                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                    DAVID GLEN WIGGINS, Appellant.

                             No. 1 CA-CR 13-0344
                              FILED 07-24-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-154102-001
                The Honorable Karen A. Mullins, Judge

    AFFIRMED IN PART AS CORRECTED; VACATED IN PART;
               REMANDED WITH INSTRUCTIONS


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adriana M. Zick
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Stephen Whelihan
Counsel for Appellant
                           STATE v. WIGGINS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Chief Judge Diane M. Johnsen
joined.

N O R R I S, Judge:

¶1            David Glen Wiggins appeals from his convictions and
sentences for first degree murder, aggravated assault, endangerment, and
unlawful flight from pursuing law enforcement vehicle. The convictions
stem from Wiggins’s conduct in fleeing from police officers and causing a
traffic accident that resulted in the death of an eleven-year-old boy and
injured the boy’s father and seven-year-old brother. Wiggins argues the
superior court should not have imposed aggravated sentences on the
aggravated assault and endangerment convictions and should not have
ordered him to pay restitution and the cost of DNA testing. For the
following reasons, we affirm Wiggins’s convictions and sentences as
corrected but vacate the order directing him to pay restitution and remand
to the superior court to determine the amount of restitution.

             FACTS AND PROCEDURAL BACKGROUND

¶2             The superior court sentenced Wiggins to the presumptive
prison term of life imprisonment with the possibility of parole after 35
years for first degree murder, together with concurrent aggravated terms
of 19 years for aggravated assault and 2.75 years for endangerment and a
concurrent presumptive term of 1.5 years for unlawful flight from
pursuing law enforcement vehicle. The court also ordered Wiggins to pay
restitution to the victims and authorized the Department of Corrections to
make monthly withdrawals from his inmate account for that purpose.
Additionally, it ordered Wiggins to submit to DNA testing.

                              DISCUSSION

¶3           As an initial matter, we note Wiggins did not object to any of
the superior court’s sentencing orders. Accordingly, we limit our review
to fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d
601, 607 (2005). To obtain relief under this standard of review, Wiggins
has the burden of showing both fundamental error and resulting
prejudice. Id. at ¶ 20. An illegal sentence, however, constitutes
fundamental error, and we will reverse it on appeal notwithstanding lack


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                            STATE v. WIGGINS
                            Decision of the Court

of an objection. State v. Cox, 201 Ariz. 464, 468, ¶ 13, 37 P.3d 437, 441 (App.
2002).

I.     Aggravated Sentences

¶4           Wiggins argues the superior court should not have imposed
aggravated sentences for his aggravated assault and endangerment
convictions because the court did not rely on any qualifying aggravating
circumstance that would render these offenses eligible for sentences above
the presumptive term. Whether a superior court may employ a particular
factor to aggravate a sentence presents a question of law we review de
novo. State v. Tschilar, 200 Ariz. 427, 435, ¶ 32, 27 P.3d 331, 339 (App.
2001).

       A.     Aggravated Assault Conviction

¶5             The superior court relied on the aggravating circumstances
found by the jury in imposing an aggravated sentence for Wiggins’s
aggravated assault conviction against the seven-year-old victim.
Specifically, the jury found three aggravating factors: 1) the victim was
under the age of 15; 2) the victim suffered emotional or financial harm;
and 3) the presence of multiple victims. Wiggins argues, and the State
concedes, that neither the young age of the victim nor the presence of
multiple victims could have, alone, permitted the court to impose an
aggravated sentence because neither factor is specifically enumerated in
Arizona Revised Statutes (“A.R.S.”) section 13–701(D) (Supp. 2013), 1 but
rather they fall within the “catch-all” category of aggravating
circumstances under A.R.S. § 13-701(D)(24). See generally State v. Schmidt,
220 Ariz. 563, 566, ¶¶ 10-11, 208 P.3d 214, 217 (2009) (only aggravating
factors specifically enumerated in A.R.S. § 13-701(D) can render defendant
eligible for aggravated sentence). The superior court may consider a
“catch-all” aggravator to impose a sentence up to the statutory maximum
if a properly found specifically enumerated aggravator makes the
defendant eligible for a sentence greater than the presumptive term. State
v. Bonfiglio, 231 Ariz. 371, 373 ¶ 10, 295 P.3d 948, 950 (2013). Accordingly,
the superior court could impose an aggravated sentence on the
aggravated assault conviction only if the jury properly found the second



              1Although   the Arizona Legislature amended certain statutes
cited in this decision after the date of Wiggins’s offense, the revisions are
immaterial. Thus, we cite to the current version of these statutes.



