                                                                FILED BY CLERK
                                                                   MAY 30 2008
                           IN THE COURT OF APPEALS                  COURT OF APPEALS
                               STATE OF ARIZONA                       DIVISION TWO
                                 DIVISION TWO


THE STATE OF ARIZONA,                       )
                                            )       2 CA-CR 2007-0210
                                Appellee,   )       DEPARTMENT A
                                            )
                   v.                       )       OPINION
                                            )
LAKI DAVID PRICE,                           )
                                            )
                             Appellant.     )
                                            )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20054155

                            Honorable Gus Aragón, Judge

                                     AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Amy M. Thorson                                    Tucson
                                                           Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender
 By Kristine Maish                                                         Tucson
                                                           Attorneys for Appellant


H O W A R D, Presiding Judge.
¶1            After a jury trial, appellant Laki Price was convicted of armed robbery,

aggravated robbery, and aggravated assault. The trial court sentenced him to mitigated,

concurrent prison terms, the longest for seven years. On appeal, Price claims he was

improperly tried by an eight-person jury and the trial court abused its discretion in denying

his request for instructions on lesser included offenses. The state volunteers that one of

Price’s convictions violates double jeopardy principles. Finding no error, we affirm.

                                           Facts

¶2            “We view the facts in the light most favorable to sustaining the convictions.”

State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). Price and a man named

Miguel Virgen approached the victim, a pedestrian, in a parking lot. Price told the victim

to “give it up.” Price then lifted his shirt to show the victim a gun that was tucked in his

waist area and said, “I ain’t playing.” When the victim did not respond, Price drew the gun,

held it by his leg, and told the victim, “I’ll leave you in this parking lot.” The victim gave

Virgen some money from one pocket and then, after further insistence by Price, some more

money from another pocket. Price and Virgen then fled but were later apprehended by

police. The jury found Price guilty of armed robbery, aggravated assault, and aggravated

robbery and found all three offenses to be of a dangerous nature. The court sentenced Price

to concurrent, mitigated prison terms of seven years for the armed robbery, five years for the

aggravated assault, and five years for the aggravated robbery. Price now appeals.




                                              2
                                      Double Jeopardy

¶3             Although Price does not raise the issue and, in fact, disagrees, the state asserts

that aggravated assault is a lesser included offense of armed robbery. It therefore contends

convicting Price of both constituted fundamental, prejudicial error and asks this court to

vacate Price’s conviction and sentence for aggravated assault. See State v. Fernandez, 216

Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error

when it sees it).

¶4             Because this issue was not raised below, we review solely for fundamental

error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). But, as the

state notes, double jeopardy principles prohibit convictions for both a greater offense and

a lesser included offense, and a violation of double jeopardy is fundamental error. See

Fitzgerald v. Superior Court, 173 Ariz. 539, 544, 845 P.2d 465, 470 (App. 1992); see also

State v. Siddle, 202 Ariz. 512, n.2, 47 P.3d 1150, 1153 n.2 (App. 2002). We review this

issue de novo. See Siddle, 202 Ariz. 512, ¶ 7, 47 P.3d at 1153.

¶5             For double jeopardy purposes, a lesser included offense and the greater offense

of which it is a part constitute the same offense, and multiple punishments for the same

offense are not permissible. See Lemke v. Reyes, 213 Ariz. 232, ¶¶ 16-18, 141 P.3d 407,

413 (App. 2006); Siddle, 202 Ariz. 512, ¶¶ 7-8, 47 P.3d at 1153-54. But two offenses are

not the same if “‘each [offense] requires proof of an additional fact which the other does

not.’” State v. Eagle, 196 Ariz. 188, ¶ 6, 994 P.2d 395, 397 (2000), quoting Blockburger


                                               3
v. United States, 284 U.S. 299, 304 (1932) (alteration in Eagle). To determine whether

offenses are the same, we analyze the elements of the offenses, not the facts of the case.1

Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d at 1154.

