State v. Kelly

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JARED NEIL KELLY, Appellant.

No. 1 CA-CR 22-0487
FILED 02-22-2024

Appeal from the Superior Court in Yavapai County
No. V1300CR201980701
The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Amy Pignatella Cain
Counsel for Appellee

The Zickerman Law Office PLLC, Flagstaff
By Adam Zickerman
Counsel for Appellant
 STATE v. KELLY
Opinion of the Court

OPINION

Judge Anni Hill Foster delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.

F O S T E R, Judge:

¶1 Defendant Jared Kelly appeals his convictions and sentences
for three counts of aggravated assault, arguing that they are multiplicitous
and violate double jeopardy. He also alleges he is entitled to a new trial
because the court erred in admitting expert testimony from a peace officer.
Because Kelly’s convictions are not multiplicitous and the admission of the
officer’s testimony was not error, his convictions and sentences are
affirmed.

FACTUAL AND PROCEDURAL HISTORY

¶2 One day in January 2019, while driving in Cottonwood, Kelly
hit L.Y.’s Jeep from behind, with enough force to send both vehicles
careening up steep embankments on opposite sides of the roadway. Kelly’s
Dodge came to rest on the east embankment about 430 feet from the point
of impact. L.Y.’s Jeep came to rest on the west embankment about 400 feet
from the point of impact. The Jeep’s back bumper and front end were
damaged, and the driver’s side of the vehicle was crumpled. The Dodge
had substantial front-end damage and was leaking fluid. While L.Y. called
911, Kelly fled the scene on foot.

¶3 L.Y. was taken to a hospital where medical personnel found
an open fracture of her ankle bone as well as other fractures and lacerations
in her lower leg. L.Y. also had broken ribs and a broken sternum. Although
her bones healed, the accident impaired her ability to walk long distances.
Police located Kelly the next day. Kelly said he “couldn’t remember” who
caused the collision and that after it occurred, he checked on L.Y. and told
her he “had a couple of beers and didn’t want to get a DUI.”

¶4 As relevant here, the State charged Kelly with three counts of
aggravated assault under A.R.S. § 13-1204: (1) causing a serious physical
injury, (2) using a deadly weapon or dangerous instrument, and (3) causing

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Opinion of the Court

a fracture. The police officer who investigated the collision testified at trial
that he determined Kelly rear-ended L.Y. while driving about 80 miles per
hour in a 45 mile-per-hour zone. A jury convicted Kelly of the three counts
of aggravated assault. The trial court sentenced him to concurrent, greater-
than-presumptive prison terms for the three convictions, the longest being
nine years.

¶5 Article 6, Section 9, of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A) provide jurisdiction for Kelly’s
appeal.

DISCUSSION

I. The convictions are not multiplicitous.

¶6 Kelly contends that the aggravated assault convictions and
sentences are multiplicitous and violate his constitutional right to be free
from double jeopardy. See U.S. Const. amend. V; Ariz. Const. art. 2, § 10.1
“Multiplicity occurs when an indictment charges a single offense in
multiple counts,” violating the Double Jeopardy Clause of both the U.S. and
Arizona Constitutions. State v. Brown, 217 Ariz. 617, 620, ¶ 7 (App. 2008)
(quoting State v. Powers, 200 Ariz. 123, 125, ¶ 5 (App. 2001)). Multiplicitous
charges are not unlawful in themselves, Merlina v. Jejna, 208 Ariz. 1, 4, ¶ 13
(App. 2004), but only become so if a defendant receives multiple sentences
for the same crime, id. at ¶ 14 & n.4. The Double Jeopardy Clauses protect
against “multiple punishments for the same offense.” Carter, 249 Ariz. at
315, ¶ 7 (quoting State v. Jurden, 239 Ariz. 526, 529, ¶ 10 (2016)).

