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Crosby-Garbotz v. Fell

Court of Appeals of Arizona, Second Division

December 29, 2017

Nikolas Crosby-Garbotz, Petitioner,
Hon. Howard P. Fell, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.

         Special Action Proceeding Pima County Cause No. CR20165511001

          Richard L. Lougee, Tucson and Woodnick Law, PLLC, Phoenix By Bradley A. TenBrook and Markus W. Risinger Counsel for Petitioner.

          Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Real Party in Interest.

          Presiding Judge Staring authored the opinion of the Court, in which Judge Espinosa and Judge Howard [1] concurred.


          STARING, Presiding Judge.

         ¶1 In this special action, we conclude the doctrine of collateral estoppel, also known as issue preclusion, does not bar the State of Arizona from prosecuting a person for child abuse after a juvenile court found in a separate dependency action that he did not abuse the child in question and dismissed a dependency petition that was based solely on that alleged abuse. Consequently, the respondent judge did not err in denying petitioner Nikolas Crosby-Garbotz's[2] motion to dismiss the underlying criminal action.

         Factual and Procedural Background

         ¶2 The following facts are either undisputed or established by the record before us. Pursuant to A.R.S. § 13-3623(A)(1), Crosby has been charged with abusing his daughter, C. She was born prematurely in February 2016 and remained in the hospital for almost two weeks after her birth. On July 5, 2016, when C. was approximately five months old, Crosby called 9-1-1 and stated she was unresponsive and appeared to be having a seizure. Paramedics transported C. to the hospital, where doctors determined she had a subdural hematoma, retinal hemorrhaging in both eyes, and retinoschisis, or splitting of the layers in the eye. C. had no external injuries, skull fractures, or other signs of physical trauma.

         ¶3 The Arizona Department of Child Safety (DCS) took temporary custody of C. and filed a dependency petition, alleging that Crosby had abused her, based on the definition of abuse in A.R.S. § 8-201(2), and that C. was dependent pursuant to § 8-201(15)(a)(i) or (iii). The dependency hearing began in November 2016 and concluded in February 2017, after eleven sessions. At the hearing, Crosby testified that since she was about three months old, C. had suffered "recurrent, but intermittent and persistent bouts of irritability and lethargy" and periods during which she "would become inconsolable, " and that there were "multiple instances of projectile vomiting." He stated that on the morning in July, she had been "crying" and "fussy" and then had a seizure in his arms.

         ¶4 DCS and Crosby each presented two medical experts during the hearing. DCS's experts opined that C.'s injuries were not accidental and were the result of abuse, most likely "Shaken Baby Syndrome" (SBS). Crosby's experts, on the other hand, testified SBS has been discredited as an explanation for the kinds of injuries suffered by C. They opined C. could not have sustained her injuries as a result of shaking. Further, they opined that, other than the hematoma, there were no signs of abuse or trauma, and, in any event, there was no evidence C. had been shaken vigorously, such as bruising or neck trauma. Crosby's experts testified it would have been impossible for C. to have sustained a head injury of the kind alleged without some additional injury. They surmised that given C.'s medical history, which included premature birth and previous symptoms of vomiting and lethargy, the more likely explanation was that she had a dormant or chronic subdural hematoma, perhaps caused by viral encephalitis.

         ¶5 In March 2017, the juvenile court issued an under-advisement ruling in the dependency case, concluding DCS had not sustained "its burden of proving by a preponderance of the evidence that . . . Crosby inflicted physical injury, impairment of body function, or disfigurement to" C. The court found the evidence Crosby had presented "controverts or sufficiently calls into question the State's medical position that [C.]'s injuries were sustained only as a result of being violently shaken by the Father, " positing it was more likely C. had a chronic subdural hematoma that was aggravated when she bumped her head on her crib. The court also concluded DCS had not sustained its burden of showing the mother had neglected C. by failing to protect her, "[a]s the Court has found that it is more likely than not that [Crosby] did not injure" C. The court therefore dismissed the dependency petition.

         ¶6 In December 2016, before the dependency case had concluded, the state charged Crosby with child abuse under § 13-3623(A)(1). In presenting the charge to the grand jury, a police detective testified Crosby had been caring for then-five-month-old C. while his wife, C.'s mother, was at work, and he had called 9-1-1 to report C. was unresponsive and had shown seizure-like behavior. The detective testified medical tests had revealed C. had a subdural hematoma, "a type of brain bleed, . . . extensive retinal hemorrhaging in both eyes, as well as retinoschisis." He stated, "[P]er doctors, retinoschisis is from a very significant force, such as a high speed motor vehicle accident, multiple skull fractures from a crushing-type injury, a fall from a significant height or abusive head trauma." He added that C. did not have any external injuries and did not appear to have a bleeding disorder, but that Crosby had admitted he bounced her up and down on his chest when she became fussy, but denied he had shaken her. The detective informed the grand jury C. was still under the care of a neurologist and an ophthalmologist but it was unknown whether she would suffer permanent vision impairment. The grand jury returned an indictment on the charge.

         ¶7 Crosby filed a motion to remand the case to the grand jury for a new finding of probable cause, pursuant to Rule 12.9, Ariz. R. Crim. P. After a hearing, the respondent judge denied the motion in May 2017. Crosby then filed a motion to dismiss the charge based on collateral estoppel, arguing the state could not relitigate the issue of whether he had abused C. The respondent denied the motion after a hearing in August. In this special action, Crosby challenges the denial of both motions.

         Special-Action ...

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