State of Arizona v. Mark Noriki Kasic

FILED BY CLERK
IN THE COURT OF APPEALS
STATE OF ARIZONA OCT 27 2011
DIVISION TWO COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA, )
) 2 CA-CR 2010-0197
Appellee, ) DEPARTMENT B
)
v. ) OPINION
)
MARK NORIKI KASIC, )
)
Appellant. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20084770

Honorable Clark W. Munger, Judge

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS

Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani and Alan L. Amann Tucson
Attorneys for Appellee

John William Lovell Tucson
Attorney for Appellant

V Á S Q U E Z, Presiding Judge.
¶1 Mark Kasic, Jr. was convicted after a jury trial of thirty-two felonies arising

from six arsons and one attempted arson committed over a one-year period beginning

when he was seventeen years of age. Because a number of the offenses were committed

when Kasic was a juvenile, he contends his combination of concurrent and consecutive

prison sentences totaling 139.75 years violates the Eighth Amendment‟s prohibition

against cruel and unusual punishment under Graham v. Florida, ___ U.S. ___, 130 S. Ct.

2011 (2010).1 He also challenges two of his arson convictions, arguing there was

insufficient evidence to support them. We conclude Kasic‟s sentences do not violate the

Eighth Amendment, but modify his convictions for arson of property and remand for

resentencing on those counts.

Factual Background and Procedural History

¶2 Between August 2007 and August 2008, Kasic committed a series of arsons

on the east side of Tucson. Most of the fires involved occupied residences, but two

involved palm trees. All of the house fires were set in the same manner. Kasic would

enter a carport or storage shed between midnight and daybreak, gather flammable

materials, and set them on fire, often using an accelerant such as gasoline. Kasic set all

of the house fires while the victims were inside asleep. The following is a brief

description of each of the offenses.

¶3 Around 4:30 a.m. on August 29, 2007, A.F. was awakened by “crackling

and popping sounds” and saw a “bright yellow light” coming through a window of the

1
Of the 139.75 consecutive years, 80.5 were for arsons Kasic committed as a
juvenile.
2
house she shared with her brother, J.O., on East Julia. Kasic had doused lighter fluid on

boxes in the carport and set them on fire. Although A.F. and J.O. escaped unharmed,

“almost everything [was] destroyed.” Only the adobe walls and concrete flooring were

salvageable; the rest of the home had to be demolished. The victims‟ two cars also were

destroyed by the fire.

¶4 That same night, Kasic entered the carport of a residence owned by C.D. on

East Beverly and set fire to some boxes. C.D.‟s neighbor, who saw the fire as he was

getting ready for work around 4:30 a.m., extinguished the fire before it spread.

¶5 Kasic set a third fire that night at a home on Shiloh where he entered the

carport and set fire to some dressers. The home was occupied by J.B., his girlfriend,

D.B., and their children, including a newborn baby. By the time the fire department

arrived, J.B. had extinguished the fire but sustained severe burns to his upper body in the

process. Two vehicles also were destroyed in the fire.

¶6 Shortly after 1:30 a.m. on August 31, 2007, P.K. awoke when he smelled

smoke in his home on East Green Acres. Upon investigating, he discovered a fire in the

carport. Kasic had set fire to the interior passenger compartment of a vehicle sitting in

the carport, and the fire spread to the house, including the laundry room, kitchen, and

back patio. P.K. and his wife, L.K., narrowly escaped the fire, “stumbl[ing] over each

other several times” because the house was dark with smoke. In addition to extensive

damage to the home and the loss of two vehicles, the fire destroyed boxes of items L.K.

had inherited from her mother, pictures of L.K.‟s deceased twin brother, and many other

items the couple deemed irreplaceable.

3
¶7 On the morning of January 25, 2008, P.T. noticed that materials from her

recycle bin and boxes that were in her carport had been set on fire. During her testimony

at trial, P.T. also recalled that one July,2 a large palm tree across the street from her home

on East Old Spanish Trail also had been set on fire.

¶8 On March 29, 2008, Kasic set fire to some empty cardboard boxes on

shelves in the carport at a residence on East 5th Street, where M.K. lived with her

husband and her two stepsons, ages twelve and thirteen. M.K. discovered the fire

sometime between 2:00 and 3:00 a.m. when she heard a noise in her carport and then

heard her smoke detector go off. The fire caused extensive damage to the home, the

storage area, and the victims‟ personal property.

