State of Arizona v. Dominick Cooke

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

DOMINICK COOKE,
Appellant.

No. 2 CA-CR 2024-0002
Filed December 24, 2024

Appeal from the Superior Court in Pima County
No. CR20213335001
The Honorable Brenden J. Griffin, Judge

AFFIRMED IN PART; REVERSED IN PART;
VACATED IN PART AND REMANDED

COUNSEL

Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Joshua C. Smith, Assistant Attorney General, Phoenix
Counsel for Appellee

Law Office of Hernandez & Hamilton PC, Tucson
By Carol Lamoureux and Joshua F. Hamilton
Counsel for Appellant
 STATE v. COOKE
Opinion of the Court

OPINION

Presiding Judge Sklar authored the opinion of the Court, in which Vice
Chief Judge Eppich and Judge Brearcliffe concurred.

S K L A R, Presiding Judge:

¶1 Dominick Cooke fired a single gunshot into a car with four
passengers. As a result, he was convicted of four counts of aggravated
assault with a deadly weapon—one per passenger—as well as five counts
of other crimes. He argues, though, that because he fired only a single shot,
he could properly be convicted of only a single count of aggravated assault
with a deadly weapon.

¶2 To accept this argument, we would have to agree with Cooke
that the unit of prosecution for aggravated assault with a deadly weapon is
conduct-driven only. We do not. As we explain below, the crime is
premised on the commission of an assault, which is at least partially a
victim-driven offense. Thus, a single action that harms multiple victims can
result in multiple convictions for aggravated assault with a deadly weapon.
It follows that Cooke was properly convicted of these four counts. His
single gunshot had four victims—two children who were struck and two
parents who were placed in reasonable apprehension of imminent physical
injury.

¶3 However, we also conclude that the trial court fundamentally
erred in instructing the jury on three of the nine counts for which Cooke
was convicted, including two of the deadly-weapon counts. Both the
instructions and verdict forms referenced the wrong crimes. For one
count—aggravated assault causing serious physical injury to one of the
children—the error was sufficiently prejudicial to require reversal. We also
conclude that the court should have granted Cooke’s motion for judgment
of acquittal on a count of aggravated assault causing temporary but
substantial disfigurement to the other child. Finally, we conclude that the
court erred in sentencing Cooke to day-for-day sentences for two
convictions, as he is entitled to earned-release credits. We therefore affirm
Cooke’s convictions and sentences in part, reverse them in part, vacate
them in part, and remand for further proceedings.

2
 STATE v. COOKE
Opinion of the Court

BACKGROUND

¶4 We view the facts “in the light most favorable to sustaining
the jury’s verdict” and construe all reasonable inferences against the
defendant. State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). While driving, Cooke got
into an altercation with another driver, H.A. H.A. was driving his truck
with his wife, S.L., in the passenger seat and his twin five-year-old
daughters—A.A. and M.A.—in the back seat.

¶5 Cooke displayed a firearm and fired one round into H.A.’s
truck as he drove away. The bullet pierced the truck’s door, shattered
A.A.’s right shinbone, ricocheted, and grazed M.A.’s arm.

¶6 The grand jury indicted Cooke on four counts of aggravated
assault with a deadly weapon as well as single counts of: (1) possession of
a weapon by a prohibited possessor, (2) unlawful discharge of a firearm in
city limits, (3) drive by shooting, (4) aggravated assault resulting in
temporary but substantial disfigurement to M.A., and (5) aggravated
assault causing serious physical injury to A.A. The jury found him guilty
on all nine counts.

¶7 The trial court sentenced Cooke to consecutive and
concurrent prison terms, resulting in cumulative terms totaling forty-eight
years. The court ordered that the deadly-weapon sentences relating to the
children were to be served “day-for-day,” as was the sentence for
aggravated assault causing serious physical injury to A.A.

