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State v. West

Court of Appeals of Arizona, Second Division

November 13, 2015

THE STATE OF ARIZONA, Appellee,
v.
PENNY ANN WEST, Appellant

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Appeal from the Superior Court in Pima County. No. CR20063310. The Honorable John S. Leonardo, Judge. The Honorable Javier Chon-Lopez, Judge.

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By David A. Sullivan, Assistant Attorney General, Tucson, Counsel for Appellee.

Law Offices of Thomas Jacobs, Tucson, By Thomas Jacobs, Counsel for Appellant.

Presiding Judge Vá squez authored the opinion of the Court, in which Judge Howard and Judge Kelly[1] concurred.

OPINION

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VÁSQUEZ, Presiding Judge:

[¶1] After a jury trial, Penny West was convicted of criminally negligent child abuse under circumstances likely to produce death or serious physical injury. The trial court suspended the imposition of sentence and placed her on probation for a period of three years, ordering that she serve a six-month jail term as a condition of probation. Penny contends the court erred by denying her motion for a new trial on the following grounds: (1) the state presented four alternate theories of criminal liability that deprived her of a unanimous verdict; (2) the court erred in denying her request for a unanimous-verdict jury instruction; (3) the verdict was against the weight of the evidence; and (4) the prosecutor committed misconduct during trial and closing argument. We affirm.

Factual and Procedural Background

[¶2] The procedural history of this case is extensive. We view the underlying facts in the light most favorable to sustaining Penny's conviction. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). On August 24, 2005, sixteen-month-old Emily M. died from severe head trauma. At the time, she was a foster child in the care of Penny and her husband Randall.[2] We set forth only the relevant facts necessary to resolve this appeal.

[¶3] Penny was the only adult at home that morning when she claimed Emily fell over backward on the carpeted floor. Penny took Emily to the bathroom, removed her clothing, and splashed water on her in an attempt to revive her. After Emily did not respond, Penny called Randall and then 9-1-1. That was the ninth telephone call exchanged between Penny and Randall in less than an hour.[3] Emily was unconscious when she was transported to the hospital. A neurosurgeon performed emergency brain surgery, but Emily died shortly thereafter. The county medical examiner concluded that Emily's death was due to one or more " blunt impacts to the head with subdural hemorrhage."

[¶4] A grand jury indicted Penny and Randall for intentional or knowing child abuse likely to produce death or serious physical injury in violation of A.R.S. § 13-3623(A). The amended indictment alleged that Penny and Randall,

having the care or custody of Emily . . ., committed child abuse by intentionally or knowingly causing physical injury to Emily . . ., or causing or permitting the person or health of Emily . . . to be injured, or causing or permitting Emily . . . to be placed in a situation where her health was endangered.

[¶5] During trial, Penny and Randall filed a motion to compel the state " to elect one single act or 'transaction' on which it seeks to have the jury convict each Defendant." Alternatively, they requested that the trial court give a jury instruction requiring unanimity as to the " same act or omission" constituting child abuse. In response, the state argued that § 13-3623(A) provides three ways to commit child abuse, it did not have

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to elect one of those ways on which to proceed, and the court should instruct the jury that it did not have to unanimously agree on the way the offense was committed so long as all the jurors found one of the ways proven. The court agreed with the state and denied the requests.

[¶6] During closing argument, the state asserted that " all three ways of committing child abuse were done in this case." The trial court instructed the jury: " [I]t is not necessary that all eight of you agree on the particular manner in which the crime was committed. However, it is necessary that each of you determine that the defendant committed child abuse in at least one of the three possible manners charged." The jury found Penny guilty of criminally negligent child abuse under circumstances likely to produce death or serious injury and found Randall guilty of reckless child abuse under circumstances not likely to produce death or serious injury.

[¶7] After trial, Penny and Randall separately filed motions for judgments of acquittal, pursuant to Rule 20, Ariz. R. Crim. P., arguing there was insufficient evidence to support their convictions. They also filed a joint motion for a new trial. After hearing oral argument, the trial court granted their motions for judgments of acquittal, concluding that " a rational trier of fact could find beyond a reasonable doubt that [Emily's] injury was caused by an act of child abuse" but there was insufficient evidence to show which of them had committed that act. The state appealed.

[¶8] Reviewing the trial court's Rule 20 determination for an abuse of discretion, this court reversed. State v. West, 224 Ariz. 575, ¶ ¶ 8, 15, 233 P.3d 1154, 1156, 1158 (App. 2010) ( West I ). However, on review, our supreme court clarified that the " question of sufficiency of the evidence is one of law, subject to de novo review on appeal." State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011) ( West II ). The court thus vacated our opinion and remanded the case to this court to address the merits of the state's appeal. Id. ¶ 20.