¶9 At around 2:00 a.m. on August 16, 2008, ten-year-old M.H. woke to the

smell of smoke at her home on East Stefan. When she saw fire through her window,

M.H. woke her two brothers and father, and they all fled the house into the street. The

fire caused extensive damage to an outside storage area, a vehicle, a Quonset hut, and a

workshop area where the fire likely originated.

¶10 The last arson occurred on August 17, 2008. At around 4:00 a.m., S.W.

woke her father, C.W., because a neighbor had thrown a rock at her bedroom window.

The home was on fire. As they were fleeing from the home moments later, the “whole

ceiling in the living room area started collapsing from the fire,” and the entire house was

engulfed in flames. C.W. required treatment for smoke inhalation, and S.W. was taken to

2
There was inconsistent testimony regarding exactly when this fire occurred.
However, Kasic does not challenge the sufficiency of the evidence on account of this
apparent discrepancy, and it does not affect our analysis.
4
the hospital by ambulance because of second-degree burns to her feet. Kasic had started

this fire in the carport area.

¶11 Kasic, who turned eighteen on December 10, 2007, was a juvenile when he

committed four of the arsons. On December 15, 2008, he was charged as an adult in a

forty-count indictment with seven counts of arson of an occupied structure; one count of

attempted arson of an occupied structure; two counts of aggravated assault; seventeen

counts of endangerment; eight counts of criminal damage causing damage of $10,000 or

more; one count of criminal damage causing damage between $200 and $2,500; and two

counts of arson of property having a value of more than $100.3 The arson of property

counts were for fires Kasic had set to two palm trees on two separate occasions.

¶12 Thirty-eight counts ultimately were submitted to the jury, which reached

unanimous verdicts on all but five counts.4 The jury found Kasic guilty of six counts of

arson of an occupied structure, fifteen counts of endangerment, one count of attempted

arson of an occupied structure, and one count of aggravated assault and found each of

these offenses to be of a dangerous nature. The jury also found Kasic guilty of seven

counts of criminal damage and two counts of arson of property with a value of $100 or

more. He was acquitted of one count of criminal damage. The trial court sentenced him

3
Kasic also was charged with one count of manufacturing, possessing,
transporting, selling, or transferring a prohibited weapon; however, this count and a
second count of attempted arson were dismissed voluntarily by the state.
4
As to these five counts, the jury was unable to reach a verdict and the trial court
declared a mistrial.

5
to a combination of enhanced concurrent and consecutive prison terms totaling 139.75

years. This appeal followed.

The Eighth Amendment and Graham v. Florida

¶13 The Eighth Amendment to the United States Constitution prohibits the

imposition of “cruel and unusual punishments.” U.S. Const. amend. VIII.5 The

prohibition includes not only punishment that historically has been considered barbaric,

but also sentences that are grossly disproportionate to the crime committed. Solem v.

Helm, 463 U.S. 277, 288 (1983). Thus, “[t]he concept of proportionality is central to the

Eighth Amendment. Embodied in the Constitution‟s ban on cruel and unusual

punishments is the „precept of justice that punishment for crime should be graduated and

proportioned to [the] offense.‟” Graham, ___ U.S. at ___, 130 S. Ct. at 2021, quoting

Weems v. United States, 217 U.S. 349, 367 (1910) (alteration in Graham).

¶14 Relying on Graham, Kasic contends his sentences constitute cruel and

unusual punishment and are therefore unconstitutional under the Eighth Amendment. He

maintains “Graham represents a significant shift in the Supreme Court jurisprudence

because it focuses on juveniles‟ unique amenability to rehabilitation rather than on the

nature of the punishment as a reason to categorically bar life sentences for youth

convicted of non-homicide crimes.”

5
Article II, § 15 of the Arizona Constitution is identical, and our supreme court has
declined to interpret Arizona‟s prohibition against cruel and unusual punishment to
provide protection greater than does the Eighth Amendment. See State v. Davis, 206
Ariz. 377, ¶ 12, 79 P.3d 64, 67-68 (2003).
6
¶15 Because Kasic did not raise this argument in the trial court, we review only

for fundamental error. State v. Joyner, 215 Ariz. 134, ¶ 5, 158 P.3d 263, 266 (App.

2007). “To prevail under this standard of review, a defendant must establish both that

fundamental error exists and that the error in his case caused him prejudice.” State v.

Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). “We will not disturb a

sentence that is within the statutory range absent an abuse of the trial court‟s discretion.”

Joyner, 215 Ariz. 134, ¶ 5, 158 P.3d at 266. But the imposition of an illegal sentence

constitutes fundamental error. See State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369

(App. 2002). Moreover, we review constitutional issues de novo. State v. Dann, 220

Ariz. 351, ¶ 27, 207 P.3d 604, 613 (2009).

¶16 In Graham, the Court noted that its prior cases addressing the

proportionality of sentences fall within two general classifications. ___ U.S. at ___, 130

S. Ct. at 2021. The first involves challenges to the length of term-of-years sentences and

considers all of the circumstances in a particular case. Id. The second addresses the

proportionality standard by imposing categorical restrictions on the death penalty either

because the death penalty is disproportionate given the nature of the offense or the

characteristics of the offender. Id.; see also Roper v. Simmons, 543 U.S. 551 (2005)

(categorically excluding defendants under eighteen years of age from death penalty);

Atkins v. Virginia, 536 U.S. 304 (2002) (applying categorical exclusion to mentally

impaired); Enmund v. Florida, 458 U.S. 782 (1982) (prohibiting capital punishment for

nonhomicide offenses).

7
¶17 For the first time in Graham, the Court addressed the issue of

proportionality in the context of a categorical challenge to a term-of-years sentence in a

nonhomicide case. ___ U.S. at ___, 130 S. Ct. at 2022. There, sixteen-year-old Terrance

Graham was convicted pursuant to a plea agreement of armed burglary and another

offense. Graham, ___ U.S. at ___, 130 S. Ct. at 2018. Under the agreement, the trial

court sentenced him to probation and withheld adjudication of guilt. Id. When Graham

subsequently violated the terms of his probation by committing additional crimes, the

court adjudicated him guilty of the earlier charges, revoked his probation, and sentenced

him to life in prison without the possibility for release for the armed burglary conviction.

Graham, ___ U.S. at ___, 130 S. Ct. at 2019-20. Under Florida law, Graham was eligible

to receive a minimum sentence of five years, and the state had recommended a thirty-year

prison term for the armed burglary conviction. Id.

¶18 In deciding to apply the categorical approach to Graham‟s sentence, the

Court noted that the case “implicate[d] a particular type of sentence as it applies to an

entire class of offenders who have committed a range of crimes.” Graham, ___ U.S. at

___, 130 S. Ct. at 2022-23. The Court recognized that life without parole is “„the second

most severe penalty permitted by law,‟” id., quoting Harmelin v. Michigan, 501 U.S. 957,

1001 (1991) (Kennedy, J., concurring), and it concluded that such sentences are

disproportionately harsher for juveniles than for adults. Graham, ___ U.S. at ___, 130 S.

Ct. at 2028. It reasoned that “a juvenile offender will on average serve more years and a

greater percentage of his life in prison than an adult offender. Id. A sixteen-year-old and

8
a seventy-five-year-old each sentenced to life without parole receive the same

punishment in name only.” Id.

¶19 The Court further stated that juveniles are “less deserving of the most

severe punishments” because, compared to adults, they exhibit a “lack of maturity and an

underdeveloped sense of responsibility.” Id. at 2026-28. And given their lack of

maturity and diminished culpability, states must give juvenile offenders an opportunity to

“obtain release based on demonstrated maturity and rehabilitation.” Id. at 2030. The

Court thus held the Eighth Amendment categorically prohibits imposing a life-without-

parole sentence on a juvenile offender for a nonhomicide offense. Id.

¶20 Kasic argues the “reasons underlying the Court‟s decision in Graham are

applicable to juveniles, such as [him], serving a term-of-years sentence exceeding the

juvenile‟s life expectancy.” We disagree. The Court made clear that “[t]he instant case

concerns only those juvenile offenders sentenced to life without parole solely for a

nonhomicide offense.” Graham, ___ U.S. at ___, 130 S. Ct. at 2023.

This clear line is necessary to prevent the possibility that life
without parole sentences will be imposed on juvenile
nonhomicide offenders who are not sufficiently culpable to
merit that punishment. Because “[t]he age of 18 is the point
where society draws the line for many purposes between
childhood and adulthood,” those who were below that age
when the offense was committed may not be sentenced to life
without parole for a nonhomicide crime.

