* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 29 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RODERICK JEROME ARNOLD,

Petitioner-Appellant,

v. ARISTEDES ZAVARAS, Director of Colorado Department of Corrections; LARRY EMBRY, Warden of Fremont Correctional Facility; GAIL A. NORTON, Attorney General for the State of Colorado,

Respondents-Appellees. No. 97-1305 (D.C. No. 97-B-327) (D. Colo.)

ORDER AND JUDGMENT *

BeforeTACHA , LOGAN , and LUCERO , Circuit Judges.

In 1992, Mr. Arnold was convicted by a jury of firs t and second degree assault. 1 He was sentenced to fifteen years’ imprisonment o n the first degree1 (...continued)

ordered submitted without oral argument.

2 The district court granted Mr. Arnold’s motion for a certificate of appealability. -2- assault conviction and five years on the second deg ree assault conviction, to run consecutively. In his 28 U.S.C. § 2254 petition, Mr. Arnold alleged these two convictions and the consecutive sentences violate h is double jeopardy rights. Adopting the magistrate judge’s recommendation, the district court held that a double jeopardy violation did not occur. 2Mr. Arnold appeals to us; we affirm. On review of a district court’s ruling on a § 2254 petition, we grant a presumption of correctness to the state court’s fac tual findings if they are fairly supported by the record. See Hatch v. Oklahoma , 58 F.3d 1447, 1453 (10th Cir. 1995), cert. denied , 517 U.S. 1235 (1996). We review the district court’s conclusions of law and mixed questions of law and f act de novo. See id. ; but see Wright v. West , 505 U.S. 277, 294-95 (1992) (declining to announc e a standard for habeas review of the state court’s application of the law to the facts). The incident which led to Mr. Arnold’s convictions occurred one evening when he was attempting to visit a local bar. Petit ioner and several people with him were denied entrance to the bar; the group leftafter a physical confrontation with the doorman. Mr. Arnold returned and began ar guing again with the doorman, he then raised his arm and shot in the are a where the doorman was-3-

standing. The bullet struck another patron--uninvo lved in the fracas--in the hand. Upon trial, Mr. Arnold was convicted of second degr ee assault based on his intent to shoot the doorman; he was convicted of first deg ree assault against the patron. On direct appeal, Mr. Arnold argued that the convic tions and consecutive sentences violated double jeopardy principles. Mr. Arnold proposed that only one offense had occurred because he had only fired one shot and had only intended one injury. The state court of appeals held that adouble jeopardy violation did not occur because, there being two victims, the evi dence was not identical, and the assaults were separate offenses. The court rel ied on People v. Wafai , 713 P.2d 1354 (Colo. Ct. App. 1985), aff’d , 750 P.2d 37 (Colo. 1988) to distinguish this case from those falling under the constraints of Colo. Rev. Stat. § 18-1-408(3) which requires concurrent sentences f or a defendant convicted of multiple crimes based upon identical evidence. In Wafai , the court held that because the defendant’s convictions arose from “cri mes committed upon different victims,” the evidence was not identical, and conse cutive sentencing was permissible. Id. at 1357. The Double Jeopardy Clause provides that no “person[shall] be subject for the same offence to be twice put in jeopardy of lif e or limb . . . .” U.S. Const. amend. V. When cumulative sentences are imposed bya state court in a single trial, the federal court will hold that the § 2254 petitioner has been subjected to-4-

double jeopardy if the sentencing court meted out “ greater punishment than the legislature intended.” Missouri v. Hunter , 459 U.S. 359, 366 (1983). We are bound by the construction of a state statute given to it by the highest court in that state when assessing the intent of the state legisl ature. See id. at 368. In order to protect each citizen from prohibited cr iminal conduct, many state courts have held that their legislatures inte nded to create multiple offenses from a single act when that act affects more than o ne person. See, e.g. , State v. Henley , 687 P.2d 1220, 1222-23 (Ariz. 1984) (two assaults occurred when one bullet injured two people despite the fact that def endant performed only one act and had one intent; therefore, separate convictions and consecutive sentences did not violate double punishment clause of state s tatute); Goodman v. State , 601 P.2d 178, 185 (Wyo. 1979) (two distinct offense s may arise from single act without violating double jeopardy); see also United States v. Shaw , 701 F.2d 367, 396 (5th Cir. 1983) (Congress intended that when a single act causes more than a single consequence, the defendant may be convicte d of separate offenses so long as each offense “requires proof of a fact not essential to the other”). The Colorado Supreme Court has expressly held that “[i]f there is only one victim, and one criminal act, the defendant can be convicted of only one count of assault.” People v. Moore , 877 P.2d 840, 845 (Colo. 1994) (citing People v.
Lowe , 660 P.2d 1261, 1270-71 (Colo. 1983) (“Only one co nviction of murder is-5-

permitted for the killing of one victim.”)); see al soPeople v. Driggers , 812 P.2d 702, 703 (Colo. Ct. App. 1991) (convictions for both second degree murder and first degree felony murder could not be upheld wher e there was but one victim).
Moore and Driggersare in applicable to the present case. The Colora do Court of Appeals’ holding in Wafai , that the Colorado legislature intended that two convictions may arise from a single act when tw o victims are harmed is consistent with legislative intent. Moreover, sect ion 18-1-408(3) was not violated, because two victims were involved the evi dence presented was not identical. We perceive no legal error in the state court’s determination. The judgment is AFFIRMED. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge