a]ssaults another with a deadly weapon.” Id.

¶27            Washington’s criminal code does not define the
predicate offense of simple assault, which is codified at Wash. Rev.
Code § 9A.36.041(1) (1991); its elements instead are provided by the
state’s common law. Clark v. Baines, 84 P.3d 245, 247 n.3 (Wash.
2004). “Washington recognizes three definitions of assault: ‘(1) an
attempt, with unlawful force, to inflict bodily injury upon another;
(2) an unlawful touching with criminal intent; and (3) putting
another in apprehension of harm whether or not the actor intends to
inflict or is incapable of inflicting that harm.’” Id., quoting State v.
Walden, 841 P.2d 81, 83 (Wash. Ct. App. 1992); accord State v. Hahn,
271 P.3d 892, 893 (Wash. 2012); State v. Frohs, 924 P.2d 384, 390
(Wash. Ct. App. 1996). These definitions specify different manners
or methods of committing the crime of assault, not separate offenses.
See State v. Davis, 835 P.2d 1039, 1043 (Wash. 1992) (rejecting
argument that “manners of committing assault are essential
elements” of simple assault); see also State v. Taylor, 950 P.2d 526, 529
(Wash. Ct. App. 1998) (noting “an assault with a deadly weapon . . .
may be committed three ways”). Yet regardless of how the crime is
committed, intent is an implied element of assault, meaning the
offense requires willful, knowing, or purposeful conduct. Davis, 835
P.2d at 1042; see State v. Byrd, 887 P.2d 396, 399 (Wash. 1995) (holding
“specific intent either to create apprehension of bodily harm or to
cause bodily harm is an essential element of assault in the second
degree” regarding “two apposite definitions of criminal assault”);
see also State v. Jarvis, 246 P.3d 1280, 1284 n.4 (Wash. Ct. App. 2011)
(“‘Criminal intent’ . . . means the intent to do the physical act
constituting assault, not the intent that one’s actions be malicious or
illegal.”); State v. Baker, 151 P.3d 237, 239 (Wash. Ct. App. 2007)
(“State need not prove specific intent . . . if unlawful physical contact
occurs.”).


                                   12
                        STATE v. INZUNZA
                        Opinion of the Court

¶28           On appeal, an appellant always carries the burden of
demonstrating an error that entitles him to relief. State v. Edwards, 1
Ariz. App. 42, 44, 399 P.2d 176, 178 (1965). Here, Inzunza has failed
to show that assault with a deadly weapon under § 9A.36.021(1)(c)
of the Washington code could be committed in a way that would not
be a felony if the offense were committed in Arizona.

¶29          He first notes that in Arizona, an assault by touching
requires the specific mens rea of an “intent to injure, insult or
provoke,” A.R.S. § 13-1203(A)(3), and he argues that Washington’s
“common law definition includes any ‘criminal intent,’ which could
include recklessness, and fall short” of the culpable mental state
required in this state. But, in light of the authorities cited above, we
reject the claim that recklessness would support a conviction for
assault under Washington law.

¶30           As articulated by Davis, 835 P.2d at 1042, the common
law intent required for assault in that jurisdiction would always
appear to support an intentional or knowing mental state required
for assault in Arizona. See 2008 Ariz. Sess. Laws, ch. 301, § 10 (A.R.S.
§ 13-105(10)(a), (b)). Moreover, Washington courts have specified
that “[t]he intentional unlawful touching of the body of another is an
assault.” State v. Parker, 915 P.2d 1174, 1177 (Wash. Ct. App. 1996).
They likewise have provided that “‘[a] touching may be unlawful
because it was neither legally consented to nor otherwise privileged,
and was either harmful or offensive.’” Jarvis, 246 P.3d at 1284,
quoting State v. Thomas, 989 P.2d 612, 614 (Wash. Ct. App. 1999).
Inzunza therefore has not demonstrated any variance between the
culpable mental states for these offenses that would entitle him to
relief.