Id. at 2030, quoting Roper, 543 U.S. at 574. And the Court emphasized “that while the

Eighth Amendment forbids a State from imposing a life without parole sentence on a

juvenile nonhomicide offender, it does not require the State to release that offender

9
during his natural life.” Graham, ___ U.S. at ___, 130 S. Ct. at 2030. We conclude

Graham does not categorically bar the sentences imposed in this case, and we decline to

extend its reasoning in the manner Kasic urges.

¶21 Although we acknowledge juveniles generally are less culpable than their

adult counterparts, Roper, 543 U.S. at 569, we also conclude Kasic‟s sentences are not

“constitutionally excessive” after considering all of the circumstances of his case.

Graham, 130 S. Ct. at 2021.

¶22 In determining whether Kasic‟s sentence is grossly disproportionate, we

begin by comparing the gravity of the offenses and the severity of the combined sentence.

Harmelin, 501 U.S. at 1005. Only if this threshold comparison leads to an inference of

gross disproportionality do we then compare Kasic‟s sentence with the sentences

received by others in this state and with the sentences imposed for the same crimes in

other states. Id. If the intra- and inter-jurisdictional comparative analysis “validate[s] an

initial judgment that [the] sentence is grossly disproportionate,” the sentence is cruel and

unusual. Id.

¶23 Here, unlike Graham, who was sentenced to life without parole for one

felony conviction, Kasic was convicted of thirty-two felonies involving multiple victims

and the jury determined the majority of the offenses were of a dangerous nature.

Moreover, the longest prison term Kasic received for any single count was 15.75 years,

and he does not argue on appeal that his individual sentences, viewed separately,

constitute cruel and unusual punishment.

10
¶24 As a general rule, we do not consider the imposition of consecutive

sentences in the proportionality inquiry, State v. Berger, 212 Ariz. 473, ¶ 27, 134 P.3d

378, 383 (2006), and Kasic has not convinced us that departure from the general rule

would be appropriate in this case. “A defendant has no constitutional right to concurrent

sentences for . . . separate crimes involving separate acts.” State v. Jonas, 164 Ariz. 242,

249, 792 P.2d 705, 712 (1990). The proper analysis “focuses on the sentence imposed

for each specific crime, not the cumulative sentence.” United States v. Aiello, 864 F.2d

257, 265 (2d Cir. 1988). “[I]f a sentence for a particular offense is not disproportionately

long, it does not become so merely because it is consecutive to another sentence for a

separate offense or because the consecutive sentences are lengthy in aggregate.” Berger,

212 Ariz. 473, ¶ 28, 134 P.3d at 384. “This proposition holds true even if a defendant

faces a total sentence exceeding a normal life expectancy as a result of consecutive

sentences.” Id.

¶25 In particular, the crime of arson of an occupied structure undeniably is a

very serious offense. See State v. Davis, 206 Ariz. 377, ¶ 40, 79 P.3d 64, 73 (2003). And

after considering aggravating and mitigating circumstances, including that Kasic was a

juvenile when he committed four of the arsons, for the second and subsequent arson

counts the trial court imposed no greater than the “statutorily mandated minimum

sentence for each of [Kasic‟s] separate, serious offenses.” Berger, 212 Ariz. 473, ¶ 33,

11
134 P.3d at 385; see also A.R.S. § 13-702.02.6 Moreover, the sentences are “amply

supported,” Berger, 212 Ariz. 473, ¶ 36, 134 P.3d at 385, by evidence establishing that

Kasic intentionally set fire to numerous homes late at night or during the early morning

hours while the residents were inside sleeping. Two of the arsons caused serious physical

injury and all of the arsons, combined, resulted in hundreds of thousands of dollars in

property damage. Moreover, Kasic‟s numerous felony convictions do not arise from an

isolated occurrence but were carried out over a one-year period.

¶26 We agree with the state that although Florida‟s penological goals were not

sufficient to justify the life-without-parole sentence imposed in Graham, different

considerations apply to consecutive term-of-years sentences based on multiple counts and

multiple victims. We conclude that Kasic‟s sentences, viewed individually and in the

aggregate, further Arizona‟s “penological goals and thus reflect[] „a rational legislative

judgment, entitled to deference.‟” Berger, 212 Ariz. 473, ¶ 17, 134 P.3d at 382, quoting

Ewing v. California, 538 U.S. 11, 30 (2003).

