Special Action from the Superior Court in Pima County The
Honorable Howard P. Fell, Judge No. CR20165511-001
Opinion
of the Court of Appeals, Division Two 244 Ariz. 339 (App.
2017)
Richard L. Lougee, Tucson, and Bradley A. TenBrook, Markus W.
Risinger (argued), Woodnick Law, PLLC, Phoenix, Attorneys for
Nikolas Crosby-Garbotz
Barbara LaWall, Pima County Attorney, Jacob R. Lines
(argued), Deputy County Attorney, Tucson, Attorneys for State
of Arizona
Amy
Knight, Kuykendall & Associates, Tucson, and Carol
Lamoureux, Hernandez & Hamilton, PC, Tucson, Attorneys
for Amicus Curiae Arizona Attorneys for Criminal Justice
Timothy J. Agan, Lindsay Herf, Arizona Justice Project,
Phoenix, Attorneys for Amicus Curiae Arizona Justice Project
CHIEF
JUSTICE BALES authored the opinion of the Court, in which
VICE CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER and BOLICK
joined.
OPINION
BALES
CHIEF JUSTICE
¶1
Issue preclusion, also known as collateral estoppel,
precludes relitigating an issue of fact in a later case when,
in a previous case, the same issue was "actually
litigated, a final judgment was entered, and the party
against whom the doctrine is to be invoked had a full and
fair opportunity to litigate." Chaney Bldg. Co. v.
City of Tucson, 148 Ariz. 571, 573 (1986). We hold that
issue preclusion may apply in a criminal proceeding when an
issue of fact was previously adjudicated in a dependency
proceeding and the other elements of preclusion are met. We
find that those elements are met in this case.
I.
¶2
On July 5, 2016, Nikolas Crosby-Garbotz ("Crosby")
stayed home with his five-month-old baby (here referred to as
"CC.") while Lacy Crosby ("Mother") went
to work. CC. became fussy and later had a seizure and
appeared dazed and went limp. Crosby called 911. CC. was
taken to the hospital, where she was diagnosed with subdural
hematoma, bilateral retinal hemorrhaging, and retinoschisis.
She did not have a skull fracture or trauma to her neck or
upper body.
¶3
Days later, the State, through the Department of Child Safety
("DCS"), took temporary custody of CC, and on July
13, 2016, DCS filed a dependency petition alleging that CC
was dependent as to Crosby because he abusively shook her to
the point of causing bleeding in her brain and eyes. DCS also
alleged CC was dependent as to Mother because she was unable
to protect CC from Crosby.
¶4
On November 10, 2016, the dependency trial began and lasted
for eleven nonconsecutive days, with the juvenile court
taking the matter under advisement on February 16, 2017.
While the dependency hearing was ongoing, a grand jury on
December 15, 2016, returned an indictment against Crosby
alleging child abuse under A.R.S. §§ 13-3623(A) and
13-3601. Specifically, the State charged Crosby with one
count of child abuse alleging that:
on or about the 5th day of July, 2016, NIKOLAS CROSBY-GARBOTZ
committed child abuse by intentionally or knowingly causing
physical injury to C.C., a child less than fifteen years of
age, under circumstances likely to produce death or serious
physical injury, to wit: BY CAUSING BRAIN DAMAGE AND RETINAL
BLEEDING AND RETINOSCHISIS, in violation of A.R.S. §
13-3623(A)(1), 13-3601.
¶5
From July 2016 through March 2017, C.C. was not in
Crosby's or Mother's care due to the pending
dependency petition. On March 8, 2017, the juvenile court
issued its ruling, dismissed the dependency petition as to
both parents, and returned C.C. to Mother and Crosby's
care. The judge ruled that DCS had not met its burden of
proof in establishing a dependency, expressly finding that
"the Department has not met its burden of proving by a
preponderance of the evidence that Mr. Crosby inflicted
physical injury, impairment of bodily function, or
disfigurement to [C.C.]" and "the Court has found
that it is more likely than not that [Crosby] did not injure
[C.C.]." The State did not appeal the dependency
judgment.
¶6
In May 2017, Crosby moved to remand for a redetermination of
probable cause in the criminal proceeding, which the trial
court denied. Crosby then moved to dismiss, arguing that
issue preclusion prevented the State from relitigating
whether he had abused C.C. on July 5, 2016. After an
evidentiary hearing, the trial judge denied the motion.
Crosby sought special action relief from the court of
appeals, which ...