Capital Sentencing Guide

A.R.S. § 13-751(F)(9)

A.R.S. § 13-751(F)(9)-AGE OF VICTIM 

A.R.S. § 13-751(F)(9) currently provides that it shall be an aggravating circumstance where "[t]he defendant was an adult at the time the offense was committed or was tried as an adult and the murdered person was under fifteen years of age or was seventy years of age or older.”

History:  This aggravating circumstance was added to the capital sentencing statute in 1985 because the Arizona Legislature “determined that the young and old are especially vulnerable and should be protected.” State v. Todd Smith, 193 Ariz. 452, 974 P.2d 431 (1999).  Originally, it read as follows:  “The defendant was an adult at the time the offense was committed or was tried as an adult and the victim was under fifteen years of age.”

1993 language (effective July 17, 1993):  In 1993, the (F)(9) circumstance was amended to include victims who were “seventy years of age or older.”

1999 language (effective August 6, 1999):  In 1999, the legislature changed the term “victim” to “murdered person.”

Constitutionality: Some have argued that this aggravating circumstance is unconstitutional because it takes into account the victim rather than the propensities of the defendant.  The Court, however, has rejected this argument under the rational basis test and found that “[i]t is not irrational for the legislature to conclude that murders of children and the elderly are more abhorrent than other first degree murders [and that] murders of this sort should be punished more severely.”  Furthermore, the defendant’s characteristics and propensities can be proven by the victim’s age in that “[t]hose who prey on the very young or the very old are more dangerous to society.” State v. Smith,193 Ariz. 452, 974 P.2d 431 (1999), State v. (Shawna) Forde, 233 Ariz. 543, 315 P.3d 1200 (2014).

Defendant’s Knowledge:  This aggravating circumstance does not require proof that the defendant knew the victim’s age at the time of the murder.  State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999).

Proof of Age:  A birth certificate or driver’s license is not necessary to prove the age of the victim. In Medina, the Court upheld the trial court’s (F)(9) finding based on the uncontested testimony of two witnesses and from the defendant’s acknowledgement of the victim’s age in his sentencing memorandum.

No Double Dipping:  The age of the victim can be used either to support this factor or another, for example, (F)(6) (heinous/depraved: helplessness), but not both.  See State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993) (trial judge can weigh age only once, even though age can apply to more than one aggravating factor).

No Reversals:  There have been no reversals of this factor to date.


(F)(9) FINDING UPHELD

State v. Jimenez, 165 Ariz. 444, 799 P.2d 785 (1990)
(F)(9) finding upheld. The defendant committed the murder at age seventeen and was tried as an adult. The victim was under fifteen years of age.

State v. Stanley, 167 Ariz. 519, 809 P.2d 944 (1991)
(F)(9) finding upheld without discussion. The defendant shot his wife and five-year-old child and then disposed of their bodies.


State v. Lavers
, 168 Ariz. 376, 814 P.2d 333 (1991)
(F)9) finding upheld without discussion as to Jennie who was under fifteen at the time of the murder while the defendant was an adult. The defendant stabbed both his wife, Mary, and her daughter, Jennie, the same night. He then shot Mary in the head. The Court upheld the (F)(9) finding as to Jennie, who was eleven years old at the time of her murder.

State v. George Lopez, 174 Ariz. 131, 847 P.2d 131 (1993)
(F)(9) finding upheld without discussion. The defendant beat his one-year-old son severely and then kept the mother from taking the child to the hospital for treatment.

State v. Kiles, 175 Ariz. 358, 857 P.2d 1212 (1993)
(F)(9) finding upheld without discussion. The defendant was an adult and the two victims were five years old and nine months old respectively at the time they were killed.

State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993)
(F)(9) finding upheld without discussion. The defendant was an adult and the victim was nine years old at the time she was killed.

