State of Arizona v. Karama Azizi Mwandishi

FILED BY CLERK
JUN 26 2012
IN THE COURT OF APPEALS
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2011-0384
Appellee, ) DEPARTMENT A
)
v. ) OPINION
)
KARAMA AZIZI MWANDISHI, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20103848001
Honorable Michael O. Miller, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and Tucson
Nicholas Klingerman Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By Robert J. McWhirter Tucson
Attorneys for Appellant
B R A M M E R, Judge.
¶1 Karama Azizi Mwandishi appeals from his conviction and sentence for
aggravated assault resulting in serious physical injury. He argues the trial court erred by
failing to grant his motion for a judgment of acquittal because the state had presented
evidence only of a “typical fracture,” which is not sufficient proof of serious physical
injury. We affirm.
Factual and Procedural Background
¶2 On appeal, we view the facts in the light most favorable to sustaining
Mwandishi’s conviction and sentence. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2,
186 P.3d 33, 34 (App. 2008). On October 24, 2010, Mwandishi and his girlfriend M.C.
argued. The argument escalated and Mwandishi pinned M.C. down, punched her
repeatedly in the back of the head, then turned her over and punched her in the left eye.
The punch fractured more than fifty-percent of the orbital floor of M.C.’s left eye.
Mwandishi was charged with kidnapping and aggravated assault causing serious physical
injury.
¶3 During a jury trial, M.C.’s eye doctor testified the injury had caused double
vision, entrapment of tissue through the fracture, had decreased M.C.’s orbital volume so
that her eye had displaced two millimeters, and had damaged a nerve that innervates the
middle of the face, causing numbness to her face. M.C. had surgery to insert a titanium
mesh plate to replace her damaged orbital floor. Although the surgery was successful
without any complications, M.C. testified she continues to experience side effects
including sinus drainage through her left eye, pressure “like a bruising feeling” from the
implant, and occasional white flashes. She also stated her left eye appears smaller than
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previously. M.C.’s doctor testified there is a small risk of infection around the implant,
and that in rare cases implants can extrude and become exposed.
¶4 At the close of the evidence, Mwandishi moved for a judgment of acquittal,
which the trial court denied. The jury found him guilty of aggravated assault resulting in
serious physical injury. It was unable to reach a verdict, however, on the kidnapping
charge, and the court dismissed that charge without prejudice. Mwandishi was sentenced
to a partially mitigated term of six years’ imprisonment. This appeal followed.
Discussion
¶5 Mwandishi argues the trial court erred when it denied his motion for a
judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P. He contends evidence
of a “typical fracture” is not sufficient to support the jury’s finding of serious physical
injury.
¶6 A judgment of acquittal should be granted only when “there is no
substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a); see also State v.
Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990). “‘Substantial evidence’ is evidence
that reasonable persons could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” State v. Jones, 125 Ariz. 417, 419, 610
P.2d 51, 53 (1980). We review a trial court’s denial of a Rule 20 motion de novo. State
v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). On appeal, we will not set
aside the verdict for insufficient evidence unless it “clearly appear[s] that upon no
hypothesis whatever is there sufficient evidence to support the conclusion reached by the
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jury,” viewing that evidence in the light most favorable to sustaining the verdict. State v.
Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).
¶7 Mwandishi was charged with and convicted of aggravated assault causing
serious physical injury pursuant to A.R.S. § 13-1204(A)(1) and (D), a class three felony.
“Serious physical injury” is defined by A.R.S. § 13-105(39)1 to include “physical injury
that creates a reasonable risk of death, or that causes serious and permanent
disfigurement, serious impairment of health or loss or protracted impairment of the
function of any bodily organ or limb.”2 The jury was instructed in accordance with this
definition.
¶8 “Serious physical injury” refers to “an injury more serious than those
injuries justifying a mere nondangerous, class four felony classification.” State v.
George, 206 Ariz. 436, ¶ 9, 79 P.3d 1050, 1055 (App. 2003); see § 13-1204(A)(3), (D)
(assault causing “temporary but substantial disfigurement, temporary but substantial loss
or impairment of any body organ or part or a fracture of any body part” nondangerous
class four felony). Therefore, “serious impairment of health,” § 13-105(39), must be
1
The statute was renumbered after Mwandishi committed the offense. See 2011
Ariz. Sess. Laws, ch. 114, § 1. For ease of reference we refer to the current numbering.
