                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                   DANITA DAWN STEVENS, Appellant.

                             No. 1 CA-CR 14-0642
                               FILED 12-10-2015


         Appeal from the Superior Court in Maricopa County
                      No. CR2012-109993-001
      The Honorable Christine E. Mulleneaux, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Christopher M. DeRose
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
                            STATE v. STEVENS
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined.


P O R T L E Y, Judge:

¶1            Defendant Danita Dawn Stevens challenges her convictions
and sentences for armed robbery and aggravated robbery. She argues the
application of the dangerousness enhancement to both convictions violated
double jeopardy. Finding no error, we affirm.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2             After leaving a late night movie, the victim, D.S., was
walking to get something to eat, and ran into a group of what appeared to
be five boys. He tried to keep walking, but was accosted by the group who
wanted him to stop and talk. Although he kept trying to walk past them,
they encircled him and prevented him from leaving. One member of the
group, who was later identified as Stevens, took out a knife, held it to D.S.’s
throat, and told him they were going to take his money. D.S. grabbed the
knife and punched Stevens. As the knife cut into his hand, D.S. pulled
Stevens to the ground and placed his knee on her chest. When D.S. fell
backwards, the others, at Stevens’ command, began kicking D.S. in the
head, nose, and face. They broke his glasses, gave him black eyes, knocked
his dentures out of his mouth, ripping at and loosening two teeth, bloodied
his nose, and cut the back of his head, which required stitches.

¶3            The police arrived and interrupted the attack. They caught
one person running away, and he threw D.S.’s wallet against a fence.
Stevens was caught with a pocket knife in her hand. She was subsequently
indicted for armed robbery, aggravated robbery and aggravated assault,
and convicted on all counts. At the aggravation hearing, the jury found all
three offenses were dangerous offenses beyond a reasonable doubt.
Stevens was subsequently sentenced to concurrent prison terms not


1We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997) (citation
omitted).

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                            STATE v. STEVENS
                            Decision of the Court

exceeding eight and a half years, and was given 119 days of presentence
incarceration credit.

                               DISCUSSION

¶4            On appeal, and citing Alleyne v. United States, 133 S. Ct. 2151
(2013), Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530
U.S. 466 (2000), Stevens argues the armed robbery and aggravated robbery
convictions are multiplicitous. She contends that because the jury found
the crimes dangerous, the enhancement became an element of each crime
and made them identical since both required a finding that a weapon was
used.2

¶5            We review an allegation of multiplicitous charges de novo.
State v. Brown, 217 Ariz. 617, 620, ¶ 7, 177 P.3d 878, 881 (App. 2008). Because
Stevens failed to raise her due process argument in the trial court, we will
only review for fundamental prejudicial error. See State v. Henderson, 210
Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005); State v. Bolton, 182 Ariz.
290, 297, 896 P.2d 830, 837 (1995) (waiver principle applies to both
constitutional and non-constitutional issues) (citations omitted).

¶6             Under the Double Jeopardy Clause of the United States
Constitution, a defendant may not face multiple punishments for the same
              3

offense. Brown, 217 Ariz. at 621, ¶ 13, 177 P.3d at 882 (citation omitted). If
a defendant is convicted of multiplicitous charges, his or her double
jeopardy rights are violated. Id. “Charges are multiplicitous if they charge
a single offense in multiple counts.” Merlina v. Jejna, 208 Ariz. 1, 4, ¶ 12, 90
P.3d 202, 205 (App. 2004) (citation omitted). Charges are not multiplicitous,
however, if “each requires proof of a fact that the other does not.” Id.

¶7            A person commits robbery “if in the course of taking any
property of another from his person or immediate presence and against his
will, such person threatens or uses force against any person with [the] intent


2Stevens does not challenge her conviction for aggravated assault, and has
thus waived the issue on appeal. See State v. Carver, 160 Ariz. 167, 175, 771
P.2d 1382, 1390 (1989). Her opening brief states the aggravating factors
used at sentencing were not found by a jury beyond a reasonable doubt.
However, the brief does not present any argument or legal authority to
support the statement, and, as a result, the issue is waived. See id.
3 Applied to states through the Fourteenth Amendment Due Process

Clause. See Benton v. Maryland, 395 U.S. 784, 794 (1969).



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                            STATE v. STEVENS
                            Decision of the Court

either to coerce surrender of property or to prevent resistance to such
person taking or retaining property.” A.R.S. § 13-1902(A). Aggravated
robbery occurs if a person committing the robbery “is aided by one or more
accomplices actually present.” A.R.S. § 13-1903(A). And armed robbery
occurs if “[either the robber] or an accomplice: 1. Is armed with a deadly
weapon or a simulated deadly weapon; or 2. Uses or threatens to use a
deadly weapon or dangerous instrument or a simulated deadly weapon.”
A.R.S. § 13-1904(A).

