State v. Far West Water & Sewer Inc.

• Decision Date: 06 April 2011
• Docket Number: 1 CA-CR 06-0160
• Court: Arizona Court of Appeals
• Parties: STATE OF ARIZONA, Appellee, v. FAR WEST WATER & SEWER INC., Appellant.

STATE OF ARIZONA, Appellee,

v.FAR WEST WATER & SEWER INC., Appellant.

1 CA-CR 06-0160

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT E

Dated: April 6, 2011

OPINION

Appeal from the Superior Court in Yuma County

Cause No. CR-S1400CR200201238

The Honorable Andrew W. Gould, Judge

AFFIRMED

Terry Goddard, Attorney General

by Kent E. Cattani, Chief Counsel

Criminal Appeals/Capital Litigation Section

and Nicholas D. Acedo, Assistant Attorney General

Craig W. Soland, Assistant Attorney General

Attorneys for Appellee

Phoenix

Law Offices of Andrew J. Capestro

by Andrew J. Capestro

and

Byrne, Benesch & Villarreal, P.C.

by Arturo I. Villarreal

Attorneys for Appellant

Rancho Santa Fe, CA

Yuma

WEISBERG, Judge

¶1 Far West Water & Sewer, Inc. ("Far West") appeals its convictions and sentences for negligent homicide, aggravatedassault, two counts of endangerment and violating a safety standard or regulation which caused the death of an employee.¹ We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21 (A) (1) (2003), 13-4031 (2001), and 13-4033 (A) (2001). For reasons that follow, we affirm Far West's convictions and sentences.

PROCEDURAL HISTORY²

¶2 The charges arose from an incident that occurred on October 24, 2001 at a sewage collection and treatment facility owned and operated by Far West, an Arizona corporation. At that time, Santec Corporation ("Santec") was a subcontractor of Far West. A Far West employee, James Gamble, and a Santec employee, Gary Lanser, died in an underground tank after they were overcome by hydrogen sulfide gas. Another Far West employee, Nathan Garrett, suffered severe injuries when he attempted to rescue Gamble from the tank. Other Far West and Santec employees were involved in rescue attempts, but none was injured to a significant degree.

¶1 Far West was indicted for two counts of manslaughter for the deaths of Gamble and Lanser, one count of aggravated assault as to Garrett, four counts of endangerment as to Gamble, Garrett and two Santec employees, Shawn Hackbarth and Eric Andre, and one count of violating a safety standard or regulation that caused the death of Gamble. Far West's president, Brent Weidman, one of its forepersons, Connie Charles, and Santec were also indicted for the same or similar charges.

¶2 Santec pled guilty to one count of violating a safety standard or regulation that caused the death of its employee, Lanser. It was placed on probation for two years and fined $30,000. Charles pled guilty to two counts of endangerment as to Gamble and Garrett and was placed on concurrent one-year terms of probation.

¶3 On the State's motion, the trial court severed the trials of Far West and Weidman. The jury acquitted Far West of both counts of manslaughter as to Gamble and Lanser, but found it guilty of one count of the lesser-included offense of negligent homicide for the death of Gamble, one count of aggravated assault as to Garrett, two counts of endangerment asto Gamble and Garrett, and one count of violating a safety standard or regulation that caused the death of Gamble.³

¶4 The court ordered the sentences suspended and placed Far West on four years' probation for negligent homicide, five years' probation for aggravated assault and three years' probation for each count of endangerment and for violating a safety standard or regulation that caused the death of an employee. It ordered some terms of probation to run concurrently and others to run consecutively. The court imposed fines and penalties totaling $1,770,000. On appeal, Far West argues as follows:

1. Far West cannot be prosecuted under general criminal laws for conduct involving the failure to maintain a safe workplace because federal law preempts it and/or A.R.S. § 23-418(E) provides the exclusive criminal sanction for such conduct;

2. By allowing Far West to be prosecuted under general criminal laws for failure to maintain a safe workplace, the trial court violated A.R.S. § 13-103(A), which abolished all common law criminal offenses;

3. Far West is not a "person" for purposes of imposing criminal liability;

4. The indictment was insufficient;

5. The evidence was insufficient to support the convictions;6. The trial court erred when it admitted Weidman's out-of-court statements at trial;

7. The jury instructions impermissibly created strict liability;

8. The trial court erred when it refused to give Far West's requested jury instructions;

9. The trial court erred when it did not allow evidence of industry standards until the thirteenth day of trial;

10. The trial court erred when it admitted evidence obtained during an investigation conducted by the Arizona Division of Occupational Safety and Health;

