State v. Leeman
| Decision Date | 07 April 2022 |
| Docket Number | 2 CA-CR 2021-0100-PR |
| Parties | The State of Arizona, Respondent, v. Angela Rene Leeman, Petitioner. |
| Court | Arizona Court of Appeals |
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR042678001 The Honorable James E. Marner, Judge
Laura Conover, Pima County Attorney
By Gabriel J. Chin, Deputy County Attorney, Tucson
Counsel for Respondent
Joel Feinman, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
and
Kevin M. Burke, Pima County Legal Advocate
Counsel for Petitioner Presiding Judge Eckerstrom authored the decision of the Court, in which Chief Judge Vásquez and Judge Espinosa concurred.
¶1 This proceeding for post-conviction relief returns to us after remand to the trial court by our supreme court. Petitioner Angela Leeman seeks review of the trial court's order again summarily dismissing her successive petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P.[1] We review a court's denial of post-conviction relief for an abuse of discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Although the state concedes error, we conclude Leeman has not shown any such abuse here. See State v. Sanchez, 174 Ariz. 44, 45 (App. 1993) ().
¶2 Following a jury trial, Leeman was convicted of thirteen counts of child abuse and one count each of methamphetamine possession and possession of drug paraphernalia. The trial court sentenced her to concurrent and consecutive prison terms totaling sixty-one years. We affirmed Leeman's convictions on appeal, but ordered she be resentenced on one count. State v. Leeman, No. 2 CA-CR 94-0364 (Ariz. App. Mar. 14, 1996) (mem. decision). Leeman has since sought and been denied post-conviction relief multiple times, and this court granted review but denied relief on her petitions for review in four of these proceedings. See State v. Leeman, No. 2 CA-CR 97-0286-PR (Ariz. App. May 21, 1998) (mem. decision); State v. Leeman, No. 2 CA-CR 2017-0419-PR (Ariz. App. Mar. 9, 2018) (mem. decision); State v. Leeman, No. 2 CA-CR 2019-0197-PR (Ariz. App. Feb. 12, 2020) (mem. decision).
¶3 In the most recent of those proceedings, initiated in January 2020, Leeman argued she had been illegally sentenced because her convictions were multiplicitous and because the trial court had "misapplied the law of 'Hannah priors.'"[2] She argued that under Rules 32.1(c) and 32.2(b), as amended in 2020, her claims were not precluded and could be raised in a successive and untimely petition. This court again granted review but denied relief. State v. Leeman, 250 Ariz. 251 (App. 2020), vacated by State v. Leeman, No. CR-20-0436-PR (Ariz. July 30, 2021) (decision order).
¶4 On review to our supreme court, however, the state for the first time conceded error in regard to whether Leeman's convictions are multiplicitous. The court vacated our decision and remanded the matter to the trial court on the question of multiplicity, noting the state's concession.[3]
¶5 In supplemental briefing to the trial court, Leeman again argued her convictions were multiplicitous, asserting that "not a scintilla of evidence was presented at the trial showing that [she] was responsible for inflicting any of the injuries that the baby suffered." She contended her only culpability arose from her permitting S. to be injured and argued, "It is axiomatic that a crime of omission must be a continuing offense which terminates either with the person taking the required action or with the person's arrest." The state essentially agreed, positing that "while [it had] not disclaim[ed] the possibility that . . . Leeman inflicted injury personally, it offered no evidence, and made no argument, that that was what happened." Thus it asserted that counts five through thirteen were multiplicitous.
¶6 The trial court, however, again dismissed the petition. It pointed to evidence in the record relating to S.'s multiple, discrete injuries, which had been inflicted over "weeks or months" to "shortly before the baby was seen in the emergency room." It also noted testimony from a doctor that a woman could have caused S.'s broken bones. It further explained that to have convicted Leeman on counts five through thirteen, the jury was required to have found that Leeman's "intentional actions resulted" in the various injuries. The court therefore concluded the "narrative" presented by Leeman and the state-that her "only crime was failing to get help for her infant son"-was "contrary to the evidence . . . that supported the jury's verdicts on each count." Rather, S. had "suffered many different injuries, at different times, caused by different mechanisms, while in the continuous and often sole custody of [Leeman] while she was abusing methamphetamine."