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                            STATE v. WIGGINS
                            Decision of the Court

aggravating circumstance -- emotional or financial harm to the victim --
which is specifically enumerated in A.R.S. § 13-701(D)(9).

              1.     Emotional or Financial Harm to the Victim

¶6           Wiggins challenges the finding of emotional or financial
harm on three different grounds. First, he argues the terms “financial
harm” and “emotional harm” are unconstitutionally vague. Second, he
argues the State failed to present sufficient evidence of the financial harm
aggravator. Finally, he argues the verdict form linking “financial or
emotional harm” in a single finding deprived him of his right to a
unanimous verdict.

                       i.   Vagueness Challenge

¶7            “A legislative enactment is unconstitutionally vague if it fails
to give persons of ordinary intelligence reasonable opportunity to know
what is prohibited and fails to provide explicit standards for those who
apply it.” State v. Tocco, 156 Ariz. 116, 118, 750 P.2d 874, 876 (1988)
(citations omitted).    “Although due process requires notice which
provides a fair and definite warning, it neither requires absolute precision
nor impossible standards.” State v. Steiger, 162 Ariz. 138, 141-42, 781 P.2d
616, 619-20 (App. 1989) (citations omitted).

¶8            Wiggins does not contend the meaning of the term “financial
harm” is not capable of being understood, only that it does not provide a
standard for what amount of financial harm constitutes an aggravating
circumstance. Contrary to Wiggins’s contention, we read the statutory
enumeration of financial harm to the victim to reflect that the presence of
any pecuniary injury is sufficient to constitute an aggravating factor.
Many criminal offenses do not include financial loss as an element of the
crime. Thus, when such an offense results in the victim suffering any
pecuniary injury, the offense can be viewed as “aggravated” in nature, i.e.,
causing harm over and above that inherent in the offense. If the
Legislature had intended to require proof of some specific minimum
amount of financial harm to constitute an aggravating factor, it could have
done so by setting forth a specific dollar amount, as it did in defining
certain offenses. See, e.g., A.R.S. § 13-1602(B) (Supp. 2013) (designating
class of criminal damage offense based on dollar amount of property
damaged); A.R.S. § 13-1802(G) (Supp. 2013) (designating class of theft
offense based on dollar amount of property or services involved). The
absence of any specific minimum amount of financial harm supports the
conclusion that the Legislature intended no such minimum.



                                      4
                           STATE v. WIGGINS
                           Decision of the Court



¶9            Wiggins agues such an interpretation runs afoul of the
Legislature’s intent, as described by our supreme court in State v. Bly, 127
Ariz. 370, 372, 621 P.2d 279, 281 (1980), that the presumptive sentence “is
to be imposed on the vast majority of first offenders who commit the
crime.” We reject this argument because the finding of an aggravated
factor does not mandate imposition of an aggravated sentence. The
superior court is required only to consider the factor in determining the
sentence. A.R.S. § 13-701(D). Accordingly, though even minimal financial
harm would render a defendant eligible for an aggravated sentence, it
would not necessarily result in an aggravated sentence unless the superior
court, in the exercise of its discretion, decided that such a sentence was
appropriate. See State v. Harvey, 193 Ariz. 472, 477, ¶ 24, 974 P.2d 451, 456
(App. 1998) (weight assigned to aggravating and mitigating factors is left
to discretion of superior court).

