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Old Law/Pre-1993/Use or Threat of Violence

(F)(2) Finding Upheld

State v. Richmond (Richmond I), 114 Ariz. 186, 560 P.2d 41 (1976)
(F)(2) finding upheld. The Court upheld this finding based on the admission of copies of the defendant's photograph, fingerprint record and commitment order certified by the Arizona State Prison Records Officer, and the testimony and identification by the victim that this defendant had kidnapped him at knifepoint.

State v. Jordan (Jordan I), 114 Ariz. 452, 561 P.2d 1224 (1976)
(F)(2) finding upheld. The defendant had previously been convicted of robbery by assault and three separate aggravated robberies in Texas. The Court found that under Texas law the crime of robbery involves the use or threat of violence on another person. See Jordan II and Jordan III.

State v. Arnett (Arnett I), 119 Ariz. 38, 579 P.2d 542 (1978)
(F)(2) finding upheld. The defendant had previously been convicted in California of the crime of lewd and lascivious acts upon a child under fourteen. The facts of that previous case were that the defendant had inserted his finger into the vagina of a five-year-old girl, rupturing her hymen and causing bleeding. The Court employed general rules of statutory interpretation to determine that the defendant's prior conduct fit within the common and approved use of the term "violence." The Court defined violence as "exertion of any physical force so as to injure or abuse."

State v. Evans (Evans I), 120 Ariz. 158, 584 P.2d 1149 (1978)
(F)(2) finding upheld with little discussion. The defendant had previously convicted in California of attempted second degree robbery and conspiracy to incite to riot. The Court found that the attempted robbery clearly fit within the aggravating circumstances defined in (F)(2).

State v. Watson (Watson II), 120 Ariz. 441, 586 P.2d 1253 (1978)
(F)(2) finding upheld based on felony robbery conviction. Fear of force is an element of robbery and the conviction of robbery presumes such force was present.

State v. Arnett (Arnett II), 125 Ariz. 201, 608 P.2d 778 (1980)
(F)(2) upheld without discussion.

State v. Steelman (Steelman II), 126 Ariz. 19, 612 P.2d 475 (1980)
(F)(2) finding upheld. The defendant had previously been convicted of nine counts of first degree murder and five counts of first degree robbery in California. These convictions were the result of the defendant and the prosecutor agreeing to submit the case to the trial judge based on the grand jury transcripts. The defendant claimed in this appeal that those convictions were unconstitutionally obtained, however, the Court determined that there was no error in this procedure. The defendant also claimed that the prior convictions were untimely as support for the (F)(2) aggravating factor because those murders occurred after the murder in the case now on appeal in this court. The Court disagreed because A.R.S. §13-454(E)(1) and (E)(2) (now 751(F)(1) and (F)(2)) is not a recidivist statute which imposes additional punishment for crimes committed after a prior conviction. The purpose of this statute is to determine the character and propensities of this defendant and subsequent acts of violence are certainly relevant to that inquiry.

State v. Jordan (Jordan II), 126 Ariz. 283, 614 P.2d 825 (1980)
(F)(2) finding upheld. The defendant was previously convicted four times in Texas. The Court rejected the defendant's argument that since the Texas convictions were entered after the murder, those prior convictions should not count for the (F)(2) factor. The Court also found that a conviction occurs at the time judgment of conviction is entered, and that a conviction for another offense may be an aggravating circumstance even if both the offense and conviction occur after the murder which is being punished. State v. Steelman, 126 Ariz. 19, 612 P.2d 475 (1980). The Court also stated that a prior conviction may be used as an (F)(2) factor even though an appeal is pending for the prior conviction, because it remains in effect until set aside.

State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981)
(F)(2) finding upheld. The Court held that the photographs of the crime scene and testimony of law enforcement officials concerning the details of the prior crimes of violence (first degree murder, robbery) committed by the defendant were highly relevant to the determination of whether a crime of violence had occurred, and thus were properly received by the trial court.

State v. Superior Court (Gretzler II), 128 Ariz. 583, 627 P.2d 1081 (1981)
(F)(2) finding upheld. The Court held that the defendant's convictions in California of nine murders could be used as aggravating factors even though they were the result of a plea agreement premised in part on the California court's misunderstanding that those pleas would not affect any other charge in any other jurisdiction. The judgments were entered in good faith and that there was no indication that the defendant was purposely misled, or that he plead to crimes he did not commit.

State v. Watson (Watson III), 129 Ariz. 60, 628 P.2d 943 (1981)
(F)(2) finding upheld based on a robbery conviction.

State v. Vickers (Vickers I (Ponciano murder)), 129 Ariz. 506, 633 P.2d 315 (1981)
(F)(2) finding upheld. Prior conviction for assault with a deadly weapon under former A.R.S. § 13-249 was sufficient to establish the aggravating circumstance.