¶6           A person commits aggravated assault by using a deadly weapon or dangerous

instrument while:

                   1. Intentionally, knowingly or recklessly causing any
             physical injury to another person; or

                   2. Intentionally placing another person in reasonable
             apprehension of imminent physical injury; or

                    3. Knowingly touching another person with the intent
             to injure, insult or provoke such person.

A.R.S. § 13-1203(A); see also A.R.S. § 13-1204(A)(2).2 A person commits armed robbery

by, while armed with or threatening with a deadly weapon, dangerous instrument, or


      1
        Some Arizona authority suggests consideration of the charging document is
appropriate in a double jeopardy analysis. See State v. Welch, 198 Ariz. 554, ¶¶ 6-7, 12
P.3d 229, 230-31 (App. 2000); State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶¶ 10-12, 965
P.2d 94, 96-97 (App. 1998). The state does not ask us to analyze the charging document
in this case in the context of the double jeopardy issue, and in any event, we question
whether doing so would be appropriate. See United States v. Dixon, 509 U.S. 688, 708
n.12 (1993) (rejecting view that, after finding no double jeopardy violation under
Blockburger test, court should nevertheless analyze “whether the nature of the acts as
alleged supported such a claim”); see also Lemke, 213 Ariz. 232, n.2, 141 P.3d at 412 n.2
(Arizona and federal double jeopardy protections “coextensive”); State v. Sanders, 205
Ariz. 208, ¶ 65, 68 P.3d 434, 448 (App. 2003) (stating Supreme Court in Dixon held
Blockburger test “is the only permissible interpretation of the double jeopardy clause”).
      2
       The indictment did not include a particular subsection of § 13-1203(A). But we
note that the facts presented at trial supported aggravated assault only under § 13-
1203(A)(2), and the jury was instructed only on that subsection.

                                            4
simulated deadly weapon, threatening or using force against another person “with intent

either to coerce surrender of property or to prevent resistance to such person taking or

retaining property.” A.R.S. § 13-1902(A); see also A.R.S. § 13-1904(A).

¶7            Armed robbery can be committed without injuring or touching the victim, so

aggravated assault committed pursuant to § 13-1203(A)(1) and (3) has elements that armed

robbery does not. And armed robbery does not require either intending to place or actually

placing the victim in fear, see State v. Miguel, 125 Ariz. 538, 541, 611 P.2d 125, 128 (App.

1980), whereas aggravated assault committed pursuant to § 13-1203(A)(2) requires both an

intent to place the victim in “reasonable apprehension of imminent physical injury” and that

such apprehension actually results. See State v. Rineer, 131 Ariz. 147, 148-49, 639 P.2d

337, 338-39 (App. 1981). Finally, armed robbery requires proof of elements that aggravated

assault does not, including the taking of property. See § 13-1902(A); State v. Lopez, 158

Ariz. 258, 264, 762 P.2d 545, 551 (1988). Because each offense requires proof of a fact

that the other does not, armed robbery and aggravated assault are not the “same offense” for

double jeopardy purposes.

¶8            The state relies on State v. Sowards, 147 Ariz. 185, 709 P.2d 542 (App.

1984), where this court said “aggravated assault can be a lesser-included offense of armed

robbery.” Id. at 190, 709 P.2d at 547. But the court’s discussion makes clear that it was

actually analyzing whether the offenses constituted separate acts under the facts of that case.

First, the two cases the court cited in support of its proposition did not analyze whether


                                              5
aggravated assault was by definition a lesser included offense of armed robbery, but rather

whether convictions for both offenses were permissible under former A.R.S. § 13-1641,

which prohibited multiple convictions for the same act.3 See State v. Jorgenson, 108 Ariz.