¶7 On review, Leeman argues the trial court abused its discretion in rejecting her multiplicity claim because it "misinterpreted [the] jury['s] findings." She contends the court wrongfully focused on Leeman having caused the injuries, but because the jury was instructed that she "caused or permitted" the injuries, nothing required the jury to have found she caused them. Likewise, she argues "the State's evidence and theory of the case never illustrated [her] as the physical abuser." She maintains "that multiplicity occurs when multiple child abuse convictions are predicated upon a permitting theory and the defendant continuously fails to seek medical attention." The state again agrees generally with Leeman's multiplicity argument. "Whether charges are multiplicitous is an issue of statutory interpretation, which we review de novo." State v. Brown, 217 Ariz. 617, ¶ 7 (App. 2008).
¶8 Leeman was arrested after her eight-month-old son, S., was found to be critically ill when she brought him to an emergency room in 1993. He had widespread bacterial infection, with Herpes lesions inside and outside his mouth and around his rectum. S. also had recently inflicted bruises on his head and shoulder, and later was found to have at least ten broken bones in both arms and legs and lax rectal tone most probably caused by repeated insertion of some object into his anus.
¶9 From sometime in March 1993, Leeman and S. had lived with Greg Hatton. The state could not establish who had caused S.'s extensive injuries, but contended that both Leeman and Hatton were responsible for S.'s care and that in each instance of abuse, one of them had caused the injury and the other had permitted it to occur. Numerous witnesses testified that both Leeman and Hatton were consumed with using drugs and frequently ignored S. and his needs. Those witnesses also testified to S.'s declining physical condition and to his obvious need for medical attention, which several of them called to Leeman's attention. Indeed, one reported the situation to Child Protective Services. In the last week before Leeman took S. to the hospital, a period when many of the injuries were inflicted, Leeman and Hatton became reclusive and would not allow their friends to visit, allowing the inference we noted on appeal that one of them had caused the injuries and the other had permitted them to happen.
¶10 As noted above, Leeman was convicted of thirteen counts of child abuse under A.R.S. § 13-3623. Counts 1 and 8 entailed abuse likely to cause death or serious physical injury. Count 1 specified that the abuse was based on failure to seek medical attention for S. Count 2 alleged that Leeman had failed to protect the child from sexual maltreatment and Count 14 that she had permitted him to suffer from malnutrition. The remaining counts alleged she had caused or permitted various discrete physical injuries.
¶11 "Multiplicity occurs when an indictment charges a single offense in multiple counts . . . [and] raises the potential for multiple punishments, which implicates double jeopardy." State v. Powers, 200 Ariz. 123, ¶ 5 (App. 2001). When convictions are based on multiple violations of the same statute, we must determine whether the convictions are based on separate and distinct acts; if so, such separate acts may be punished separately. See Blockburger v. United States, 284 U.S. 299, 301-03 (1932) (); see also State v. Via, 146 Ariz. 108, 116 (1985) (). "[T]he statutory definition of the crime determines the scope of conduct for which a discrete charge can be brought, which the United States Supreme Court has referred to as the 'allowable unit of prosecution.'" State v. Jurden, 239 Ariz. 526, ¶ 11 (2016) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952)).
Our supreme court has determined that this statute creates "a single crime . . . that could be committed in multiple ways." State v. Payne, 233 Ariz. 484, ¶ 83 (2013). Thus, a jury is "not required to unanimously agree on the manner of committing child abuse." Id. ¶ 85.
¶13 Relying on this court's decision in State v West, 238 Ariz. 482, ¶ 19 (App. 2015), Leeman argued in her petition for post-conviction relief that...
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