NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DAVID GLEN WIGGINS, Appellant.

No. 1 CA-CR 13-0344

Appeal from the Superior Court in Maricopa County

No. CR2011-154102-001

The Honorable Karen A. Mullins, Judge

AFFIRMED IN PART AS CORRECTED; VACATED IN PART; 

REMANDED WITH INSTRUCTIONS

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Adriana M. Zick

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Stephen Whelihan

Counsel for Appellant
STATE v. WIGGINS

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2

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which

Presiding Judge Margaret H. Downie and Chief Judge Diane M. Johnsen 

joined.

N O R R I S, Judge:

¶1 David Glen Wiggins appeals from his convictions and 

sentences for first degree murder, aggravated assault, endangerment, and 

unlawful flight from pursuing law enforcement vehicle. The convictions 

stem from Wiggins’s conduct in fleeing from police officers and causing a 

traffic accident that resulted in the death of an eleven-year-old boy and 

injured the boy’s father and seven-year-old brother. Wiggins argues the 

superior court should not have imposed aggravated sentences on the

aggravated assault and endangerment convictions and should not have

ordered him to pay restitution and the cost of DNA testing. For the 

following reasons, we affirm Wiggins’s convictions and sentences as 

corrected but vacate the order directing him to pay restitution and remand 

to the superior court to determine the amount of restitution. 

FACTS AND PROCEDURAL BACKGROUND 

¶2 The superior court sentenced Wiggins to the presumptive 

prison term of life imprisonment with the possibility of parole after 35

years for first degree murder, together with concurrent aggravated terms

of 19 years for aggravated assault and 2.75 years for endangerment and a 

concurrent presumptive term of 1.5 years for unlawful flight from 

pursuing law enforcement vehicle. The court also ordered Wiggins to pay 

restitution to the victims and authorized the Department of Corrections to 

make monthly withdrawals from his inmate account for that purpose. 

Additionally, it ordered Wiggins to submit to DNA testing. 

DISCUSSION

¶3 As an initial matter, we note Wiggins did not object to any of 

the superior court’s sentencing orders. Accordingly, we limit our review 

to fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 

601, 607 (2005). To obtain relief under this standard of review, Wiggins

has the burden of showing both fundamental error and resulting 

prejudice. Id. at ¶ 20. An illegal sentence, however, constitutes 

fundamental error, and we will reverse it on appeal notwithstanding lack 
STATE v. WIGGINS

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3

of an objection. State v. Cox, 201 Ariz. 464, 468, ¶ 13, 37 P.3d 437, 441 (App. 

2002).

I. Aggravated Sentences

¶4 Wiggins argues the superior court should not have imposed

aggravated sentences for his aggravated assault and endangerment 

convictions because the court did not rely on any qualifying aggravating 

circumstance that would render these offenses eligible for sentences above 

the presumptive term. Whether a superior court may employ a particular 

factor to aggravate a sentence presents a question of law we review de 

novo. State v. Tschilar, 200 Ariz. 427, 435, ¶ 32, 27 P.3d 331, 339 (App. 

2001).

A. Aggravated Assault Conviction

¶5 The superior court relied on the aggravating circumstances 

found by the jury in imposing an aggravated sentence for Wiggins’s

aggravated assault conviction against the seven-year-old victim. 

Specifically, the jury found three aggravating factors: 1) the victim was 

under the age of 15; 2) the victim suffered emotional or financial harm; 

