State v. Koryor ( 2019 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    JAMES KORYOR, Appellant.
    No. 1 CA-CR 18-0234
    FILED 4-30-2019
    Appeal from the Superior Court in Maricopa County
    No. CR2015-118047-001
    The Honorable Michael J. Herrod, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Jillian Francis
    Counsel for Appellee
    Maricopa County Public Defender’s Office, Phoenix
    By Jeffrey L. Force
    Counsel for Appellant
    STATE v. KORYOR
    Decision of the Court
    MEMORANDUM DECISION
    Judge Kenton D. Jones delivered the decision of the Court, in which
    Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
    J O N E S, Judge:
    ¶1            James Koryor argues the combination of a prison sentence for
    one count of negligent homicide and a suspended sentence for one count of
    child abuse constitutes consecutive punishment for a single act in violation
    of Arizona Revised Statutes (A.R.S.) § 13-116.1           Because Koryor’s
    convictions arose out of separate acts, A.R.S. § 13-116 is inapplicable, and
    we affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶2            On April 20, 2015, Koryor’s two-and-a-half-year-old son,
    A.K., died from heat exposure after Koryor left him unattended in a car.2
    At trial, for one count each of manslaughter and child abuse the State
    presented evidence that Koryor, his wife, A.K., and another son got into the
    family vehicle, intending to procure haircuts for the children. Koryor, who
    was intoxicated, had the car keys and sat in the driver’s seat. However,
    before leaving the driveway, Koryor and his wife began arguing about his
    alcohol consumption, and Koryor’s wife left the car and went back inside.
    An hour later, Koryor returned to the house and fell asleep. His wife found
    A.K. unresponsive an hour later, and attempts to resuscitate him were
    unsuccessful.
    ¶3            The jury found Koryor guilty of negligent homicide, a class 4
    felony and a lesser-included offense of manslaughter, and child abuse, a
    class 3 felony. The jury also found the State proved three aggravating
    circumstances for each count.
    1      Absent material changes from the relevant date, we cite the current
    versions of rules and statutes.
    2      “We view the facts in the light most favorable to sustaining the
    convictions with all reasonable inferences resolved against the defendant.”
    State v. Harm, 
    236 Ariz. 402
    , 404, ¶ 2 n.2 (App. 2015) (quoting State v.
    Valencia, 
    186 Ariz. 493
    , 495 (App. 1996)).
    2
    STATE v. KORYOR
    Decision of the Court
    ¶4             At sentencing, Koryor opposed the State’s recommendation
    that he be sentenced to a term of imprisonment for the negligent homicide
    conviction, followed by a term of supervised probation for the child abuse
    conviction. Koryor argued the sentences would violate A.R.S. § 13-116’s
    prohibition against consecutive sentences for convictions arising from a
    single act. The State argued that, based upon the evidence presented at
    trial, the jury could have found the negligent homicide and child abuse
    “arose from a set of actions and omissions.” Although the State did not
    elaborate what acts or omissions it was referring to, and the trial court did
    not seek further elucidation of the issue, the court found that “the jury could
    find two different crimes based on the whole course of events.”
    ¶5            The trial court then sentenced Koryor to a slightly aggravated
    term of three years’ imprisonment for negligent homicide, with credit for
    158 days of presentence incarceration. The court suspended the imposition
    of sentence for child abuse and placed Koryor on eight years’ supervised
    probation, to commence upon his release from prison. Koryor timely
    appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1),
    13-4031, and -4033(A)(4).
    DISCUSSION
    ¶6            Koryor argues the imposition of probation following his
    prison term is a consecutive sentence in violation of A.R.S. § 13-116, which
    provides: “An act or omission which is made punishable in different ways
    by different sections of the laws may be punished under both, but in no
    event may sentences be other than concurrent.” We review de novo whether
    a sentence violates A.R.S. § 13-116. See State v. Siddle, 
    202 Ariz. 512
    , 517,
    ¶ 16 (App. 2002) (citing State v. Belyeu, 
    164 Ariz. 586
    , 591 (App. 1990)).