476, 477, 502 P.2d 158, 159 (1972); State v. Horton, 108 Ariz. 16, 17-18, 492 P.2d 395,

396-97 (1972). Second, the court in Sowards went on to analyze the facts of that case,

concluding “the aggravated assault of each victim [was] not the same crime as the armed

robbery of each.” Sowards, 147 Ariz. at 190, 709 P.2d at 547. As discussed above,

determining whether an offense is a lesser included offense of another for double jeopardy

purposes depends on the elements of the offenses, not on the facts of the case. See Siddle,

202 Ariz. 512, ¶ 10, 47 P.3d at 1154. Thus, the court in Sowards did not use the term

“lesser-included offense” to mean “same offense” for double jeopardy purposes. Sowards

therefore does not support the state’s argument.

¶9             We conclude that, for double jeopardy purposes, aggravated assault is not the

same offense as armed robbery, and convictions for both offenses were constitutionally

permissible.

                                    Twelve-Person Jury

¶10            Price contends he faced imprisonment of thirty years or more and therefore

was entitled to a twelve-person jury. Although he failed to raise this issue in the trial court


       3
        Section 13-1641 was later renumbered as A.R.S. § 13-116 and amended to provide
that a single act may be punished under multiple statutes, but the sentences must be
concurrent. 1977 Ariz. Sess. Laws, ch. 142, § 141.

                                              6
and therefore forfeited all but fundamental error review, see State v. Henderson, 210 Ariz.

561, ¶ 19, 115 P.3d 601, 607 (2005), the failure to empanel a jury of twelve when required

constitutes fundamental, prejudicial error. See State v. Henley, 141 Ariz. 465, 469, 687

P.2d 1220, 1224 (1984). But see State v. Ring, 204 Ariz. 534, ¶¶ 106-07, 65 P.3d 915,

946-47 (2003) (Feldman, J., concurring in part and dissenting in part) (describing trial to

insufficient number of jurors as structural error).

¶11           A defendant exposed to potential imprisonment of thirty years or more at the

time the jury begins deliberations is entitled to a twelve-person jury. Ariz. Const. art. II,

§ 23; State v. Smith, 197 Ariz. 333, ¶ 16, 4 P.3d 388, 393 (App. 1999); State v. Thorne,

193 Ariz. 137, 138, 971 P.2d 184, 185 (App. 1997). In determining the length of a

defendant’s potential sentence, we take into account allegations of sentence enhancements,

see State v. Prince, 142 Ariz. 256, 259, 689 P.2d 515, 518 (1984), and whether the

sentences could be imposed consecutively.4 See Henley, 141 Ariz. at 468, 687 P.2d at

1223.

¶12           Here, the state alleged the dangerous nature of the offenses. Thus, when the

jury began deliberations, Price faced maximum prison terms of twenty-one years for armed



        4
        As the state notes, at sentencing defense counsel referred to a pretrial agreement that
the sentences would have to run concurrently. But because we cannot determine from the
record if the agreement attained the level of a stipulation that the offenses arose from a single
act, we cannot rely on it in resolving the issue before us. Cf. Thorne, 193 Ariz. at 138, 971
P.2d at 185 (eight-person jury appropriate where state stipulated two counts were one act,
thereby reducing maximum sentence “in a timely manner”).

                                               7
robbery, fifteen years for aggravated assault, and fifteen years for aggravated robbery. See

A.R.S. §§ 13-604(I); 13-1204(A)(2), (B); 13-1903; 13-1904. Because none of these

individual sentences is thirty years or more, the resolution of this issue turns on whether the

sentences could have run consecutively.

¶13           As discussed above, aggravated assault and armed robbery are not the same

offense for double jeopardy purposes. And the state does not suggest that aggravated assault

and aggravated robbery are the same offense. Therefore, we agree with Price that double

jeopardy principles would present no impediment to consecutive sentences. See Eagle, 196

Ariz. 188, ¶ 6, 994 P.2d at 397. But that does not end our analysis. Section 13-116,

A.R.S., prohibits consecutive sentences for multiple offenses that constitute a single act and

could bar consecutive sentences even though double jeopardy principles do not. See Siddle,

202 Ariz. 512, ¶¶ 16-17, 47 P.3d at 1155.

¶14           Price argues consecutive sentences were permissible under § 13-116. To

determine whether conduct constitutes a single act for purposes of § 13-116, we apply the

test set forth in State v. Gordon, 161 Ariz. 308, 778 P.2d 1204 (1989).