MULTIPLICITY OF CONVICTIONS

¶8 Cooke first argues that because all four counts of aggravated
assault with a deadly weapon arose from a single gunshot, the convictions
are multiplicitous and therefore violate the Double Jeopardy Clauses of the
United States and Arizona Constitutions. U.S. Const. amend. V; Ariz.
Const. art. II, § 10. Multiplicity occurs when a defendant is punished
multiple times for the same act. See Romero-Millan v. Barr, 253 Ariz. 24, ¶ 20
(2022). Cooke did not object at trial, so we review for fundamental and
prejudicial error. State v. Escalante, 245 Ariz. 135, ¶ 12 (2018). However,
fundamental error occurs when a defendant is convicted or sentenced in
violation of the Double Jeopardy Clause. State v. Jurden, 239 Ariz. 526, ¶ 7
(2016). We review de novo whether convictions or sentences are
multiplicitous under their respective statutes. See id.

3
 STATE v. COOKE
Opinion of the Court

I. Background on multiplicity and assault offenses

¶9 As our supreme court recently explained in State v. Moninger,
determining whether charges are multiplicitous requires us to identify the
offense’s “allowable unit of prosecution.” ___ Ariz. ___, ¶ 13, 552 P.3d 519,
523 (2024). The “unit of prosecution” is the “scope of conduct for which a
discrete charge can be brought.” Romero-Millan, 253 Ariz. 24, ¶ 20.
Generally, determining a unit of prosecution requires us to look to the
statute’s “syntax and grammar” and read the statute “in context . . . .”
Moninger, ___ Ariz. ___, ¶ 13, 552 P.3d at 523.

¶10 The crime at issue here—aggravated assault with a deadly
weapon—is one of eleven forms of aggravated assault defined by A.R.S.
§ 13-1204(A). But the definition is not wholly contained in Section 13-1204.
Rather, that statute requires a defendant to “commit[] assault as prescribed
by § 13-1203.” That section, in turn, defines assault as taking any of three
forms: (1) “causing any physical injury to another person”; (2) “placing
another person in reasonable apprehension of imminent physical injury”;
or (3) “touching another person . . . to injure, insult or provoke such
person.” § 13-1203(A).

¶11 To those requirements, Section 13-1204(A)’s eleven
subsections each add a separate means by which an assault becomes
aggravated. See State v. Kelly, 257 Ariz. 101, ¶ 18 (App. 2024) (concluding
that each subsection creates separate offense). Relevant here is subsection
(A)(2), which applies “[i]f the person uses a deadly weapon or dangerous
instrument.”

II. Unit of prosecution for aggravated assault with deadly weapon

¶12 In Cooke’s view, subsection (A)(2) creates a “conduct-driven”
unit of prosecution. In other words, he argues that each “use” of a deadly
weapon is a separate crime. It follows, he argues, that because he fired only
one shot, he was eligible for only one conviction, regardless of how many
occupants were in the truck or how many victims the bullet struck.

¶13 But by focusing narrowly on the word “uses” in subsection
(A)(2), Cooke incorrectly applies the methodology for determining units of
prosecution. As Moninger teaches, we do not look at the verbs in isolation.
See ___ Ariz. ___, ¶ 20, 552 P.3d at 524. We also consider the “object(s) of
these verbs.” Id. We do so by “asking what, who, for what, to whom, or from
whom the proscribed action is concerned with or directed toward.” Id.
Where conduct can be directed at different objects, each object yields a

4
 STATE v. COOKE
Opinion of the Court

separate unit of prosecution. See id. ¶¶ 20-21, 26 (concluding that defendant
can commit multiple crimes of luring when “offers or solicitations are
directed at more than one victim”).

¶14 For assault, Section 13-1203(A) identifies the object as
“another person,” regardless of the form of assault committed. Because
aggravated assault with a deadly weapon is premised on the existence of
an assault, “another person” is also the object of aggravated assault with a
deadly weapon. §§ 13-1203(A); 13-1204. As this case illustrates, a single
“use” of a deadly weapon could “caus[e]” multiple “physical injur[ies]”
and “plac[e]” multiple people in “reasonable apprehension of imminent
physical injury . . . .” A.R.S. §§ 13-1204(A)(2), 13-1203(A)(1), (2). If it does
so, that “use” has multiple objects.