¶7 “The protection against double jeopardy may be triggered in
two contexts”—one, “if the same conduct is held to constitute a violation of
two different criminal statutes” and two, “if multiple violations of the same
statute are based on the same conduct” entailing “a single offense.” Jurden,
239 Ariz. at 529, ¶¶ 10-11. The method used to analyze a double jeopardy
claim depends on which circumstance is present. Id.

1 The double jeopardy provision of the Arizona Constitution is
“virtually identical” to its federal counterpart, and the analysis under each
is the same. State v. Carter, 249 Ariz. 312, 314, ¶ 1 n.2 (2020). Moreover, given
the sentences here were concurrent, there is no “double punishment” issue
under A.R.S. § 13-116 (“An act or omission which is made punishable in
different ways by different sections of the laws may be punished under
both, but in no event may sentences be other than concurrent.”).

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Opinion of the Court

A. Kelly’s sentences for multiple counts of aggravated assault
based on one incident do not violate double jeopardy.

¶8 Kelly’s main argument is that under State v. Powers, 200 Ariz.
123 (App.), aff’d, 200 Ariz. 363 (2001), he can only be convicted of one
aggravated assault because the collision constituted a single criminal act
that harmed just one person. Kelly’s reliance on Powers is unpersuasive.
That decision addressed the crime of leaving the scene of an accident under
A.R.S. § 28-661. The defendant in Powers could be convicted of a single
crime, even though he caused an accident involving two victims, only
because the unit of prosecution for leaving the scene of an accident is
determined by each “accident scene,” not the number of victims involved
in any accident. Id. at 126–27, ¶¶ 9–16. Kelly’s sentences for separate
aggravated assault offenses do not pose a unit of prosecution issue.

B. Subsections (A)(1), (A)(2), and (A)(3) of A.R.S. § 13-1204
describe separate offenses, not alternative means.

¶9 Kelly was convicted and sentenced for violating three
subsections of the aggravated assault statute—A.R.S. § 13-1204(A)(1), (2),
and (3).2 A double jeopardy violation constitutes fundamental error, Jurden,
239 Ariz. at 528, ¶ 7, even if a defendant receives concurrent sentences,
Carter, 249 Ariz. at 314, ¶ 1 n.1. When resolving a double jeopardy claim
based on multiplicity, this Court must first determine whether the statutes
in question reflect separate offenses or alternative means of committing a
single offense. The issue presents a question of statutory interpretation,
which is considered de novo. State v. Luviano, 255 Ariz. 225, 227, ¶ 7 (2023);
see also State v. Burns, 237 Ariz. 1, 22, ¶ 83 (2015) (de novo review of
multiplicity claims); Carter, 249 Ariz. at 315, ¶ 7 (de novo review of double
jeopardy claims).

¶10 “In Arizona, criminal statutes can contain multiple
descriptions of proscribed conduct.” Luviano, 255 Ariz. at 228, ¶ 9. An
“alternative means” statute describes a “single unified offense” that can be
committed in alternative ways. Id. Another form of criminal statute
enumerates “several distinctive acts,” each describing “a separate crime.”
Id. (citations omitted).

¶11 A.R.S. § 13-1204(A)(1)–(3) provides as follows:

2 We cite the current version of statutes because revisions enacted
after Kelly committed the offenses in 2019 are not material to this decision.

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Opinion of the Court

A. A person commits aggravated assault if the
person commits assault as prescribed by section
13-1203 under any of the following circumstances:

1. If the person causes serious physical
injury to another.

2. If the person uses a deadly weapon or
dangerous instrument.

3. If the person commits the assault by
any means of force that causes temporary
but substantial disfigurement,
temporary but substantial loss or
impairment of any body organ or part or
a fracture of any body part.

(Emphasis added).