and 3) the presence of multiple victims. Wiggins argues, and the State 

concedes, that neither the young age of the victim nor the presence of 

multiple victims could have, alone, permitted the court to impose an 

aggravated sentence because neither factor is specifically enumerated in 

Arizona Revised Statutes (“A.R.S.”) section 13–701(D) (Supp. 2013),1 but 

rather they fall within the “catch-all” category of aggravating 

circumstances under A.R.S. § 13-701(D)(24). See generally State v. Schmidt, 

220 Ariz. 563, 566, ¶¶ 10-11, 208 P.3d 214, 217 (2009) (only aggravating 

factors specifically enumerated in A.R.S. § 13-701(D) can render defendant 

eligible for aggravated sentence). The superior court may consider a 

“catch-all” aggravator to impose a sentence up to the statutory maximum 

if a properly found specifically enumerated aggravator makes the 

defendant eligible for a sentence greater than the presumptive term. State 

v. Bonfiglio, 231 Ariz. 371, 373 ¶ 10, 295 P.3d 948, 950 (2013). Accordingly, 

the superior court could impose an aggravated sentence on the 

aggravated assault conviction only if the jury properly found the second 

 1Although the Arizona Legislature amended certain statutes 

cited in this decision after the date of Wiggins’s offense, the revisions are 

immaterial. Thus, we cite to the current version of these statutes. 
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aggravating circumstance -- emotional or financial harm to the victim --

which is specifically enumerated in A.R.S. § 13-701(D)(9).

1. Emotional or Financial Harm to the Victim

¶6 Wiggins challenges the finding of emotional or financial 

harm on three different grounds. First, he argues the terms “financial 

harm” and “emotional harm” are unconstitutionally vague. Second, he 

argues the State failed to present sufficient evidence of the financial harm 

aggravator. Finally, he argues the verdict form linking “financial or 

emotional harm” in a single finding deprived him of his right to a 

unanimous verdict.

i. Vagueness Challenge

¶7 “A legislative enactment is unconstitutionally vague if it fails 

to give persons of ordinary intelligence reasonable opportunity to know 

what is prohibited and fails to provide explicit standards for those who 

apply it.” State v. Tocco, 156 Ariz. 116, 118, 750 P.2d 874, 876 (1988)

(citations omitted). “Although due process requires notice which 

provides a fair and definite warning, it neither requires absolute precision 

nor impossible standards.” State v. Steiger, 162 Ariz. 138, 141-42, 781 P.2d 

616, 619-20 (App. 1989) (citations omitted).

¶8 Wiggins does not contend the meaning of the term “financial 

harm” is not capable of being understood, only that it does not provide a 

standard for what amount of financial harm constitutes an aggravating 

circumstance. Contrary to Wiggins’s contention, we read the statutory 

enumeration of financial harm to the victim to reflect that the presence of 

any pecuniary injury is sufficient to constitute an aggravating factor. 

Many criminal offenses do not include financial loss as an element of the 

crime. Thus, when such an offense results in the victim suffering any 

pecuniary injury, the offense can be viewed as “aggravated” in nature, i.e., 

causing harm over and above that inherent in the offense. If the 

Legislature had intended to require proof of some specific minimum 

amount of financial harm to constitute an aggravating factor, it could have 

done so by setting forth a specific dollar amount, as it did in defining 

certain offenses. See, e.g., A.R.S. § 13-1602(B) (Supp. 2013) (designating 

class of criminal damage offense based on dollar amount of property 

damaged); A.R.S. § 13-1802(G) (Supp. 2013) (designating class of theft 

offense based on dollar amount of property or services involved). The 

absence of any specific minimum amount of financial harm supports the 

conclusion that the Legislature intended no such minimum.
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¶9 Wiggins agues such an interpretation runs afoul of the 

Legislature’s intent, as described by our supreme court in State v. Bly, 127 

Ariz. 370, 372, 621 P.2d 279, 281 (1980), that the presumptive sentence “is 

to be imposed on the vast majority of first offenders who commit the 

crime.” We reject this argument because the finding of an aggravated 

factor does not mandate imposition of an aggravated sentence. The 

superior court is required only to consider the factor in determining the 

sentence. A.R.S. § 13-701(D). Accordingly, though even minimal financial 

harm would render a defendant eligible for an aggravated sentence, it 

would not necessarily result in an aggravated sentence unless the superior 

court, in the exercise of its discretion, decided that such a sentence was 

appropriate. See State v. Harvey, 193 Ariz. 472, 477, ¶ 24, 974 P.2d 451, 456 

(App. 1998) (weight assigned to aggravating and mitigating factors is left 

to discretion of superior court). 