¶15 Thus, under these circumstances, firing a single shot
constitutes multiple aggravated assaults with a deadly weapon. See Jurden,
239 Ariz. 526, ¶¶ 1, 25 (stating, in case addressing resisting-arrest statute,
that Sections 13-1203 and 13-1204 “separately and properly criminalize
victim-directed offenses”). Put differently, a defendant commits a separate
aggravated assault with a deadly weapon on each victim. See also State v.
Henley, 141 Ariz. 465, 467 (1984) (stating, in case addressing consecutive
sentencing rather than units of prosecution, “When the act of firing one
bullet results in two persons being injured, the person firing the bullet is
responsible for two separate and distinct injuries and therefore has
committed two assaults.”), abrogated on other grounds by State v. Soliz, 223
Ariz. 116 (2009).

¶16 Section 13-1204’s structure provides an additional reason for
this interpretation. Only two of Section 13-1204(A)’s eleven subsections
employ the verb “uses.” A.R.S. § 13-1204(A)(2) (“[i]f the person uses a
deadly weapon or dangerous instrument”), (11) (“[i]f the person uses a
simulated deadly weapon”). Under Cooke’s analysis, those subsections
would require a different unit of prosecution than the remaining nine,
though all are premised on the same underlying offense—assault. Cooke
implicitly concedes this point, at least as to some subsections of Section
13-1204(A). Indeed, accepting Cooke’s interpretation would mean that a
defendant who fires a single gunshot could be convicted of only one count
of aggravated assault with a deadly weapon but multiple counts of simple
assault or other forms of aggravated assault. We will not indulge this
absurd result. See State v. Ariz. Bd. of Regents, 253 Ariz. 6, ¶ 28 (2022) (“In
considering two plausible interpretations of a statute, we will not credit one
that leads to absurd results.”).

5
 STATE v. COOKE
Opinion of the Court

¶17 In his reply brief, Cooke argues that other subsections of
Section 13-1204(A) suggest that aggravated assault with a deadly weapon
is conduct-driven. While he correctly notes that some of the subsections
contain different requirements or language, none of his arguments allow us
to ignore the victim-driven language of Section 13-1203. Nor does this case
require us to parse the extent to which the offense could also be understood
as conduct-driven, such as when a defendant uses a deadly weapon
multiple times against a single victim. See State v. Rios, 252 Ariz. 316, ¶ 24
(App. 2021) (noting state has discretion in bringing number of
independently-provable aggravated assault charges).

¶18 Finally, Cooke points to non-Arizona statutes that, in his
view, support his analysis. But our task is to interpret the statutes before
us. See Kotterman v. Killian, 193 Ariz. 273, ¶ 68 (1999) (noting Arizona courts
have discretion in accepting another jurisdiction’s interpretation of its
laws). The non-Arizona statutes are irrelevant. See Moninger, ___ Ariz. ___,
¶ 13, 552 P.3d at 523 (stating that we apply unambiguous Arizona statutes
“as written”).

¶19 Applying our unit-of-prosecution analysis here, because each
of the truck’s four passengers was a victim—or object—of Cooke’s conduct,
his four convictions for assault with a deadly weapon are not
multiplicitous. And because the statute is unambiguous, we need not
address Cooke’s arguments concerning legislative intent.

JURY INSTRUCTIONS AND VERDICT FORMS

¶20 Cooke also argues that the trial court fundamentally erred by
instructing the jury on uncharged offenses and failing to instruct it on
offenses that had been charged. We review de novo the jury instructions to
determine whether they correctly express the law. State v. Ewer, 254 Ariz.
326, ¶ 10 (2023). Cooke did not object at trial, so we will vacate only those
convictions for which he shows fundamental, prejudicial error. See
Escalante, 245 Ariz. 135, ¶¶ 12, 40, 42.

I. Background

¶21 At issue are the six counts related to aggravated assault. As
noted, these included one count of assault with a deadly weapon for each
of the four victims, one count of temporary but substantial disfigurement
for M.A.’s injury, and one count of serious physical injury for A.A.’s injury.