State v. Ricky Tison (Ricky Tison I), 129 Ariz. 526, 633 P.2d 335 (1981)
(F)(2) finding should have been made by the trial court. The defendant was convicted of seventeen counts of assault with a deadly weapon for the events that took place at the prison in Florence and at his capture in Pinal County. The trial court believed that these charges could have been brought in a single indictment or information along with the charges brought in this case. The Court found that this viewpoint unduly limits the statutory reach of the legislation. These were separate criminal offenses that took place at the prison and at the roadblock. These convictions would support both the (F)(1) and the (F)(2) aggravating factors. The felony convictions of assault necessarily involved the kind of violent behavior against which this aggravating circumstance is directed. Although some of these crimes occurred after the offenses now on review, they would still be sufficient to support an (F)(2) finding. The consideration of these convictions as aggravating circumstances serves the legitimate purpose of the statute to evaluate the character and propensities of the defendant.

State v. Raymond Tison (Raymond Tison I), 129 Ariz. 546, 633 P.2d 355 (1981)
See discussion in Ricky Tison I.

State v. Schad (Schad I), 129 Ariz. 557, 633 P.2d 366 (1981)
(F)(2) finding upheld. The prior conviction for second degree murder where the victim had been strangled was sufficient to uphold the factor.

State v. Britson, 130 Ariz. 380, 636 P.2d 628 (1981)
(F)(2) finding upheld. Prior out of state convictions for aggravated assault with a dangerous weapon, attempted murder, and aggravated battery sufficient to support trial court's finding of the factor.

State v. Joseph Smith (Joseph Smith II), 131 Ariz. 29, 638 P.2d 696 (1982)
(F)(2) finding upheld. Prior convictions for rape, rape in the first degree, and murder in the first degree, sufficient to support trial court's finding of the factor. The defendant was sentenced to death for the murder of two victims in this case. The finding of a prior conviction of murder was based, as to each victim, on the murder of the other victim.

State v. Blazak (Blazak II), 131 Ariz. 598, 643 P.2d 694 (1982)
(F)(2) finding based on robbery and assault with intent to commit murder convictions upheld without discussion.

State v. Valencia (Valencia III), 132 Ariz. 248, 645 P.2d 239 (1982)
(F)(2) finding upheld. Prior convictions in Arizona of rape, kidnapping, and robbery sufficient to support trial court's finding of the factor.

State v. Gretzler (Gretzler III), 135 Ariz. 42, 659 P.2d 1 (1983)
(F) (2) finding upheld. Nine prior convictions for first degree murder sufficient to support trial court's finding of the factor.

State v. Zaragoza, 135 Ariz. 63, 659 P.2d 22 (1983)
(F)(2) finding upheld. Prior convictions for assault with a deadly weapon and aggravated assault sufficient to support trial court's finding of the aggravator. Both offenses involved the actual use of violence on another person.

State v. Richmond (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)
(F)(2) finding upheld. Prior conviction for murder and kidnapping sufficient to support trial court's finding of the aggravator even though the prior conviction was obtained after the conviction in the instant case, but before resentencing.

State v. Harding (Wise, Concannon murders), 137 Ariz. 278, 670 P.2d 383 (1983)
(F)(2) finding upheld. Prior conviction and sentence to life imprisonment for dangerous or deadly assault by prisoner sufficient to support trial court's finding of the aggravator. This felony involves commission of an assault using or exhibiting a deadly weapon or dangerous instrument, or the knowing or intentional infliction of serious physical injury on the assaulted party. The Court also considered the facts of the conviction, that the defendant had struck a fellow inmate several times with a dart discharged through a blowgun, in upholding the aggravating circumstance.

State v. Jordan (Jordan III), 137 Ariz. 504, 672 P.2d 169 (1983)
(F)(2) finding upheld. The defendant argued that his prior felony convictions were not proven beyond a reasonable doubt. The Court found that there was sufficient evidence in the record to prove the existence of the prior convictions and affirmed that these convictions were sufficient to support the (F)(2) finding. See Jordan I and Jordan II.

State v. Summerlin, 138 Ariz. 426, 675 P.2d 686 (1984)
(F)(2) finding upheld without discussion.

State v. Harding (Gage murder), 141 Ariz. 492, 687 P.2d 1247 (1984)
(F)(2) finding upheld. Prior convictions in Arizona of dangerous or deadly assault by prisoner and two counts of first degree murder sufficient to support trial court's finding of this factor.

