STATE оf Arizona, Appellee, v. Eric James COULTER, Appellant.
No. 1 CA-CR 13-0319.
Court of Appeals of Arizona, Division 1.
Dec. 11, 2014.
339 P.3d 653
Maricopa County Public Defender‘s Office by Stephen Whelihan, Phoenix, Counsel for Appellant.
Judge SAMUEL A. THUMMA delivered the opinion of the Court, in which Presiding Judge MARGARET H. DOWNIE and Judge ANDREW W. GOULD joined.
OPINION
THUMMA, Judge.
¶ 1 Eric James Coulter appeals from his aggravated prison sentence for manslaughter, challenging the application of the statutory aggravating circumstance of “emotional or financial harm to the viсtim‘s immediate family” and the requirement he pay for his own DNA testing. Although this court vacates the requirement that he pay for his own DNA testing, in all other respects Coulter‘s conviction and sentence are affirmed.
FACTS AND PROCEDURAL HISTORY
¶ 2 A jury convicted Coulter of manslaughter, a Class 2 felony and a dangerous and domestic violence offense, after he killed his former girlfriend by shooting her in the face with a rifle at close range. The jury then found as an aggravating circumstance that, as a result of Coulter‘s conduct, “the victim‘s immediate family suffered emotional or financial harm” pursuant to
DISCUSSION
¶ 3 Coulter argues (1) “emotional or financial harm” is unconstitutionally vague; (2) the State failed to present sufficient evidence proving financial harm and (3) the verdict form listing “emotional or financial harm” in a single finding deprived him of a unanimous verdict.2 Because Coulter did not raise these issues with the superior court, the review on appeal is for fundamental error. See State v. Henderson, 210 Ariz. 561, 568 ¶ 22, 115 P.3d 601, 608 (2005); Ariz. R.Crim. P. 21.3(c) cmt. Accordingly, Coulter “bears the burden to establish that (1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice.” State v. James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185 (App.2013) (quotations and citations omitted).
I. The Constitutionality Of A.R.S. § 13-701(D)(9) .
¶ 4 Coulter argues “emotional or financial harm” as used in
¶ 5 Interpretation of a statute is a question of law, which this court reviews de novo. Pima Cnty. v. Pima Cnty. Law Enforcement Merit Sys. Council, 211 Ariz. 224, 227 ¶ 13, 119 P.3d 1027, 1030 (2005). “[T]he best and most reliable index of a statute‘s meaning is its language and, when the language is clear and unеquivocal, it is determinative of the statute‘s construction.” State v. Hansen, 215 Ariz. 287, 289 ¶ 7, 160 P.3d 166, 168 (2007) (citation omitted). The court must assign to each word its “usual and commonly understood meaning” unless the Legislature “clearly intended” otherwise. Bilke v. State, 206 Ariz. 462, 464 ¶ 11, 80 P.3d 269, 271 (2003) (quotations and citation omitted). Because the Legislature did nоt define “emotional or financial harm,” the court “give[s] effect to the words and phrases in accordance with their commonly accepted meaning.” State v. Barr, 183 Ariz. 434, 438, 904 P.2d 1258, 1262 (App.1995); accord
¶ 6 “A statute is unconstitutionally vague if it does not give persons of ordinary intelligence a reasonable opportunity to learn what it prоhibits and does not provide explicit instructions for those who will apply it.” State v. McMahon, 201 Ariz. 548, 551 ¶ 7, 38 P.3d 1213, 1216 (App.2002) (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). Although due process requires fair notice, it “requires neither perfect notice, absolute precision nor impossible standards. It requires only that the language of a statute convеy a definite warning of the proscribed conduct.” Bird v. State, 184 Ariz. 198, 203, 908 P.2d 12, 17 (App.1995) (citation omitted). The fact that a legislative body could have crafted a more precise and clear statute does not mean the statute enacted is unconstitutionally vague. United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). When, as here, there is no First Amendment challenge, a vagueness claim “‘must be examined in the light of the facts of the case at hand.‘” Id. at 92, 96 S.Ct. 316 (quoting United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975)).
¶ 7 Coulter argues “[e]motional harm’ is vague because the law provides no definition of the term and because it means widely varying things to different pеople.” As commonly understood, “emotion” includes “‘a state of feeling‘” or “a conscious mental reaction‘” that one may subjectively experience as a strong feeling, McCauley v. Univ. of the Virgin Islands, 618 F.3d 232, 250 (3rd Cir.2010) (citation omitted), and “harm” includes to injure, hurt or damage, Babbitt v. Sweet Home Chapter of Comtys. for a Great Oregon, 515 U.S. 687, 697, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). Both the Legislaturе, in statutes, and the Arizona Supreme Court, in court rules, have used “emotional harm” in various contexts without undue mischief.3 As commonly understood in the civil law context, “‘[e]motional harm’ means impairment or injury to a person‘s emotional tranquility.” Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 45 (2012). “Emotional harm is distinct from bodily harm . . . [and] encompasses a variety of mental states, including fright, fear, sadness, sorrow, despondency, anxiety, humiliation, depression (and other mental illnesses), and a host of other detrimental—from mildly unpleasant to disabling—mental conditions.” Id. § 45 cmt. a. Although a broad phrase, any emotional harm found by the jury will suffice to meet the requirement of
¶ 8 Coulter argues “[f]inancial harm’ is unconstitutionally vague because it includes no standards for determining what amount of financial harm constitutes an aggravating circumstance,” allowing a jury to “find financial harm” for “any financial loss, of even just a penny.” If the Legislature wanted to set a minimum dollar value for a jury to find “finаncial harm,” it clearly could have done so. See, e.g.,
¶ 9 Coulter argues that “the results of virtually any crime involving a victim include some sort of negative feеlings and some amount of financial loss.” By using “emotional or financial harm” as commonly understood, the statute authorizes a finding of any harm of an emotional or financial nature to the victim‘s immediate family as an aggravating circumstance for sentencing. Whеther an arguably inconsequential or otherwise de minimis harm will suffice is a question for the jury. A statute is not vague simply because it is broad or that there may be difficulty in deciding whether certain marginal conduct falls within the scope of the
¶ 10 Finally, this is not a case where Coultеr received an aggravated sentence based on “[a]ny other factors which the court may deem appropriate to the ends of justice.” State v. Schmidt, 220 Ariz. 563, 566 ¶ 8, 9, 208 P.3d 214, 217 (2009) (addressing “patently vague” catchall sentencing aggravating circumstance in
II. Sufficiency Of The Evidence Of Financial Harm.
¶ 11 Coulter argues the evidence was insufficient tо support a verdict that the victim‘s family suffered financial harm because “there was a complete absence of any evidence of the amount of financial harm resulting to anyone from the offenses.” Coulter asserts “that some evidence оf the amount of loss” is required and because no evidence was received quantifying the loss, the jury‘s verdict was not supported by sufficient evidence.
¶ 12 This court will affirm a verdict finding an aggravating circumstance if the record contains substantial evidence to support the finding, viewing the facts in a light most favorable to sustaining the verdict. State v. Gunches, 225 Ariz. 22, 25 ¶ 14, 234 P.3d 590, 593 (2010). “Substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of [the] defendant‘s guilt beyond a rеasonable doubt.” Id. (quoting State v. Roque, 213 Ariz. 193, 218 ¶ 93, 141 P.3d 368, 393 (2006)).
¶ 13 Here, the victim‘s mother testified that her family suffered financial harm by paying for the costs associated with the victim‘s funeral. The victim‘s mother was not asked about specific numbers when discussing financial harm. She testified, however, that insurance did not сover all costs associated with the victim‘s funeral and that she paid for some of those costs, including transportation of the victim‘s body. This evidence was adequate to support the jury‘s finding beyond a reasonable doubt that the victim‘s family suffered financial harm.
III. The Verdict Regarding Emotional Or Financial Harm.
¶ 14 The jury‘s verdict tracked the statutory language in finding that Coulter “caused emotional or financial harm to the victim‘s family.” Coulter argues that, because the verdict used the term “or,” it is impossible to know whether individual jurors found the harm was financial, emotional or both.
¶ 15 “A jury must find аn aggravating circumstance unanimously.” State v. Anderson, 210 Ariz. 327, 355 ¶ 126, 111 P.3d 369, 397 (2005). When the evidence is sufficient to satisfy each alternative prong of an aggravating circumstance, there is no error in failing to have the jury specify which alternative prong it relied upon to determine the existence of that circumstance. See id. at 355-56 ¶¶ 127-30, 111 P.3d at 397-98. The concern Coulter raises, however, could be obviated by requiring the jury to make separate findings as to each alternative prong of the “emotional or financial harm”
¶ 16 The evidence regarding financial harm is summarized above. For emotional harm, the jury heard evidence that the victim‘s mother and younger sister were distrаught, crying and in shock when they learned of the victim‘s death. The victim‘s mother testified her life had not been the same after the death of her daughter; that she had trouble sleeping and eating; that she had nightmares from which she woke up screaming and that she had sought mediсal help and continued to participate in grief therapy. The victim‘s mother also testified about the impact the crime had on the victim‘s younger sister. Because the evidence was sufficient to prove both emotional and financial harm beyоnd a reasonable doubt, there was no error in the verdict finding Coulter caused emotional or financial harm to the victim‘s family. See id. at 355-56 ¶ 128, 111 P.3d at 397-98.
IV. The Order To Pay For DNA Testing.
¶ 17 Coulter argues the superior court erred in ordering him to pay for his own DNA testing pursuant to
CONCLUSION
¶ 18 Although the requirement that Coulter pay for the cost of his DNA testing is vacated, in all other respects Coulter‘s conviction and sentence are affirmed.
SAMUEL A. THUMMA
JUDGE