State v. Smith, 2
| Decision Date | 11 July 1996 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 188 Ariz. 263,935 P.2d 841 |
| Parties | The STATE of Arizona, Appellee, v. Billy Don SMITH, Appellant. 95-0169. |
| Court | Arizona Court of Appeals |
A jury convicted appellant of one count of child abuse and one count of first-degree murder. The charges against appellant arose after his girlfriend's one-year-old daughter, Sedona, lapsed into a coma and died of apparent non-accidental head trauma or "shaken baby syndrome." The trial court sentenced appellant to a presumptive seventeen-year prison term on the child abuse conviction and to life imprisonment on the murder conviction. None of the issues raised on appeal merits reversal.
Appellant first met Sedona and her mother, Beth, in late August 1993. Both appellant and Beth made a living selling handmade crafts at swap meets and flea markets in New Mexico and Arizona. They began living and traveling together in appellant's van after Beth's ex-husband left her and Sedona.
Almost from the beginning, appellant treated Sedona as his own daughter. Beth testified that appellant acted "like a proud dad" by telling his friends and others, "This is my daughter." Beth also said that appellant wanted to adopt Sedona and "make us a family and provide for us." She also stated:
He became very dominating as far as taking care of her. He became very insistent that he bathe her and feed her and hold her and do everything regarding the parenthood of Sedona. He said that he wanted to bond to her, to get her to know him as her father.
Appellant likewise dominated Beth. She testified that he "made all the decisions," "control[led] all the money," and her "place was to be his woman and be quiet."
Soon after Beth moved in with appellant, she began noticing pinch marks and bruises on Sedona's cheeks. When Beth asked appellant about them, he told her "that because [Sedona] was teething, her hands were continually in her mouth and that she was pinching herself." On two occasions, Beth also observed bruises on Sedona's forehead, which appellant attributed to accidents.
On October 15 and 16, Sedona began showing signs of illness (diarrhea, vomiting, and fever) while appellant and Beth were working at a swap meet in Socorro, New Mexico. The three left Socorro about 4:00 p.m. on October 16, intending to go to Ft. Huachuca, Arizona. However, after spending the night at a freeway rest stop, they changed their minds and decided to go to Tucson. When they later stopped at a supermarket in Benson for Beth to buy some medication for Sedona, appellant said that they were going to a lake south of the freeway because Sedona "was just teething" and would "be all right in a few days once the tooth cuts through." When Beth protested, appellant stated:
Shortly after they arrived at the lake, Sedona stopped breathing. Beth began cardiopulmonary resuscitation and told appellant they had to get Sedona to a hospital. Appellant initially refused, claiming he would be arrested for child abuse, but then relented when Beth threatened to scream for help out the van window. When they reached the freeway and appellant began driving towards Tucson at 55 miles per hour, Beth testified that she told him to drive faster and, if he would not, to "stop a car, stop at a gas station, stop a person, stop cops, stop anybody, get us help!" Beth said appellant replied: "I'm going, I'm going as fast as I can." Beth then gave this description of their trip to the hospital:
He said he knew that there was a hospital on the highway, but he didn't know where, and so he drove us into downtown Tucson and he says, "I can't find it," and so we turned around and went back all the way back out to the exit where the lake was, and then he said, so we turned around and went all the way back into downtown Tucson and still couldn't find the hospital, and at that point, I told him, and so we went back to Benson, and he got to the exit[ ] stop at Benson and said, "Well, Benson wouldn't have the facilities that we need, their hospital couldn't probably help us," and so he turned back around and started heading back to Tucson, and it was at that time and point that I seen out the window to Kino Hospital, I believe it was, the sign for the hospital.
When they arrived at the hospital, appellant let the two out of the van and drove away.
Beth told the medical personnel that Sedona had been ill for two or three days with vomiting and diarrhea. They later found that Sedona was suffering from profound swelling of the brain and had a "fair amount of bruising" over her body, including her genital area, and a rectal tear. Based on this, the attending physician determined that her condition was the result of non-accidental trauma, with the brain injury likely having been sustained one to three days prior to her arrival at the hospital. Sedona never came out of the coma and died after life support systems were disconnected the next day.
Appellant was charged with one count of first-degree murder (count one) and three counts of child abuse pursuant to A.R.S. § 13-3623(B)(1): one for failing to seek medical treatment (count two), one for causing retinal hemorrhages and brain injuries (count three), and one for causing rectal tears (count four). The trial court directed a verdict on count four. The jury acquitted appellant of count three and convicted him of counts one and two.
Failure to Seek Medical Care
Section 13-3623(B) provides, in pertinent part, as follows:
B. Under circumstances likely to produce death or serious physical injury, any person who causes a child ... to suffer physical injury or, having the care or custody of such child ... causes or permits the person or health of such child ... to be injured or causes or permits such child ... to be placed in a situation where its person or health is endangered is guilty of an offense as follows:
1. 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 § 13-604.01.
(Emphasis added.) Appellant's primary contention on appeal is that he did not have "the care or custody" of Sedona so as to be punishable under the statute for...
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