¶12 To determine whether subsections (A)(1), (A)(2), and (A)(3)
describe separate aggravated assault offenses or a single unified offense,
this Court’s analysis begins with the statutory language. Luviano, 255 Ariz.
at 228, ¶ 10. Words are given their ordinary meaning unless it is evident
that a different meaning is intended, in which case the statutory provisions
are interpreted “in view of the entire text.” Id. (quoting Nicaise v. Sundaram, 245 Ariz. 566, 568, ¶ 11 (2019)). If the statutory language reveals a “clear and
unambiguous” meaning, our analysis ends there. State v. Burbey, 243 Ariz.
145, 147, ¶ 7 (2017). But if the language is reasonably susceptible to different
meanings, “secondary interpretation methods, including consideration of
the statute’s ‘subject matter, its historical background, its effect and
consequences, and its spirit and purpose’” are employed. Id. (citations
omitted).

¶13 Here, § 13-1204(A)(1)–(3) is not ambiguous. Section 13-
1204(A) does not establish elements of a crime beyond simple assault
without reference to the subsections of the statute. The subsections, in turn,
describe distinct acts that each establish the crime of aggravated assault. See
Luviano, 255 Ariz. at 229, ¶ 11 (reasoning that descriptions of “different
acts” set forth in different subsections could “be reasonably read to make
each subsection a separate offense”).

¶14 But even if the statute was deemed ambiguous, this
interpretation is supported by § 13-1204’s structure, context, and purpose.
The circumstances in (A)(1), (A)(2), and (A)(3) address distinct conduct and

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are set forth in separate subsections. No syntactical components or
language connect them. These characteristics also support that each
subsection creates a new offense and that they should be read
independently from one another. See State v. Freeney, 223 Ariz. 110, 113, ¶ 16
(2009) (“When the elements of one offense materially differ from those of
another—even if the two are defined in subsections of the same statute—
they are distinct and separate crimes.”); cf. Luviano, 255 Ariz. at 229, ¶ 13
(reasoning that language joining different subsections of a statute “indicates
an intent to provide alternative descriptions for the same material facts”).

¶15 Penalty distinctions among the subsections also support an
interpretation of separate offenses. Committing aggravated assault under
subsection (A)(1) or (A)(2) is a class three felony, whereas committing
aggravated assault under subsection (A)(3) is a class four felony. A.R.S.
§ 13-1204(E). These differences point to separate offenses rather than
alternative means. Cf. Luviano, 255 Ariz. at 230, ¶ 18 (reasoning that
subsections of a statute that provide “similar statutory punishments
indicate alternate ways of committing a single crime”); see also Mathis v.
United States, 579 U.S. 500, 505, 518 (2016) (observing that if a statute
includes “alternatives carry[ing] different punishments,” those alternatives
describe “elements” that point to different crimes).

¶16 Conversely, this Court has previously stated that multiple
aggravated assault charges stemming from only one act are multiplicitous.
See State v. Carrillo, 1 CA-CR 19-0492, 2020 WL 4007047, at *12, ¶¶ 13-14
(Ariz. App. July 16, 2020) (mem. decision) (finding that two charges of
aggravated assault resulting from a single gunshot wound to a single victim
were multiplicitous); see also State v. Pena, 209 Ariz. 503, 506, ¶ 12 (App.
2005) (concluding that aggravated assault could be committed either by
causing serious physical injury or using a deadly weapon without any
analysis of multiplicity); State v. Steel, 1 CA-CR 16-0545, 2018 WL 3358998,
at *2, ¶¶ 12-13 (Ariz. App. July 10, 2018) (mem. decision) (concluding that
aggravated assault is a single offense that can be committed in multiple
ways without a supporting analysis). But the conclusions in those cases
were not based on a multiplicity analysis, instead relying on concessions
from the State or providing insufficient support for its conclusions. They
are not persuasive.