State v. Styers, 177 Ariz. 104, 865 P.2d 765 (1993)
(F)(9) finding upheld. The defendant was an adult and the victim was four years old at the time of the murder. The defendant argued that the trial court "double counted" the victim's age to find both the (F)(9) and the (F)(6) aggravating factors. The trial court relied on the victim's age to find that the victim was helpless under the (F)(6) analysis. The Court held that one fact can be used to establish two aggravating circumstances provided that it is weighed only once. Trial judges are presumed to know the law and to apply it in making sentencing decisions. The Court presumed, without evidence to the contrary, that the trial court committed no error. The Court itself weighed the victim's age only once in its independent review of the sentence.

State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993)
(F)(9) finding upheld without discussion. The defendant was an adult and the victim was four years old at the time of the murder.

State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993)
(F)(9) finding upheld. The defendant was an adult and the victim was four years old at the time he was taken from his home and killed in the desert. The Court rejected the defendant's argument that the trial court gave the victim's age double weight by using the victim's age to support both the (F)(9) and the (F)(6) aggravating circumstances (helplessness factor). Age can satisfy two separate aggravating factors but can only be counted once in the weighing process.

State v. Gallegos (Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994)
(F)(9) finding upheld. The defendant was an adult and the murder victim was eight years old at the time of the sexual assault and murder. On appeal, the defendant did not contest the (F)(9) finding, but argued he had been "double punished" because the trial court considered the victim's age to establish the (F)(6) factor. Specifically, the defendant argued that the finding of helplessness was a repetition of the fact that the victim was a child. The Court held that this argument was without merit. The same evidence may support the finding of more than one aggravating factor, as long as it is only weighed once in determining whether to impose the death penalty. Moreover, the Court disagreed that the helplessness finding was based solely on the victim's age. The defendant's status as a kind of "uncle" to the child victim, his access to the victim's bedroom, and the fact the victim was asleep at the time of the attack, all supported a finding of helplessness, apart from the victim's young age.

State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995)
(F)(9) finding upheld. The defendant was an adult and the victim was three years of age at the time she was abducted from her parents' home. She was stabbed and her body abandoned. On appeal the defendant attacked the constitutionality of the death penalty statute, in particular the (F)(9) factor, because its finding resulted in an automatic death sentence. The Court rejected the argument without much discussion and noted that the statute is constitutional because it requires the trial court to consider the mitigating circumstances and weigh them against the aggravating factors. The defendant also contended the victim's age was counted twice, once to find the (F)(9) factor and again to find the (F)(6) factor. The Court found no basis for that argument in the record.

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
(F)(9) finding upheld. The defendant was an adult at the time the crimes were committed, and the two victims were both under the age of fifteen.

State v. Gallegos (Gallegos II), 185 Ariz. 340, 916 P.2d 1056 (1996)
(F)(9) finding upheld without discussion. See facts of case noted in earlier appeal of this case in Gallegos I.

State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)
(F)(9) finding upheld. The defendant was an adult and one of the murder victims was under fifteen years of age.

State v. Thornton, 187 Ariz. 325, 929 P.2d 676 (1996)
(F)(9) finding upheld without discussion. The defendant was an adult and the victim was more than seventy years of age at the time of the murder.

State v. Barry Jones, 188 Ariz. 388, 937 P.2d 310 (1997)
(F)(9) finding upheld. The defendant was an adult and the victim was four years old when she was beaten and sexually assaulted. She ultimately died from her injuries. The Court found the existence of this factor with no discussion beyond establishing the defendant's and the victim's respective ages.

State v. Djerf, 191 Ariz. 583, 959 P.2d 1274 (1998)
(F)(9) finding upheld. The defendant was an adult and one of the victims was less than fifteen years of age at the time of the murder.

State v. Todd Lee Smith, 193 Ariz. 452, 974 P.2d 431 (1999)
(F)(9) finding upheld. The defendant was an adult and both victims were more than seventy years old. The Court rejected the defendant's argument that (F)(9) is unconstitutional because it considers the victim killed rather than the defendant's propensities. The Court said the (F)(9) factor survives under the rational basis test. It is not irrational "to conclude that murders of children and the elderly are more abhorrent that other first degree murders" because the victims are more vulnerable. Those who commit such murders should be punished more severely. Moreover, the (F)(9) circumstance "is relevant to an inquiry into the defendant's characteristics and propensities. Those who prey on the very young or the very old are more dangerous to our society."

