State v. Harm

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

BRIAN LEE HARM, Appellant.

No. 1 CA-CR 13-0737

FILED 1-13-2015

Appeal from the Superior Court in Maricopa County

No. CR2012-140832-001

The Honorable Bruce R. Cohen, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Craig W. Soland

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Carlos Daniel Carrion

Counsel for Appellant

_______________________________

OPINION

Judge Kenton D. Jones delivered the Opinion of the Court, in which

Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.

STATE v. HARM

Opinion of the Court

J O N E S, Judge:

¶1 Defendant Brian Harm was indicted on one count of

threatening or intimidating “by word or conduct . . . [t]o cause physical

injury to another person . . . in order to promote, further or assist in the

interests of . . . a criminal street gang,” and one count of “assisting a

criminal street gang by committing any felony offense, whether completed

or preparatory for the benefit of, at the direction of or in association with

any criminal street gang.” Ariz. Rev. Stat. (A.R.S.) §§ 13-1202(A)(3)1

(threatening or intimidating), -2321(B) (assisting a criminal street gang). A

jury subsequently convicted Harm of threatening or intimidating in order

to “promote, further or assist” a criminal street gang, but found him not

guilty of having done so at the direction of or in association with a criminal

street gang. At sentencing, Harm’s conviction was enhanced pursuant to

A.R.S. § 13-714, which applies when a person “is convicted of committing

any felony offense with the intent to promote, further or assist any criminal

conduct by a criminal street gang.”

¶2 Harm now appeals his conviction and sentence, arguing

there is insufficient evidence to support his conviction and, additionally,

that enhancement of his sentence under A.R.S. § 13-714 violated double

jeopardy where he was acquitted of assisting a criminal street gang.

Because we find sufficient evidence supports his conviction, and the

enhancement of his sentence did not violate double jeopardy, we affirm.

FACTS2 AND PROCEDURAL HISTORY

¶3 Shortly before 1:00 a.m. on August 2, 2012, law enforcement

officers observed Harm attempting to force open the doors of a commercial

building. A black police officer subsequently arrested him for trespassing,

at which point, Harm launched into a verbal tirade against the officer,

threatening him with violent retaliation by the Aryan Brotherhood, a white

supremacist gang of which Harm implied he was a “known member.”

Harm was subsequently indicted.

1 Absent material revisions after the relevant date, statutes cited refer

to the current version.

2 “We view the facts in the light most favorable to sustaining the

convictions with all reasonable inferences resolved against the defendant.”

State v. Valencia, 186 Ariz. 493, 495, 924 P.2d 497, 499 (App. 1996).

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STATE v. HARM

Opinion of the Court

¶4 At trial, defense counsel argued Harm was not, in fact, a

member of the Aryan Brotherhood, and acted only to further his own ill-

thought-out and short-sighted purposes. To undercut Harm’s defense, the

State offered into evidence statements Harm made to the officer during his

arrest, as testified to by the arresting officer and partially captured in a

forty-seven-minute audio recording, in which Harm was heard stating:

I’m affiliated to the bone. I will have all my brotherhood

brothers come to this neighborhood, and you’ll pay the

ultimate price. . . . This is going to start trouble with the

A[ryan] B[rotherhood] in this town, brother and you ain’t

going to like it and your superiors ain’t going to like it. . . . I’m

a known member of the AB. I’m going to have a council over

this. . . . You want to be a punk n[-----] cop, there’s going to

be some brothers looking for a punk n[-----] cop in the next

few days. . . . I’m good at what I do, bro. I’m good in my

organization. . . . I’m going to have as much shit done to you

in your life because of what you just did to me in mine. . . .

Our shit reaches as far as yours does, bro.

¶5 The State also presented expert testimony that Harm’s

declaration of membership and knowledge of the Aryan Brotherhood’s

inner workings were sufficient to establish Harm’s membership in the

gang. See A.R.S. § 13-105(9) (setting forth seven criteria indicative of street

gang membership, including self-proclamation, witness testimony, and

“[a]ny other indicia” of street gang membership not specifically listed).

The expert further testified the number one goal of the Aryan Brotherhood

is the promotion of fear and respect for the gang itself. Members or non-

members can promote the gang by word of mouth, taking action on behalf

of the gang, and instilling fear in potential victims. A member of the Aryan

Brotherhood could gain respect for himself, and the gang, by threatening

law enforcement, identified as the number one “rival” of the gang.