¶17 The aims of the aggravated assault statute also bolster this
conclusion. See State v. Korzep, 165 Ariz. 490, 493 (1990) (considering “the
policy behind the statute and the evil it was designed to remedy” as
evidence of legislative intent); A.R.S. § 13-104 (requiring criminal statutes
to “be construed according to the fair meaning of their terms to promote

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Opinion of the Court

justice and effect the objects of the law”). What makes an assault
“aggravated” does not turn on a singular type of circumstance. See State v.
Paredes-Solano, 223 Ariz. 284, 288, ¶ 10 (App. 2009) (reasoning those
statutory subsections that “address [ ] two separate harms” convey “a
legislative intention to create two separate offenses”); cf. Luviano, 255 Ariz.
at 229, ¶ 14 (reasoning those statutory subsections that “address the same
primary harm” support a finding of alternative means). Subsections (A)(1)
and (A)(3) of § 13-1204 define an aggravated assault based on the extent of
physical harm caused. Subsection (A)(2), on the other hand, provides for
aggravation based on the instrumentality used—whether or not any
physical harm resulted. These different aims point to separate offenses.

¶18 Other provisions of § 13-1204 offer contextual support for this
Court’s conclusion. Eleven subsections comprise § 13-1204(A). They
describe felonies variously penalized under classes two, three, four, five,
and six. See § 13-1204(E). And they reflect a range of different purposes for
aggravating an assault. Some subsections focus on the nature of the
instrumentality or method used to carry out the assault. See A.R.S. § 13-
1204(A)(2), (4)–(5), (9), (11). Others focus on the status of the victim or the
defendant. See A.R.S. § 13-1204(A)(6), (8)–(10). And as noted above,
subsections (A)(1) and (A)(3) focus on the extent of physical injury. Taken
together, the considerable number and variety of purposes and penalties
contained within the enumerated “circumstances” of § 13-1204(A) confirm
an intent to describe separate offenses. Kelly’s convictions under § 13-
1204(A)(1), (A)(2), and (A)(3) are not multiplicitous.

C. Subsection (A)(3) of § 13-1204 is not a lesser-included
offense of subsection (A)(1).

¶19 Despite concluding that subsections (A)(1), (A)(2), and (A)(3)
of § 13-1204 are separate offenses and not facially multiplicitous, the
analysis of Kelly’s double jeopardy claim cannot stop there. Though the
subsections are separate offenses, this Court still has a duty to determine
whether he was sentenced for different offenses based on the same conduct.
See Jurden, 239 Ariz. at 529, ¶ 10.

¶20 Blockburger v. United States, 284 U.S. 299 (1932), established the
“same elements test” to determine whether distinct offenses charged under
different statutory provisions constitute the same offense, thereby violating
double jeopardy. Carter, 249 Ariz. at 315, ¶ 9. The same elements test asks,
“whether each provision requires proof of a fact which the other does not.”
Id. (quoting Blockburger, 284 U.S. at 304). Conviction of both a greater and
its lesser-included offense constitutes double jeopardy under the

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Opinion of the Court

Blockburger test. Brown v. Ohio, 432 U.S. 161, 167–68 (1977); see also Lemke v.
Rayes, 213 Ariz. 232, 239, ¶ 18 (App. 2006). “An offense is ‘lesser-included’
when the ‘greater offense cannot be committed without necessarily
committing the lesser offense.’” Carter, 249 Ariz. at 316, ¶ 10 (quoting State
v. Wall, 212 Ariz. 1, 3, ¶ 14 (2006)) (internal quotation marks omitted). “In
determining whether offenses are the ‘same’ for purposes of double
jeopardy analysis, we look to the elements of the offenses and not to the
particular facts that will be used to prove them.” State v. Ortega, 220 Ariz.
320, 324, ¶ 9 (App. 2008). Because section 13-1204(A)(2), aggravated assault
using a deadly weapon or dangerous instrument, contains very different
elements than § 13-1204(A)(1) and (A)(3), which concern physical injury,
this Court need only analyze whether any overlap exists between
subsections (A)(1) and (A)(3).

