State v. Brown, 2 CA-CR 2015-0154

CourtCourt of Appeals of Arizona
PartiesTHE STATE OF ARIZONA, Appellee, v. STEVEN JAMES BROWN, Appellant.
Docket NumberNo. 2 CA-CR 2015-0154,2 CA-CR 2015-0154
Decision Date11 August 2016


No. 2 CA-CR 2015-0154


August 11, 2016

See Ariz.
R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.

Appeal from the superior Court in Pima County
The Honorable Kenneth Lee, Judge



Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Eliza C. Ybarra, Assistant Attorney General, Phoenix
Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant

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Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Miller concurred.

VÁSQUEZ, Presiding Judge:

¶1 After a jury trial, Steven Brown was convicted of reckless child abuse under circumstances likely to cause death or serious physical injury. The trial court sentenced him to a 3.5-year prison term. On appeal, Brown argues the trial court erred when it denied his motion to preclude expert witness testimony concerning the diagnosis of abusive head trauma, formerly known as shaken baby syndrome. He also contends insufficient evidence supported his conviction and the prosecutor committed misconduct during cross-examination of the two defense experts. For the reasons stated below, we affirm.

Factual and Procedural Background

¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding Brown's conviction. See State v. Allen, 235 Ariz. 72, ¶ 2, 326 P.3d 339, 341 (App. 2014). On November 10, 2011, Brown picked up his five-month-old daughter, J., from her mother's home at 7:30 in the morning and took her to his residence. At 1:45 that afternoon, Brown's mother came home from work and picked J. up out of her bouncer, but J. was limp "like a noodle" and moaning. Brown called 9-1-1 and, when paramedics arrived, he explained he "was feeding her . . . a bottle, holding her in his arms, and that she leaned back . . . and then came forward again, struck her head on his shoulder, and then was unconscious after that."

¶3 J. was unconscious and experiencing seizures when she arrived at the hospital. Doctors determined J. had diffuse, bilateral retinal hemorrhages and bilateral subdural hematoma, but no sign of significant external trauma. They ruled out several potential causes, including bleeding disorders, meningitis, and viral

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encephalitis. Instead, doctors diagnosed J. with abusive head trauma, possibly caused by shaking. J. survived her injuries, but with permanent brain damage.

¶4 A grand jury indicted Brown for two counts of child abuse under circumstances likely to cause death or serious physical injury, first for inflicting "subdural hematomas and/or retinal hemorrhages" and second for failing to seek medical attention. Brown filed a motion to preclude the state from presenting evidence regarding abusive head trauma pursuant to Rule 702, Ariz. R. Evid., and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). During an evidentiary hearing on the matter, Dr. Merlin Lowe, a pediatric hospitalist, testified for the state. He explained that, although doctors cannot perform a "gold standard study [testing the diagnosis] because we obviously don't shake children," retrospective and prospective observational studies suggest that subdural hematoma and retinal hemorrhages are common symptoms of abusive head trauma. Lowe concluded J.'s "injuries [were] consistent with [a] shaking mechanism" and Brown's explanation was implausible. Defense expert, Dr. John Plunkett, a forensic pathologist, disagreed. He testified that biomechanical studies show it is impossible to shake a child hard enough to cause subdural hematoma without severely injuring the child's neck, unless the shaking is coupled with some sort of impact. The trial court denied Brown's motion, reasoning that although "no testing can be done on infants" to prove shaking without impact can cause subdural hematoma, the diagnosis was still "the prevailing opinion in the medical profession."

¶5 The jury found Brown guilty of one count of reckless child abuse under circumstances likely to cause death or serious physical injury for causing the injury, but acquitted him on the second count, failure to timely seek medical attention. The trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

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Expert Opinion

¶6 Brown argues the trial court erred in denying his motion to "preclude medical doctors from offering the diagnosis of 'abusive head trauma'" because the state "failed to prove the reliability of the diagnosis." He also makes specific challenges to Lowe's qualifications and the opinion he rendered as an expert witness in this case. We review a court's ruling to admit expert testimony for an abuse of discretion. State v. Favela, 234 Ariz. 433, ¶ 4, 323 P.3d 716, 717 (App. 2014).