State v. Roger Smith (Roger Smith II), 141 Ariz. 510, 687 P.2d 1265 (1984)
(F)(2) finding upheld. The trial court relied on a transcript from the previous sentencing hearing concerning the victim's testimony regarding a prior kidnapping conviction obtained in Tennessee as support for this aggravating circumstance. The Court found this to be harmless error because the defendant admitted the conviction, and based on Tennessee's definition of kidnapping the prior conviction supported the trial court's finding of the factor.

State v. Carriger (Carriger III), 143 Ariz. 142, 692 P.2d 991 (1984)
(F)(2) finding upheld without discussion.

State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985)
(F)(2) finding upheld. The state presented sufficient evidence that the defendant was convicted of robbery, assault with intent to murder, aggravated robbery, and second degree murder. The defendant argued that without testimony regarding the specific facts of each crime, the Court cannot judicially notice that those crimes were violent felonies upon other persons. The Court disagreed and took judicial notice that all of the defendant's prior convictions were by definition violent felonies committed against other persons.

State v. Patrick Poland (Patrick Poland II), 144 Ariz. 388, 698 P.2d 183 (1985)
(F)(2) finding upheld. The defendant had previously been convicted of a bank robbery. The Court noted that a trial court may take judicial notice that certain felonies, by definition, involve violence against others. Fear of force is an element of robbery and the conviction is sufficient to support the (F)(2) finding.

State v. Bracy, 145 Ariz. 520, 751 P.2d 464 (1985)
(F)(2) finding upheld. The defendant had previously been convicted in Illinois of three counts of armed robbery and three counts of aggravated kidnapping. The Court took judicial notice that all of those crimes involved the use or threat of violence against others.

State v. Hooper, 145 Ariz. 538, 751 P.2d 482 (1985)
(F)(2) finding upheld. Prior conviction in Illinois on three counts of armed robbery and three counts of aggravated kidnapping sufficient to support trial court's finding of factor. The Court took judicial notice that all these crimes involve the use or threat of violence against others.

State v. Bernard Smith, 146 Ariz. 491, 707 P.2d 289 (1985)
(F)(2) finding upheld. The defendant was previously convicted in Arizona of three counts of armed robbery. The Court took judicial notice of the fact that armed robbery is a violent felony committed against another person.

State v. Evans (Evans III), 147 Ariz. 57, 708 P.2d 738 (1985)
(F)(2) finding upheld. The defendant had previously been convicted in California of first degree attempted robbery. The Court found that this crime could not be committed without the use of force or fear against another after reviewing the applicable California statute. The notation in the entry of judgment that the defendant did not use a deadly weapon during the commission of the offense does not mean that this was not a crime of violence, as that language concerned sentencing enhancement as opposed to the nature of the crime itself.

State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986)
(F)(2) finding upheld. The defendant was previously convicted in California on three counts of robbery. He received an enhanced sentence on one of those counts because it was found that the defendant used a firearm in the commission of a felony. The Court reviewed the statute under which the defendant was convicted and rejected the argument that a person could commit robbery with the threat of violence against the property, and not the person, of another. The Court held that armed robbery against the property of a victim does not occur without the use or threat of violence against the person as well.

State v. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986)
(F)(2) finding upheld. See discussion under (F)(1). The Court found testimony in the record sufficient to show that the defendant was competent to plead guilty to other offenses, and that the trial judge told the defendant that these prior convictions could be considered in sentencing on the capital case.

State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987)
(F)(2) finding upheld. The defendant had previously been convicted of armed robbery and kidnapping. The Court found that those convictions had been proven beyond a reasonable doubt, and that they involved the use or threat of violence sufficient to support this aggravating circumstance.

State v. Arnett (Arnett III), 158 Ariz. 15, 760 P.2d 1064 (1988)
(F)(2) finding upheld. The defendant had previously been convicted of robbery. The trial court found that this robbery conviction supported both the (F)(1) and the (F)(2) finding. The Court agreed, but cautioned that it may only be weighed once in the sentencing process.

State v. Mauro (Mauro II), 159 Ariz. 186, 766 P.2d 59 (1988)
(F)(2) finding upheld without discussion.

State v. Vickers (Vickers II (Holsinger murder)), 159 Ariz. 532, 768 P.2d 177 (1989)
(F)(2) finding upheld. See discussion under (F)(1) finding upheld. The defendant had previously been convicted of assault with a deadly weapon, first degree murder, and dangerous or deadly assault by a prisoner. The first degree murder conviction was overturned and sent back for a new trial. The other two convictions were valid and involved the use or threat of violence on another person. Since the two convictions still stand, they are sufficient to support this aggravating circumstance.

State v. Serna (Serna I), 163 Ariz. 260, 787 P.2d 1056 (1990)
(F)(2) finding upheld with minimal discussion. The defendant did not challenge this finding on appeal.