    ¶7              Koryor argues the act of leaving A.K. in the vehicle was a
    single event used to prove both negligent homicide and child abuse.
    Koryor supports this argument with the following statement made by the
    State in its closing:
    And here are the facts. The charges arise from the incident of
    the defendant taking the children to get haircuts and leaving
    [A.K.] behind. It’s not anything else. There is no other
    allegation. So the facts surrounding both charge[s] are very
    similar. So you see why the evidence that shows why he is
    guilty of manslaughter also is the same evidence which shows
    why the defendant is guilty of child abuse.
    3
    STATE v. KORYOR
    Decision of the Court
    In response, the State side-steps the single-act issue, arguing instead that
    A.R.S. § 13-116 is inapplicable to suspended sentences. However, we need
    not address whether the imposition of a term of probation is a “sentence”
    for purposes of A.R.S. § 13-116 in this case because, pursuant to our de novo
    review, we reject Koryor’s contention that his criminal conduct constituted
    a single act.
    ¶8              To determine whether a defendant’s criminal conduct
    constitutes a single act for purposes of A.R.S. § 13-116, this Court applies
    the modified identical elements test described in State v. Gordon, which
    “focuses on the facts of the transaction.” 
    161 Ariz. 308
    , 313 n.5 & 315 (1989);
    accord State v. Bush, 
    244 Ariz. 575
    , 595, ¶ 90 (2018). Applying Gordon’s three-
    part test, we first “subtract[] from the factual transaction the evidence
    necessary to convict on the ultimate charge” — here, child abuse3 — and
    then determine whether “the remaining evidence satisfies the elements of
    the other 
    crime.” 161 Ariz. at 315
    . We then determine “whether . . . it was
    factually impossible to commit the ultimate crime without also committing
    the secondary crime.” 
    Id. Finally, we
    “consider whether the defendant’s
    conduct in committing the [secondary] crime caused the victim to suffer an
    additional risk of harm beyond that inherent in the ultimate crime.” 
    Id. ¶9 A
    person is guilty of child abuse if, “having the care or
    custody of a child,” the person “causes or permits a child . . . to be placed
    in a situation where the person or health of the child . . . is endangered.”
    A.R.S. § 13-3623(A). The offense is a class 3 felony if done recklessly. A.R.S.
    § 13-3623(A)(2). The record here contains evidence sufficient to support a
    conviction for reckless child abuse based upon Koryor physically
    controlling a motor vehicle while intoxicated and with A.K. in the back seat.
    See State v. Nereim, 
    234 Ariz. 105
    , 110, ¶ 18 (App. 2014) (finding sufficient
    evidence to support the defendant’s child abuse conviction where the
    defendant drove while under the influence of alcohol with children in the
    car).
    3       While at first blush, negligent homicide would appear to be the
    ultimate charge, reckless child abuse is classified as the more serious
    offense. Compare A.R.S. § 13-3623(A)(2) (defining reckless child abuse as a
    class 3 felony), with A.R.S. § 13-1102(C) (defining negligent homicide as a
    class 4 felony); see also State v. Roseberry, 
    210 Ariz. 360
    , 370-371, ¶ 59 (2005)
    (using the class of felony to determine which charge is the ultimate offense).
    Reckless child abuse also requires a more culpable mental state than
    negligent homicide. See A.R.S. § 13-202(C) (establishing culpable mental
    state hierarchy of intentionally, knowingly, recklessly, and negligently).
    4
    STATE v. KORYOR
    Decision of the Court
    ¶10            At trial, Koryor’s mother and daughter both testified Koryor
    had said he was taking his sons to get haircuts. Koryor’s wife testified that
    Koryor, while intoxicated, planned to take his two sons to get haircuts.
    Koryor, his wife, and the two sons got into the car, with Koryor in the
    driver’s seat and in possession of the keys. While the car was still in the
    driveway, an argument ensued regarding Koryor’s drinking and his wife
    left the car and went back inside the house. She did not see Koryor drive
    away. An hour later, Koryor came back into the house and fell asleep.
