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State v. Lara9/20/1990
ccomplish that crime. Death of the victim -- the designated aggravating factor in Just, Meador, and Howard -- was an essential definitional element in those cases. This point of distinction was not addressed in Just, Meador, and Howard. The cases did not reject it; they did not discuss it all. We now focus on this point, as those cases did not.
We build today not on those cases but on State v. Germain, and the contrast between that case and this one helps us to define our present point. In Germain, we recognized that there can be degrees of recklessness and held that recklessness beyond the irreducible definitional degree could serve to aggravate the crime of reckless manslaughter. 150 Ariz. at 290, 723 P.2d at 108. In contrast, there are not degrees of death; death is an essential and irreducible element of manslaughter. We hold that an essential and irreducible element cannot serve to aggravate the crime that it defines.
USE OF A DANGEROUS INSTRUMENT CAN AGGRAVATE MANSLAUGHTER
Our point is illustrated further by defendant's second argument, which we reject.
Defendant argues that the trial court impermissibly designated his use of a dangerous instrument as an aggravating factor. We disagree. Defendant committed manslaughter in this case by " ecklessly causing the death of another person." A.R.S. § 13-1103(A)(1). Nowhere does § 13-1103 require the use of a dangerous instrument. Because the use of a dangerous instrument does not define the crime, the trial court did not err to consider it an aggravating circumstance.
Conclusion
We find that the trial court, in sentencing defendant, relied on an inappropriate aggravating circumstance, the death of the victim. The trial court might permissibly have imposed the same sentence based on the other aggravating factors that it named. But because "it is unclear whether the judge would have imposed the same sentence absent the inappropriate [factor], the case must be remanded for resentencing." State v. Ojeda, 159 Ariz. 560, 561, 769 P.2d 1006, 1007 (1989).
We affirm the judgment of conviction, but remand for sentencing in accordance with Ojeda.
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