Court of Appeals of Arizona, First Division, Department E
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2009-007018-002 The Honorable Pamela H. Svoboda, Judge.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section and Jana Zinman, Assistant Attorney General Attorneys for Appellee.
Michael J. Dew, Phoenix Attorney for Appellant.
JON W. THOMPSON, Judge.
¶1 Tricia Varela (defendant) appeals her convictions for child abuse. For the reasons set forth below, we affirm defendant's convictions and sentences.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 The four-year-old victim, E.V., was placed with defendant and her husband in August 2008 and then formally adopted by them in April 2009. Although E.V. was already potty-trained, she began to hold her urine and stool, and would defecate on herself at times. E.V.'s behavior worsened and it became a constant "power struggle" to "force her to go to the bathroom." Defendant would "hold [E.V.] onto the toilet sometimes upwards of 45 minutes to an hour to try to get her to use the bathroom."
¶3 On April 25, 2009, E.V.'s refusal to go to the bathroom resulted in a three-hour fight between defendant and E.V. Defendant held E.V. on the toilet with E.V.'s head between her legs, "pushing on her back so [E.V.'s] chest was going into her knees." At some point during the incident, defendant removed all of E.V.'s clothing and took her into the closet where she restrained E.V. face down on the ground with her hands pulled up behind her back so E.V. couldn't move, and struck E.V. repeatedly with a "patent leather shoe." Defendant admitted to striking E.V. six times and "restrain[ing] her against the wall." Defendant explained that her fingernails or wedding ring "caused the scratching [found] on [E.V.'s] back."
¶4 Two days later, defendant took E.V. to the hospital because she was vomiting "green bile." Nurses were concerned about possible abuse because of "lots of bruising on [E.V.'s] extremities and her legs" from "suspected nonaccidental trauma, " and they contacted Child Protective Services (CPS) and the Goodyear police department. Dr. David Rosenberg, a pediatric critical care physician, admitted E.V. to the Intensive Care Unit (ICU) because she was "seriously ill."
¶5 E.V. had multiple bruises and abrasions on her abdomen and back, as well as scattered bruising all over the remainder of her body, with scabs and multiple bruises of different colors and ages on her extremities. She suffered from a distended abdomen with decreased bowel sounds, vomiting, severe dehydration, decreased kidney functions, red blood cells and protein in her urine, abnormal blood counts, and abnormal liver function tests. E.V. exhibited swelling throughout her body, including a "very swollen" pubic region with an abrasion, and an abrasion on her neck. E.V. had a fever, "was very confused, " and had "slurred speech."
¶6 Doctors discovered bleeding in the muscle layers of E.V.'s abdomen that became infected and caused an abscess requiring two surgeries. Dr. Rosenberg testified that it was unusual for someone to have this type of injury and that it was the result of "blunt trauma, " "most likely a blow of some kind." E.V. also had an infection in her right groin area that was related to her abdominal infection. She received a blood transfusion because her hemoglobin blood counts were so low that the doctors were worried she would not be able to maintain getting oxygen in her body. E.V. received intravenous fluids and nutrition, and antibiotics for infection. She was in the hospital for thirty days. Several doctors testified that E.V.'s condition was "life-threatening, " "could have been fatal, " "extremely critically ill, " and that "[s]he could have died" if she had not received medical attention, and that her "injuries were consistent with nonaccidental trauma given the entire clinical picture and the history . . . as well as from the medical chart."
¶7 The state charged defendant with four counts of child abuse, class 2 felonies, and dangerous crimes against children (counts 1, 2, 4, and 5). In March 2012, a jury found defendant guilty of count 4, reckless child abuse, a class 5 felony and domestic violence offense. The trial court declared a mistrial on the remaining three counts. Defendant was retried on counts 1 (abdominal tear), 2 (failure to seek medical care), and 5 (prior bruising), and the jury found her guilty of the following: count 1, reckless child abuse, a class 3 felony and domestic violence offense committed in an especially heinous or depraved manner; count 2, intentional or knowing child abuse, a class 2 felony and domestic violence offense committed in an especially cruel, heinous or depraved manner that caused physical or emotional harm to the victim; and count 5, intentional or knowing child abuse, a class 4 felony and domestic violence offense, committed in an especially cruel manner that caused physical or emotional harm to the victim. The trial court sentenced defendant to concurrent terms of 3.5 years' imprisonment for count 1, 17 flat years for count 2, 1.5 years for count 4, and 2.5 years for count 5. The trial court gave defendant seventy-two days of presentence-incarceration credit for each count.
¶8 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21 (A)(1) ...