¶21 Subsection (A)(1) of § 13-1204 refers to an aggravated assault
“caus[ing] serious physical injury to another.” “‘Serious physical injury’
includes 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.” A.R.S. § 13-105(39). Subsection (A)(3) of § 13-1204 refers to an
aggravated assault “caus[ing] temporary but substantial disfigurement,
temporary but substantial loss or impairment of any body organ or part or
a fracture of any body part.” The difference between these two provisions
is that (A)(3) contemplates “temporary” harms or impairments while (A)(1)
addresses “permanent” or “protracted” harms or impairments. See State v.
George, 206 Ariz. 436, 441, ¶¶ 8-9 (App. 2003) (comparing § 13-1204(A)(1)
and (A)(3) and concluding “that the legislature intended ‘serious physical
injury’ [under subsection (A)(1)] to refer to an injury more serious than
those injuries [under subsection (A)(3)] justifying a mere nondangerous,
class four felony classification”).

¶22 Comparing the elements of subsections (A)(1) and (A)(3),
“neither contain identical elements nor involve identical proof.” Merlina,
208 Ariz. at 5, ¶ 17. For this reason, (A)(1) and (A)(3) do not violate
Blockburger. Though it would be a rare circumstance in which a person
caused a permanent or protracted impairment under (A)(1) without
causing the less serious temporary but substantial impairment described in
(A)(3), it is conceivable that that a victim could sustain both types of injuries
because of a single incident. Here, L.Y. sustained multiple injuries, some
more temporary such as lacerations and broken bones but others more
protracted such as an impaired ability to walk even after the healing of the
fractured bones. Sections 13-1204(A)(1) and (A)(3) address multiple harms
rather than a single harm. This plain language supports the conclusion that

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Opinion of the Court

the legislature intended to criminalize circumstances that result in a
particular harm, rather than a simple act alone. See State v. Delgado, 232 Ariz.
182, ¶ 24 (App. 2013). Here, the harm inflicted by Kelly on L.Y. resulted in
both temporary and protracted injuries. Kelly’s sentences reflect those
separate harms and do not violate double jeopardy.

II. The expert testimony was properly admitted.

¶23 The trial court denied Kelly’s pretrial motion to preclude the
investigating officer from offering his expert opinion on the cause of the
collision and Kelly’s speed. On appeal, Kelly reasserts his claim that the
officer’s opinion did not satisfy the requirements of Arizona Rule of
Evidence (“Rule”) 702 or A.R.S. § 12-2203 because it was not “based on
sufficient facts or data” and “reliable principles and methods” and because
the officer did not “reliably appl[y] the principles and methods to the facts
of the case.” Ariz. R. Evid. 702(b)–(d); A.R.S. § 12-2203(A)(3)–(5). We review
the trial court’s decision to admit expert testimony for an abuse of
discretion. Bliss v. Treece, 134 Ariz. 516, 518 (1983). Though the trial court
correctly determined that Kelly’s motion was untimely, this Court
addresses the merits.

¶24 A party seeking to offer expert testimony “must prove, by a
preponderance of the evidence, that the testimony is both relevant and
reliable.” State ex rel. Montgomery v. Miller, 234 Ariz. 289, 298, ¶ 19 (App.
2014). The trial court acts as a “gatekeeper” to such testimony by “mak[ing]
a preliminary assessment as to whether the proposed expert testimony is
relevant and reliable.” Id. The court’s role is not intended to “supplant or
replace the adversary system.” Id. at ¶ 20. “Rather, ‘[c]ross-examination,
presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but
admissible evidence.’” State v. Bernstein, 237 Ariz. 226, 229, ¶ 11 (2015)
(quoting 2012 comment to Rule 702). Rule 702’s “overall purpose . . . is
simply to ensure that a factfinder is presented with reliable and relevant
evidence, not flawless evidence.” Id. at ¶ 14 (citation and internal quotation
marks omitted).

¶25 The officer who investigated the collision testified at a pretrial
evidentiary hearing about his analysis and conclusions. The officer had
spent most of his 23 years on the force handling traffic-related issues, and
he was trained in accident investigation and reconstruction, as well as how
to estimate speed. The officer had participated in “thousands” of traffic
investigations, “[a]t least 100” of which were collisions of similar
seriousness to the collision involving Kelly and L.Y. Only in fatal or

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Opinion of the Court

potentially fatal accidents did the officer take part in “full accident
reconstructions”—which entailed taking detailed measurements and
inputting them into a mapping program. For nonfatal accidents, as in this
case, the officer would draw conclusions about speed and causation by
considering factors including vehicle damage, distances, debris, and tire
marks.