State v. Comer, 165 Ariz. 413, 799 P.2d 333 (1990)
(F)(2) finding upheld. The defendant had been previously convicted of rape by threats and by force, and assault with a deadly weapon in California. A certified copy of these convictions was introduced, along with fingerprint evidence linking the documents to the defendant. The Court noted that the statutory definitions of both crimes involved the use or threat of violence upon another person.

State v. Ronald Williams, 166 Ariz. 132, 800 P.2d 1240 (1987)
(F)(2) finding upheld with very little discussion. The defendant had two prior convictions for murder. At least one of those prior convictions was for felony murder. The Court found both convictions to be for serious crimes involving violence.

State v. Hill, 174 Ariz. 313, 848 P.2d 1375 (1993)
(F)(2) finding upheld. The defendant was convicted in Colorado of assault with a deadly weapon. The Court looked to the statutory definition of that offense in Colorado to determine if the crime involved violence or the threat of violence. The state introduced evidence of the information, judgment and sentence for that crime. The statute required an intent to commit bodily injury on another person. This was sufficient evidence to prove this aggravating circumstance.

State v. Kiles, 175 Ariz. 358, 857 P.2d 1212 (1993)
(F)(2) finding upheld for each of three murders. The defendant had previously been convicted of attempted aggravated assault, and aggravated assault. The defendant argued that these prior convictions are insufficient to support an (F)(2) finding based on State v. Fierro. The Court disagreed and noted that in Fierro there was no evidence of the specific subsection under which the defendant was convicted. Here, on the other hand, the record shows that the defendant was convicted under subsection (A)(8) of the aggravated assault statute for committing an assault while the victim was bound, restrained, or the victim's capacity to resist was substantially impaired. The Court held that a conviction under this subsection necessarily involved the use or threat of violence. Similarly, the attempted aggravated assault conviction is also sufficient to support the (F)(2) aggravating factor because attempt is a specific intent crime involving intentional conduct. It would not be possible to commit an attempted aggravated assault in a reckless manner.

State v. Landrigan, 176 Ariz. 1, 859 P.2d 111 (1993)
(F)(2) finding upheld without extensive discussion. Landrigan did not contest the (F)(2) finding on appeal. The Court noted that the (F)(2) finding was supported by a prior Oklahoma conviction for assault and battery with a dangerous weapon. The state proved the existence of the conviction by producing certified public records from Oklahoma, and the state's expert matched Landrigan's fingerprints with those on the records.

State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993)
(F)(2) finding upheld. The trial court found that the defendant was previously convicted of robbery and armed robbery. The statutory definitions of those offenses necessarily involve the use or threat of violence against another person. The armed robbery conviction can satisfy either (F)(1) or (F)(2), so long as it is weighed only once. Since there were no mitigating factors, no additional balancing was required.

State v. West, 176 Ariz. 432, 862 P.2d 192 (1993)
(F)(2) finding upheld. The defendant had previously been convicted of manslaughter in Illinois. The defendant argued that there was insufficient evidence admitted to prove this prior conviction. The Court agreed that insufficient evidence had been admitted at the trial court, but found that the defendant had agreed to a stipulation regarding this prior conviction. The defendant complained that he did not personally participate in that stipulation. However, the Court noted that this was not an exceptional circumstance requiring the defendant's consent. If any error occurred in the trial judge basing the (F)(2) finding on the stipulation, it was invited by the defendant.

State v. Henry (Henry I), 176 Ariz. 569, 863 P.2d 861 (1993)
(F)(2) finding upheld in part. The defendant's prior conviction in California was for involuntary manslaughter. The Court held that the statutory definition of the crime controls, and, under California law, involuntary manslaughter can be committed without the exertion of physical force so as to injure or abuse, therefore, the factor does not apply. (F)(2) requires more than simply a volitional act that results in death. The Court found that a prior armed robbery conviction could not be committed recklessly and by statutory definition must be accomplished against a person's will by means of force or fear. However, this conviction could not be used as both an (F)(1) aggravator and an (F)(2) aggravator. The case was remanded for clarification that the trial judge weigh this aggravating circumstance only once.

State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994)
(F)(2) finding upheld. The defendant's prior convictions were for aggravated assault and robbery. The Court examined the statutes under which the defendant was convicted and found that the specific subsections of the statutes necessarily involved violence or the threat of violence to another. In State v. Fierro, the Court held that a conviction for aggravated assault under A.R.S. § 13-1203 and § 13-1204 did not qualify as an aggravating circumstance because it was possible to commit the crime without the use or threat of violence. Here, the state avoided that problem by proving the specific subsections which applied, and those subsections necessarily involved violence. The robbery statute also necessarily involved the use or threat of violence.