              First, we must decide which of the two crimes is the “ultimate
              charge—the one that is at the essence of the factual nexus and
              that will often be the most serious of the charges.” Then, we
              “subtract[] from the factual transaction the evidence necessary
              to convict on the ultimate charge.” If the remaining evidence
              satisfies the elements of the secondary crime, the crimes may
              constitute multiple acts and consecutive sentences would be
              permissible. We also consider whether “it was factually
              impossible to commit the ultimate crime without also
              committing the secondary crime.” Finally, we consider whether

                                              8
              the defendant’s conduct in committing the lesser crime “caused
              the victim to suffer a risk of harm different from or additional to
              that inherent in the ultimate crime.”

State v. Urquidez, 213 Ariz. 50, ¶ 7, 138 P.3d 1177, 1179 (App. 2006), quoting Gordon,

161 Ariz. at 315, 778 P.2d at 1211 (internal citations omitted; alteration in Urquidez).

Although our double jeopardy analysis above depended on comparing the elements of the

offenses, “our analysis under § 13-116 focuses on the ‘facts of the transaction’ to determine

if the defendant committed a single act.” Siddle, 202 Ariz. 512, ¶ 17, 47 P.3d at 1155,

quoting Gordon, 161 Ariz. at 313 n.5, 778 P.2d at 1209 n.5.

¶15           Here, the ultimate offense was either aggravated robbery or armed robbery.

See State v. Alexander, 175 Ariz. 535, 537, 858 P.2d 680, 682 (App. 1993) (aggravated

robbery ultimate offense where “[t]he object of the episode was to rob the victim”; burglary,

theft, and aggravated assault “simply ancillary”). Because Price does not argue that the

sentences for the two robbery offenses could run consecutively, we analyze whether the

sentence for aggravated assault could have run consecutively to either the aggravated robbery

sentence or armed robbery sentence.

¶16           The facts necessary to convict on aggravated robbery are that Price and Virgen

threatened to use force against the victim, demanded money, and in fact received the money.

See §§ 13-1902(A); 13-1903(A). Subtracting that evidence from the factual transaction, the

record contains no evidence of an act that could have placed the victim in “reasonable

apprehension of imminent physical injury.” § 13-1203(A)(2). The facts necessary to convict


                                              9
on armed robbery are that Price, armed with a gun, threatened force against the victim,

demanded money, and in fact received the money.             §§ 13-1902(A); 13-1904(A).

Subtracting that evidence from the factual transaction, the record contains no evidence of

a deadly weapon or an act that could have placed the victim in “reasonable apprehension

of imminent physical injury,” both of which were required to convict Price of aggravated

assault in this case. See §§ 13-1203(A)(2); 13-1204(A)(2). Thus, whether armed robbery

or aggravated robbery is the ultimate offense, there was insufficient evidence to prove

aggravated assault after subtracting the evidence necessary to prove the armed robbery or

aggravated robbery. The first Gordon factor therefore supports the conclusion that Price

committed a single act.5

¶17           Price does not argue that the second Gordon factor supports his claim that he

committed multiple acts; instead, he contends the third Gordon factor, the type of risk to

the victim, is dispositive. But Price committed aggravated assault and both robberies by

using a gun to threaten the victim, thus exposing the victim to the same risks in committing

all three offenses.

¶18           Price nevertheless contends that armed robbery exposes the victim to the risk

of only a simulated deadly weapon, whereas aggravated assault requires proof of an actual



       5
        The state asserts that we need go no further than the first factor. But in light of
authority analyzing the second and third Gordon factors even when the first does not
support consecutive sentences, see Siddle, 202 Ariz. 512, ¶ 18, 47 P.3d at 1156, we address
Price’s argument regarding the third Gordon factor.