¶31          We are similarly unpersuaded by his argument that the
Washington offense does not require the use or display of a deadly
weapon, but could be committed merely by attempting to inflict
bodily injury with an apparent present ability to do so. Washington
law specifies that an item meets the definition of a “[d]eadly
weapon” only if, “under the circumstances in which it is used,
attempted to be used, or threatened to be used, [it] is readily capable
of causing death or substantial bodily harm.” Wash. Rev. Code
§ 9A.04.110(6) (1991). When this provision is read in conjunction

                                  13
                        STATE v. INZUNZA
                        Opinion of the Court

with Washington’s second-degree assault statute, it becomes clear
that assault with a deadly weapon requires proof that the defendant
either (1) attempted to use the weapon to inflict bodily injury,
(2) used the weapon to unlawfully touch someone, or (3) used or
threatened to use the weapon to create apprehension of harm. See
Wash. Rev. Code §§ 9A.04.110(6), 9A.36.021(1)(c); Hahn, 271 P.3d at
893. In Arizona, these scenarios would, at minimum, constitute the
felony offense of attempted aggravated assault with a deadly
weapon or dangerous instrument. See A.R.S. §§ 13-1001, 13-1203, 13-
1204(A)(2), (D).7

¶32           Accordingly, Inzunza has failed to demonstrate that the
elements of his second-degree assault offense do not conform to
Arizona law, and we have discovered no variance that would
warrant relief under a fundamental error standard of review. See
State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007)
(“[W]e will not ignore [fundamental error] when we find it.”).

Historical Prior

¶33           Having confirmed that the out-of-state conviction
would be a felony in Arizona, we next must decide whether it was
also a historical prior felony conviction under the former A.R.S. § 13-
105(22). 2008 Ariz. Sess. Laws, ch. 301, § 10. We assume, without
deciding, that an exclusive analysis of statutory and common-law
elements is likewise applicable to this determination. See State v.
Sharma, 216 Ariz. 292, ¶ 30, 165 P.3d 693, 699 (App. 2007) (analyzing
federal statutes under prior Arizona repetitive-offender law). By
considering only the elements of the offenses, we thereby ensure
that the prior fact-finder actually made all the relevant legal
determinations, see State v. Morrison, 181 Ariz. 279, 281, 889 P.2d 637,
639 (App. 1995), and we also free courts from “the burden of making
factual determinations about the defendant’s underlying conduct.”
Crawford, 214 Ariz. 129, ¶ 9, 149 P.3d at 756.



      7We  cite the current version of our aggravated assault statute,
A.R.S. § 13-1204, as the relevant provisions have not changed since
its amendment. See 2011 Ariz. Sess. Laws, ch. 90, § 6.


                                  14
                        STATE v. INZUNZA
                        Opinion of the Court

¶34          As noted above, the conviction here was statutorily
narrowed by Inzunza’s information and judgment, which specified
that his offense was committed under the subsection that proscribes
“[a]ssault[] . . . with a deadly weapon.” Wash. Rev. Code
§ 9A.36.021(1)(c). The judgment also included a special finding, as
alleged in the information, that Inzunza had been armed with a
“deadly weapon” when he committed the offense, in violation of
Wash. Rev. Code § 9.94A.125 (1991). A “deadly weapon” is defined
by this statute as “an implement or instrument which has the
capacity to inflict death and from the manner in which it is used, is
likely to produce or may easily and readily produce death.” Id.

¶35          For sentence enhancement purposes, the former A.R.S.
§ 13-105(22)(a)(iii) defined an offense as a historical prior felony
conviction if it “involved the use or exhibition of a deadly weapon
or dangerous instrument.” 2008 Ariz. Sess. Laws, ch. 301, § 10. The
definition of a “dangerous instrument” under the former A.R.S. § 13-
105(12), in turn, encompassed precisely that which would be a
“deadly weapon” under Washington law. Compare 2008 Ariz. Sess.
Laws, ch. 301, § 10 (“‘Dangerous instrument’ means anything that
under the circumstances in which it is used, attempted to be used or
threatened to be used is readily capable of causing death or serious
physical injury.”), with Wash. Rev. Code § 9A.04.110(6) (“‘Deadly
weapon’ . . . include[s] any . . . weapon, device, instrument, article,
or substance . . . which, under the circumstances in which it is used,
attempted to be used, or threatened to be used, is readily capable of
causing death or substantial bodily harm.”).             Because the
Washington conviction was therefore a valid historical prior felony
conviction, we find no error with respect to Inzunza’s enhanced
sentences.

                     Criminal Restitution Order

¶36          In conducting our review of the record, we observed
that the trial court reduced various fees and assessments to a
criminal restitution order (CRO) at sentencing and further ordered
“no interest, penalties or collection fees to accrue” while Inzunza
was imprisoned. Although the parties did not raise this issue on
appeal, we have determined that in these circumstances “the
imposition of a CRO before the defendant’s probation or sentence

                                  15
                        STATE v. INZUNZA
                        Opinion of the Court

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).

                             Disposition

¶37         For the foregoing reasons, we vacate the CRO.
Inzunza’s convictions and sentences are otherwise affirmed.




                                  16