State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994)
(F)(2) finding upheld. The trial court found the (F)(2) aggravating circumstance based on Maturana's prior conviction for aggravated assault in Texas. Maturana argued that the state did not prove the existence of the previous conviction beyond a reasonable doubt because the state failed to introduce a certified copy of the conviction. Rejecting this argument, the Court noted that the state introduced, at the sentencing hearing, certified copies of the indictment, plea agreement, and judgment on plea of guilt, as proof that Maturana was previously convicted of stabbing another person with a homemade spear.

State v. Aryon Williams, 183 Ariz. 368, 904 P.2d 437 (1995)
(F)(2) finding upheld in part. The trial court used the defendant's convictions of armed robbery and attempted murder as (F)(2) factors. Those offenses involved a different victim than the murder victim, and a crime on a different date, but all the charges were consolidated for trial. The Court affirmed the use of the armed robbery conviction because armed robbery, by its terms, is a felony that involves the use or threat of violence on another person. The Court concluded that the attempted murder conviction cannot support an (F)(2) finding because, under the terms of the statute, the crime of attempted first degree murder does not necessarily involve the use or threat of violence on another person. The Court stated, however, that the attempted murder charge is irrelevant because the armed robbery conviction supports the (F)(2) finding. The Court also cited several cases which state that convictions entered prior to a sentencing hearing may be considered regardless of the order in which the underlying crimes occurred or the order in which the convictions were entered. (F)(2) was properly applied for the armed robbery conviction.

State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995)
(F)(2) finding upheld. The defendant had previously been convicted of aggravated assault in 1990. He was also convicted in the present case for kidnapping, aggravated assault and sexual assault. For the 1990 aggravated assault conviction, the specific subsection, A.R.S. § 13-751(A)(2), necessarily involves the use or threat of violence. The defendant was also convicted of aggravated assault on a separate victim on a different date in the present case under A.R.S. § 13-1204(A)(2). The Court determined this by looking at the jury instructions. The Court also held that the sexual assault conviction satisfied (F)(2) because it necessarily involved the use or threat of violence. The Court previously held that the use or threat of violence was not necessarily an element of sexual assault because the lack of consent could be satisfied where the victim was deceived or incapable of valid consent. See State v. Bible. Here the Court looked to the jury instruction defining "without consent" only to mean that the victim was coerced by the immediate or threatened use of force. Similarly, the jury instruction about the kidnapping charge required a finding that the victim's movements were restricted by physical force or intimidation.

State v. Kemp, 185 Ariz. 52, 912 P.2d 1281 (1996)
(F)(2) finding upheld. The defendant was convicted of robbery in California. The trial court found this sufficient evidence to support the (F)(2) aggravator. The defendant argued that the state failed to prove his conviction beyond a reasonable doubt. The Court rejected this argument as without merit as the defendant stipulated to his previous conviction. The defendant also argued that his prior robbery was not a crime of violence against another person. A prior conviction satisfies (F)(2) only if it involves the use or threat of violence against a person. Extrinsic evidence explaining the prior conviction is not admissible to prove that the prior conviction involved violence against a person. State v. Romanosky. The Court then examined the California robbery statute and concluded that robbery includes a threat of violence against the victim. Since robbery involves the use or threat of violence, it is sufficient to support the (F)(2) aggravating circumstance.

State v. Darrel Lee, 185 Ariz. 549, 917 P.2d 692 (1996)
(F)(2) finding upheld. The defendant was previously convicted of robbery in Arizona. The Court found that the robbery statute requires the use or threat of violence on another person. The Court rejected the defendant's reliance on State v. Fierro, and the claim that the (F)(2) aggravating circumstance was unconstitutionally vague.

State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996)
(F)(2) finding upheld. Miles stipulated at trial that he had been previously convicted of three dangerous felonies (armed robbery) and did not challenge the (F)(2) finding on appeal.

State v. Towery, 186 Ariz. 168, 920 P.2d 290 (1996)
(F)(2) finding upheld. The defendant was convicted of armed robbery involving the threat of violence while on parole. The Court did not discuss this other than to say that the prior conviction makes him eligible for the death penalty under both (F)(1) and (F)(2).

State v. Rogovich, 188 Ariz. 38, 932 P.2d 794 (1997)
(F)(2) finding upheld. The defendant was convicted of four counts of first degree murder, two counts of aggravated assault, two counts of armed robbery, and one count of unlawful flight from a law enforcement vehicle. He was sentenced to death on three of the four murders. The three murders for which he received the death sentence occurred the same afternoon in a trailer park. The fourth murder occurred earlier that morning in a convenience store. The Court held that the defendant's armed robbery and aggravated assault convictions satisfy (F)(2) because they were entered prior to the sentencing hearing. (F)(2) applies to convictions entered prior to the sentencing hearing regardless of the order in which the underlying crimes occurred or the convictions entered. The aggravated assault conviction also applied because the specific subsection required the use or threat of violence. A conviction occurs when the jury renders its verdict. The (F)(2) finding was upheld in connection with all four murders.