¶10 Wiggins similarly argues the aggravating circumstance of 

emotional harm is unconstitutionally vague because there is no legal 

standard for what constitutes “emotional harm.” We disagree. “We give 

words their usual and commonly understood meaning unless the 

[L]egislature clearly intended a different meaning.” State v. Korzep, 165 

Ariz. 490, 493, 799 P.2d 831, 834 (1990) (citation omitted). The usual and 

commonly understood meaning of “emotional” is “of or relating to 

emotion: an emotional illness; emotional crisis.” The American Heritage 

Dictionary 585 (4th ed. 2006). “Emotion” means “a mental state that arises 

spontaneously rather than through conscious effort and is often 

accompanied by physiological changes; a feeling; the emotions of joy, 

sorrow, hate, and love. Id. The term “harm” means “physical or 

psychological injury or damage.” Id. at 800. As employed in A.R.S. § 13-

701(D)(9), the words “emotional harm,” by their usual and commonly 

understood meaning, give notice that a person who causes a victim to 

suffer injury or damage to his or her mental state or feelings as a result of 

the offense will be subject to an aggravated sentence. Because the statute 

provides sufficient notice that a defendant will be exposed to the 

possibility of an aggravated sentence if his or her criminal conduct results 

in the victim suffering injurious feelings, this aggravating circumstance is 

not unconstitutionally vague.

¶11 Wiggins also argues the aggravating circumstance of 

emotional harm is unconstitutionally vague because it does not quantify 

the amount of emotional harm that must be suffered. We reject this 

argument because the existence of any emotional harm to the victim is 
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sufficient to support a finding of this aggravator and it is within the 

discretion of the court to decide the weight to give to this factor. See

Harvey, 193 Ariz. at 477, ¶ 24, 974 P.2d at 456.

ii. Sufficiency of Evidence 

¶12 Wiggins also argues the State failed to present sufficient 

evidence of the financial harm aggravator. We disagree. In considering 

claims of insufficient evidence, “this court reviews the record to determine 

whether substantial evidence supports the jury’s finding.” State v. Roque, 

213 Ariz. 193, 218, ¶ 93, 141 P.3d 368, 393 (2006) (citation omitted). 

“Evidence is sufficient to support the finding of an aggravating 

circumstance if reasonable persons could conclude it establishes the 

circumstance beyond a reasonable doubt.” State v. Payne, 233 Ariz. 484, 

520, ¶ 163, 314 P.3d 1239, 1275 (2013). 

¶13 Although the State did not present evidence of any specific 

dollar amount of financial harm, it presented evidence that the sevenyear-old victim suffered substantial and serious physical injuries in the 

collision, requiring medical treatment and four or five days of 

hospitalization. Moreover, even after the victim was released from the 

hospital, he required a special diet, special equipment, and special 

clothing. Based on this evidence, the jury could find beyond a reasonable 

doubt the victim suffered financial harm due to his medical treatment and 

hospitalization and the additional expense of his special diet, equipment, 

and clothing required after his release from the hospital.

¶14 Citing Lopez v. Cole, 214 Ariz. 536, 155 P.3d 1060 (App. 2007), 

Wiggins argues the seven-year-old victim did not suffer any financial 

harm because the law does not recognize that he, as a minor child, has any 

legally cognizable liability or claim for medical expenses necessitated by 

his injuries. In Lopez, this court held the minor child could not seek to

recover his medical expenses in a civil action because his parents had not 

consented to assigning the claim to him and the applicable two-year 

statute of limitations had run on their claim. Id. at 538, ¶ 11, 155 P.3d at 

1062. The decision in Lopez was based on the then-controlling case of

Pearson & Dickerson Contractors, Inc. v. Harrington, 60 Ariz. 354, 137 P.2d 

381 (1943). In that case, our supreme court stated that in cases involving 

injury to a minor child, the proper party to bring an action for damages 

for medical expenses is the child’s parent and not the child. Id. at 364, 137 

P.2d at 385. Pearson, in turn, relied on S. A. Gerrard Co. v. Couch, 43 Ariz. 

57, 29 P.2d 151 (1934), in which our supreme court stated that “ordinarily 

an infant suing for personal injuries cannot recover for the impairment of 
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his earning capacity during infancy, or for loss of time, or for expenses in 

curing his injuries” while he is under the “control of his parents.” Id. at 

67, 29 P.2d at 155 (quoting another source).

