State v. Harm, 236 Ariz. 402

At ~1:00 a.m. on Aug. 2, 2012, Brian Harm was arrested after attempting to force open a commercial building and then threatened a Black police officer, invoking the Aryan Brotherhood and promising violent retaliation.
A recorded 47‑minute audio and officer testimony captured Harm proclaiming he was a member/affiliate and threatening the officer and his family to promote the gang’s reputation.
The State presented expert testimony that Harm’s statements and knowledge satisfied statutory indicia of gang membership and that promoting fear/respect furthers the Aryan Brotherhood’s goals.
Harm was charged with (1) threatening/intimidating to promote or assist a criminal street gang (A.R.S. § 13‑1202(A)(3)) and (2) assisting a criminal street gang (A.R.S. § 13‑2321(B)); the jury convicted on the § 13‑1202(A)(3) count but acquitted on § 13‑2321(B).
At sentencing the jury found an aggravator under A.R.S. § 13‑714 (offense committed with intent to promote/further/assist criminal street gang conduct); the court imposed a mitigated 12.5‑year prison term and denied probation/suspension based on that aggravator.
Harm appealed, arguing (1) insufficient evidence that his threats were made to promote gang interests and (2) application of § 13‑714 violated double jeopardy because he was acquitted under § 13‑2321(B).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence that threats were made to promote/further/assist gang interests	State: recorded threats, self‑proclamation, and expert testimony furnished substantial circumstantial proof of intent to promote Aryan Brotherhood	Harm: he threatened for his own purposes and was not an actual gang member; State failed to prove intent to benefit gang	Court: Evidence (recording, statements, expert) was sufficient; intent may be proven circumstantially; conviction affirmed
Double jeopardy challenge to applying § 13‑714 enhancer after acquittal under § 13‑2321(B)	State: enhancer targets the actor’s intent to promote/further/assist gang conduct and is distinct from a charge requiring direction/association with the gang	Harm: § 13‑2321(B) and § 13‑714 have identical elements so applying enhancer after acquittal punishes same offense twice	Court: Elements differ (direction/association vs. actor’s intent); enhancer addresses manner of commission, not a second offense; no double jeopardy violation; enhancement upheld

State v. West, 226 Ariz. 559 (discussing standard for sufficiency review) (substantial‑evidence test)
Brown v. Ohio, 432 U.S. 161 (1977) (identical‑elements test for same‑offense double jeopardy analysis)
United States v. Watts, 519 U.S. 148 (1997) (sentence enhancements do not necessarily violate double jeopardy)
Missouri v. Hunter, 459 U.S. 359 (1983) (Double Jeopardy Clause prohibits punishments greater than legislature intended; multiple statutes may both apply when elements differ)
State v. Bly, 127 Ariz. 370 (state precedent recognizing sentence enhancement as punishment for manner of commission)
Machibroda v. United States, 368 U.S. 487 (1962) (jury verdict is conclusive on factual findings)
State v. Linsner, 105 Ariz. 488 (1970) (deference to jury verdict)