State v. Henry (Henry II), 189 Ariz. 542, 944 P.2d 57 (1997)
(F)(2) finding upheld. The defendant's prior conviction for armed robbery in California could count as an (F)(2) circumstance because it involved the threat of violence. The Court again rejected the defendant's argument that the crime, as defined by California statute, does not necessarily involve the use or threat of violence against another person. The Court also rejected his argument that the twenty-five-year-old conviction was too remote. The Court noted that the language of (F)(2) does not expressly provide a time limit. The Court assumed that the omission of a time limit was intentional.

State v. Chad Lee (Reynolds, Lacey murders), 189 Ariz. 590, 944 P.2d 1204 (1997)
(F)(2) upheld. The defendant was convicted for aggravated robbery and aggravated assault, crimes committed after the murders for which he was sentenced to death. The defendant was convicted of those crimes before he was convicted of murder. Citing State v. Gretzler, the Court held that a sentencing court may consider any convictions entered previously without regard to the order of the underlying crimes. The statutory definitions of both aggravated robbery and aggravated assault necessarily involved the use or threat of violence.

State v. Chad Lee (Drury murder), 189 Ariz. 608, 944 P.2d 1222 (1997)
(F)(2) upheld for the same reasons noted above in State v. Chad Lee (Reynolds, Lacey murders).

State v. Lehr (I), 201 Ariz. 509, 38 P.3d 1172 (2002)
Lehr’s convictions for attempted first degree murder and aggravated assault were felonies "involving the use or threat of violence on another person" under the pre-1993 version of (F)(2).

State v. McCray, 218 Ariz. 252, 183 P.3d 503 (2008)
The defendant’s 1993 conviction for a 1992 sexual assault with a dangerous enhancement qualified as a (F)(2) prior violent crime aggravator. To determine if the prior offense involved the threat or use of violence, the Court considers the specific statutory subsection under which the defendant was convicted, even if other subsections of the same statute may not qualify for the aggravator. The Court also considers the fact that the prior conviction included an enhancement for dangerousness because it is analogous to focusing on the particular statutory subsection underlying the prior conviction. The Court concluded that a sexual assault involving the use or exhibition of a deadly weapon or dangerous instrument is necessarily one that involves the use or threat of violence.

State v. Alvie Copeland Kiles, 222 Ariz. 25, 213 P.3d 174 (2009)
(F)(2) finding upheld. Kiles had previously been convicted of attempted aggravated assault and aggravated assault. Attempted aggravated assault did not qualify under (F)(2) as a prior violent felony because Arizona’s attempt statute permits a crime to be committed with a single nonviolent step. Therefore, the trial court erred by permitting the State to offer this conviction to prove (F)(2). The error was harmless beyond a reasonable doubt, however, because Kiles’ other prior conviction of aggravated assault supported the (F)(2) finding. The record showed that Kiles was convicted under subsection (A)(8) of the aggravated assault statute for committing an assault while the victim was bound, restrained, or the victim's capacity to resist was substantially impaired. The Court held that a conviction under this subsection necessarily involved the use or threat of violence.

State v. (Scott Alan) Lehr (Lehr II), 227 Ariz. 140, 254 P.3d 379 (2011)
The (F)(2) aggravator was established based on Lehr’s two contemporaneous aggravated assault convictions regarding another victim. The murders for which he was sentenced to death were committed in 1991-92, along with these offenses were committed in.
 
State v. (Pete) VanWinkle, 230 Ariz. 387, 285 P.3d 308 (2012)
(F)(2) finding upheld. Defendant did not challenge the State’s proof of the aggravating factor, (F)(2)(prior conviction of serious offense).  The State proved the aggravator by presenting certified copies of his conviction.

State v. (Rodney Eugene) Hardy, 230 Ariz. 281, 283 P.3d, 12 (2012)
(F)(2) finding upheld. The jury found that Hardy was previously convicted of a serious offense, and Hardy did not contest the finding.

State v. (Ronnie Lovelle) Joseph, 230 Ariz. 296, 283 P.3d, 27 (2012)
(F)(2) finding upheld. The jury found this aggravating factor proven: Joseph previously had been convicted of a serious offense.  Joseph did not contest this finding; the record supports the jury's finding.