¶15 Wiggins’s reliance on Lopez is misplaced. Our supreme 

court recently reconsidered the rule applied in Lopez and, observing the 

rule was based on an antiquated master-servant analogy, concluded it is 

“no longer just or consistent with sound policy.” Estate of DeSela v. 

Prescott Unified Sch. Dist. No. 1, 226 Ariz. 387, 389-90, ¶¶ 11-15, 249 P.3d 

767, 769-70 (2011). Accordingly, our supreme court overruled Pearson and 

Gerrard and held “the right to recover pre-majority medical expenses 

belongs to both the injured minor and the parents.” Id. at 390, ¶ 15, 249 

P.3d at 770. With its legal underpinnings removed, Lopez falls along with 

Pearson and Gerrard. Accordingly, evidence a minor victim suffered 

physical injury as a result of criminal conduct that necessitated medical 

treatment for which payment is expected is sufficient to support a finding 

of financial harm to that victim as an aggravator under A.R.S. § 13-

701(D)(9). 

iii. Unanimity of Verdict 

¶16 Wiggins also argues the verdict form linking “financial or 

emotional harm” in a single finding deprived him of his right to a 

unanimous verdict because it is possible the jury was not unanimous as to 

which harm satisfied the aggravating circumstance. We disagree. When

“the evidence is sufficient to satisfy each alternative prong of an 

aggravating circumstance,” jury unanimity is not necessary regarding 

which prong satisfied the determination of the existence of that 

circumstance. State v. Anderson, 210 Ariz. 327, 355-56, ¶ 128, 111 P.3d 369, 

397-98 (2005). Here, the State presented sufficient evidence supporting 

the jury’s finding of both emotional and financial harm to the victim. 

Thus, Wiggins was not deprived of his right to a unanimous verdict. 

2. Consideration of “Catch-all” Aggravator

¶17 Finally, Wiggins argues the superior court should not have 

considered the age of the victim as an aggravator because the victim’s age 

increased the aggravated assault offense from a class 3 felony to a class 2 

felony. See A.R.S. § 13-1204(D) (Supp. 2013) (increasing aggravated 

assault from class 3 felony to class 2 felony when victim is under 15 years 

of age). A victim’s young age can be considered as an aggravating 

circumstance pursuant to the “catch-all” provision of A.R.S. § 13-701(D). 

State v. Struck, 154 Ariz. 16, 23, 739 P.2d 1333, 1340 (App. 1987). Unlike the 
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statutorily enumerated aggravating factors, however, an aggravating 

factor alleged pursuant to the “catch-all” provision that is also an element 

of the offense can be used as an aggravator only if the nature of the 

aggravator “rises to a level beyond that which is merely necessary to 

establish an element of the underlying crime.” State v. Germain, 150 Ariz. 

287, 290, 723 P.2d 105, 108 (App. 1986). 

¶18 We do not need to decide whether Wiggins’s misconduct 

rises to a level beyond that which is merely necessary to establish an 

element of aggravated assault because, even if we assume the superior 

court should not have considered this factor, Wiggins would not be 

entitled to relief under fundamental error review. As discussed above, the 

superior court properly considered the statutorily enumerated 

aggravating circumstance of emotional or financial harm to the victim,

and Wiggins raises no challenge to the court’s consideration of the other 

“catch-all” aggravating factor of the presence of multiple victims. Nor 

does Wiggins claim that he was sentenced outside of the lawful 

aggravated range for his aggravated assault offense. Under these 

circumstances, absent a timely objection at sentencing, the superior court’s 

consideration of the victim’s age does not constitute fundamental,

reversible error. State v. Munninger, 213 Ariz. 393, 397, ¶ 13, 142 P.3d 701, 

705 (App. 2006).2

B. Endangerment Conviction

1. Vagueness Challenge

¶19 In imposing an aggravated sentence for endangerment, the 

superior court considered the two aggravating factors found by the jury:

1) the victim suffered physical, emotional or financial harm; and 2) the 

presence of multiple victims. Wiggins argues the court should not have 

considered emotional and financial harm as an aggravating circumstance 

because they are both unconstitutionally vague. For the reasons discussed 

above, see supra ¶¶ 7-11, we disagree. 

 2Wiggins has also failed to show he was prejudiced by the 

court’s consideration of the victim’s age. See Munninger, 213 Ariz. at 397, 

¶ 14, 142 P.3d at 705. In imposing an aggravated sentence for aggravated 

assault, the superior court stated “any and all of the aggravating 

circumstances are sufficiently substantial to warrant a greater than 

presumptive term.” 
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2. Sufficiency of Evidence

¶20 Wiggins also challenges the sufficiency of the evidence to 

support the A.R.S. § 13-701(D)(9) factor. He acknowledges the presence of 

evidence to support a finding of physical harm to the father who was the 

victim of the endangerment offense but argues the State failed to present 

any evidence to support the jury’s finding of financial or emotional harm. 

We disagree. 

¶21 First, the State presented evidence the father had suffered 

financial harm in the form of extensive damage to his vehicle as a result of 

Wiggins’s criminal conduct. Second, Wiggins’s criminal conduct also 

caused the death of one of the father’s sons and serious physical injury to 

his other son. Thus, the father suffered undisputed emotional harm as a 

result of the death of one son and injury to the other, which is directly 

related to, and caused by, Wiggins’s criminal conduct. See Tschilar, 200 

Ariz. at 435, ¶ 34, 27 P.3d at 339 (person who assaults more than one 

victim at once “arguably creates a greater risk of physical and emotional 

injury as to each as they see the others terrorized or injured”).

3. Unanimity of Verdict 

¶22 Finally, because the evidence is sufficient to support a 

finding by the jury of all three alternative prongs of the A.R.S. § 13-

701(D)(9) aggravator for the endangerment conviction, we reject Wiggins’s

argument he was deprived of a unanimous jury verdict. Anderson, 210 

Ariz. at 355-56, ¶ 128, 111 P.3d at 397-98. Accordingly, we conclude the 

jury’s finding of this statutorily enumerated aggravating factor rendered 

Wiggins eligible for an aggravated sentence on his endangerment 

conviction.

II. Restitution Order

¶23 At sentencing, the superior court ordered Wiggins to pay 

restitution for “any and all losses suffered by the victims and the [victims’] 

family” for the offenses of first degree murder, aggravated assault, and 

endangerment and authorized the Department of Corrections to make 

monthly withdrawals from his inmate account for that purpose. Wiggins 

argues the restitution order was an illegal sentence because the superior 

court did not determine the amount of restitution. The State argues 

Wiggins’s challenge is premature because the superior court retained 

jurisdiction over restitution until Wiggins completed parole or community 

supervision. Although A.R.S. § 13-603(C) (2010) mandates the payment of 

restitution “in the full amount of the economic loss as determined by the 
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court,” at the time of Wiggins’s sentencing, the court had not held a 

hearing on restitution and had not determined how much restitution 

Wiggins should pay. Section 13-603 imposes an affirmative duty on the 

superior court to determine the amount of the victim’s economic loss and 

order restitution in that amount, which should be done as part of 

sentencing. State v. Scroggins, 168 Ariz. 8, 9, 810 P.2d 631, 632 (App. 1991). 

Thus, we vacate the restitution order and remand to the superior court for 

an evidentiary hearing to determine the restitution amount. See id.

(vacating restitution order and remanding where no determination made 

as to amount of victim’s loss).

III. DNA Testing 

¶24 Wiggins argues the superior court was not authorized to 

order him to pay for DNA testing. Although the sentencing minute entry 

reflects the superior court ordered Wiggins to pay for DNA testing, it did 

not order him to pay for testing at the hearing. We therefore correct the 

May 10, 2013 minute entry to omit the requirement that Wiggins pay for 

DNA testing. See State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 

(App. 2013).

CONCLUSION

¶25 For the foregoing reasons, we affirm Wiggins’s convictions 

and sentences as corrected but vacate the sentencing order directing him 

to pay restitution and remand to the superior court to determine the 

amount of restitution.