¶6 Following presentation of the State’s evidence, Harm

unsuccessfully moved for a judgment of acquittal, claiming the State’s

evidence was insufficient to support a conviction. The jury found Harm

guilty only of threatening or intimidating “by word or conduct, . . . [t]o

cause physical injury to another person . . . in order to promote, further or

assist in the interests of . . . a criminal street gang,” a class 3 felony. A.R.S.

§ 13-1202(A)(3), (C).

¶7 Following the determination of guilt, the trial court

proceeded to the aggravation phase. The State alleged four aggravating

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STATE v. HARM

Opinion of the Court

factors, including that the offense was committed “with the intent to

promote, further or assist any criminal conduct by a criminal street gang.”

Although the court expressed concern as to whether that aggravator

invoked double jeopardy concerns in light of Harm’s acquittal of assisting

a criminal street gang, all four aggravators were submitted to the jury. The

jury found the State had proven beyond a reasonable doubt that the offense

“involved the infliction or threatened infliction of serious physical injury,”

“was a biased crime,” and was committed “with the intent to promote

further or assist any criminal conduct by a criminal street gang.”3 Harm

filed a motion for new trial, which was denied.

¶8 The trial court then sentenced Harm to a mitigated sentence

of 12.5 years’ imprisonment for threatening or intimidating, and

determined Harm was not eligible for suspension of sentence or probation,

based upon application of the proven aggravator that his conduct was

committed with the intent to “promote, further or assist” a criminal street

gang. A.R.S. § 13-714.

¶9 Harm filed a timely notice of appeal. We have jurisdiction

pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

I. Sufficiency of Evidence

¶10 Harm first argues the trial court erred in denying his motions

for judgment of acquittal and new trial. Although Harm does not dispute

having made numerous threats of violent retaliation by the Aryan

Brotherhood against the officer and his family, he argues the State failed to

establish that he was an actual member of the Aryan Brotherhood, or that

he invoked the power of the Aryan Brotherhood with the intent to promote

any interest beyond his own.

¶11 A directed verdict of acquittal is appropriate “if there is no

substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a).

“‘Substantial evidence . . . is such proof that reasonable persons could

accept as adequate and sufficient to support a conclusion of defendant’s

guilt beyond a reasonable doubt.’” State v. West, 226 Ariz. 559, 562, ¶ 16,

250 P.3d 1188, 1191 (2011) (quoting State v. Mathers, 165 Ariz. 64, 67, 796

P.2d 866, 869 (1990)) (internal quotation marks omitted). We review de novo

the denial of a motion for judgment of acquittal and the sufficiency of the

3 The jury also found the State failed to prove beyond a reasonable

doubt that the offense caused the victim to suffer emotional harm.

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STATE v. HARM

Opinion of the Court

evidence to support a conviction. See id. at ¶ 15 (citing State v. Bible, 175

Ariz. 549, 595, 858 P.2d 1152, 1198 (1993)). In contrast, we review the denial

of a motion for new trial alleging insufficient evidence for an abuse of

discretion, and will affirm unless the evidence was not sufficient to support

the verdict. State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984); see also

Ariz. R. Crim. P. 24.1(c)(1). Under either standard, Harm’s argument fails.

¶12 First, actual membership in a criminal street gang is not an

element of the charge of threatening or intimidating, and therefore need

not be proven to secure a conviction. See A.R.S. § 13-1202(A)(3).

¶13 Second, intent may be proven by circumstantial evidence, as

a defendant’s state of mind “is seldom, if ever, susceptible of proof by

direct evidence.” State v. Lester, 11 Ariz. App. 408, 410, 464 P.2d 995, 997

(1970); see also State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983)

(“Criminal intent, being a state of mind, is shown by circumstantial

evidence. Defendant's conduct and comments are evidence of his state of

mind.”). Harm’s diatribe reflected knowledge of and support for the

Aryan Brotherhood’s white supremacist ideology. His lengthy and

forceful verbal attack upon the black police officer could have been

interpreted by the jury as intending to promote those ideals and the

reputation of the gang.