¶10            Wiggins similarly argues the aggravating circumstance of
emotional harm is unconstitutionally vague because there is no legal
standard for what constitutes “emotional harm.” We disagree. “We give
words their usual and commonly understood meaning unless the
[L]egislature clearly intended a different meaning.” State v. Korzep, 165
Ariz. 490, 493, 799 P.2d 831, 834 (1990) (citation omitted). The usual and
commonly understood meaning of “emotional” is “of or relating to
emotion: an emotional illness; emotional crisis.” The American Heritage
Dictionary 585 (4th ed. 2006). “Emotion” means “a mental state that arises
spontaneously rather than through conscious effort and is often
accompanied by physiological changes; a feeling; the emotions of joy,
sorrow, hate, and love. Id. The term “harm” means “physical or
psychological injury or damage.” Id. at 800. As employed in A.R.S. § 13-
701(D)(9), the words “emotional harm,” by their usual and commonly
understood meaning, give notice that a person who causes a victim to
suffer injury or damage to his or her mental state or feelings as a result of
the offense will be subject to an aggravated sentence. Because the statute
provides sufficient notice that a defendant will be exposed to the
possibility of an aggravated sentence if his or her criminal conduct results
in the victim suffering injurious feelings, this aggravating circumstance is
not unconstitutionally vague.

¶11         Wiggins also argues the aggravating circumstance of
emotional harm is unconstitutionally vague because it does not quantify
the amount of emotional harm that must be suffered. We reject this
argument because the existence of any emotional harm to the victim is


                                     5
                            STATE v. WIGGINS
                            Decision of the Court

sufficient to support a finding of this aggravator and it is within the
discretion of the court to decide the weight to give to this factor. See
Harvey, 193 Ariz. at 477, ¶ 24, 974 P.2d at 456.

                      ii.   Sufficiency of Evidence

¶12           Wiggins also argues the State failed to present sufficient
evidence of the financial harm aggravator. We disagree. In considering
claims of insufficient evidence, “this court reviews the record to determine
whether substantial evidence supports the jury’s finding.” State v. Roque,
213 Ariz. 193, 218, ¶ 93, 141 P.3d 368, 393 (2006) (citation omitted).
“Evidence is sufficient to support the finding of an aggravating
circumstance if reasonable persons could conclude it establishes the
circumstance beyond a reasonable doubt.” State v. Payne, 233 Ariz. 484,
520, ¶ 163, 314 P.3d 1239, 1275 (2013).

¶13           Although the State did not present evidence of any specific
dollar amount of financial harm, it presented evidence that the seven-
year-old victim suffered substantial and serious physical injuries in the
collision, requiring medical treatment and four or five days of
hospitalization. Moreover, even after the victim was released from the
hospital, he required a special diet, special equipment, and special
clothing. Based on this evidence, the jury could find beyond a reasonable
doubt the victim suffered financial harm due to his medical treatment and
hospitalization and the additional expense of his special diet, equipment,
and clothing required after his release from the hospital.

¶14           Citing Lopez v. Cole, 214 Ariz. 536, 155 P.3d 1060 (App. 2007),
Wiggins argues the seven-year-old victim did not suffer any financial
harm because the law does not recognize that he, as a minor child, has any
legally cognizable liability or claim for medical expenses necessitated by
his injuries. In Lopez, this court held the minor child could not seek to
recover his medical expenses in a civil action because his parents had not
consented to assigning the claim to him and the applicable two-year
statute of limitations had run on their claim. Id. at 538, ¶ 11, 155 P.3d at
1062. The decision in Lopez was based on the then-controlling case of
Pearson & Dickerson Contractors, Inc. v. Harrington, 60 Ariz. 354, 137 P.2d
381 (1943). In that case, our supreme court stated that in cases involving
injury to a minor child, the proper party to bring an action for damages
for medical expenses is the child’s parent and not the child. Id. at 364, 137
P.2d at 385. Pearson, in turn, relied on S. A. Gerrard Co. v. Couch, 43 Ariz.
57, 29 P.2d 151 (1934), in which our supreme court stated that “ordinarily
an infant suing for personal injuries cannot recover for the impairment of


                                     6
                             STATE v. WIGGINS
                             Decision of the Court

his earning capacity during infancy, or for loss of time, or for expenses in
curing his injuries” while he is under the “control of his parents.” Id. at
67, 29 P.2d at 155 (quoting another source).

