926 P.2d 508 (Ariz.App. Div. 1 1995), 1 CA-CR 92-1855, State v. DePiano
| Date | 10 January 1995 |
| Citation | 187 Ariz. 41,926 P.2d 508 |
| Docket Number | 1 CA-CR 92-1855. |
| Parties | STATE of Arizona, Appellee, v. Colette Renee DePIANO, Appellant. |
| Court | Arizona Court of Appeals |
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Review Granted June 2, 1995.
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[187 Ariz. 43] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Crane McClennen, Asst. Atty. Gen., Phoenix, for appellee.
Dean W. Trebesch, Maricopa County Public Defender by Brent E. Graham, Deputy Public Defender, Phoenix, for appellant.
OPINION
WEISBERG, Presiding Judge.
Colette Renee DePiano ("defendant") appeals her convictions and sentences on two counts of child abuse. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant is the mother of two sons, ages three and five years old at the time of the incident. At approximately 2:30 a.m. on October 16, 1991, an officer of the Tempe police department found defendant and her sons in defendant's car, with the engine running, in the garage of the house where they were living. The garage was full of smoke and exhaust fumes, as the garage door and the door into the house were closed, and towels had been placed along the bottom of both doors. Notwithstanding, defendant and the children were fully conscious, and did not appear to be suffering any ill effects. The record is unclear as to how long defendant and her children were in the car with the engine running, and whether all of the car windows were closed at the time. Defendant had written a note, found on the dashboard of the car, which police construed to be a suicide note. After taking defendant and her children to a nearby hospital for examination, Tempe police officers placed defendant under arrest.
A grand jury issued an indictment against defendant charging her with two counts of child abuse under Ariz.Rev.Stat.Ann. ("A.R.S.") section 13-3623(B)(1) (1989). Defendant pled not guilty and the case proceeded to trial.
The state theorized that defendant intended to kill herself and her children. Most of the state's case consisted of circumstantial evidence to establish the scienter element. The state also relied on testimony of the emergency room physician who treated defendant on the night of the incident. He testified that defendant told him she did not want to live any longer, and he opined that her actions on the night in question were a "suicide gesture." Because A.R.S. section 13-3623(B)(1) requires proof that the conditions defendant created in the garage were likely to produce death or serious physical injury, the state introduced expert opinion testimony to prove that the atmosphere in the garage would have been lethal but for the arrival of the police.
In defense, defendant testified that she was repairing her automobile and was not suicidal. Defendant's witnesses corroborated her statement that the automobile was in need of repair, that defendant was capable of performing the necessary repair work, and that defendant was neither unduly depressed nor suicidal at the time of the incident.
A jury found defendant guilty on both counts, and the trial court subsequently sentenced defendant to the presumptive term of imprisonment pursuant to A.R.S. section 13-604.01: two seventeen year sentences to be served consecutively. Defendant timely appealed pursuant to Rule 31 of the Arizona Rules of Criminal Procedure ("Rule").
ISSUES PRESENTED FOR REVIEW
1. Did the state's expert witness provide sufficient evidence to support a finding that defendant had placed her children in a situation where their persons or health were endangered, under circumstances likely to produce death or serious physical injury?
2. Was evidence of a prior bad act of defendant admissible under Rule 404(b) of
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[187 Ariz. 44] the Arizona Rules of Evidence where (i) defendant did not raise a timely, specific objection to the evidence at trial, and (ii) defendant's intent and mistake of fact were in issue?
3. Was lay opinion testimony interpreting a handwritten note admissible under Rule 701 of the Arizona Rules of Evidence where the objecting party had broached the subject on cross-examination?
4. Did the jury instruction on reasonable doubt, which stated, "[t]his does not mean an imaginary or possible doubt," constitute fundamental error?
5. Did imposition of two consecutive, flat seventeen-year sentences constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article II, Section 15 of the Arizona Constitution?