¶14 Sufficient evidence was submitted for the jury to reasonably

conclude beyond a reasonable doubt that Harm’s threats were made, at

least in part, to promote the interests of the Aryan Brotherhood in gaining

respect through intimidation. Accordingly, the trial court did not err in

denying the motion for judgment of acquittal, or abuse its discretion in

denying the motion for new trial.

II. Enhancement of Sentence

¶15 Harm next argues the trial court improperly enhanced his

sentence for threatening or intimidating in violation of his statutory and

constitutional rights against double jeopardy and double punishment.

Specifically, Harm asserts the crime of assisting a criminal street gang,

A.R.S. § 13-2321(B), of which he was acquitted, and the statutory enhancer

for offenses committed with the intent to promote, further or assist a

criminal street gang, A.R.S. § 13-714, which was applied, “have identical

elements.” Consequently, Harm argues the constitutional prohibition

against double jeopardy, which “bars a second prosecution for the same

offense after conviction or acquittal and bars multiple punishments for the

same offense,” prohibits use of the enhancer. See State v. Siddle, 202 Ariz.

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STATE v. HARM

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512, 515, ¶ 8, 47 P.3d 1150, 1153 (App. 2002) (quoting State v. Powers, 200

Ariz. 123, 125, ¶ 5, 23 P.3d 668, 670 (App. 2001)). We review de novo

whether double jeopardy applies. Id. at ¶ 7 (citing Powers, 200 Ariz. at 125,

¶ 5, 23 P.3d at 670).

A. The Acquitted Offense and the Statutory Enhancer Do Not

Have Identical Elements.

¶16 For purposes of double jeopardy, separate statutory

provisions “constitute the same offense if they are comprised of the same

elements.” Siddle, 202 Ariz. at 516, ¶ 10, 47 P.3d at 1154 (citing Brown v.

Ohio, 432 U.S. 161, 166 (1977)). To determine whether the two provisions

constitute one offense, we look to see whether “‘each provision requires

proof of an additional fact that the other does not.’” Id. (quoting Brown,

432 U.S. at 166). If so, the two are not the same offense. Id.; see State v.

Tinghitella, 108 Ariz. 1, 3, 491 P.2d 834, 836 (1971) (adopting “identical

elements” test to determine whether act or omission results in double

punishment).

¶17 Here, the enhancer applies to “any felony offense [committed]

with the intent to promote, further or assist any criminal conduct by a criminal

street gang.” A.R.S. § 13-714 (emphasis added). In contrast, the offense

Harm was acquitted of penalizes commission of “any felony offense,

whether completed or preparatory for the benefit of, at the direction of or in

association with any criminal street gang.” A.R.S. § 13-2321(B) (emphasis

added). In the absence of a comma separating “preparatory” from “for the

benefit of,” we must read the singular, unitary provision, “preparatory for

the benefit of,” as a non-restrictive clause modifying “any felony offense.”

See Pawn 1st, L.L.C. v. City of Phx., 231 Ariz. 309, 311, ¶ 16, 294 P.3d 147, 149

(App. 2013) (“The plain meaning of a statute ‘will typically heed the

commands of its punctuation.’”) (quoting U.S. Nat’l Bank v. Indep. Ins.

Agents of Am., Inc., 508 U.S. 439, 454 (1993)). The plain meaning does not

support an argument that “for the benefit of,” as contained within A.R.S.

§ 13-2321(B), could form a substantive basis for conviction (i.e., action

taken “for the benefit of” a criminal street gang).

¶18 It is clear that neither the words contained in the statutes, nor

their application, is identical. On the one hand, A.R.S. § 13-2321(B) requires

that any “assistance” to a criminal street gang through the commission of

a crime occur at the direction of or in association with the gang. On the

other hand, A.R.S. § 13-714 simply requires that the crime be committed

“in order to promote, further or assist any criminal conduct” of a criminal

street gang. The former implies some participation by the gang, while the

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STATE v. HARM

Opinion of the Court

latter addresses only the intent of the actor. Indeed, engaging in a felony

at the direction of or in association with any criminal street gang is

fundamentally different from engaging in that same act, without the

requisite direction or association, based solely upon the actor’s own intent

to promote, further or assist criminal conduct. Effectively, a person can

promote, further or assist a criminal street gang, without that conduct

being at the direction of or in association with the gang.

¶19 Moreover, when the legislature chooses different words

within a statutory scheme, we presume those distinctions are meaningful

and evidence an intent to give a different meaning and consequence to the

alternate language.4 Egan v. Fridlund-Horne, 221 Ariz. 229, 239, ¶ 37, 211

P.3d 1213, 1223 (App. 2009) (citing Comm. for Pres. of Established

Neighborhoods v. Riffel, 213 Ariz. 247, 249-50, ¶ 8, 141 P.3d 422, 424-25 (App.

2006)); see also State v. McDermott, 208 Ariz. 332, 334-35, ¶ 5, 93 P.3d 532,

534-35 (App. 2004) (“[W]e . . . presume that the legislature does not include

statutory ‘provisions which are redundant, . . . [or] superfluous . . . .’”)

(quoting State v. Moerman, 182 Ariz. 255, 260, 895 P.2d 1018, 1023 (App.

1994)). Although the language of A.R.S. § 13-714 may be similar to that of

A.R.S. § 13-2321(B), to adopt Harm’s position would ignore the

legislature’s decision to use different words to describe different conduct

at issue in each circumstance. Such an approach would run contrary to

established principles of statutory interpretation. Egan, 221 Ariz. at 239, ¶

37, 211 P.3d at 1223.

¶20 Applying the test adopted in Tinghitella, we conclude the

elements of the acquitted offense and the statutory enhancer are not

identical, and are therefore not the “same offense” for purposes of a double

jeopardy challenge.

4 That the legislature has used these similar but different phrases in

other sections of the Criminal Code is further evidence it understood and

intended a distinction between the phrases. Compare A.R.S. § 13-1202(A)(3)

(criminalizing threatening or intimidating with intent to “promote, further

or assist” a criminal street gang), A.R.S. § 13-2409 (same for obstructing

criminal investigations), A.R.S. § 13-1805(H) (same for shoplifting), A.R.S.

§ 13-2512(B)(2) (same for hindering prosecution), A.R.S. § 13-3102(A)(9),

(16) (same for misconduct involving weapons), and A.R.S. § 13-715

(enhancing sentence for felony offense committed with intent to “promote,

further or assist a human smuggling organization”), with A.R.S. § 13-

2323(B) (criminalizing felony offense committed “at the direction of or in

association with any human smuggling organization”).

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STATE v. HARM

Opinion of the Court

B. Application of the Statutory Enhancer is Consistent with

the Crime for Which Harm Was Convicted.

¶21 Harm’s conviction for threatening or intimidating reinforces

our conclusion, as the charge for which Harm was convicted includes the

identical element that makes the statutory enhancer applicable. Compare

A.R.S. § 13-1202(A)(3) (criminalizing threatening or intimidating “in order

to promote, further or assist in the interests of or to cause, induce or solicit

another person to participate in a criminal street gang”) (emphasis added),

with A.R.S. § 13-714 (enhancing sentence of a person “convicted of

committing any felony offense with the intent to promote, further or assist

any criminal conduct by a criminal street gang”) (emphasis added). It

would be illogical to find Harm’s sentence was improperly enhanced

based upon an intent to “promote, further or assist” any criminal conduct

of a criminal street gang where the jury, in the same proceeding, convicted

Harm of a crime which required it to find that same intent. See State v.

Linsner, 105 Ariz. 488, 491, 467 P.2d 238, 241 (1970) (“[A] jury verdict is

conclusive.”) (citing Machibroda v. United States, 368 U.S. 487, 493 (1962)).

¶22 Specifically, the trial court instructed the jury that the crime

of threatening or intimidating “require[d] proof that [Harm] threatened or

intimidated by word or conduct to cause physical injury to another person

. . . in order to promote, further or assist in the interest [of] or to cause, induce,

or solicit another person to participate in a criminal street gang . . . .”

(Emphasis added). The jury was apparently able to distinguish “promote,

further or assist” from “at the direction of or in association with,”

convicting Harm of the former act (and finding the State had proven the

identical statutory enhancer) and acquitting him of the latter, without

seeking further clarification or guidance from the court on the issue. The

jury’s consistent determinations thereby belie any argument that the

statutes are indistinguishable or that Harm’s acquittal for A.R.S. § 13-

2321(B) is inconsistent with the express findings of the jury regarding

Harm’s intent.

C. No Double Jeopardy Violation Results from Use of the

Statutory Enhancer.

¶23 Finally, even if we were to further entertain Harm’s position,

both the U.S. and Arizona Supreme Courts have held that a sentence

enhancement does not offend double jeopardy. United States v. Watts, 519

U.S. 148, 154-55 (1997); see also State v. Bly, 127 Ariz. 370, 373, 621 P.2d 279,

282 (1980), superseded by statute, A.R.S. § 13-702, as recognized in State v. Pitts,

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Opinion of the Court

178 Ariz. 59, 63, 870 P.2d 1155, 1159 (App. 1993).5 The increase in

punishment results from the manner in which the crime was committed; it

is not additional punishment for a previous crime of which the defendant

was not convicted. Watts, 519 U.S. at 154-55; Bly, 127 Ariz. at 373, 621 P.2d

at 282 (“The punishment may be severe and it may be a single element of

the crime which mandates the legislative decision to make probation

unavailable and a minimum prison term mandatory, but that does not

mean a defendant is being punished time and time again for a single act.

It merely defines a single harsh punishment for a single severe crime.”).

¶24 Additionally, although the judiciary is granted discretion in

prescribing an appropriate punishment given the circumstances of a

particular crime, it can only act within the limits set forth by the legislature.

Bly, 127 Ariz. at 371-72, 621 P.2d at 280-81. Therefore, in situations where

double jeopardy is alleged to result from the mechanics of sentencing, “the

Double Jeopardy Clause does no more than prevent the sentencing court

from prescribing greater punishment than the legislature intended.”

Missouri v. Hunter, 459 U.S. 359, 366 (1983); see also State v. Snyder, 111 Ariz.

366, 367, 529 P.2d 1183, 1184 (1975) (“The rule of law is well established

that where . . . a sentence is clearly within the statutory limits provided for

the offense, a reviewing court will not disturb the sentence unless there is

a clear abuse of discretion.”) (citing State v. Rogers, 109 Ariz. 55, 56, 505 P.2d

226, 227 (1973), and State v. Fischer, 108 Ariz. 325, 326, 498 P.2d 147, 148

(1972)).

¶25 Here, A.R.S. § 13-714 does not contain any language limiting

its application or suggesting it may not operate independently from crimes

committed “at the direction of or in association with” a criminal street

gang. To the contrary, A.R.S. § 13-714 applies broadly by its terms to “[any]

person who is convicted of committing any felony offense with the intent to

promote, further or assist any criminal conduct by a criminal street gang.”

A.R.S. § 13-714 (emphasis added). The legislature has simply meted out

5 The legislature has since amended A.R.S. § 13-702 (now A.R.S. § 13-

701, see 2008 Ariz. Sess. Laws, ch. 301, § 23 (2nd Reg. Sess.)) to prohibit

consideration of infliction of serious physical injury or use of a deadly

weapon as aggravating factors where “this circumstance is an essential

element of the offense of conviction or has been used to enhance the range

of punishment” against dangerous offenders, effectively resolving any

doubt expressed in Bly as to how it intended those factors to be considered.

A.R.S. § 13-701(D)(1)-(2). However, the balance of the analysis in Bly, and

its deference to the legislature on these issues, remain sound.

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STATE v. HARM

Opinion of the Court

harsher penalties in circumstances involving crimes that provide

recognition to or promotion of a criminal street gang.

¶26 Harm’s conviction of a class 3 felony under A.R.S. § 13-

1202(A)(3) qualifies as “any felony offense,” and the jury consistently

found, both in its verdict and at the aggravation stage, that the crime was

committed with the “intent to promote, further or assist” a criminal street

gang. Where, as here, a statutory sentence enhancer has been created, the

consequence of its application cannot be said to constitute a greater

punishment than that anticipated by the legislature. We reject any

suggestion otherwise.

CONCLUSION

¶27 An acquittal under A.R.S. § 13-2321 does not preclude the

enhancement of a separate conviction under A.R.S. § 13-1202(A)(3)

pursuant to A.R.S. § 13-714. Substantial evidence was presented at trial to

support Harm’s conviction and the statutory enhancer. We therefore

affirm Harm’s conviction and sentence.

:ama

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