¶15           Wiggins’s reliance on Lopez is misplaced. Our supreme
court recently reconsidered the rule applied in Lopez and, observing the
rule was based on an antiquated master-servant analogy, concluded it is
“no longer just or consistent with sound policy.” Estate of DeSela v.
Prescott Unified Sch. Dist. No. 1, 226 Ariz. 387, 389-90, ¶¶ 11-15, 249 P.3d
767, 769-70 (2011). Accordingly, our supreme court overruled Pearson and
Gerrard and held “the right to recover pre-majority medical expenses
belongs to both the injured minor and the parents.” Id. at 390, ¶ 15, 249
P.3d at 770. With its legal underpinnings removed, Lopez falls along with
Pearson and Gerrard. Accordingly, evidence a minor victim suffered
physical injury as a result of criminal conduct that necessitated medical
treatment for which payment is expected is sufficient to support a finding
of financial harm to that victim as an aggravator under A.R.S. § 13-
701(D)(9).

                      iii.   Unanimity of Verdict

¶16           Wiggins also argues the verdict form linking “financial or
emotional harm” in a single finding deprived him of his right to a
unanimous verdict because it is possible the jury was not unanimous as to
which harm satisfied the aggravating circumstance. We disagree. When
“the evidence is sufficient to satisfy each alternative prong of an
aggravating circumstance,” jury unanimity is not necessary regarding
which prong satisfied the determination of the existence of that
circumstance. State v. Anderson, 210 Ariz. 327, 355-56, ¶ 128, 111 P.3d 369,
397-98 (2005). Here, the State presented sufficient evidence supporting
the jury’s finding of both emotional and financial harm to the victim.
Thus, Wiggins was not deprived of his right to a unanimous verdict.

              2.     Consideration of “Catch-all” Aggravator

¶17            Finally, Wiggins argues the superior court should not have
considered the age of the victim as an aggravator because the victim’s age
increased the aggravated assault offense from a class 3 felony to a class 2
felony. See A.R.S. § 13-1204(D) (Supp. 2013) (increasing aggravated
assault from class 3 felony to class 2 felony when victim is under 15 years
of age). A victim’s young age can be considered as an aggravating
circumstance pursuant to the “catch-all” provision of A.R.S. § 13-701(D).
State v. Struck, 154 Ariz. 16, 23, 739 P.2d 1333, 1340 (App. 1987). Unlike the



                                      7
                           STATE v. WIGGINS
                           Decision of the Court

statutorily enumerated aggravating factors, however, an aggravating
factor alleged pursuant to the “catch-all” provision that is also an element
of the offense can be used as an aggravator only if the nature of the
aggravator “rises to a level beyond that which is merely necessary to
establish an element of the underlying crime.” State v. Germain, 150 Ariz.
287, 290, 723 P.2d 105, 108 (App. 1986).

¶18            We do not need to decide whether Wiggins’s misconduct
rises to a level beyond that which is merely necessary to establish an
element of aggravated assault because, even if we assume the superior
court should not have considered this factor, Wiggins would not be
entitled to relief under fundamental error review. As discussed above, the
superior court properly considered the statutorily enumerated
aggravating circumstance of emotional or financial harm to the victim,
and Wiggins raises no challenge to the court’s consideration of the other
“catch-all” aggravating factor of the presence of multiple victims. Nor
does Wiggins claim that he was sentenced outside of the lawful
aggravated range for his aggravated assault offense. Under these
circumstances, absent a timely objection at sentencing, the superior court’s
consideration of the victim’s age does not constitute fundamental,
reversible error. State v. Munninger, 213 Ariz. 393, 397, ¶ 13, 142 P.3d 701,
705 (App. 2006). 2

      B.     Endangerment Conviction

             1.     Vagueness Challenge

¶19           In imposing an aggravated sentence for endangerment, the
superior court considered the two aggravating factors found by the jury:
1) the victim suffered physical, emotional or financial harm; and 2) the
presence of multiple victims. Wiggins argues the court should not have
considered emotional and financial harm as an aggravating circumstance
because they are both unconstitutionally vague. For the reasons discussed
above, see supra ¶¶ 7-11, we disagree.



