State v. Duong

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

VINH H. DUONG, Appellant.

No. 1 CA-CR 25-0022
FILED 08-17-2026

Appeal from the Superior Court in Yavapai County
No. S1300CR202300705
The Honorable Krista M. Carman, Judge

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael J. Woodburn
Counsel for Appellee

The Zickerman Law Office, PLLC, Flagstaff
By Adam Zickerman
Counsel for Appellant

STATE v. DUONG
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Daniel J. Kiley and Judge D. Steven Williams joined.

B A I L E Y, Judge:

¶1 Vinh H. Duong appeals his convictions and sentences for sale
or transportation of narcotic drugs, sale or transportation of dangerous
drugs, child abuse, misconduct involving weapons, and possession of drug
paraphernalia. Duong’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), stating
counsel searched the record on appeal and “[n]o arguable question of law
has been found on any issue.” Counsel requests we review the record for
fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999)
(stating that this court reviews the entire record for reversible error). We
allowed Duong to file a supplemental brief in propria persona, but he did not
do so. After reviewing Duong’s brief, we ordered supplemental briefing
from both parties pursuant to Penson v. Ohio, 488 U.S. 75 (1988). Because
insufficient evidence supports his conviction for child abuse but does
support a necessarily lesser-included offense, we remand for resentencing
on that count. We otherwise affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In June 2023, a police officer pulled over a car for having
illegally tinted windows. Duong was in the passenger seat, and his seven-
year-old son and one other child were in the back seat. The officer’s drug-
sniffing dog alerted during the stop. The officer searched the car and found
an unloaded gun, a loaded magazine, a kilogram of cocaine in a mostly
sealed package with an open corner, and a bag of around 1,000
methamphetamine pills in the trunk, and small bindle baggies in the
interior center console. Duong was arrested and a search of his phone
revealed messages discussing the purchase and sale of drugs.

¶3 Duong was charged with sale or transportation of narcotic
drugs (Count 1), sale or transportation of dangerous drugs (Count 2), child
abuse under circumstances likely to produce death or serious physical
injury (Count 3), misconduct involving weapons (Count 4), and possession

2

STATE v. DUONG
Decision of the Court

of drug paraphernalia (Count 5). Duong’s first trial ended in a mistrial. He
was re-tried and the second jury found him guilty as charged.

¶4 The superior court sentenced Duong to concurrent sentences
for counts 1, 2, 4, and 5, the longest of which was seven years; five years of
supervised probation for count 3; and credited him with 70 days’
presentence incarceration.

¶5 Duong timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1) and 13-4033.

DISCUSSION

¶6 After reviewing the record, we discern error related to the
sufficiency of the evidence for Duong’s child abuse conviction. A
conviction must be supported by sufficient evidence to allow a rational trier
of fact to find guilt beyond a reasonable doubt. State v. Cox, 217 Ariz. 353,
357, ¶ 22 (2007). We examine the evidence in the light most favorable to
sustaining the verdict and resolve all reasonable inferences against the
defendant. State v. Allen, 253 Ariz. 306, 341, ¶ 109 (2022). We reverse “only
where there is a complete absence of probative facts to support the
conviction.” Id. (citation omitted).

¶7 Duong was convicted of child abuse pursuant to A.R.S. § 13-
3623(A)(2), which provides:

Under circumstances likely to produce death or serious
physical injury, any person who causes a child or vulnerable
adult to suffer physical injury or, having the care or custody
of a child or vulnerable adult, who causes or permits the
person or health of the child or vulnerable adult to be injured
or who causes or permits a child or vulnerable adult to be
placed in a situation where the person or health of the child
or vulnerable adult is endangered is guilty of an offense as
follows:

....

2. If done recklessly, the offense is a class 3 felony.

“Serious physical injury” is “physical injury that creates a reasonable risk
of death or that causes serious or permanent disfigurement, serious

3

STATE v. DUONG
Decision of the Court

impairment of health or loss or protracted impairment of the function of
any bodily organ or limb.” A.R.S. § 13-3623(F)(5).

I. There was insufficient evidence to convict Duong of committing
child abuse under circumstances likely to produce death or serious
physical injury.

¶8 At issue here is whether Duong placed a child in
circumstances likely to produce death or serious physical injury. “‘Likely’
has been interpreted literally and means ‘probable’ as compared to
‘possible.’” State v. Johnson, 181 Ariz. 346, 350 (App. 1995).

¶9 The State presented evidence that an unloaded gun,
ammunition, a wrapped kilogram of cocaine, and a sealed bag of around
1,000 methamphetamine pills were found in the trunk of the car in which
Duong and his child were passengers. The State also introduced evidence
that Duong planned to engage in a drug transaction. An officer testified
about the risk of violence associated with drug transactions, including the
risk of robbery or assault. The jury also heard testimony that transporting
drugs in a car risks exposing its occupants to the drugs via residue transfer
or the vehicle’s air circulation.