State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)
(F)(9) finding upheld. The defendant was an adult and the victim was more than seventy years old at the time of the killing. The defendant argued that the state had failed to prove the victim's age beyond a reasonable doubt. The Court rejected the argument, holding that the testimony of two witnesses was sufficient to support the finding. Further, the defendant did not dispute the victim's age at trial nor at the sentencing hearing. In addition, the defendant acknowledged in his sentencing memorandum that the victim was seventy-one years of age. Citing the (F)(10) circumstance, the defendant argued that the (F)(9) factor requires a finding that the defendant was aware of the victim's age. The Court rejected that argument, finding that the legislature could have chosen to include language in (F)(9) that required the defendant to know the victim's age, and did not do so.

State v. Canez (I), 202 Ariz. 133, 42 P.3d 564 (2002)
The Court held that even without the victim’s birth certificate, the evidence supported the trial court’s finding that the victim was at least 70 years old at the time of his death.

State v. (Antoin) Jones, 205 Ariz. 445, 72 P.3d 1263 (2003) (Ring)
(F)(9) finding upheld.  Jones was an adult, and the victim was twelve years old.  The jury found Jones guilty not only of first degree murder, but also of kidnapping a minor under the age of fifteen, and two counts of sexual assault of a minor under the age of fifteen.  These convictions had the victim’s age as a substantive element of the crimes.  Thus, the fact was proven to the jury beyond a reasonable doubt.

State v. (Arturo) Canez, 205 Ariz. 620, 74 P.3d 932 (2003) (Ring)
(F)(9) finding upheld.  The victim’s son testified at trial that the victim was born on June 26, 1918 and it was undisputed that the crime took place on February 22, 1996.  The son’s testimony was also corroborated by a birth certificate, photographs of the victim’s body and testimony by the coroner that the autopsy results were consistent with the body of a 77-year-old man.  This presented overwhelming evidence of the victim’s age, and the finding was, therefore, harmless beyond a reasonable doubt.

State v. (Wayne) Prince, 206 Ariz. 24, 75 P.3d 114 (2003) (Ring)
(F)(9) finding upheld.  Because there was uncontraverted testimony given at trial that the victim was born on May 16, 1984 and was thirteen at the time of the murder, and that defendant was twenty-six years old at that time, this factor was proven beyond a reasonable doubt.

State v. (Robert Louis) Cromwell, 211 Ariz.181, 119 P.3d 488, (2005) Jury Trial/Indep. Review
(F)(9) Upheld.  Uncontested.  The victim was 11 years old.

State v. Ellison, 213 Ariz. 116, 140 P.3d 899 (2006) Jury Trial/Indep. Review
(F)(9) finding upheld. Ellison’s prison records showed that he was older than 18 when he committed the offenses. The Bouchers’ daughter testified that her parents were each older than 70 when they were murdered.

State v. (Juan) Velazquez, 216 Ariz. 300, 166 P.3d 91 (2007) Jury Trial/Indep. Review
Velazquez was 23 years old at the time of the crime, and the victim was 20 months old.

State v. Bocharski, 218 Ariz. 476, 189 P.3d 403, (2008)
The defendant was 33 years old at the time of the offense. The victim’s daughter testified that her mother was 84 years old when she died, and the state admitted a birth certificate and a death certificate indicating the same.

State v. (Joshua Idlefonso) Villalobos, 225 Ariz. 74, 235 P.3d 227 (2010)
F9 finding upheld. The State introduced uncontroverted evidence that Villalobos was twenty-one when he murdered the victim, who was five.