State v. (Gilbert) Martinez, Sr., 230 Ariz. 208, 282 P.3d 409 (2012)
(F)(2) finding upheld. The Court addressed for the first time whether to limit the number of prior convictions the state can use as (F)(2) aggravators, and held that the jury did not abuse its discretion in finding this aggravating circumstance. The State proved the (F)(2) aggravator by showing Martinez had nineteen serious offense convictions.


(F)(2) Finding Reversed

State v. Charles Lee, 114 Ariz. 101, 559 P.2d 657 (1976)
(F)(2) finding reversed. The state asked the trial court to take judicial notice of the defendant's prior convictions for armed robbery and assault with a deadly weapon. The Court disapproved of this procedure where that conviction will be used to prove an aggravating circumstance. The Court found there was insufficient evidence to prove the assault conviction in the record, and remanded the case for a new sentencing hearing because the armed robbery conviction had been reversed on appeal. There was no discussion of the nature of the prior crime itself.

State v. Gillies (Gillies I), 135 Ariz. 500, 662 P.2d 1007 (1983)
(F)(2) finding reversed. The trial court found this aggravating circumstance based on a prior conviction for theft. The trial court allowed the victim in that prior case to testify regarding the circumstances of that offense. The Court held that the trial court incorrectly applied (F)(2). The prior conviction must be for a felony that by its statutory definition involves violence or the threat of violence on another person. Allowing a victim to testify regarding a prior crime violated due process.

State v. Rockwell, 161 Ariz. 5, 775 P.2d 1069 (1989)
(F)(2) finding reversed. The defendant had previously been convicted of a robbery and an assault on a child. At the sentencing hearing the state produced no evidence of the prior convictions, instead relying on a stipulation at trial. However, the trial stipulation did not prove the prior convictions, it only proved certain criminal acts. Normally, the state introduces certified copies of the conviction and evidence establishing that the defendant is the person to whom the document refers. There was insufficient evidence in this case to support the (F)(2) aggravating circumstance.

State v. Marlow, 163 Ariz. 65, 786 P.2d 395 (1989)
(F)(2) finding reversed. The trial court found that the defendant had previously been convicted in New Mexico of assault with intent to commit a violent felony. The Court found that there was insufficient evidence in the record to prove the prior conviction because there was no admission, no fingerprint evidence, and only an "unspecific allusion" by the defendant to a prison term in New Mexico.

State v. Samuel Lopez (Samuel Lopez I), 163 Ariz. 108, 786 P.2d 959 (1990)
(F)(2) finding reversed. The trial court found (F)(2) based on a previous resisting arrest conviction. The Court looked to the statutory definition of resisting arrest and concluded that one can commit resisting arrest under a specific subsection without using or threatening violence. Therefore, this conviction could not be used as the basis for an (F)(2) finding.

State v. Hinchey (Hinchey I), 165 Ariz. 432, 799 P.2d 352 (1990)
(F)(2) finding reversed. The trial court found the existence of this aggravating factor based on a prior conviction for endangerment, took judicial notice of this conviction, and heard testimony from the murder victim's mother to prove that violence was used in the prior endangerment offense. The Court reiterated that the crime must, by statutory definition, involve the use or threat of violence. Furthermore, the court may consider only evidence of the conviction. Allowing other evidence violates the defendant's due process rights. Endangerment cannot support this aggravating factor as the statutory definition does not necessarily require violence, namely the exertion of physical force or an intent to harm.

State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990)
(F)(2) finding reversed. The defendant had previously been convicted in Texas of aggravated assault on a police officer and robbery. He was also convicted in Arizona of aggravated assault and resisting arrest. Violence means the exertion of physical force so as to injure or abuse. Only those felony convictions in which force was employed or threatened with the intent to injure or abuse will be considered for the (F)(2) finding. Ordinarily, aggravated assault and robbery, by definition, involve the use or threat of violence. However, the Texas legislature amended the statutes to encompass reckless behavior. Therefore, the Texas convictions cannot support the (F)(2) finding. Similarly, it is possible to commit aggravated assault in Arizona without the use or threat of violence also, especially here, where there is no evidence of the specific subsection under which the defendant was convicted.

State v. Schaaf, 169 Ariz. 323, 819 P.2d 909 (1991)
(F)(2) finding reversed. The defendant had previously been convicted in Nevada of two counts of attempted murder with a deadly weapon. The Court concluded that these convictions cannot support an (F)(2) finding because the statutory definition of attempted murder in Nevada does not involve violence or the threat of violence on another person. The Court must look to the statutory definition, and no other evidence, to determine if the prior convictions involved the use or threat of violence. Under the Nevada statute, one may attempt to commit a violent crime without engaging in the use or threat of violence.