6
 STATE v. COOKE
Opinion of the Court

¶22 The jury instructions identified three forms of aggravated
assault. They did not, however, mirror the three crimes with which Cooke
was charged. The instructions read:

The crime of aggravated assault requires proof
of the following: One, the defendant committed
an assault; and two, the assault was aggravated
by at least one of the following factors: The
defendant used a deadly weapon; or the
defendant was 18 years of age or older and the
person assaulted was 15 years of age or under;
or the assault was committed by any means of
force that caused temporary but substantial
disfigurement, temporary but substantial loss
or impairment of any body organ or part, or a
fracture of any body part.

Cooke was not charged with the second type of aggravated assault
contained in the instructions—assault on a minor fifteen years of age or
under by a person at least eighteen years old. A.R.S. § 13-1204(A)(6). The
instructions also omitted one form of aggravated assault for which Cooke
had been charged—assault causing “serious physical injury” to A.A. A.R.S.
§ 13-1204(A)(1).

¶23 Some of the verdict forms also failed to match the charged
crimes. On counts three and four, the deadly-weapon charges involving
M.A. and A.A., the verdict forms did not reference the crime of aggravated
assault with a deadly weapon. Instead, they referenced “Aggravated
Assault of a Minor Under Fifteen,” the offense not alleged by the state. See
§ 13-1204(A)(6). The verdict form for count nine—aggravated assault
causing serious physical injury to A.A.—contained a similar error. Rather
than referencing the charged crime, the forms instead referenced
“Aggravated Assault of a Minor Under Fifteen” and “Physical Injury.”

II. Whether the trial court committed fundamental error

¶24 “Few constitutional principles are more firmly established
than a defendant’s right to be heard on the specific charges of which he is
accused.” Dunn v. United States, 442 U.S. 100, 106 (1979). Thus, it is
fundamental error to “relieve[] the State of its burden of proving an element
of the offense . . . .” State v. Dickinson, 233 Ariz. 527, ¶ 12 (App. 2013)
(quoting State v. Kemper, 229 Ariz. 105, ¶ 5 (App. 2011)). Such errors go to
the foundation of the case. Escalante, 245 Ariz. 135, ¶ 18.

7
 STATE v. COOKE
Opinion of the Court

¶25 We conclude that the trial court committed fundamental error
in connection with the instructions and verdict forms. Taken together, the
instructions directed the jury that it could convict Cooke on the three counts
at issue if it found any form of aggravated assault contained in the
instructions. This included the uncharged crime of assaulting a victim
fifteen years of age or under while being eighteen years of age or older.
Contrary to the state’s argument, the instructions did not benefit Cooke by
adding elements to the charged offenses. They instead substituted an
uncharged crime for the charged crime.

¶26 The verdict forms compounded the fundamental error. They
did not specify that the jury was required to conclude that counts three and
four involved the use of a deadly weapon. Nor did they require the jury to
conclude that count nine involved a serious physical injury. And while the
state argues that the jury could have consulted the indictment to properly
understand the instructions, the indictment contained a similar error. It did
reference the correct statutory subsections, but it titled counts three, four,
and nine as “aggravated assault of a minor under fifteen,” the uncharged
crime. We therefore reject the state’s argument. Rather, we presume—as
we routinely do—that the jury followed its instructions. State v. Newell, 212
Ariz. 389, ¶ 68 (2006). And because those instructions were incorrect, they
relieved the jury of its burden of finding an element of counts three, four,
and nine. Dickinson, 233 Ariz. 527, ¶ 12.

III. Whether the errors prejudiced Cooke

¶27 We must next determine whether the fundamental errors
prejudiced Cooke. Escalante, 245 Ariz. 135, ¶ 21. Doing so requires us to
determine whether a reasonable jury could have arrived at a different
verdict. Id. ¶ 29. This analysis is an objective “inquiry necessarily
exclud[ing] imaginative guesswork.” Id. ¶ 31.

