When Can an Element of a Crime be an Aggravator?


By R.L. Gottsfield

Robert L. Gottsfield is a graduate of State of University of N.Y. (Binghamton) (B.A. 1956), Cornell Law School, (J.D. 1960), and ASU (Master of Counseling, 1981). He clerked for the Supreme Court, Appellate Division, Third Department, in Albany N.Y. (1960-1962) and became a research staff attorney to the court (1963). He joined the Phoenix law firm of Rawlins, Ellis Burrus & Kiewit, in 1963, and eventually became a partner specializing in banking, bonds and commercial litigation. He was appointed to the Superior Court, Maricopa County in 1980 and is presently on the criminal bench. He is a frequent contributor to legal publications.

This is the rare instance where the discussion is concerned with what the Court of Appeals did rather than what occurred on the appeal, as the Supreme Court did not address the issue posed above. It is believed the issue was adequately and properly answered by the Court of Appeals based on prior Arizona law, which accounts for the high court’s silence. What the Supreme Court did rule on will also be considered in what follows.

To answer the question posed in the title, simply put, and except for certain statutory prohibitions to be discussed, “where the degree of misconduct is higher than that requisite to commit the crime.” State vs. Bonfiglio, 228 Ariz. 349, 355, 266 P. 3d 375, 379 (App. 2011), [affirmed ___ P. 3d ___ (3/16/13) (No. CR-12-0018- PR], quoting State v. Harvey, 193 Ariz. 472, 476, 974 P.2d 451, 455 (App. 1998), rev. denied. In Bonfiglio the defendant stabbed the victim and was convicted by a jury of aggravated assault, a non-dangerous class 3 felony with two prior felony convictions. Harvey involved a shooting and defendant was convicted by a jury of negligent homicide, a class 4 dangerous offense.

Each trial judge aggravated1 the sentence based on the fact defendant had an opportunity and the ability to walk away and chose not to do so. The appellate courts agreed this was a proper aggravator under the circumstances.

In Bonfiglio, Division One reasoned that a non-dangerous aggravated assault only requires a jury finding of at least reckless conduct. But that by engaging in a fight, kicking and stabbing the victim multiple times showed defendant acted deliberately and intentionally so the degree of misconduct was higher than that necessary to commit the crime.

The same court a few years earlier in the Harvey opinion, relied on in Bonfiglio by Division One, where the victim was shot to death while sitting in a vehicle, found the ability to walk away aggravator proper because negligent homicide, for which he was convicted, only requires that a person fail to perceive a substantial and unjustifiable risk that a death could occur which failure constitutes a gross deviation from the standard of care a reasonable person would observe in the situation. But the failure to walk away aggravator is a “focus… on the deliberate quality of the killer’s actions.”

A reason given for requiring more than just the conduct needed to commit the crime is that if the trial court could increase punishment “in the absence of any legislative intent, by using the very elements of the crime as aggravating factors, the carefully structured statutory scheme provided for presumptive sentences would be undermined.”

Both Harvey and Bonfiglio7 advise that conduct which makes up an element of the underlying crime where the degree of misconduct is higher than that required to commit the crime, can only be considered a “catch-all” aggravator, under now A.R.S. §13-701 (D) (24), because it is not usually an enumerated aggravating factor in the statute. That subsection provides that a trier of fact may consider as an aggravating circumstance:

Any other factor that the state alleges is relevant to the defendant’s character or background or to the nature or circumstances of the crime.

Thus catch-all aggravators can involve the circumstances of the offense or the defendant’s actions during the offense.

Bonfiglio also refers8 to the catch-all caveat recently set forth by the Arizona Supreme Court in State v. Schmidt, 220 Ariz. 563, 208 P.3d 214 (2009), which is that a trial court may not sentence a defendant to an aggravated prison term based solely on a catchall aggravator. This exception was satisfied in Bonfiglio because defendant had been previously convicted of two prior felonies.

As noted in State v. Martinez, 210 Ariz. 578, 585, 115 P.3d 618, 625 (2005), cert. denied, 546 U.S. 104411 “a trial court may find an aggravating circumstance by a preponderance of the evidence12 once a jury has found at least one prior aggravating circumstance beyond a reasonable doubt or a defendant has admitted the aggravator.”