             2Wiggins   has also failed to show he was prejudiced by the
court’s consideration of the victim’s age. See Munninger, 213 Ariz. at 397,
¶ 14, 142 P.3d at 705. In imposing an aggravated sentence for aggravated
assault, the superior court stated “any and all of the aggravating
circumstances are sufficiently substantial to warrant a greater than
presumptive term.”



                                     8
                           STATE v. WIGGINS
                           Decision of the Court

              2.     Sufficiency of Evidence

¶20           Wiggins also challenges the sufficiency of the evidence to
support the A.R.S. § 13-701(D)(9) factor. He acknowledges the presence of
evidence to support a finding of physical harm to the father who was the
victim of the endangerment offense but argues the State failed to present
any evidence to support the jury’s finding of financial or emotional harm.
We disagree.

¶21            First, the State presented evidence the father had suffered
financial harm in the form of extensive damage to his vehicle as a result of
Wiggins’s criminal conduct. Second, Wiggins’s criminal conduct also
caused the death of one of the father’s sons and serious physical injury to
his other son. Thus, the father suffered undisputed emotional harm as a
result of the death of one son and injury to the other, which is directly
related to, and caused by, Wiggins’s criminal conduct. See Tschilar, 200
Ariz. at 435, ¶ 34, 27 P.3d at 339 (person who assaults more than one
victim at once “arguably creates a greater risk of physical and emotional
injury as to each as they see the others terrorized or injured”).

              3.     Unanimity of Verdict

¶22           Finally, because the evidence is sufficient to support a
finding by the jury of all three alternative prongs of the A.R.S. § 13-
701(D)(9) aggravator for the endangerment conviction, we reject Wiggins’s
argument he was deprived of a unanimous jury verdict. Anderson, 210
Ariz. at 355-56, ¶ 128, 111 P.3d at 397-98. Accordingly, we conclude the
jury’s finding of this statutorily enumerated aggravating factor rendered
Wiggins eligible for an aggravated sentence on his endangerment
conviction.

II.    Restitution Order

¶23            At sentencing, the superior court ordered Wiggins to pay
restitution for “any and all losses suffered by the victims and the [victims’]
family” for the offenses of first degree murder, aggravated assault, and
endangerment and authorized the Department of Corrections to make
monthly withdrawals from his inmate account for that purpose. Wiggins
argues the restitution order was an illegal sentence because the superior
court did not determine the amount of restitution. The State argues
Wiggins’s challenge is premature because the superior court retained
jurisdiction over restitution until Wiggins completed parole or community
supervision. Although A.R.S. § 13-603(C) (2010) mandates the payment of
restitution “in the full amount of the economic loss as determined by the


                                      9
                           STATE v. WIGGINS
                           Decision of the Court

court,” at the time of Wiggins’s sentencing, the court had not held a
hearing on restitution and had not determined how much restitution
Wiggins should pay. Section 13-603 imposes an affirmative duty on the
superior court to determine the amount of the victim’s economic loss and
order restitution in that amount, which should be done as part of
sentencing. State v. Scroggins, 168 Ariz. 8, 9, 810 P.2d 631, 632 (App. 1991).
Thus, we vacate the restitution order and remand to the superior court for
an evidentiary hearing to determine the restitution amount. See id.
(vacating restitution order and remanding where no determination made
as to amount of victim’s loss).

III.   DNA Testing

¶24            Wiggins argues the superior court was not authorized to
order him to pay for DNA testing. Although the sentencing minute entry
reflects the superior court ordered Wiggins to pay for DNA testing, it did
not order him to pay for testing at the hearing. We therefore correct the
May 10, 2013 minute entry to omit the requirement that Wiggins pay for
DNA testing. See State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39
(App. 2013).

                              CONCLUSION

¶25          For the foregoing reasons, we affirm Wiggins’s convictions
and sentences as corrected but vacate the sentencing order directing him
to pay restitution and remand to the superior court to determine the
amount of restitution.




                                  :gsh




                                     10