DISCUSSION
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The State Introduced Sufficient Proof to Support a Finding of Defendant's Guilt Beyond a Reasonable Doubt
The substantive criminal statute in question, Section 13-3623(B)(1), reads:
Under circumstances likely to produce death or serious physical injury, any person who causes a child or vulnerable adult to suffer physical injury or, having the care or custody of such child or vulnerable adult, causes or permits the person or health of such child or vulnerable adult to be injured or causes or permits such child or vulnerable adult to be placed in a situation where its person or health is endangered is guilty of an offense as follows:
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If done intentionally or knowingly, the offense is a class 2 felony and if the victim is under fifteen years of age it is punishable pursuant to [A.R.S.] § 13-604.01.
Defendant correctly cites State v. Greene, 168 Ariz. 104, 108, 811 P.2d 356, 360 (App.1991), in support of her argument that the state was required to show a likelihood, rather than the mere potential, of harm to her sons from the circumstances in the garage. Defendant challenged the sufficiency of the evidence on this issue, and moved for acquittal at the close of the state's evidence. The trial court denied the motion, and defendant assigns error to that ruling.
We must determine whether there was substantial evidence that defendant committed the crime. Rule 20(a); State v. Neal, 143 Ariz. 93, 98, 692 P.2d 272, 277 (1984). In so doing, we view the evidence in favor of upholding the jury's verdict. Neal, 143 Ariz. at 98, 692 P.2d at 277; State v. Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013 (1983). "Substantial evidence" for these purposes is evidence that "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980).
In denying defendant's motion, the court, outside the presence of the jury, stated:
Your Rule 20 motion is denied based upon the evidence that indicates that the jury can consider in this matter that obviously the children [are] under the age of 15[;] based upon the evidence there may be some substantial evidence, [f]or at least the jury to infer that defendant's acts were intentional and she placed the children in a situation where each child could have put their person or health in danger, or they could have suffered death or serious physical injury as opposed to actually suffering death or physical injury.
(Emphasis added). Defendant focuses on the trial court's use of the words "could have" to establish a misapplication of law on this point. Her argument turns on the required showing that there was a likelihood, rather than a possibility or potential, of death or serious physical injury. Greene, 168 Ariz. at 107-08, 811 P.2d at 359-60.
We agree that the above-quoted passage appears to misstate the applicable law. Notwithstanding, the evidence supported a finding that there was a likelihood of death or serious physical injury, and the jury was correctly instructed on this issue.
The state's expert witness, Gordon Whittaker, testified at length on carbon monoxide emissions and oxygen depletion
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[187 Ariz. 45] caused by defendant's car engine running in the closed garage. Both exposure to certain quantities of carbon monoxide (measured in parts per million or "ppm"), and depletion of oxygen, can be lethal.
Mr. Whittaker testified that carbon monoxide would be dangerous at a level of 5,000 ppm over a 20 minute period. He estimated that the quantity of carbon monoxide in the garage after the car had been running for 20 minutes was approximately 1,700 ppm. He testified that a level of 1,700 ppm "would take longer to be lethal, but it would still be ... lethal." On redirect examination, he explained that exposure to carbon monoxide at 1,700 ppm would result in death over some period of time, and that the carbon monoxide level in the garage after 30 minutes would have been approximately 2,500 ppm. While that level of carbon monoxide, according to Mr. Whittaker, is not necessarily dangerous, reference data also introduced into evidence supported the conclusion that carbon monoxide exposure at levels from 1,000 to 10,000 ppm would lead to unconsciousness and death if continued for 10 to 45 minutes.
Mr. Whittaker also testified that "[l]ack of oxygen has a much more rapid impact on the body than carbon monoxide. Just a few seconds without oxygen would be lethal." He stated that the running car engine depleted approximately 25 percent of the available oxygen in the garage over a twenty-minute period, and that another 15 percent depletion "would probably be lethal."
We hold that the jury could infer from Mr. Whittaker's testimony and from the documentary evidence that defendant's children were likely to die or to be seriously injured as a result of the carbon monoxide levels in the garage. In addition, Mr. Whittaker's testimony regarding the effects of oxygen depletion even more clearly supported a jury finding that death or serious physical harm was likely under the circumstances.
Since the foregoing evidence, taken as a whole, was sufficient to support the verdicts, and since the jury instructions correctly stated the elements...
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