11. The trial court erred when it denied a mistrial following a reference to an original co-defendant's guilty plea;

12. The trial court erred when it excused a juror; and

13. The fines and penalties imposed by the trial court were excessive.

DISCUSSION

A. Denials of Motions to Dismiss

¶5 In motions to dismiss made before and during trial, Far West challenged the underlying legal basis for the charges of manslaughter, aggravated assault and endangerment, claiming its criminal prosecution was precluded as a matter of law. In a separate pretrial motion to dismiss, Far West challenged the sufficiency of the indictment. We review the decision to grant or deny a motion to dismiss for abuse of discretion. State v.Pecard, 196 Ariz. 371, 376, ¶ 24, 998 P.2d 453, 458 (App. 1999). Matters of statutory construction and interpretation are questions of law which we review de novo. State v. Nelson, 208 Ariz. 5, 7, ¶ 7, 90 P.3d 206, 208 (App. 2004) .

1. Prosecution Not Barred by Federal or State Law

¶6 In 1970, Congress enacted the Occupational Safety and Health Act ("OSHA"). See 29 U.S.C. §§ 651 to -678. The purpose of OSHA was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. § 651(b). Congress authorized the states to adopt standards that substantially complied with OSHA. 29 U.S.C. § 667(b).

¶7 Under this authority, the Arizona legislature enacted the Arizona Occupational Safety and Health Act. A.R.S. §§ 23-401 to -433 (1995) ("AOSHA"). It created a division of occupational health and safety within the Arizona Industrial Commission to recommend and enforce safety standards. See A.R.S. §§ 23-406, -407, -410. Arizona adopted the OSHA health and safety standards as published in 29 C.F.R. § 1910. See Ariz. Admin. Code R20-5-602.

¶8 Under A.R.S. § 23-403(A), "[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to hisemployees" ("the statutory duty"). Employers who knowingly violate the requirements of A.R.S. § 23-403(A) or other AOSHA safety standards may be subject to criminal penalties under A.R.S. § 23-418(E).

¶9 In 1977, the Arizona legislature enacted A.R.S. § 13-305, which permits an enterprise to be held criminally liable. An enterprise includes a corporation. A.R.S. § 13-105(15)(2001). Section 13-305 provides in relevant part:

A. [A]n enterprise commits an offense if:

1. The conduct constituting the offense consists of a failure to discharge a specific duty imposed by law; or

2. The conduct undertaken in behalf of the enterprise and constituting the offense is engaged in, authorized, solicited, commanded or recklessly tolerated by the directors of the enterprise in any manner or by a high managerial agent acting within the scope of employment.

A.R.S. § 13-305(A)(1),(2)(2001). "'Agent' means any officer, director, employee of an enterprise or any other person who is authorized to act in behalf of the enterprise." A.R.S. § 13-305(B)(1)(2001). "'High managerial agent' means an officer of an enterprise or any other agent in a position of comparable authority with respect to the formulation of enterprise policy." A.R.S. § 13-305(B)(2).

¶10 Far West filed a motion to dismiss the charges brought under the Arizona Criminal Code for manslaughter, aggravatedassault and endangerment ("Title 13 offenses").⁴ Assuming that its criminal liability was based solely on a "failure to discharge a specific duty imposed by law" under A.R.S. § 13-305(A)(1) and a failure to provide a safe workplace under A.R.S. § 23-403(A), Far West argued that the OSHA provision set forth in 29 U.S.C. § 653(b)(4) ("the savings clause") preempted the State's prosecution under Title 13. It also argued that A.R.S. § 23-418(E) provided the exclusive criminal sanction for a violation of the statutory duty. Far West further claimed that by charging it with Title 13 offenses, the State violated A.R.S. § 13-103(A), which abolished all common law offenses.

¶11 The trial court denied the motion to dismiss. The court found that the duty to provide a safe workplace was not the statutory duty, but rather was the established common law duty of an employer to provide a safe workplace to an employee. See Smith v. Gordon, 6 Ariz. App. 168, 172, 430 P.2d 922, 926 (1967) (employer has a duty to "'furnish [an] employee a reasonably safe place in which to work and reasonably safe instrumentalities with which to do his work'" (quoting Morrell v. City of Phoenix, 16 Ariz. 511, 513, 147 P.2d 732, 734 (1915)). The court ruled that OSHA did not preempt application of general criminal laws to Far West and that A.R.S. § 23-418(E)was not the exclusive criminal sanction available to the State for the failure to discharge that duty. We consider each related argument in turn.⁵

a. Preemption by OSHA Savings Clause

¶12 Far West argues that, except for the criminal penalties found in A.R.S. § 23-418(E), the OSHA savings clause preempts the State from prosecuting employers under Title 13 for failure to provide safe working conditions under standards set forth in AOSHA.⁶ The OSHA savings clause provides that:

Nothing in this chapter shall be

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