[¶9] On remand, we concluded there was sufficient evidence to support Penny's conviction. West, No. 2 CA-CR 2008-0342, ¶ 14 ( West III ). We explained that the state needed to present substantial evidence " under any of [the] three alternate theories" of § 13-3623(A). Id. ¶ 13. Turning to the first means of violating § 13-3623(A), we explained that Penny " was the only adult in the house when Emily collapsed" and " virtually every doctor involved in Emily's emergency care testified she would not have suffered her severe head injury from the standing-height fall Penny had described." Id. ¶ 15. Citing testimony from the state's experts, we pointed out that " Emily's head injury had occurred 'recently,' 'that morning . . . or maybe the evening before,' and that she would have displayed symptoms immediately afterward." Id. ¶ 17 (alteration in West III ). We also highlighted the inconsistencies in Penny's account of the injury. Id. ¶ 16. We thus concluded that " there was 'such proof that reasonable persons could accept as adequate and sufficient to support a conclusion [that Penny caused or permitted Emily's injury,] beyond a reasonable doubt.'" Id. ¶ 19, quoting West II, 226 Ariz. 559, ¶ 16, 250 P.3d at 1191 (alteration in West III ). And, consequently, we did not address the other means of committing child abuse under § 13-3623(A). Id.

[¶10] However, we did not reach the same conclusion as to Randall. Id. ¶ 20. We found the evidence " too speculative to constitute substantial evidence that Randall, either alone or in concert with Penny, injured Emily" under the first means in § 13-3623(A). Id. Because the state conceded " there was insufficient evidence to support Randall's conviction under the second means of violating" § 13-3623(A), we turned to the third. Id. ¶ 24. We declined to rely on the telephone calls between Penny and Randall as evidence that he had delayed in seeking medical care for Emily because the content of those calls was not contained in the record. Id. ¶ 25. We also explained, " When the state alleges that a caretaker has endangered a child by failing to obtain prompt medical treatment for the child's injuries, the state must prove the delay increased the child's risk of harm." Id. ¶ 26. And because the

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state presented no such evidence, we concluded that " there was insufficient evidence to support Randall's conviction under the third means of violating § 13-3623." Id. Accordingly, we affirmed the trial court's order granting Randall's Rule 20 motion but reversed it as to Penny. Id. ¶ 27.

[¶11] After our supreme court denied Penny's petition for review, the case returned to the trial court, where Penny renewed and supplemented her motion for a new trial, which the court had originally declined to address after granting her motion for judgment of acquittal. After hearing oral argument, the court denied Penny's motion and subsequently sentenced her as described above.[4] This appeal followed. We have jurisdiction pursuant to A.R.S. § § 12-120.21(A)(1), 13-4031, and 13-4033(A).

Jury Unanimity

[¶12] Penny contends the trial court erred by denying her motion for a new trial based on a lack of jury unanimity in reaching the verdict.[5] Specifically, she asserts the state argued alternate theories of criminal liability but substantial evidence did not support all the theories. Generally, we review the denial of a motion for a new trial for an abuse of discretion. State v. Hoskins, 199 Ariz. 127, ¶ 52, 14 P.3d 997, 1012 (2000). However, we review questions of law, including constitutional issues, de novo. State v. Bolding, 227 Ariz. 82, ¶ 5, 253 P.3d 279, 282 (App. 2011).

[¶13] A criminal defendant has the constitutional right to a unanimous jury verdict. Ariz. Const. art. II, § 23; see also State v. Payne, 233 Ariz. 484, ¶ 81, 314 P.3d 1239, 1263 (2013). The jury therefore must be unanimous " 'on whether the criminal act charged has been committed.'" State v. Herrera, 176 Ariz. 9, 16, 859 P.2d 119, 126 (1993), quoting State v. Encinas, 132 Ariz. 493, 496-97, 647 P.2d 624, 627-28 (1982). However, " 'the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed.'" Id., quoting Encinas, 132 Ariz. at 496-97, 647 P.2d at 627-28; see also State v. Dann, 220 Ariz. 351, ¶ 79, 207 P.3d 604, 620 (2009) (" Jurors may . . . reach a verdict based on a combination of alternative findings." ).

[¶14] A person commits child abuse when he or she,

[u]nder circumstances likely to produce death or serious physical injury, . . . causes a child . . . to suffer physical injury or, having the care or custody of a child . . ., causes or permits the person or health of the child . . . to be injured or . . . causes or permits a child . . . to be placed in a situation where the person or health of the child . . . is endangered.