¶8            Moreover, the State can prove the facts for a conviction for
armed robbery beyond a reasonable doubt without proving all the elements
for aggravated robbery; namely, by proving that the defendant was armed
with a deadly weapon or threatened to use a deadly weapon in the
commission of a robbery. A.R.S. § 13-1904(A). Aggravated robbery, on the
other hand, does not require the use of a weapon, and to secure a conviction
the State need only prove beyond a reasonable doubt that an accomplice
was present and aided the defendant in the robbery, even if neither had or
wielded a weapon. See A.R.S. 13-1903(A). Consequently, armed robbery
and aggravated robbery are two separate felonies and are not multiplicitous
for charging purposes.

¶9              The fact that the jury found both crimes to be dangerous for
sentencing enhancement purposes did not violate double jeopardy. An
offense is dangerous if it involves “the discharge, use or threatening
exhibition of a deadly weapon or dangerous instrument or the intentional
or knowing infliction of serious physical injury on another person.” A.R.S.
§ 13-105(13). A sentencing enhancement is distinct from the elements of a
crime; an enhancement addresses the mode in which the crime was
committed. See State v. Olsen, 157 Ariz. 603, 605-06, 760 P.2d 603, 605-06
(App. 1988). In fact, an enhancement is not an element of the charged
offense, see id. at 606, 760 P.2d at 606, and the United States Supreme Court
and Arizona Supreme Court have found that sentence enhancements do
not violate double jeopardy, see State v. Harm, 236 Ariz. 402, 408, ¶ 23, 340
P.3d 1110, 1116 (App. 2015) (citing United States v. Watts, 519 U.S. 148, 154–
55 (1997)); State v. Bly, 127 Ariz. 370, 371-72, 621 P.2d 279, 280-81 (1980),
superseded by statute, A.R.S. § 13–702.4




4 The Bly analysis and deference to the legislature in determining statutory
sentencing schemes is still applicable even though A.R.S. § 13-702 (now
A.R.S. § 13-701, see 2008 Ariz. Sess. Laws, ch. 301, § 23 (2nd Reg. Sess.)) has
since been amended. Harm, 236 Ariz. at 408 n.5, ¶ 23, 340 P.3d at 1116 n.5.

                                      4
                            STATE v. STEVENS
                            Decision of the Court

¶10         Citing dictum in Apprendi, Alleyne, and Ring to attempt to
overturn Olsen, Stevens contends that her convictions for aggravated
robbery and armed robbery became multiplicitous when the
dangerousness enhancement was applied. We disagree.

¶11          The cases Stevens relies on are distinguishable. Apprendi did
not address whether a sentencing enhancement was an element of the crime
charged, but resolved the question of the findings a jury was required to
make before a sentencing enhancement could be used for sentencing, and
did not address the issue Stevens raises. 530 U.S. at 469. Instead, the
Supreme Court held that a jury has to find the elements of the offense and
any sentencing enhancement factor beyond a reasonable doubt to protect a
defendant’s constitutional rights. Id. at 490, 500.

¶12           In Ring, the issue was whether a sentencing judge was
permitted to independently find an aggravating circumstance that justified
the imposition of the death penalty. 536 U.S. at 588. Ring also did not
address the issue Stevens raises, and instead held that a capital defendant
was entitled to have a jury find any aggravating factors that permitted the
application of the death penalty. Ring, 536 U.S. at 609.

¶13           Moreover, in Alleyne, the Supreme Court found that if a jury
did not find an enhancement beyond a reasonable doubt, a sentencing
judge could not make his own findings and apply the enhancement based
on his independent findings. Alleyne, 133 S. Ct. at 2151. The statement in
the opinion that “[f]acts that increase the mandatory minimum sentence are
therefore elements and must be submitted to the jury and found beyond a
reasonable doubt,” see id. at 2163, Ring, 536 U.S. at 604-05, Apprendi, 530 U.S.
at 495-96, were dicta; the Court did not state that a sentencing enhancement
allegation changes, by addition, the basic elements of the offense, and our
supreme court has never interpreted Apprendi or Alleyne in such a manner.
Consequently, a sentencing enhancement is not an element of the crime, but
has to be determined by a jury, and the finding by the jury, in this case, that
both crimes were dangerous does not make the charges multiplicitous or
violate double jeopardy. Thus, we find no error.




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                          STATE v. STEVENS
                          Decision of the Court

                            CONCLUSION

¶14          For the foregoing reasons, we affirm Stevens’ convictions and
sentences.




                                  :ama




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