¶27 And because our “threshold comparison of the crime[s] committed and the

sentence[s] imposed [has not led] us to an inference of gross disproportionality,” there is

no need to conduct a comparative analysis of Kasic‟s sentences with others in Arizona or

across the nation. Harmelin, 501 U.S. at 1005. For these reasons, we hold that the

Eighth Amendment does not prohibit Kasic‟s sentences for the crimes he committed as a

6
Although the trial court referred to § 13-702(B)(2) in the sentencing minute entry
as to counts two, three, and four, it is apparent the court meant to refer to § 13-702.02,
which was in effect at the time Kasic committed his offenses.
12
juvenile. For the same reasons, we necessarily reject his second argument, which asks us

to extend Graham even further and apply it to crimes he committed as an adult.

Convictions for Arson of Property

¶28 Kasic next contends the state failed to prove all of the elements of arson of

property in counts thirty-seven and thirty-eight. Specifically, Kasic argues the state

presented insufficient evidence that the palm trees in question were “property” as defined

in A.R.S. § 13-1701(3), and even if they were property, the state presented insufficient

evidence that each tree had a value of $100 or more, an element necessary for a class five

felony classification. He acknowledges he did not make these arguments in the trial

court. We therefore review only for fundamental, prejudicial error. Henderson, 210

Ariz. 561, ¶ 19, 115 P.3d at 607.

¶29 A conviction must be supported by substantial evidence of guilt. State v.

Bearup, 221 Ariz. 163, ¶ 16, 211 P.3d 684, 688 (2009). “Substantial evidence is proof

that „reasonable persons could accept as adequate . . . to support a conclusion of

defendant‟s guilt beyond a reasonable doubt.‟” Id., quoting State v. Jones, 125 Ariz. 417,

419, 610 P.2d 51, 53 (1980) (alteration in Jones). In determining whether substantial

evidence exists, we view the facts in the light most favorable to sustaining the jury

verdicts and resolve all reasonable inferences against Kasic. State v. McKenna, 222 Ariz.

396, ¶ 5, 214 P.3d 1037, 1040 (App. 2009). Evidence sufficient to support a conviction

can be direct or circumstantial. State v. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d 873, 875

(App. 2005). And we will reverse a conviction “only if „there is a complete absence of

probative facts to support [the jury‟s] conclusion.‟” State v. Carlisle, 198 Ariz. 203, ¶ 11,

13
8 P.3d 391, 394 (App. 2000), quoting State v. Mauro, 159 Ariz. 186, 206, 766 P.2d 59, 79

(1988).

¶30 A person commits arson of property by knowingly and unlawfully

damaging property by knowingly causing a fire. A.R.S. § 13-1703(A). “Property” is

defined as “anything other than a structure which has value, tangible or intangible, public

or private, real or personal . . . .” § 13-1701(3). And the classification of the offense

depends on the value of the property. “Arson of property is a class 5 felony if the

property had a value of more than one hundred dollars but not more than one thousand

dollars. Arson of property is a class 1 misdemeanor if the property had a value of one

hundred dollars or less.” § 13-1703(B).

¶31 Here, although the state elicited testimony that the palm trees were “very

large” and “very old,” the state presented no evidence about their value. We agree with

the state that the jury reasonably could infer the palm trees had some inherent value and

therefore were property for purposes of the statute. We cannot agree however that “[t]he

jurors were . . . entitled to determine, as a matter of common sense, that the palm trees

were worth $100 or more.” See State v. Rushing, 156 Ariz. 1, 4-5, 749 P.2d 910, 913-14

(1988) (modifying theft conviction because insufficient evidence of value). Absent any

evidence regarding the value of the trees, we conclude there was insufficient evidence to

support Kasic‟s convictions for arson of property as charged in counts thirty-seven and

thirty-eight, and vacate those convictions and the accompanying sentences. See State v.

Fimbres, 222 Ariz. 293, ¶ 23, 213 P.3d 1020, 1027 (App. 2009) (fundamental error if

theft classification not supported by substantial evidence of property value).

14
 Disposition

¶32 For the reasons set forth above, we affirm Kasic‟s convictions and

sentences with the exception of counts thirty-seven and thirty-eight, which we modify to

reflect that they are for arson of property having a value less than $100, class one

misdemeanors pursuant to A.R.S. § 13-1703(B), and remand this case for resentencing on

those counts.

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge

CONCURRING:

/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge

/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge

15