§ 13-3623(A). " [T]he statute increases the offense level based on the actor's intent: If the offense is 'done intentionally or knowingly,' it becomes a class 2 felony." Payne, 233 Ariz. 484, ¶ 71, 314 P.3d at 1261, quoting § 13-3623(A)(1). " It is a lesser offense if done negligently or recklessly." Id.; see § 13-3623(A)(2), (3).

[¶15] In State v. Forrester, 134 Ariz. 444, 447, 657 P.2d 432, 435 (App. 1982), we explained, " If a statute describes a single offense which may be committed in more than one way, it is unnecessary for there to be unanimity as to the means by which the crime is committed provided there is substantial evidence to support each of the means charged." There, the statute at issue was A.R.S. § 13-1802 governing theft. Id. at 446-47, 657 P.2d at 434-35. The defendant was indicted with theft by controlling the property of another with the intent to deprive

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the other of that property, see § 13-1802(A)(1), or converting property entrusted to him for an unauthorized term or use, see § 13-1802(A)(2). Forrester, 134 Ariz. at 447, 657 P.2d at 435. The trial court instructed the jury that it could find the defendant guilty by either means. Id. On appeal, the defendant argued the court " erred by failing to require the jury to specify under what theory it found him guilty." Id. We rejected that argument after determining the theft statute described a single offense capable of being committed in various ways and did not require jury unanimity on the way it was committed. Id. at 447-48, 657 P.2d at 435-36.

[¶16] In her motion for a new trial, Penny relied on Forrester and argued § 13-3623(A) is an " alternative means" statute requiring substantial evidence to support each of the means charged. She maintained, however,

substantial evidence was lacking to prove that [she] committed child abuse by either the second or third of the statutorily-described means, or both--that is, by " caus[ing] or permit[ting] the person or health of the person to be injured," and/or by " caus[ing] or permit[ting] a child . . . to be placed in a situation where the person or health of the child . . . is endangered."

In her supplemental brief on her motion, Penny relied on this court's determination that substantial evidence did not support Randall's conviction under the third means of the statute and maintained that the same reasoning applied to her. See West III, No. 2 CA-CR 2008-0342, ¶ 26. At oral argument on her motion for a new trial, Penny further asserted the state presented a " buffet of factual options" for the jury to choose from, suggesting that there needed to be substantial evidence for each of the state's factual theories.

[¶17] The trial court rejected Penny's argument. It noted that it was bound by this court's determination that substantial evidence supported Penny's conviction under the first means of committing child abuse in § 13-3623(A)--that Penny had caused Emily's injury. See West III, No. 2 CA-CR 2008-0342, ¶ ¶ 14, 19. And, it reasoned,

because substantial evidence existed to find [Penny] personally injured Emily in the morning while she was in [Penny's] care, the jury also necessarily had substantial evidence before it to find that [Penny] caused or permitted Emily's person or health to be injured and that [Penny] permitted Emily to be placed in a situation where her person or health was endangered.

The court also concluded that its analysis focused on the substantial evidence to support " each alternative means," not the state's factual theories.

[¶18] On appeal, Penny repeats her argument but seems to focus on the state's specific factual theories to prove the means charged rather than the statutory means charged. She contends " the state argued four alternate theories of criminal liability" : (1) " Penny personally caused Emily's head injury" ; (2) " Randall personally caused Emily's injury, but Penny culpably left Emily alone with him" ; (3) " regardless of the genesis of Emily's injury," Penny delayed calling 9-1-1 " in a joint criminal act with Randall . . . while the two exchanged phone calls" ; or (4) " regardless of the genesis of Emily's injury," Penny personally delayed calling 9-1-1 " while she stripped and splashed Emily, and then called Randall." And, she maintains " there was no substantial evidence to support three of the four theories."

[¶19] Penny and the state apparently agree that § 13-3623(A) is an alternative-means statute. " Alternative means statutes identify a single crime and provide more than one means of committing the crime." In re Det. of Halgren, 156 Wn.2d 795, 132 P.3d 714, 720 (Wash. 2006); see also State v. Brown, 295 Kan. 181, 284 P.3d 977, 985 (Kan. 2012). In Arizona, we use the term " single unified offense" to describe a crime proscribed by an alternative-means statute. State v. Garcia, 235 Ariz. 627, ¶ 8, 334 P.3d 1286, 1289 (App. 2014). We agree that § 13-3623(A) is an alternative-means statute and that child abuse under the statute is a single unified offense.