                                            10
deadly weapon. However, although the elements of the statutes are different, the focus in

a Gordon analysis is on Price’s actual conduct. See Siddle, 202 Ariz. 512, ¶ 17, 47 P.3d

at 1155. Price used a deadly weapon to commit both aggravated assault and armed robbery.

Therefore, the risk of harm to the victim under the facts of this case was the same.

¶19           Price also contends the requirement that the defendant intentionally place the

victim in reasonable apprehension of immediate physical injury is an added risk of harm in

committing aggravated assault. But, again, a Gordon analysis examines the facts of the case,

not the elements of the offense. Price’s conduct in committing both aggravated assault and

armed robbery posed the same risks of harm to the victim here.

¶20           The first and third Gordon factors support the conclusion that Price committed

a single act, and Price does not argue the second Gordon factor supports his position.

Accordingly, we conclude Price’s conduct was a single act under Gordon and § 13-116,

making consecutive sentences impermissible. The maximum sentence Price faced was a total

of twenty-one years in prison. Thus, he was not entitled to a twelve-person jury, and the

trial court did not err in empaneling a jury of eight.

                  Denial of Instructions on Lesser Included Offenses

¶21           Price also argues the trial court erred in refusing to give the jury instructions

he requested on robbery and assault as lesser included offenses. We review the court’s

denial of a requested jury instruction for an abuse of discretion. State v. Wall, 212 Ariz. 1,

¶ 12, 126 P.3d 148, 150 (2006). “A defendant is only entitled to a lesser included offense


                                              11
instruction if there is evidence upon which the jury could convict of the lesser offense and

find the state had failed to prove an element of the greater offense.” State v. Conroy, 131

Ariz. 528, 532, 642 P.2d 873, 877 (App. 1982); see also Ariz. R. Crim. P. 23.3. Merely

asserting the jury might have disbelieved the evidence supporting an element of the greater

offense is insufficient. Wall, 212 Ariz. 1, ¶ 18, 126 P.3d at 151. Rather, to warrant a

separate instruction, “the evidence must be such that a rational juror could conclude that the

defendant committed only the lesser offense.” Id.

¶22           Here, the element that distinguishes the greater offenses of armed robbery and

aggravated assault from robbery and assault, respectively, is the use of a weapon. See §§ 13-

1902(A); 13-1904(A); 13-1203(A)(2); 13-1204(A)(2). Price’s sole argument is that “the

jury could have found that the element of the weapon, which allegedly was displayed, but

not drawn, was not proven.” But the victim testified that Price displayed and drew a gun

during the incident. Nothing in the record suggests that use of the gun was disputed at trial.

¶23           Moreover, Price’s use of the gun constituted the threat of force necessary to

establish the lesser offense of robbery. See § 13-1902(A). It was also evidence of Price’s

intent to place the victim in reasonable apprehension of imminent physical injury, which was

necessary to establish the lesser offense of assault. See § 13-1203(A)(2). Thus, had the jury

disbelieved the evidence regarding Price’s use of the weapon, it could not have found him

guilty of either the lesser or the greater offenses. See State v. Felix, 153 Ariz. 417, 419-20,

737 P.2d 393, 395-96 (App. 1986). Because Price does not point to any evidence from


                                              12
which a rational jury could find that he was guilty of only the lesser offenses of robbery and

assault but not the greater offenses of armed robbery and aggravated assault, we conclude

that the trial court did not abuse its discretion in refusing to instruct on the lesser offenses.

                                         Conclusion

¶24           For the foregoing reasons, we affirm Price’s convictions and sentences.



                                                ____________________________________
                                                JOSEPH W. HOWARD, Presiding Judge



CONCURRING:



____________________________________
JOHN PELANDER, Chief Judge



____________________________________
J. WILLIAM BRAMMER, JR., Judge




                                               13