¶28 For the deadly-weapon convictions for counts three and four,
we conclude that no prejudice occurred. As explained above, those counts
arose from the same conduct that resulted in the other two deadly-weapon
convictions, with H.A. and S.L. as the victims. Cooke correctly concedes
that for the charges involving H.A. and S.L., the jury was instructed that it
was required to find that he used a deadly weapon. The verdict forms
reflected this requirement. And the evidence demonstrates that all four
charges arose from the same conduct involving Cooke’s gun. Thus, any
reasonable jury would have concluded that Cooke had used a deadly
weapon against the other victims too.

8
 STATE v. COOKE
Opinion of the Court

¶29 At oral argument, Cooke pointed to a scenario that he believes
would have allowed a jury to find him guilty on the deadly-weapon counts
involving H.A. and S.L., but not on the counts involving A.A. and M.A. He
argues that the jury could have found that his girlfriend, who was in the car
with him, actually fired the shot. He further argues that such a finding
would not have undermined the guilty verdicts for the charges involving
H.A. and S.L. Those charges, which involved placing H.A. and S.L. in
reasonable apprehension of imminent physical injury, could have arisen
simply from Cooke brandishing the weapon before the shot was fired.

¶30 Cooke’s argument does not satisfy the demanding prejudice
standard applicable to fundamental-error review. See id. ¶ 31. H.A. and
S.L. both testified the weapon was fired mere seconds after Cooke
brandished the firearm, which suggests it did not change hands. The jury
also heard a recorded jail call from Cooke asking his girlfriend to confess to
the shooting. After that call, the girlfriend—who by then was Cooke’s
wife—testified that she picked up the weapon and accidentally “made the
gun go off.” This was even though she had previously told police that she
had not shot the gun. Although not dispositive for our analysis, the trial
court stated—in connection with a different issue and outside the jury’s
presence—that her conflicting statements were “not even plausible.”
Under the circumstances, no reasonable jury could have accepted Cooke’s
argument and concluded that his then-girlfriend fired the shot.

¶31 We reach a different conclusion concerning the
serious-physical-injury conviction in count nine. The applicable statute
defines “serious physical injury” as 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). The injury must exceed that
of a temporary but substantial impairment and the “usual temporary
impairment caused by the fracture of a body part.” State v. Mwandishi, 229
Ariz. 570, ¶ 8 (App. 2012) (quoting State v. George, 206 Ariz. 436, ¶ 9 (App.
2003)). While those injuries can still lead to aggravated-assault convictions,
they do so under subsections that carry less severe penalties. Id.; see also
A.R.S. § 13-1204(A)(3) (identifying injuries giving rise to aggravated
assault), (F) (imposing less severe penalties than for serious physical
injury).

¶32 Still, a fracture can constitute a serious physical injury. We
reached such a conclusion in Mwandishi, where the victim sustained a
fracture to her eye socket that required surgery and led to ongoing

9
 STATE v. COOKE
Opinion of the Court

complications. 229 Ariz. 570, ¶¶ 2-3, 10-12. Likewise, in State v. Peltz, 242
Ariz. 23, ¶¶ 5-6, 9-10 (App. 2017), we concluded—albeit in a different
posture than this case—that there was “substantial evidence” of a serious
physical injury where the victim had sustained a laceration to her spleen, a
spinal fracture, and an orbital fracture with bruising. However, the jury in
that case had found the defendant guilty of aggravated assault causing
temporary but substantial injury, a finding that was not challenged on
appeal. Id. ¶¶ 6, 9-11. Taken together, these cases establish that reasonable
juries have latitude in finding whether a fracture is a serious physical injury.

¶33 Here, the bullet shattered A.A.’s right shin bone. She went to
the hospital, underwent two surgeries on her leg, wore a cast for roughly
four or five months, and participated in physical therapy for a few more
months. This recovery was arguably slower and more difficult than a
typical recovery from a fracture. Consistent with Mwandishi and Peltz, a
reasonable jury could therefore have concluded that the injury involved a
“serious impairment of health” or “protracted impairment of the function”
of her leg. However, this was not the only plausible outcome. See
§ 13-105(39). Because A.A.’s impairment was temporary and caused by a
fracture, a reasonable jury could have concluded that her injury was not a
serious physical injury. We therefore conclude that the fundamental error
concerning count nine was prejudicial, and we vacate Cooke’s conviction
on that count.

