State v. West

CourtCourt of Appeals of Arizona
Citation362 P.3d 1049
Docket NumberNo. 2 CA–CR 2013–0562.,2 CA–CR 2013–0562.
Parties The STATE of Arizona, Appellee, v. Penny Ann WEST, Appellant.
Decision Date13 November 2015

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By David A. Sullivan, Assistant Attorney General, Tucson, Counsel for Appellee.

Law Offices of Thomas Jacobs, By Thomas Jacobs, Tucson, Counsel for Appellant.

Presiding Judge VÁSQUEZ authored the opinion of the Court, in which Judge HOWARD and Judge KELLY1 concurred.


VÁSQUEZ, Presiding Judge:

¶ 1 After a jury trial, Penny West was convicted of criminally negligent child abuse under circumstances likely to produce death or serious physical injury. The trial court suspended the imposition of sentence and placed her on probation for a period of three years, ordering that she serve a six-month jail term as a condition of probation. Penny contends the court erred by denying her motion for a new trial on the following grounds: (1) the state presented four alternate theories of criminal liability that deprived her of a unanimous verdict; (2) the court erred in denying her request for a unanimous-verdict jury instruction; (3) the verdict was against the weight of the evidence; and (4) the prosecutor committed misconduct during trial and closing argument. We affirm.

Factual and Procedural Background

¶ 2 The procedural history of this case is extensive. We view the underlying facts in the light most favorable to sustaining Penny's conviction. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App.2013). On August 24, 2005, sixteen-month-old Emily M. died from severe head trauma

. At the time, she was a foster child in the care of Penny and her husband Randall.2 We set forth only the relevant facts necessary to resolve this appeal.

¶ 3 Penny was the only adult at home that morning when she claimed Emily fell over backward on the carpeted floor. Penny took Emily to the bathroom, removed her clothing, and splashed water on her in an attempt to revive her. After Emily did not respond, Penny called Randall and then 9–1–1. That was the ninth telephone call exchanged between Penny and Randall in less than an hour.3 Emily was unconscious when she was transported to the hospital. A neurosurgeon performed emergency brain surgery

, but Emily died shortly thereafter. The county medical examiner concluded that Emily's death was due to one or more "blunt impacts to the head with subdural hemorrhage."

¶ 4 A grand jury indicted Penny and Randall for intentional or knowing child abuse likely to produce death or serious physical injury in violation of A.R.S. § 13–3623(A). The amended indictment alleged that Penny and Randall,

having the care or custody of Emily ..., committed child abuse by intentionally or knowingly causing physical injury to Emily ..., or causing or permitting the person or health of Emily ... to be injured, or causing or permitting Emily ... to be placed in a situation where her health was endangered.

¶ 5 During trial, Penny and Randall filed a motion to compel the state "to elect one single act or ‘transaction’ on which it seeks to have the jury convict each Defendant." Alternatively, they requested that the trial court give a jury instruction requiring unanimity as to the "same act or omission" constituting child abuse. In response, the state argued that § 13–3623(A) provides three ways to commit child abuse, it did not have to elect one of those ways on which to proceed, and the court should instruct the jury that it did not have to unanimously agree on the way the offense was committed so long as all the jurors found one of the ways proven. The court agreed with the state and denied the requests.

¶ 6 During closing argument, the state asserted that "all three ways of committing child abuse were done in this case." The trial court instructed the jury: "[I]t is not necessary that all eight of you agree on the particular manner in which the crime was committed. However, it is necessary that each of you determine that the defendant committed child abuse in at least one of the three possible manners charged." The jury found Penny guilty of criminally negligent child abuse under circumstances likely to produce death or serious injury and found Randall guilty of reckless child abuse under circumstances not likely to produce death or serious injury.

¶ 7 After trial, Penny and Randall separately filed motions for judgments of acquittal, pursuant to Rule 20, Ariz. R. Crim. P., arguing there was insufficient evidence to support their convictions. They also filed a joint motion for a new trial. After hearing oral argument, the trial court granted their motions for judgments of acquittal, concluding that "a rational trier of fact could find beyond a reasonable doubt that [Emily's] injury was caused by an act of child abuse" but there was insufficient evidence to show which of them had committed that act. The state appealed.

¶ 8 Reviewing the trial court's Rule 20 determination for an abuse of discretion, this court reversed. State v. West, 224 Ariz. 575, ¶¶ 8, 15, 233 P.3d 1154, 1156, 1158 (App.2010) (West I ). However, on review, our supreme court clarified that the "question of sufficiency of the evidence is one of law, subject to de novo review on appeal." State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011) (West II ). The court thus vacated our opinion and remanded the case to this court to address the merits of the state's appeal. Id. ¶ 20.

¶ 9 On remand, we concluded there was sufficient evidence to support Penny's conviction. State v. West, No. 2 CA–CR 2008–0342, ¶ 14, 2012 WL 723752 (memorandum decision filed March 5, 2012) (West III ). We explained that the state needed to present substantial evidence "under any of [the] three alternate theories" of § 13–3623(A). Id. ¶ 13. Turning to the first means of violating § 13–3623(A), we explained that Penny "was the only adult in the house when Emily collapsed" and "virtually every doctor involved in Emily's emergency care testified she would not have suffered her severe head injury

from the standing-height fall Penny had described." Id. ¶ 15. Citing testimony from the state's experts, we pointed out that "Emily's head injury had occurred ‘recently,’ ‘that morning ... or maybe the evening before,’ and that she would have displayed symptoms immediately afterward." Id. ¶ 17 (alteration in West III ). We also highlighted the inconsistencies in Penny's account of the injury. Id. ¶ 16. We thus concluded that "there was ‘such proof that reasonable persons could accept as adequate and sufficient to support a conclusion [that Penny caused or permitted Emily's injury,] beyond a reasonable doubt.’ " Id. ¶ 19, quoting West II, 226 Ariz. 559, ¶ 16, 250 P.3d at 1191 (alteration in West III ). And, consequently, we did not address the other means of committing child abuse under § 13–3623(A). Id.

¶ 10 However, we did not reach the same conclusion as to Randall. Id. ¶ 20. We found the evidence "too speculative to constitute substantial evidence that Randall, either alone or in concert with Penny, injured Emily" under the first means in § 133623(A). Id. Because the state conceded "there was insufficient evidence to support Randall's conviction under the second means of violating" § 13–3623(A), we turned to the third. Id. ¶ 24. We declined to rely on the telephone calls between Penny and Randall as evidence that he had delayed in seeking medical care for Emily because the content of those calls was not contained in the record. Id. ¶ 25. We also explained, "When the state alleges that a caretaker has endangered a child by failing to obtain prompt medical treatment for the child's injuries, the state must prove the delay increased the child's risk of harm." Id. ¶ 26. And because the state presented no such evidence, we concluded that "there was insufficient evidence to support Randall's conviction under the third means of violating § 13–3623." Id. Accordingly, we affirmed the trial court's order granting Randall's Rule 20 motion but reversed it as to Penny. Id. ¶ 27.

¶ 11 After our supreme court denied Penny's petition for review, the case returned to the trial court, where Penny renewed and supplemented her motion for a new trial, which the court had originally declined to address after granting her motion for judgment of acquittal. After hearing oral argument, the court denied Penny's motion and subsequently sentenced her as described above.4 This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A).

Jury Unanimity

¶ 12 Penny contends the trial court erred by denying her motion for a new trial based on a lack of jury unanimity in reaching the verdict.5 Specifically, she asserts the state argued alternate theories of criminal liability but substantial evidence did not support all the theories. Generally, we review the denial of a motion for a new trial for an abuse of discretion. State v. Hoskins, 199 Ariz. 127, ¶ 52, 14 P.3d 997, 1012 (2000). However, we review questions of law, including constitutional issues, de novo. State v. Bolding, 227 Ariz. 82, ¶ 5, 253 P.3d 279, 282 (App.2011).

¶ 13 A criminal defendant has the constitutional right to a unanimous jury verdict. Ariz. Const. art. II, § 23 ; see also State v. Payne, 233 Ariz. 484, ¶ 81, 314 P.3d 1239, 1263 (2013). The jury therefore must be unanimous " ‘on whether the criminal act charged has been committed.’ " State v. Herrera, 176 Ariz. 9, 16, 859 P.2d 119, 126 (1993), quoting State v. Encinas, 132 Ariz. 493, 496–97, 647 P.2d 624, 627–28 (1982). However, " ‘the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed.’ " Id., quoting Encinas, 132 Ariz. at 496–97, 647 P.2d at 627–28 ; see also State v. Dann, 220 Ariz. 351, ¶ 79, 207 P.3d 604, 620 (2009) ("Jurors may ... reach a verdict based on a combination of alternative findings.").

¶ 14 A person commits child abuse when he or she,


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