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State v. Hamblin8/28/1990
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THE COURT: And you knew they were injured.
MR. HAMBLIN: Yes.
(Emphasis added.)
We conclude that defendant was involved in two accidents, not one. As a result, we believe that as he fled from the area, he was fleeing from two separate accidents. The question is whether consecutive sentences can be premised upon the single act of fleeing from the scene of two accidents.
DUTY
Arizona Revised Statutes § 28-661 imposes a statutory duty upon motorists to stop and render aid as required by A.R.S. § 28-663 to victims injured as a result of a vehicle accident. Taken together, these two provisions embody the statutory duty owed by a motorist involved in an accident to those injured or killed. State v. Milligan, 87 Ariz. 165, 168, 349 P.2d 180, 182 (1960).
Pursuant to the mandate of A.R.S. § 28-661, defendant owed a duty to the victim of each accident. His failure to stop immediately and render humanitarian aid constituted a separate breach of that duty as to each victim.
APPLICABILITY OF A.R.S. § 13-116
We decide initially that A.R.S. § 13-116 is not applicable to the facts of this case. Defendant was sentenced on two charges of violating the same statute. As stated by our supreme court: "Because both counts are punishable under the same sections of the law, consecutive sentences would not have constituted double punishment
in violation of . . . A.R.S. § 13-116." State v. Henley, 141 Ariz. 465, 467-68, 687 P.2d 1220, 1222-23 (1984).
DOUBLE JEOPARDY
Defendant asserts, without argument or citation to authority, that the imposition of consecutive sentences herein constitutes double jeopardy. We deem this issue of sufficient importance to merit discussion.
The state argues that this issue is controlled by State v. Gunter, 132 Ariz. 64, 643 P.2d 1034 (App.1982). In Gunter, the court imposed consecutive sentences upon the defendant following his conviction of two counts of aggravated assault stemming from a single act of throwing acid in the faces of his estranged wife and her male companion. The defendant there argued, as does defendant in the instant case, that the double punishment statute prohibited consecutive sentences for a single criminal act. The Gunter court looked to the results of the act, rather than the act itself, to determine if there were multiple offenses. Id. at 69, 643 P.2d at 1038-39. The court then cited Neal v. California, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839 (1960), cert. denied, 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700 (1961), for the proposition that a criminal defendant's level of culpability increases with the number of victims. In Neal, the defendant committed arson in an effort to murder two victims. The defendant was charged with two counts of attempted murder for his single act of arson. He was convicted on both counts and consecutive sentences were upheld.
In Henley, our supreme court also relied upon Neal and Gunter, concluding that where defendant shot only one bullet but injured two victims, he could properly be consecutively sentenced because his single act injured multiple victims. 141 Ariz. at 467-68, 687 P.2d at 1222-23.
The terms "act" and "offense" are not synonymous. As stated by this court in Gunter,
The Cons
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