MOTION FOR ACQUITTAL

¶34 Cooke next argues that the trial court improperly denied his
motion for acquittal on counts eight and nine. Count eight alleged
aggravated assault causing substantial and temporary disfigurement to
M.A. As noted, count nine alleged aggravated assault causing serious
physical injury to A.A. We review this issue de novo. State v. Andersen, 255
Ariz. 320, ¶ 7 (App. 2023).

I. Background

¶35 In reviewing the trial court’s denial of the acquittal motions,
we “determine whether ‘substantial evidence exists to support the jury
verdict,’ viewing the facts in the light most favorable to sustaining the
verdict.” State v. Payne, 233 Ariz. 484, ¶ 93 (2013) (quoting State v. Stroud, 209 Ariz. 410, ¶ 6 (2005)). Substantial evidence is greater than a “mere
scintilla” in that a reasonable person could find it sufficient to support a
guilty verdict beyond a reasonable doubt. State v. Hughes, 189 Ariz. 62, 73
(1997) (citations omitted).

10
 STATE v. COOKE
Opinion of the Court

¶36 We “do not reweigh the evidence to decide if [we] would
reach the same conclusions as the trier of fact.” State v. Dodd, 244 Ariz. 182,
¶ 8 (App. 2017) (quoting State v. Borquez, 232 Ariz. 484, ¶ 9 (App. 2013)).
Rather, we evaluate sufficiency of the evidence against the offense’s
statutorily-required elements. State v. Pena, 209 Ariz. 503, ¶ 8 (App. 2005).
We will not vacate a conviction unless (1) “there is a complete absence of
probative facts to support the verdict” and (2) “rational jurors could not
have found the defendant guilty beyond a reasonable doubt.” State v.
George, 206 Ariz. 436, ¶ 3 (App. 2003).

¶37 As we have explained, A.A.’s injuries occurred when the
bullet shattered her right shin bone. The bullet then exited her body and
scraped M.A.’s left arm, leaving a pea-sized wound. M.A.’s scrape was
superficial and treated on the scene with a bandage. It left a scar.

II. Whether sufficient evidence demonstrated a substantial but
temporary disfigurement to M.A.

¶38 We first address whether sufficient evidence demonstrated
that the injury to M.A., which was the subject of count eight, constituted the
substantial but temporary disfigurement required under A.R.S.
§ 13-1204(A)(3). The term “substantial but temporary disfigurement” is not
defined. See A.R.S. §§ 13-1204, 13-105. Rather, the jury must decide if the
disfigurement is substantial based on the facts of the case. Pena, 235 Ariz.
277, ¶ 11. It may consider factors such as the injury’s location, seriousness,
visibility to others, and duration. Id. We focus on the injury itself, not the
conduct giving rise to it. See State v. Gunter, 132 Ariz. 64, 69 (App. 1982).
For example, we have concluded in that “the mere fact that a victim has
been shot, without more, does not warrant” finding serious impairment.
George, 206 Ariz. 436, ¶ 14.

¶39 Temporary and substantial disfigurement need not rise to the
level of a fracture or amputation, but it “must reflect an injury
commensurate with the enhanced penalties for aggravated assault.” Id. For
comparison, a defendant who knowingly commits a simple assault is
subject only to a class one, two, or three misdemeanor with a maximum of
six months’ incarceration. A.R.S. §§ 13-707(A)(1), 13-1203(A), (B). Yet a
conviction of aggravated assault causing temporary but significant
disfigurement is a class four felony with a range of four to eight years in
prison. A.R.S. §§ 13-1204(A)(3), (F), 13-704(A).