Notwithstanding the foregoing analysis, according to statute the infliction or threatened infliction of serious physical injury may not be used to aggravate a sentence where it is an essential element of the offense of conviction or has been used to enhance a sentence.

The use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime is similarly prohibited as an aggravator on the same terms as set forth under the serious physical injury aggravator.

Section 13-701 (D)(11) also expressly states in the case of a prior felony conviction as an aggravator that the felony occur “within the ten years immediately preceding the date of the (charged) offense.”



Defendant convicted of reckless manslaughter but his recklessness was sufficiently extreme (drove recklessly for a number of miles, under influence of alcohol, ran another vehicle off the road; drove on wrong side of road across the center line; and engaged in a game of “chicken”) to permit it also to be used as an aggravator. State v. Germain, 150 Ariz. 287, 723 P.2d 105 (App. 1986).

Committing second degree murder or reckless manslaughter in a brutal (as distinct from cruel), vicious or violent manner. State v. Hurley, 197 Ariz. 400, 405, 4 P.3d 455, 460 (App. 2000), rev. denied; State v. Smith, 171 Ariz. 501, 506, 831 P.2d 877, 882 (App. 1992); State v. Inglish, 129 Ariz. 444, 445, 631 P.2d 1102, 1103 (App. 1981).

Where convicted of sexual exploitation of a minor under 15 and other counts of sexual conduct the court assumes mental trauma is inherent in the crime, and a trial court may properly consider “extreme” mental and psychological trauma suffered by the victim. State v. Long, 207 Ariz. 140, 148, 83 P.3d 618, 626 (App. 2004), rev. denied.

Multiple victims of a single act. State v. Tschilar, 200 Ariz. 427, 27 P.3d 331 (App. 2001), rev. denied. But cf. State v. Alvarez, 205 Ariz. 110, 67 P.3d 706 (App. 2003) (sex victims in six unrelated incidents occurring at different times).

Being physically bound or gagged during commission of kidnapping and sexual assaults State vs. Stuck, 154 Ariz. 16, 24, 739 P.2d 1333, 1341 (App. 1987).

Not improper in second degree murder conviction to use as a catch-all defendant’s acts caused such disfigurement the family could not have an open-casket funeral even though a separate enumerated aggravator of emotional harm to family also found. State v. Johnson, 229 Ariz. 475, 276 P.3d 544 (App. 2012).

That defendant caused injuries requiring the victim to undergo plastic surgery where defendant convicted of aggravated assault causing temporary and substantial disfigurement. State v. Molina, 211 Ariz. 130, 138, 118 P.3d 1094, 2002 (App. 2005), rev. denied. Second degree murder conviction can be aggravated by use of an illegal weapon (sawed-off shotgun) to commit the crime, State v. Jenkins, 193 Ariz. 115, 122, 970 P.2d 947, 954 (App. 1998), rev. denied.

On a conviction of conspiracy to sell marijuana the factor of the large quantity of drugs can be considered as an aggravator. State v. Calderon, 171 Ariz. 12, 14, 827 P.2d 473, 475 (App. 1991), rev. denied.

The Maricopa County Attorney’s Office has a number of lists of “catch-all” aggravators with appropriate authority which they commonly file and are available on request, and which include: The defendant is a danger to society and to deter future similar conduct. State v. Wideman, 165 Ariz. 364, 798 P.2d 1373 (App. 1990), rev. denied.

Abuse of position of trust. State v. Long, 207 Ariz. 140, 83 P.3d 618 (App. 2004), rev. denied.

Attempted to cover up the crime and did not seek help for victim. State v. Jenkins, 193 Ariz. 115, 970 P.2d 947 (App. 1998), rev. denied.

Lengthy criminal history. State v. Fristoe, 135 Ariz. 25, 658 P.2d 825 (App. 1982).

Was previously on probation or violated a previous grant of probation or was on probation at the time of offense. State v. Winans, 124 Ariz. 502, 605 P.2d 904 (App. 1979); State v. Ritacca, 169 Ariz. 401, 819 P.2d 987 (App. 1991), rev. denied. Surprisingly being on probation at the time of the offense is not an enumerated aggravator and may indeed be a catch-all.

Previously served time in prison. State v. Soto-Perez, 192 Ariz. 566, 968 P.2d 1051 (App. 1998), rev. denied.