2
The state points out that Arizona’s definition of “serious physical injury” uses the
term “includes,” rather than “means,” signifying that other types of injuries not listed also
may be serious physical injuries. The distinction is meaningful in some contexts. Cf.
State v. Witwer, 175 Ariz. 305, 307-08, 856 P.2d 1183, 1185-86 (App. 1993) (“includes”
term of enlargement; conduct not listed may constitute “without consent”). Because we
find M.C.’s injuries meet the explicit definition in § 13-105(39), we need not address this
issue.
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more than a “temporary but substantial” impairment, § 13-1204(A)(3), and more than
“the usual temporary impairment caused by the fracture of a body part.” George, 206
Ariz. 436, ¶ 9, 79 P.3d at 1055. And “protracted impairment of the function of any
bodily organ or limb,” § 13-105(39), must be “more protracted than either a ‘temporary
but substantial’ impairment of the use of a limb or the healing time of a normal fracture.”
George, 206 Ariz. 436, ¶ 9, 79 P.3d at 1055, quoting § 13-1204(A)(3).
¶9 We disagree with Mwandishi’s characterization of M.C.’s injury as a
“simple fracture.” Rather, her injury is consistent with the definition of “serious physical
injury” in § 13-105(39), as described further in George, 206 Ariz. 436, ¶ 9, 79 P.3d at
1055. Viewed in the appropriate light, the record contains sufficient evidence from
which a jury could have concluded M.C. suffered a “serious impairment of health,”
§ 13-105(39), more than a “temporary but substantial” impairment, § 13-1204(A)(3), and
more than “the usual temporary impairment caused by the fracture of a body part.”
George, 206 Ariz. 436, ¶ 9, 79 P.3d at 1055. As previously noted, more than fifty-
percent of the orbital floor of M.C.’s left eye was fractured, requiring surgery to insert a
titanium plate to replace her damaged orbital floor. And the fracture caused M.C. double
vision, entrapped tissue through the fracture, and had decreased M.C.’s orbital volume so
that her eye was displaced two millimeters. Additionally, M.C. continues to experience
pressure in her eye and is at risk for infection around the implant and the possibility the
implant could extrude and be exposed. We cannot characterize this injury and its
continued effects as the “usual” or “temporary” result of a “normal” fracture. See id.5
¶10 Moreover, there was sufficient evidence from which the jury could have
concluded M.C. suffered a “protracted impairment of the function of any bodily organ or
limb,” § 13-105(39), “more protracted than either a ‘temporary but substantial’
impairment of the use of a limb or the healing time of a normal fracture.” See George,
206 Ariz. 436, ¶ 9, 79 P.3d at 1055, quoting § 13-1204(A)(3); see also Stedman’s
Medical Dictionary 887 (3d lawyers’ ed. 1972) (organ is “[a]ny part of the body
exercising a specific function”). Rather than healing like a normal fracture, M.C.’s
orbital floor was replaced with a titanium plate, and she continues to experience side
effects from the injury that impair the function of her eye and eye socket, including sinus
drainage through her eye and occasional white flashes. See State v. Greene, 182 Ariz.
576, 579-80, 898 P.2d 954, 957-58 (1995) (victim’s continuing nosebleeds supported
finding of “protracted impairment”). She also experienced numbness resulting from
damage to the nerve innervating the middle of her face and, although her sensitivity
improved following surgery, that problem could continue. Additionally, she testified her
facial symmetry has changed as her left eye appears smaller than it did previously. See
id. (serious physical injury supported by evidence victim’s nose “completely changed”
and continued nosebleeds).
¶11 From the evidence presented at trial, which included testimony from M.C.
and her doctor, reasonable jurors could find beyond a reasonable doubt that Mwandishi
had committed aggravated assault causing serious physical injury. Thus, the trial court
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did not err in denying Mwandishi’s Rule 20 motion, and sufficient evidence supports the
jury’s finding of guilt.
Disposition
¶12 For the foregoing reasons, we affirm Mwandishi’s conviction and sentence.
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge
CONCURRING:
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
.
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