¶40 Here, Cooke concedes M.A.’s visible scar is a disfigurement
but argues that no reasonable jury could find it substantial. We agree. The

11
 STATE v. COOKE
Opinion of the Court

photos admitted at trial show that M.A.’s injury was comparable to a small
bruise, as reinforced by the fact that the only treatment necessary was a
bandage. While the circumstances of the injury were terrible, the injury was
thankfully minor. We do not conclude that it was commensurate with the
enhanced penalties for aggravated assault. Pena, 235 Ariz. 277, ¶ 11. No
properly-instructed, reasonable jury could find Cooke guilty. George, 206
Ariz. 436, ¶ 3. We therefore reverse his aggravated assault conviction
arising from temporary but substantial disfigurement.

III. Whether sufficient evidence demonstrated a serious physical
injury to A.A.

¶41 We next address whether sufficient evidence demonstrated
that the injury to A.A., which was the subject of count nine, constituted a
serious physical injury as required by A.R.S. § 13-1204(A)(2). We address
this matter even though we have vacated the conviction in case the state
retries Cooke on count nine. See State v. Moody, 208 Ariz. 424, ¶ 26 (2004).
And as we have explained, substantial evidence would allow a
properly-instructed jury to find that A.A.’s injury was serious, especially
given her lengthy recovery. The court correctly denied Cooke’s motion for
judgment of acquittal on count nine.

DAY-FOR-DAY SENTENCING

¶42 Finally, Cooke argues the trial court committed fundamental
error when it ordered that he serve the sentences for aggravated assault
with a deadly weapon against the children and the serious physical injury
against A.A. day-for-day. We review de novo whether the trial court
properly sentenced a defendant. State v. Brock, 248 Ariz. 583, ¶ 27 (App.
2020). An illegal sentence constitutes fundamental error and warrants
resentencing. State v. Allen, 253 Ariz. 306, ¶ 220 (2022).

¶43 Cooke’s argument is premised on the fact that he was
convicted of dangerous offenses as defined by A.R.S. § 13-704. That statute
does not require day-for-day sentences—also known as “flat time”
sentences—because defendants are eligible for earned-release credits.
A.R.S. §§ 13-704(G), 41-1604.07. By contrast, A.R.S. § 13-705, which
concerns dangerous crimes against children, does require day-for-day
sentences in certain circumstances. § 13-705(K). The state alleged that
Cooke had committed DCAC offenses, but the jury was not instructed on
the DCAC statute and made no findings that it applied. Nevertheless, in its
briefing, the state argued that we should affirm the day-for-day sentences
and simply modify them to reflect DCAC convictions.

12
 STATE v. COOKE
Opinion of the Court

¶44 At oral argument, however, the state conceded error. It
acknowledged that under these facts, exposing Cooke to a DCAC sentence
would violate Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). That case
holds, “Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Indeed, a
DCAC conviction requires a finding not required for dangerous offenses,
namely, that the defendant “focused on, directed against, aimed at, or
target[ed] a victim under the age of fifteen.” See State v. Sepahi, 206 Ariz.
321, ¶ 19 (2003) (quoting State v. Williams, 175 Ariz. 98, 103 (1993)).

¶45 Because the jury was not asked to make such a finding, and
the evidence was at best conflicting, a reasonable jury could conclude that
Cooke’s conduct did not satisfy this requirement. Cooke satisfies the
prejudice requirement for fundamental error. See State v. Trujillo, 227 Ariz.
314, ¶ 21 (App. 2011) (finding prejudicial error when trial court had
considered improper reasons to impose harsher sentence). We therefore
conclude that the trial court’s apparent conflation of the dangerousness and
DCAC statutes resulted in an illegal sentence.

DISPOSITION

¶46 We affirm the four convictions and sentences for aggravated
assault with a deadly weapon. We vacate the conviction for aggravated
assault causing serious physical injury to A.A., and we remand for further
proceedings. We reverse the conviction for aggravated assault causing
temporary but substantial disfigurement to M.A. Finally, we remand for
the trial court to correct the sentences for the dangerous offenses of
aggravated assault with a deadly weapon. The court shall direct that Cooke
must serve those sentences in accordance with Section 41-1604.07, such that
he is entitled to earned release credits.

13