State v. Amador-Creane ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
GREG AMADOR-CREANE, Appellant.
No. 1 CA-CR 15-0052
FILED 11-24-2015
Appeal from the Superior Court in Maricopa County
CR2011-153124-001
The Honorable M. Scott McCoy, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
By Nicole Farnum
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Chief Judge Michael J. Brown joined.
STATE v. AMADOR-CREANE
Decision of the Court
G E M M I L L, Judge:
¶1 Greg Amador-Creane appeals from his convictions and
sentences for one count of first degree felony murder, a class 1 dangerous
felony, dangerous crime against children, and domestic violence offense;
one count of child abuse, a class 2 dangerous felony, dangerous crime
against children, and domestic violence offense; and one count of child
abuse, a class 3 felony and domestic violence offense. Amador-Creane’s
counsel filed a brief in compliance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (1969), stating she has searched the
record and found no arguable question of law and requesting that this court
examine the record for reversible error. Amador-Creane was permitted to
file a pro se supplemental brief in which he raises several arguments. See
State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999).
¶2 This court has jurisdiction under Article 6, Section 9, of the
Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031 and 13-4033. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3 “We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining the convictions.” State v. Powers, 200
Ariz. 123, 124, ¶ 2 (App. 2001).
¶4 On October 13, 2011, an incident occurred between the two-
year-old, J.M., and Amador-Creane, resulting in J.M.’s death. At the time,
J.M.’s mother (“Mother”) was dating Amador-Creane. All three were living
at Amador-Creane’s residence with several other members of Amador-
Creane’s family. At 7:00 am on October 13, Mother checked on J.M. and
then left him in the care of Amador-Creane. At trial, Mother testified that
she and Amador-Creane were the ones who typically took care of J.M.
¶5 Around 9:30 am, Mother called Amador-Creane to ask about
J.M. She testified that Amador-Creane “didn’t seem quite himself,” but
indicated J.M. was awake and fed. Then, sometime around 10:30 am,
Amador-Creane called 9-1-1 and requested paramedics because J.M. was
unresponsive. Paramedics, fire personnel, and police officers responded to
the scene. J.M. was taken to the hospital, where it was determined that he
had suffered a severe head injury. He was stabilized, and transferred to
another facility. At some point afterward, two brain death evaluations were
performed on J.M. and it was determined that he was clinically brain dead.
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STATE v. AMADOR-CREANE
Decision of the Court
¶6 During this time, police undertook an investigation to
determine the cause of J.M.’s injuries. Detective Jerry Laird (“the
detective”) interviewed Amador-Creane at the hospital. Afterward, the
detective decided that Amador-Creane should be transported to the police
station for an audio and video-recorded interview. At the station, Amador-
Creane was read his Miranda rights, interviewed, and charged. Portions of
the interview were shown at trial.
¶7 After trial, a jury found Amador-Creane guilty of Count 1,
first degree felony murder, Count 2, child abuse, and Count 3, reckless child
abuse. The jury also found that the first two counts were dangerous crimes
against children and that all three counts were domestic violence offenses.
Amador-Creane was sentenced to life in prison without the possibility of
release until completion of 35 years on Count 1, 15 years flat on Count 2,
and 3 years on Count 3, to be served concurrently, with 1,191 days of
presentence incarceration credit.
DISCUSSION
I. Alleged Inconsistent Witness Testimony
¶8 Amador-Creane first asserts that the testimony of various
witnesses during the trial was inconsistent or contradictory. But questions
of witness credibility and consistency of testimony are appropriately
resolved by the jury. We will not disturb a verdict based upon conflicting
evidence when there is substantial evidence to support the verdict. State v.
Hughes, 104 Ariz. 535, 538 (1969). The witnesses that Amador-Creane
contends provided inconsistent testimony nevertheless provided
substantial evidence to support the verdicts. No reversible error occurred
by virtue of some witnesses testifying inconsistently.
II. Alleged Offer Tendered
¶9 Second, Amador-Creane argues “it was stated by [the State]
that there was an offer tendered however I never received o[r] even saw for
that matter any document for me to accept or deny.” If Amador-Creane is
correct that a plea agreement had been offered by the State and defense
counsel did not communicate the offer to him, he may raise claims of
ineffective assistance of counsel in a post-conviction proceeding under
Arizona Rule of Criminal Procedure 32. See State v. Spreitz, 202 Ariz. 1, 3, ¶
9 (2002) (holding that ineffective assistance of counsel claims will not be
considered on direct appeal and, instead, must be presented in Rule 32
proceedings).