¶7 Rule 702 governs the admissibility of expert opinions and provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

¶8 When applying Rule 702, our supreme court "has made clear that 'trial courts should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury's determination of facts at issue.'" Ariz. State Hosp./Ariz. Cmty. Prot. & Treatment Ctr. v. Klein, 231 Ariz. 467, ¶ 29, 296 P.3d 1003, 1009 (App. 2013), quoting Ariz. R. Evid. 702 cmt. to 2012 amend. "As the

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proponent of the expert testimony, the [s]tate bears the burden of establishing its admissibility by a preponderance of the evidence." State v. Bernstein, 237 Ariz. 226, ¶ 9, 349 P.3d 200, 202 (2015). Nevertheless, "rejection of expert testimony is the exception rather than the rule." Fed. R. Evid. 702 advisory committee note, 2000 amends.; see State v. Salazar-Mercado, 234 Ariz. 590, ¶ 7, 325 P.3d 996, 998-99 (2014) (federal corollary to Rule 702, as well as court decisions interpreting federal rule, are persuasive authority when applying the Arizona rule).

Rule 702(a)

¶9 Rule 702(a) "goes primarily to relevance." Daubert, 509 U.S. at 591. "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." State ex rel. Montgomery v. Miller, 234 Ariz. 289, ¶ 21, 321 P.3d 454, 463 (App. 2014), quoting Daubert, 509 U.S. at 591. To satisfy Rule 702(a), an expert must provide "creditable grounds supporting . . . a link" between the expert's special knowledge and a fact at issue. Daubert, 509 U.S. at 591. If the expert meets this "liberal minimum qualification[]," then the expert's "level of expertise goes to credibility and weight, not admissibility." State v. Delgado, 232 Ariz. 182, ¶ 12, 303 P.3d 76, 80 (App. 2013), quoting Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 809 (3d Cir. 1997).

¶10 Brown essentially argues for a more restrictive standard. He asserts "the trial court should have properly determined which specialization is relevant," either Lowe's specialization in pediatrics or Plunkett's in forensic pathology. Brown does not point to any persuasive legal authority supporting this assertion and instead relies on A.R.S. § 12-2604, which governs medical-malpractice cases and is inapplicable here. As this court has stated, the question of "[w]hether a witness is qualified as an expert is to be construed liberally, and it would be an abuse of discretion 'to exclude testimony simply because . . . the proposed expert does not have the specialization that the court considers most appropriate.'" Delgado, 232 Ariz. 182, ¶ 12, 303 P.3d at 80, quoting Kannankeril, 128 F.3d at 809; see also State v. Romero, 239 Ariz. 6, ¶ 15, 365 P.3d 358, 362 (2016) ("The trial court should not assess whether

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the opposing party's expert is as qualified as—or more convincing than—the other expert.").

¶11 Brown also argues Lowe did not have any specialized understanding of abusive head trauma and his testimony regarding the diagnosis was "nothing beyond that of a medical student regurgitating what he was taught." Essentially, Brown contends that Lowe was not qualified to offer opinions about non-accidental head trauma. We disagree with this argument for two reasons. First, Lowe's testimony clearly shows he has relevant specialized knowledge in this area: He has treated hundreds of children suffering from "both accidental and non-accidental trauma," regularly evaluates children "where there is concern of possible abuse" as part of his hospital's child protection team, and participates in "extensive continuing education" in the area of child abuse, including the review of new literature and evidence in the field. Second, even "[c]areful study may suffice to qualify an expert if it affords greater knowledge on a relevant issue than the jury possesses." Id. ¶ 17. Thus, medical expert testimony need not reach a particular level of complexity before it satisfies the requirements of Rule 702(a). Accordingly, the trial court did not err by concluding Lowe had sufficient specialized knowledge to testify under Rule 702(a). See Favela, 234 Ariz. 433, ¶ 4, 323 P.3d at 717.

Rule 702(b)

¶12 "Rule 702(b) examines the quantity of information possessed by an expert, not the reliability or admissibility of the information itself." Miller, 234 Ariz. 289, ¶ 29, 321 P.3d at 465....

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