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Crosby-Garbotz v. Fell

Supreme Court of Arizona

February 5, 2019

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 Judge, State of Arizona, Real Party in Interest.

          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.



         ¶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.


         ¶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 ...

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