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STATE v. AMADOR-CREANE
Decision of the Court
III. Alleged Contact with Jury Members
¶10 Third, Amador-Creane takes issue with the State’s two
incidents of alleged contact with jury members. Arizona Rule of Criminal
Procedure 19.4 requires the court to “admonish the jurors not to converse
among themselves or with anyone else on any subject connected with the
trial.”
¶11 Amador-Creane points to two incidents he alleges constituted
improper communication with the jury. The first incident involved a juror
possibly witnessing a discussion between the prosecutors and the State’s
case agent. The second incident occurred when a prosecutor was walking
in and out of the victim room while waiting for a witness. Once, when the
prosecutor opened the door to the victim room, two jurors came around the
corner, and the prosecutor and the jurors startled each other.
¶12 The State alerted the trial court and Amador-Creane’s counsel
on both occasions. After listening to the prosecutor’s accounts, the trial
court asked whether Amador-Creane’s counsel wanted the court to take
any specific action. Amador-Creane’s counsel did not raise any challenge
and the trial court did not find that either occasion called for remedial
action.
¶13 On this record, we discern no basis to conclude the trial court
abused its discretion or that Amador-Creane was prejudiced by any
inadvertent contact the prosecutors may have had with some jurors.
Further, because the issue was waived at the trial level, it cannot be
successfully raised on appeal. See State v. Savchick, 116 Ariz. 278, 282 (1977)
(holding the issue of prejudice was waived at trial and could not be raised
on appeal when defense counsel declined to take action on a report that a
juror overheard a prosecutor’s conversation with the bailiff). We therefore
find no error.
IV. Denial of Rule 20 Motion
¶14 Finally, Amador-Creane asserts the trial court erred in
denying his motion for judgment of acquittal on Count 3, child abuse, under
Arizona Rule of Criminal Procedure 20(a) (“Rule 20”). Rule 20 states that
“the court shall enter a judgment of acquittal of one or more offenses
charged in an indictment, information or complaint after the evidence on
either side is closed, if there is no substantial evidence to warrant a
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STATE v. AMADOR-CREANE
Decision of the Court
conviction.” Ariz. R. Crim. P. 20(a). We review de novo a trial court’s
denial of a Rule 20 motion. State v. Harm, 236 Ariz. 402, 406, ¶ 11 (App.
2015).
¶15 Amador-Creane’s argument is unpersuasive. In support of its
argument that Amador-Creane delayed seeking medical attention for J.M.,
the State presented Amador-Creane’s recorded statements to the detective
that he “was scared to call” for help, even though he acknowledged that he
noticed symptoms before 10:00 that morning. The detective testified that
the 9-1-1 call was not made until 10:30 am. Additionally, the State
presented evidence from multiple medical professionals who testified that
prompt medical attention would have increased the likelihood of a better
outcome for J.M. The record before us therefore shows substantial evidence
of reckless child abuse, as charged in Count 3. The trial court did not abuse
its discretion in denying Amador-Creane’s Rule 20 motion.
¶16 Having considered defense counsel’s brief and Amador-
Creane’s supplemental brief, and having examined the record for reversible
error, see Leon, 104 Ariz. at 300, we find none. The evidence presented
supports the convictions and the sentences imposed fall within the range
permitted by law. As far as the record reveals, Amador-Creane was
represented by counsel at all stages of the proceedings, and these
proceedings were conducted in compliance with his constitutional and
statutory rights and the Arizona Rules of Criminal Procedure.
¶17 Pursuant to State v. Shattuck, 140 Ariz. 582, 584–85 (1984),
counsel’s obligations in this appeal have ended. Counsel need do no more
than inform Amador-Creane of the disposition of the appeal and his future
options, unless counsel’s review reveals an issue appropriate for
submission to the Arizona Supreme Court by petition for review. Amador-
Creane has thirty days from the date of this decision in which to proceed, if
he desires, with a pro se motion for reconsideration or petition for review.
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STATE v. AMADOR-CREANE
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CONCLUSION
¶18 The convictions and sentences are affirmed.
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