Obviously, any listed aggravator in the first 23 paragraphs of A.R.S. §13-701 (D) is by definition not a catch-all aggravating circumstance. The use of more force than necessary to commit kidnapping is not inherent in the jury verdict and may not be used as an aggravator. State v. Gomez, 211 Ariz. 494, 502, 123 P.3d 1131, 1139 (2005).

It may be on sentencing for conspiracy to sell marijuana that the factor he had an accomplice is inherently necessary to commit the offense and should not be used as an aggravator. State v. Calderon, 171 Ariz. 12, 827 P.2d 473 (App. 1991), rev. denied.

Although not an element of a crime it bears repeating that the failure of defendant to acknowledge guilt cannot be used as a sentencing aggravator. State v. Tinajero, 188 Ariz. 350, 935 P.2d 928 (App. 1997), rev. denied. If a defendant admits guilt this can be used as mitigating evidence if the defendant is truly remorseful. State v. Carriger, 143 Ariz. 142, 162, 692 P.2d 991, 1011 (1984), cert. denied, 471 U.S. 1111 (1985).

Moreover, the Arizona Supreme Court has emphasized, and does again in Bonfiglio, that trial judges should clearly identify the specific statute under which they are sentencing a criminal defendant in order to facilitate appellate review. It is strongly suggested that counsel ensure the proper statues are placed on the record which should include whether a judicial officer is using a “catch-all” aggravator where he or she fails to do so.


At the Court of Appeals the defendant raised an improper vouching issue (not considered herein) and that the use of the catch-all aggravating factor found by the jury to justify an aggravated sentence was improper, which as noted was that the defendant “had the ability to walk away from the confrontation” and did not do so. The defendant specifically argued it was an improper use of an element of the crime to aggravate his sentence, which was denied by the Court of Appeals.

While the Supreme Court did not specifically address whether and under what circumstances an element of a crime can be used to aggravate a sentence, it did address defendant’s argument that he was entitled to a presumptive sentence. Assuming the catchall aggravator was properly found by the jury, the state requested the court vacate the sentence and remand for sentencing as the record was unclear as to which aggravating circumstances the trial court used to aggravate the sentence.

The jury convicted the defendant of aggravated assault, a nondangerous class 3 felony and specifically found the existence of the catch-all aggravator at the time of the crime. In addition, and prior to sentencing, defendant admitted to two previous felonies committed in 2007, which had been alleged by the state. He was also found to be on probation at the time of the offense, a finding apparently made by the trial judge when she conducted the trial on the priors, outside the presence of the jury (being on probation it has been argued is for the jury to determine).

He was sentenced to 13 years, or more than the presumptive of 11.25 years, as a class three non-dangerous offender with two historical priors.

The problem created by the trial court in Bonfiglio was that the court found defendant had two prior felony convictions and that he was on probation but only specifically listed as a reason for aggravating its sentence the catch-all aggravator found by the jury, which by itself is not sufficient to aggravate a sentence.

An additional rationale that an aggravated prison term cannot be based solely on a catch-all factor is because it violates due process. The defendant has a right to notice and due process and that requires that a jury find beyond a reasonable doubt all the facts which a court relies on to determine the punishment. The exception is a prior felony conviction (the one Blakely-exempt factor) which is determined by the trial court. It is also well established that the same prior felony conviction can be used by the trial court to both enhance or increase the sentencing range and to aggravate a defendant’s sentence within the enhanced range.

Suffice it to say that both the Court of Appeals and the Supreme Court affirmed the aggravated sentence because defendant had admitted to two historical prior convictions occurring within ten years preceding the date of the current offense [13-701 (11)] and once an enumerated aggravating factor is found (by the jury or admission or a trial to the court on priors) additional factors relevant to the sentencing such as the catch-all aggravator found here may be used. State v. Martinez, 210 Ariz. 578, 585, 115 P.3d 618, 625 (2005), rev. denied, 546 U.S. 1044.

The Supreme Court in an important clarification of prior law holds that it is not fatal if the trial court does not specifically list all aggravators used in its sentencing, although it is decidedly the better practice. If the trial court finds on the record certain circumstances existing at the time of the event which can be used as aggravators this is sufficient. Here the trial court found on the record that defendant had two prior felonies, and this was a sufficient basis for using the catch-all aggravator the court listed as an aggravating factor.

*Because of space limitations the endnotes have been omitted, but are available from the author rgottsfi@superiorcourt.maricopa.gov.