State v. Sunderland, 2 CA-CR 2015-0145

CourtCourt of Appeals of Arizona
Docket NumberNo. 2 CA-CR 2015-0145,2 CA-CR 2015-0145
Decision Date25 September 2017


No. 2 CA-CR 2015-0145


September 25, 2017

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

Appeal from the Superior Court in Pinal County
The Honorable Craig A. Raymond, Judge Pro Tempore



Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee

The Nolan Law Firm, P.L.L.C., Mesa
By Cari McConeghy Nolan
Counsel for Appellant

Page 2


Presiding Judge Staring authored the decision of the Court, in which Judge Espinosa and Judge Kelly1 concurred.

STARING, Presiding Judge:

¶1 Following a jury trial, James Sunderland was convicted of first-degree murder and two counts of child abuse. On appeal, he argues the trial court violated his right to a unanimous verdict, erred in making various evidentiary rulings and by failing to excuse a juror from deliberations, and sentenced him illegally by considering aggravating factors not found by the jury. For the reasons that follow, we find no error and affirm.

Factual and Procedural Background

¶2 "We view the facts in the light most favorable to sustaining [Sunderland's] convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). In May 2013, Sunderland was caring for two-year-old C.S. at the apartment Sunderland shared with C.S. and A.Q., C.S.'s mother and Sunderland's then-girlfriend. Sunderland called 9-1-1 and reported that C.S. had suddenly stopped breathing while Sunderland was changing his diaper. He told first responders C.S. had fallen eight to ten feet down a hill while hiking "a few days" earlier.

¶3 The paramedics who arrived shortly thereafter observed several "trauma-based" injuries to C.S., particularly to his head. Based on the severity of his injuries, C.S. was flown by helicopter to a trauma center in Phoenix, where doctors performed surgery in an attempt to reduce the swelling of his brain. C.S. died a short time later. A medical examiner determined the cause of death was "multiple blunt-force trauma," including a "fatal brain injury." The

Page 3

medical examiner additionally found fifty-two bruises, many of which were more than a week old, all over C.S.'s body and abdominal injuries inconsistent with the fall described by Sunderland.

¶4 Sunderland was indicted and convicted, as noted above, and the trial court sentenced him to a natural-life term for the first-degree murder count, and 2.5-year terms of imprisonment for each child abuse count, to be served concurrently. We have jurisdiction over Sunderland's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Unanimous Verdict

¶5 Sunderland first argues the trial court violated his right to a unanimous verdict because the indictment charged him "in the conjunctive" with three possible manners of committing child abuse, the court did not instruct the jury it needed to be unanimous as to the exact manner in which the crimes were committed, and the verdict forms similarly did not require the jury to specify the exact manner. Sunderland did not object on any of these grounds below and has therefore forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005); see also State v. Paredes-Solano, 223 Ariz. 284, ¶ 8, 222 P.3d 900, 904 (App. 2009). A violation of the right to a unanimous jury verdict constitutes such error. Paredes-Solano, 223 Ariz. 284, ¶ 22, 222 P.3d at 908.

¶6 As stated in the indictment, Sunderland was charged with two counts of child abuse pursuant to A.R.S. § 13-3623(B)(1). That offense is committed when a person intentionally or knowingly, "[u]nder circumstances other than those likely to produce death or serious physical injury," (1) "causes a child . . . to suffer physical injury or abuse," or (2) "having the care or custody of a child . . . causes or permits the person or health of the child . . . to be injured," or (3) "having the care or custody of a child . . . causes or permits a child . . . to be placed in a situation where the person or health of the child . . . is endangered." § 13-3623(B)(1). The indictment also charged Sunderland with first-degree murder "by committing the crime of Child Abuse under [§] 13-3623(A)(1)." Child abuse pursuant to § 13-3623(A)(1) is identical to (B), except that it occurs when a

Page 4

person acts "[u]nder circumstances likely to produce death or serious physical injury."