[¶20] In determining whether a statute provides alternative means of committing the

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same offense, we must " ascertain and give effect to the intent of our legislature." State v. Garcia, 219 Ariz. 104, ¶ 6, 193 P.3d 798, 800 (App. 2008); see also State v. Manzanedo, 210 Ariz. 292, ¶ 8, 110 P.3d 1026, 1028 (App. 2005). In conducting this analysis, we may consider: " (1) the title of the statute, (2) whether there was 'a readily perceivable connection between the various acts' listed in the statute, (3) whether those acts were 'consistent with and not repugnant to each other,' and (4) whether those acts might 'inhere in the same transaction.'" Manzanedo, 210 Ariz. 292, ¶ 8, 110 P.3d at 1028, quoting State v. Dixon, 127 Ariz. 554, 561, 622 P.2d 501, 508 (App. 1980). The plain language of a statute is the best and most reliable indicator of the legislature's intent. State v. Christian, 202 Ariz. 462, ¶ 5, 47 P.3d 666, 667-68 (App. 2002). " 'When a statute is clear and unambiguous, we apply its plain language and need not engage in any other means of statutory interpretation.'" State v. Gongora, 235 Ariz. 178, ¶ 5, 330 P.3d 368, 369 (App. 2014), quoting State v. Arellano, 213 Ariz. 474, ¶ 9, 143 P.3d 1015, 1018 (2006).

[¶21] The language of § 13-3623(A) is clear and unambiguous. The title, child abuse, " summarizes the statute as dealing with a single offense." Forrester, 134 Ariz. at 448, 657 P.2d at 436. Within the first paragraph, the statute plainly provides three ways--or means--of committing child abuse. They include: (1) causing a child to suffer a physical injury; (2) having the care or custody of a child, causing or permitting the person or health of the child to be injured; and (3) having the care or custody of a child, causing or permitting the child to be placed in a situation where the person or health of the child is endangered. § 13-3623(A). The three means are not repugnant to each other because proof of one " does not disprove the other." Manzanedo, 210 Ariz. 292, ¶ 9, 110 P.3d at 1028. Moreover, § 13-3623(A) " focuses on a single harm to the victim," and the three means " merely provide different ways of causing that single harm." State v. Paredes-Solano, 223 Ariz. 284, ¶ 14, 222 P.3d 900, 906 (App. 2009); see also In re Jeremiah T., 212 Ariz. 30, ¶ 12, 126 P.3d 177, 181 (App. 2006). The child-abuse statute is therefore similar to the theft statute addressed in Forrester. See Paredes-Solano, 223 Ariz. 284, ¶ 14, 222 P.3d at 906 (theft statute focuses on single harm: " deprivation of control over one's property" ).

[¶22] We recognize that, in addition to providing the three means of committing child abuse, § 13-3623(A) also contains three subsections that classify the offense based on the defendant's mental state: intentional or knowing child abuse, reckless child abuse, and criminally negligent child abuse. See State v. Freeney, 223 Ariz. 110, ¶ 16, 219 P.3d 1039, 1042 (2009) (if elements of one offense differ from those of another, they are distinct and separate crimes); Black's Law Dictionary 634 (10th ed. 2014) (defining " elements of crime" as " constituent parts," usually including mens rea); see also Brown, 284 P.3d at 988 (in considering whether statute provides alternative means, court must ask if it lists " distinct, material elements of a crime--that is, the necessary mens rea, actus reas, and, in some statutes, a causation element" ). But regardless of which mental state is implicated, child abuse is still one offense that can be committed the same three ways. Cf. State v. Valentini, 231 Ariz. 579, ¶ 9, 299 P.3d 751, 754 (App. 2013) (" [S]econd-degree murder is one offense regardless of the culpable mental state with which it is committed." ). The mental states are separate from the means, and the subsections merely " increase[] the offense level based on the actor's intent." Payne, 233 Ariz. 484, ¶ 71, 314 P.3d at 1261 (mens rea applies to act that defendant commits). We therefore conclude that § 13-3623(A) is an alternative-means statute, and child abuse is a single unified offense, the classification of which changes depending on the defendant's mental state.

[¶23] For the first time on appeal, Penny argues " there are fully eight different ways for a person to commit child abuse" under § 13-3623(A). She separates the three means in the statute by distinguishing between active and passive conduct and mental and physical injury. She claims that " causing" is active while " permitting" is passive, and " person" refers to a physical injury while " health" connotes a mental harm. But we are aware of no case law supporting this

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approach. See Brown, 284 P.3d at 992 (" [I]t is unlikely that the legislature intended for options within a means to constitute alternative means . . . ." ); cf. Payne, 233 Ariz. 484, ¶ 86, 314 P.3d at 1263 (describing " causing or permitting" injury as " discrete method of committing child abuse under § 13-3623(A)" ). We thus treat the statute as providing three alternative means, as the parties and the trial court did below, and as we did in our memorandum ...


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