                          NOTICE: NOT FOR PUBLICATION.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.

                 BENJIMAN JOSEPH COOPER, Appellant.

                             No. 1 CA-CR 13-0433
                              FILED 09-02-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-155460-001
                 The Honorable Pamela S. Gates, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Todd M. Allison
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Charles R. Krull
Counsel for Appellant
                             STATE v. COOPER
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.


G O U L D, Judge:

¶1            Benjiman Joseph Cooper, (“Cooper”) was convicted of child
abuse, a class four felony. On appeal, Cooper argues the trial court
improperly relied on the vulnerability of the victim as an aggravating
circumstance in imposing a maximum prison sentence of three years. For
the reasons discussed below, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Cooper’s son was born on September 13, 2012. During a
wellness check-up on October 23, his pediatrician noticed that the baby had
lost weight and appeared to be dehydrated. She directed that the baby be
admitted to the hospital. There, doctors discovered the baby’s ribs were
fractured. As a result, Cooper was charged and convicted of two counts of
child abuse.

¶3           After the jury returned its guilty verdicts, the court proceeded
with the aggravation phase. The State alleged, and the jury found, the
aggravating circumstance of physical harm to the victim pursuant to
Arizona Revised Statutes (“A.R.S.”) section 13-701(D)(9). At sentencing, the
court found the vulnerability of the victim to be an additional aggravating
circumstance and Cooper’s young age as a mitigating circumstance. After
weighing the aggravating and mitigating circumstances, the court found an
aggravated sentence was appropriate and sentenced Cooper to the
maximum prison sentence of three years. Cooper appealed.

                               DISCUSSION

¶4            On appeal, Cooper challenges the court’s decision to sentence
him to the maximum prison term. He argues the court (1) erroneously
found the vulnerability of the victim to be an aggravating circumstance and
(2) improperly relied upon that aggravating circumstance in imposing a
maximum prison term. Cooper reasons that the vulnerability, or age of the
victim, was an essential element of the offense of child abuse and as a result,
it could not be used to increase the range of his prison sentence


                                      2
                             STATE v. COOPER
                            Decision of the Court

¶5            Cooper did not object during sentencing; accordingly, we
review only for fundamental error. State v. Henderson, 210 Ariz. 561, 567,
¶ 19, 115 P.3d 601, 607 (2005). “The scope of review for fundamental error
is limited . . . [i]n addition, we place the burden of persuasion in
fundamental error review on the defendant.” Id. “To prevail under this
standard of review, a defendant must establish both that fundamental error
exists and that the error in his case caused him prejudice.” Id. at ¶ 20.

¶6             “Where a sentence is within the permissible statutory limits,
it will not be modified or reduced on appeal unless it clearly appears
excessive under the circumstances.” State v. Gillies, 142 Ariz. 564, 573, 691
P.2d 655, 664 (1984) (quoting State v. Pickard, 105 Ariz. 219, 221, 462, P.2d 87,
89 (1970)). Once a jury finds a single statutory aggravating circumstance, a
defendant is exposed to an aggravated sentencing range that “extends to
the maximum punishment available under [A.R.S.] section 13-702.” State v.
Martinez, 210 Ariz. 578, 584, ¶ 21, 115 P.3d 618, 624 (2005); see A.R.S. § 13-
701(C) (stating that a presumptive term may be increased to the maximum
term under A.R.S. § 13-702 “if one or more of the circumstances alleged to
be in aggravation of the crime are found to be true by the trier of fact beyond
a reasonable doubt”).

¶7            Cooper has failed to establish fundamental error because the
record clearly shows the existence of at least one aggravating circumstance
necessary to sentence Cooper to a maximum sentence. Assuming, without
deciding, the trial court erred in finding the vulnerability of the victim as
an aggravating circumstance,1 the record shows that the jury also found
physical harm to the victim to be an aggravating circumstance. Cooper
does not challenge this finding, nor does he claim the trial court improperly
relied upon physical harm to the victim as an aggravating circumstance in
imposing a maximum sentence.

¶8            Cooper also claims that “it is unclear from the record”
whether the trial court would have imposed the maximum sentence absent
its reliance on the allegedly improper aggravating circumstance of the
vulnerability of the victim. However, such speculation alone is insufficient
to prove prejudice; a defendant must demonstrate from the record that the
court would have otherwise imposed a lesser sentence. State v. Munninger,
213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006). Here, Cooper has

1 “[I]f the degree of a defendant’s conduct exceeds the minimum level
needed to establish the offense, that extreme misconduct may be considered
as an aggravating factor.” State v. Alvarez, 205 Ariz. 110, 114, ¶ 10, 67 P.3d
706, 710 (App. 2003).


                                       3
                            STATE v. COOPER
                           Decision of the Court

not shown, nor can we discern from the record, any indication the trial court
would have imposed a lesser sentence without the vulnerability of the
victim as an aggravating circumstance.

                              CONCLUSION

¶9            We affirm Cooper’s convictions and sentences.




                                  :gsh




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