¶7 The thrust of Sunderland's argument is that, because § 13-3623(A) and (B) together provide three ways in which child abuse can occur, the state was required to elect an exact manner in which the child abuse was committed and the jury had to likewise be unanimous about the exact manner in which the crime occurred. He additionally points out that the verdict forms only asked the jury whether Sunderland was guilty of "First Degree Murder" and "Child Abuse." Thus, Sunderland concludes, "[g]iven the extremely general verdict forms and the child abuse and [first-degree] murder charges alleging numerous ways the crimes could be [committed,] . . . the jurors cannot be presumed to have reached a unanimous verdict on the underlying charges given the alternatives presented."

¶8 The Arizona Constitution guarantees criminal defendants the right to a unanimous jury verdict. Ariz. Const. art. II, § 23; see State v. West, 238 Ariz. 482, ¶ 13, 362 P.3d 1049, 1055 (App. 2015). The jury must be unanimous on whether the charged crime was committed, but it does not need to be unanimous as to the precise manner in which the crime was committed. West, 238 Ariz. 482, ¶ 13, 362 P.3d at 1055.

¶9 In West, we observed that child abuse under § 13-3623(A) is a "single unified offense," which means that the statute identifies a single crime—child abuse—and provides multiple means of committing that crime. Id. ¶ 19. We further concluded that although a defendant is "entitled to a unanimous jury verdict on whether []he committed child abuse, []he [is] not entitled to a unanimous jury verdict 'on the precise manner in which the act was committed'" so long as substantial evidence supports the conviction under all three means provided in § 13-3623(A). Id. ¶ 30, quoting State v. Herrera, 176 Ariz. 9, 16, 859 P.2d 119, 126 (1993).

Page 5

¶10 West controls here.2 So long as substantial evidence supports Sunderland's convictions under each of the three means provided in § 13-3623(A) and (B), the jury needed only to be unanimous that he committed child abuse, but did not need to be unanimous as to the exact means. See id. ¶¶ 13, 30. Accordingly, the state was not required to elect and prove the precise manner of child abuse, the trial court was not required to instruct the jury it had to be unanimous as to the manner, and the verdict forms did not need to specify the precise manner. See id.

¶11 Sunderland has failed to make any argument on the issue whether substantial evidence supports all three means of committing child abuse. Consequently, he has waived this argument for review, and we do not address it further. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (opening brief shall include appellant's contentions with citations to legal authority); see also West, 238 Ariz. 482, ¶ 75, 362 P.3d at 1068 (failure to support claim on appeal constitutes waiver). Furthermore, although we will not ignore fundamental error if we see it, we see no error, fundamental or otherwise. See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007).

Lesser-Included Offense Instruction

¶12 Sunderland next argues the trial court erred by failing to instruct the jury "on lesser-included mental states on the Child Abuse charge supporting [first-degree] murder." He maintains this failure violated his rights to a fair trial and due process. Sunderland did not request an instruction on any lesser-included mental states below; thus he has forfeited review of this issue for all but fundamental, prejudicial error. See State v. Bearup, 221 Ariz. 163, ¶¶ 21-22, 211 P.3d 684, 689 (2009); see also Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607-08.

¶13 Sunderland, however, contends he was not required to object on these grounds because the trial court had an "independent

Page 6

duty" to instruct the jury on "lesser included mental states." We have noted that, "[u]nder some circumstances, a trial court's failure to sua sponte instruct the jury on a lesser-included offense may constitute fundamental, prejudicial error." State v. Fiihr, 221 Ariz. 135, ¶ 9, 211 P.3d 13, 15 (App. 2008). But this does not relieve Sunderland of his burden, on appeal, to demonstrate that, under the circumstances in this case, the alleged error went "to the foundation of [his] case" and took from him "a right essential to his defense." Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984); see also Ariz. R. Crim. P. 31.13(c)(1)(vi); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim."); State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008). As he has failed to argue in any meaningful fashion that fundamental, prejudicial error occurred,3 Sunderland has waived review of this argument. See Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140.

Misleading Jury Instructions

¶14 Sunderland maintains the trial court erred because "[t]he jury instructions as a whole misled the jury where the instructions allowed the State to obtain a felony murder conviction without a unanimous and informed showing of mens rea." In particular, he points to the court's failure to require the jury to determine the precise means by which the child...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT