State v. Gordon
161 Ariz. 308, 39 Ariz. Adv. Rep. 13, 778 P.2d 1204 (1989)
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Rule of Law:
Under Arizona law, a person's body parts, such as fists, do not constitute a 'dangerous instrument' for the purpose of sentence enhancement. Consecutive sentences for multiple offenses arising from a single transaction are permissible under A.R.S. § 13-116 if the defendant's conduct in committing the secondary offense caused the victim to suffer an additional risk of harm beyond that inherent in the ultimate crime.
Facts:
- Anthony Gordon, who was on parole for prior convictions, met the victim at a stop sign in the early morning.
- The victim invited Gordon to her apartment for a beer.
- Inside the apartment, Gordon suddenly grabbed the victim, forced her from the couch to the floor, and held her down.
- Gordon hit the victim several times in the face with his fists and strangled her.
- Immediately following the beating and strangulation, Gordon sexually assaulted the victim.
- After the assault, Gordon apologized and subsequently fell asleep on the couch.
- The victim escaped the apartment and called the police, who apprehended Gordon.
Procedural Posture:
- The state charged Anthony Gordon in an Arizona trial court with second degree burglary, kidnapping, and sexual assault.
- The trial judge instructed the jury that it could find Gordon's fists to be 'dangerous instruments' for the purpose of sentence enhancement.
- A jury found Gordon guilty on all counts and made a special finding that he used dangerous instruments.
- The trial court sentenced Gordon to concurrent prison terms for burglary and kidnapping, but ordered the sentence for sexual assault to be served consecutively.
- Gordon appealed his sentences directly to the Supreme Court of Arizona.
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Issue:
Does a person's fist constitute a 'dangerous instrument' under A.R.S. § 13-105(8) for sentence enhancement purposes, and does A.R.S. § 13-116 permit consecutive sentences for kidnapping and sexual assault when the kidnapping subjected the victim to an additional risk of harm?
Opinions:
Majority - Feldman, Vice Chief Justice
No as to the first question; Yes as to the second. Fists do not constitute a 'dangerous instrument,' but consecutive sentences are permissible here because the defendant's actions created an additional risk of harm. The Arizona statutory scheme already provides for sentence enhancement when a defendant causes 'serious physical injury,' which is a separate consideration from the use of a 'dangerous instrument.' To classify fists as dangerous instruments would conflate these distinct statutory provisions and create an undefined standard, as nearly every assault involves the use of a body part. Such an interpretation would undermine the legislative intent to distinguish between offenses committed with and without objects used as weapons. Regarding sentencing, the court establishes a refined test for applying A.R.S. § 13-116. While the kidnapping (restraint) was a prerequisite for the sexual assault, the defendant's conduct exceeded the restraint inherent in the ultimate crime. By beating and strangling the victim, Gordon subjected her to an additional risk of harm beyond that of the sexual assault itself. This additional risk makes the kidnapping a separate 'act' for sentencing purposes, thereby permitting the imposition of a consecutive sentence.
Analysis:
This case establishes two significant precedents in Arizona criminal law. First, it definitively excludes body parts from the definition of 'dangerous instrument,' thereby preventing prosecutors from seeking sentence enhancements on that basis and maintaining a clear distinction between simple and aggravated assaults. Second, and more broadly, it refines the 'identical elements' test for determining whether multiple crimes constitute a single act for sentencing. The introduction of the 'additional risk of harm' analysis provides courts with a more substantive and less mechanical framework for imposing consecutive sentences, focusing on the qualitative nature of the defendant's conduct rather than a rigid application of statutory elements.