¶10 The evidence clearly established that Duong placed his child
at risk for harm but did not demonstrate that harm was likely. The State
presented no evidence that violence was likely or probable to occur. It also
presented no evidence that either the child or the passenger compartment
of the vehicle suffered drug exposure. Although an officer testified that
“the possibility of having an exposure is high when you have drugs in the
vehicle,” that testimony alone, without further testimony on the degree of
the possibility, the likely exposure amount, and the potential harm, is
insufficient to establish that serious physical injury or death was likely.
This is especially true because no evidence was presented that the child had
access to the trunk where the gun and drugs were stored and the trunk was
inaccessible from the back seat where the child was sitting. A.R.S. § 13-
3623(A)(2) calls for circumstances “likely” to cause death or serious
physical injury, not merely the possibility that they will. Compare State v.
Greene, 168 Ariz. 104 (App. 1991) (overturning a conviction under § 13-
3623(A)(2) where the State presented evidence of a potential for harm based
on unsanitary conditions in a home but presented no evidence the harm
was likely), with Johnson, 181 Ariz. at 346 (holding that death or serious
physical injury was likely where children were left unsupervised in an
active drug den where razor blades and syringes of liquid cocaine were
easily accessible).

4

STATE v. DUONG
Decision of the Court

II. Duong committed a necessarily lesser-included child abuse offense.

¶11 The evidence was insufficient to establish that Duong’s child
was placed in a circumstance likely to produce death or serious physical
injury as required for Duong’s conviction under A.R.S. § 13-3623(A)(2). We
next turn to whether there is sufficient evidence to convict Duong of a
necessarily lesser-included child abuse offense.

¶12 “An appellate court may modify a judgment to one of
conviction for a lesser-included offense and remand the case for
resentencing if: (1) the evidence introduced at trial is not legally sufficient
to establish the defendant’s guilt for the offense for which the defendant
was convicted; but (2) the evidence is legally sufficient to establish
defendant’s guilt of a necessarily lesser-included offense.” Ariz. R. Crim.
P. 31.19(d). “An offense is a lesser-included offense if it is composed solely
of some, but not all, of the elements of the greater offense so that it is
impossible to commit the greater offense without also committing the
lesser.” State v. Cisneroz, 190 Ariz. 315, 317 (App. 1997). And an offense is
necessarily included “when it is lesser included” and “the facts of the case
as presented at trial are such that a jury could reasonably find that only the
elements of a lesser offense have been proved.” State v. Wall, 212 Ariz. 1, 3,
¶ 14 (2006).

¶13 Duong was convicted of child abuse under A.R.S. § 13-
3623(A)(2). Section 13-3623(B)(2) is identical to § 13-3623(A)(2), except it
does not require the abuse to occur under “circumstances likely to produce
death or serious physical injury.” Thus, child abuse under § 13-3623(B)(2)
is composed solely of elements also found in the greater offense of child
abuse under § 13-3623(A)(2). And as the remaining elements are supported
by sufficient evidence and were found by the jury at trial, child abuse under
§ 13-3623(B)(2) qualifies here as a necessarily lesser-included offense of
child abuse under § 13-3623(A)(2). Accordingly, we modify Duong’s
conviction to reflect he committed child abuse under A.R.S. § 13-3623(B)(2),
a class 5 felony, and remand for resentencing.

III. We find no other error in the record.

¶14 We otherwise find no reversible error in the record. See Leon,
104 Ariz. at 300; Clark, 196 Ariz. at 537, ¶ 30. The evidence presented at trial
for the other counts was substantial and supports the verdicts, and the
sentences were within the statutory limits. Duong was represented by
counsel at all stages of the proceedings and was given the opportunity to
speak at sentencing. The proceedings were conducted in compliance with

5

STATE v. DUONG
Decision of the Court

Duong’s constitutional and statutory rights and the Arizona Rules of
Criminal Procedure.

CONCLUSION

¶15 We vacate Duong’s conviction and sentence for child abuse
under A.R.S. § 13-3623(A)(2) and remand for resentencing as a conviction
under A.R.S. § 13-3623(B)(2). We otherwise affirm Duong’s convictions and
sentences.

¶16 Upon filing of this decision, Duong’s counsel shall inform him
of the status of his appeal and of his future options. Counsel has no further
obligations unless, upon review, counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Duong has 30
days from the date of this decision to proceed, if he desires, with a pro per
petition for review. See Ariz. R. Crim. P. 31.21(b)(2)(A). On the court’s own
motion, Duong has 30 days from the date of this decision to file a motion
for reconsideration. See Ariz. R. Crim. P. 31.20(c).

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

6