State v. (Derek Don) Chappell, 225 Ariz. 229, 236 P.3d 1176 (2010)
F9 finding upheld. This aggravator was established by the jury’s explicit finding during the guilt phase that the two-year-old victim was under the age of fifteen when he died.

State v. (Wayne Benoit) Prince, 226 Ariz. 516, 250 P.3d 1145 (2011)
F9 finding upheld. The State introduced uncontroverted evidence that Prince was twenty-six when he murdered the victim, who was thirteen.

State v. (Brad Lee) Nelson, 229 Ariz. 180, 273 P.3d 632 (2012)
The victim was 14 years and 10 months old.  Nelson did not challenge the sufficiency of the evidence to support the F(9) aggravator; he did, however, challenge its constitutionality under the Eighth and Fourteenth Amendments to the U.S. Constitution.  This aggravator is not unconstitutionally vague, because it does not apply to all murders and is easily understood.  It does not violate the equal protection and due process clauses because the legislature has the discretion to determine that murder of the very young and the very old is especially abhorrent.  And it is not cruel and unusual or disproportionate to the crime because there is a consensus in jurisdictions that impose the death penalty that age is a factor that should be considered when assessing the death penalty.

State v. (Ronnie Lovelle) Joseph, 230 Ariz. 296, 283 P.3d 27 (2012)
Th(F)(9) finding upheld. The jury found this aggravating factor proven: Joseph’svictim was less than fifteen years of age. Joseph did not contest the finding; the record supports the jury's finding.

*State v. (Shawn Ryan) Grell (Grell III) , 231 Ariz. 153, 291 P.3d 350 (2013)
On independent review, the Court found that the State proved all three aggravating factors beyond a reasonable doubt, but did not address them in detail in light of its conclusion that Grell’s mental retardation precluded imposition of the death penalty.The Grell III Court stated that “Shawn Ryan Grell murdered his two-year-old daughter, Kristen Grell, by pouring gasoline on her and lighting her on fire,” adding a footnote:  For a more detailed statement of facts relating to the underlying crime, see State v. Grell (Grell I) , 205 Ariz. 57, 58–59, ¶¶ 3–15, 66 P.3d 1234, 1235–36 (2003), and State v. Grell (Grell II) , 212 Ariz. 516, 518, ¶¶ 3–4, 135 P.3d 696, 698 (2006).

In Grell II, 212 Ariz. 516, 519, 135 P.3d 696, 699 (2006) the Supreme Court found:  That Kristen was younger than fifteen at the time of the crime was proven by a birth certificate showing her 1997 birthdate, which established that she was two years old at the time of her death.

Cases where the death sentence was reduced have been marked with an *.

State v. (Christopher Mathew) Payne, 2013 WL 6252412 (November 21, 2013)
(F)(9) FINDING UPHELD Defendant did not contest the finding of the (F)(9) aggravating factor; the children were 2 and 4.

A single fact may be used to support multiple aggravating factors as long as the fact is not weighed twice when assessing mitigation/aggravation. Thus, the age of the victim may be considered for both “especial heinousness and depravity,” (F)(6), and the “young age of the victims,” (F)(9).

State v. (Efren) Medina, 232 Ariz. 391, 306 P.3d 48 (2013)
(F)(9) FINDING UPHELD Defendant acknowledged sufficient evidence supported the aggravator. Court declined to afford less weight because he did not know the victim’s age, as the statute does not require knowledge.

State v. (William Craig) Miller, --- P.3d ---, 2013 WL 6842566 (December 27, 2013)
One of the victims was the girlfriend’s 10-year old son.

State v. (Shawna) Forde, 233 Ariz. 543, 315 P.3d 1200 (2014)
Defendant does not contest that she was an adult at the time of the murders or that the child was under the age of fifteen.

State v. Israel Joseph Naranjo, -- Ariz. --, -- P.3d --, 2014 WL 1016272 (March 18, 2014).
The jury found this aggravating factor proven, and Naranjo did not contest the finding. Defendant was an adult and the victim was an unborn child.



(F)(9) FINDING REVERSED

No reported cases

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