¶26 Turning to his investigation of the collision here, the officer
testified at the hearing that Kelly rear-ended L.Y. while driving 80 miles per
hour. His conclusion was based on his training and experience, after
determining the point of impact and considering the distance the vehicles
traveled, the damage incurred by each vehicle, and L.Y.’s statement that she
had slowed down to 45 miles per hour not long before she was hit. The
officer offered similar testimony at trial, although he provided greater
detail on how the specific evidence at the collision scene, combined with his
training and experience, led to his conclusions. The officer acknowledged
at trial that his determination of Kelly’s speed was an “estimate” or “rough
determination” and that Kelly could have hit L.Y.’s vehicle “a couple inches
off” of center.

¶27 Kelly has shown no abuse of discretion in the admission of
the officer’s testimony. The record supports a finding that the officer’s
opinion was based on “sufficient facts or data.” Ariz. R. Evid. 702(b); A.R.S.
§ 12-2203(A)(3); see also Miller, 234 Ariz. at 298, ¶ 22 (“The assessment of the
sufficiency of the facts and data is a quantitative, not qualitative analysis.”).

¶28 Nor does Kelly show that the officer used unreliable methods
to reach his conclusions. See Ariz. R. Evid. 702(c)-(d); A.R.S. § 12-2203(A)(4)-
(5). The trial court’s evaluation of reliability is intended to be “flexible,”
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999), and the court has
“considerable leeway,” based on the “particular facts and circumstances of
the particular case,” to assess reliability, id. at 152, 158.3 In doing so, the
court need not consider any specific factor or set of factors. See id. at 141–42;
Miller, 234 Ariz. at 299, ¶¶ 24–25; see also A.R.S. § 12-2203(B) (enumerating
factors to be considered “if applicable”).

¶29 The basis of the officer’s opinion here “was neither rocket
science nor complex statistical modeling.” United States v. Lopez-Martinez,
543 F.3d 509, 515 (9th Cir. 2008). Given the facts of the case, the officer’s

3 “Because Rule 702 mirrors its federal counterpart, we may look to
the federal rule and its interpretation for guidance.” Bernstein, 237 Ariz. at
228, ¶ 9.

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“explanation of his methods and experience was sufficient for the trial
judge to be confident” in the reliability of his opinion. Id.; see also Roundy v.
Stewart, 140 Ariz. 201, 205 (App. 1984) (holding that expert testimony on
how an accident occurred was supported by a sufficient foundation when
it was based on witness statements, the condition of the roadway, and
physical evidence). The record also supports a finding that the officer
“reliably applied” the methods he described to the facts of the case. Ariz. R.
Evid. 702(d). The officer explained in detail how he came to his conclusions,
and he addressed “alternative explanations.” Miller, 234 Ariz. at 299, ¶ 27.

¶30 Ultimately, any flaws in the officer’s opinion went to issues of
weight and credibility for the jury to assess, not admissibility. See Bernstein,
237 Ariz. at 230, ¶18 (holding that whether errors “render evidence
unreliable” is a question for a jury to “assess the weight and credibility of
the evidence”); cf. id. at 229–30, ¶¶ 15, 18 (observing that errors in applying
a generally reliable method do not require excluding expert testimony
unless the errors “are so serious as to render the results themselves
unreliable” and recommending that the trial court err on the side of
admission “[i]n close cases”). Kelly had the opportunity to highlight such
deficiencies through cross-examination and defense expert testimony. The
court did not err by admitting the expert’s testimony.

CONCLUSION

¶31 For these reasons, Kelly’s convictions and sentences are
affirmed.

AMY M. WOOD • Clerk of the Court
FILED: TM

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