State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993)
(F)(2) finding reversed. The defendant had previously been convicted of kidnapping and sexual assault. After analyzing each statute, the Court determined that each of those crimes could be committed without the use or threat of violence. Therefore, neither one could support the (F)(2) finding.

State v. Henry (Henry I), 176 Ariz. 569, 863 P.2d 861 (1993)
(F)(2) finding reversed in part. The defendant's prior conviction in California was for involuntary manslaughter. The Court held that the statutory definition of the crime is controlling. Under California law involuntary manslaughter can be committed without the exertion of physical force so as to injure or abuse, therefore, the factor does not apply. (F)(2) requires more than simply a volitional act that results in death. The Court found that the prior armed robbery conviction could not be committed recklessly, and by statutory definition must be accomplished against a person's will by means of force or fear. It therefore satisfies the (F)(2) factor. However, this conviction could not be used to support both the (F)(1) factor and the (F)(2) factor. The case was remanded so that the trial judge could weigh this aggravating circumstance only once.

State v. Richmond (Richmond III), 180 Ariz. 573, 886 P.2d 1329 (1994)
(F)(2) finding reversed. The defendant was previously convicted of kidnapping. At the time of the defendant's murder trial, (F)(2) required that the prior conviction be predicated upon a statute wherein the use or threat of violence is a necessary element of the crime. The statutory definition, not the facts of the underlying conviction, dictate whether the crime fits within the (F)(2) aggravator. The Court held that (F)(2) did not apply in this case for several reasons. Initially, the trial court improperly received testimony concerning the facts of the previous conviction. The state never introduced a formal record of the conviction, but introduced only a copy of the information charging the defendant and a copy of the sentencing minute entry, both of which indicated that the defendant kidnapped the victim while armed with a deadly weapon. The Court could not determine which section of the kidnapping statute applied to this particular case. The statute itself includes subsections that allow for a kidnapping conviction without the use or threat of violence. From this record, it was not possible to determine the specific subsection of the kidnapping statute in question. Therefore, the (F)(2) finding was reversed.

State v. Aryon Williams, 183 Ariz. 368, 904 P.2d 437 (1995)
(F)(2) finding reversed in part. The trial court used the defendant's convictions of armed robbery and attempted murder, of a different victim on a separate date, as (F)(2) factors. The Court affirmed the use of the armed robbery conviction because armed robbery, by its terms, is a felony that involves the use or threat of violence on another person. The Court concluded that the attempted murder conviction cannot support an (F)(2) finding because, under the terms of the statute, the crime of attempted first degree murder does not necessarily involve the use or threat of violence on another person. The Court stated, however, that the attempted murder charge is irrelevant because the armed robbery conviction supports the (F)(2) finding. The Court also cited several cases which state that convictions entered prior to a sentencing hearing may be considered regardless of the order in which the underlying crimes occurred or the order in which the convictions were entered. (F)(2) was properly applied for the armed robbery conviction.

State v. McKinney (State v. Hedlund), 185 Ariz. 567, 917 P.2d 1214 (1996)
(F)(2) finding reversed. Defendant Hedlund was convicted of second degree murder at the same time he was convicted of first degree murder. He challenged the trial court's finding of the second degree murder conviction as sufficient to support the (F)(2) aggravator. A conviction occurs when the jury renders its verdict. Convictions entered prior to the sentencing hearing may be considered regardless of the order in which the convictions were entered. State v. Richmond. This defendant's second degree murder conviction occurred when the jury returned its verdict and prior to his capital sentencing hearing. Therefore, it could be used as a (F)(2) aggravating circumstance. The Court then examined whether the prior conviction was for a crime of violence. Looking to the statute and not to the facts of the prior case, the statute in question contains a subsection that makes a conviction for second degree murder possible based on reckless behavior. Thus, the prior conviction does not qualify as a crime of violence. The Court noted that this problem is now moot, as the amendment to (F)(2) now delineates all degrees of second degree murder as a "serious offense" and thus would qualify as an aggravator under (F)(2).

State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997)
(F)(2) finding reversed. At the time of the murder, (F)(2) required a prior conviction of a felony in the United States involving the use or threat of violence on another person. The trial court found the existence of (F)(2) because of the defendant's prior convictions for sexual assault, kidnapping and aggravated assault. The Court found that the sexual assault and kidnapping crimes can be perpetrated by deception as well as by force, and so those crimes would not support the (F)(2) finding. Also, the state did not prove the specific subsection of aggravated assault regarding that prior conviction, so there was no proof of a conviction that necessarily involved the use or threat of violence. The Court declined to take judicial notice at the appellate level to establish the existence of aggravating factors, and refused to apply the new (F)(2) factor because of the prohibition against ex post facto laws.

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