    ¶11           Additionally, a forensic scientist testified that Koryor’s blood
    alcohol concentration was somewhere between 0.179 and 0.325 at 1:30 p.m.,
    the approximate time A.K. was left in the vehicle. Additionally, it is
    generally accepted that individuals with a blood alcohol concentration of
    0.08 or more are impaired for purposes of driving a motor vehicle. See also
    A.R.S. § 28-1381(G)(3) (creating a presumption that a person with a blood
    alcohol concentration of 0.08 or more is under the influence of intoxicating
    liquor).
    ¶12            Although no one saw Koryor leave the driveway with the
    children in the car, and Koryor denied doing so, the evidence is sufficient
    for the jury to have determined beyond a reasonable doubt that Koryor was
    intoxicated, had custody or control of A.K., and was in physical control of
    the car while A.K. was in the back seat. See State v. Zaragoza, 
    221 Ariz. 49
    ,
    51, 54, ¶¶ 7, 21 (2009) (clarifying that Arizona criminalizes the actual
    physical control of a motor vehicle while under the influence of alcohol,
    which includes the “exercise of present or imminent control over the vehicle
    while impaired”) (emphasis added). Although the State did not charge
    Koryor with driving under the influence, these facts are sufficient to show
    Koryor placed A.K. in a situation where his person or health was
    endangered, which constitutes child abuse.
    ¶13           “A person commits negligent homicide if with criminal
    negligence the person causes the death of another person.” A.R.S. § 13-
    1102(A). For purposes of negligent homicide, “criminal negligence,” means
    “a person fails to perceive a substantial and unjustifiable risk that the
    [death] will occur.” A.R.S. § 13-105(10)(d). Having subtracted the evidence
    necessary to convict Koryor of the child abuse count from the factual
    transaction, we find sufficient remaining evidence to satisfy the elements of
    negligent homicide. Specifically, the remaining evidence establishes that
    Koryor left A.K. in a vehicle and exposed to the heat, which resulted in his
    death. This second act caused A.K. to suffer additional harm — death —
    beyond the mere risk of danger inherent in the child abuse. See 
    Bush, 244 Ariz. at 595
    , ¶ 90; State v. Mahaney, 
    193 Ariz. 566
    , 569, ¶ 18 (App. 1999)
    5
    STATE v. KORYOR
    Decision of the Court
    (defining “endanger” in child abuse statute to mean “subject to potential
    harm”). Accordingly, the two convictions arose out of separate acts and
    A.R.S. § 13-116 does not bar consecutive sentences.
    ¶14            Although the prosecutor, in closing arguments, chose to
    emphasize Koryor’s act of leaving A.K. in the car to support conviction on
    both negligent homicide and child abuse, the Gordon analysis does not turn
    upon how the prosecutor emphasized the evidence presented at trial.
    Rather, the question is whether the State produced sufficient evidence
    showing two separate acts occurred. The jury was free to reject the State’s
    emphasis and use any evidence presented to support the conviction.
    Indeed, the jury was instructed that counsel’s comments during opening
    and closing arguments were not evidence, and we presume it followed
    those instructions. State v. Hidalgo, 
    241 Ariz. 543
    , 554, ¶ 43 (2017) (citing
    State v. Newell, 
    212 Ariz. 389
    , 403, ¶ 68 (2006), and State v. Anderson, 
    210 Ariz. 327
    , 342, ¶ 50 (2005)). Nor are we concerned that the indictment did not
    identify the specific method by which the State intended to prove Koryor
    committed child abuse. See State v. Arnett, 
    158 Ariz. 15
    , 18 (1988) (“There is
    no requirement that the defendant receive notice of how the State will prove
    his responsibility for the alleged offense.”) (citing State v. Tison, 
    129 Ariz. 526
    , 538 (1981)). In any event, at trial, Koryor vigorously disputed his level
    of intoxication and whether he was the last person to be in control of the
    vehicle, and thus had an adequate opportunity to defend against the
    charges.
    CONCLUSION
    ¶15           We affirm.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    6