State of Arizona v. Penny Ann West

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
PENNY ANN WEST,
Appellant.
No. 2 CA-CR 2013-0562
Filed November 13, 2015
Appeal from the Superior Court in Pima County
No. CR20063310
The Honorable John S. Leonardo, Judge
The Honorable Javier Chon-Lopez, Judge
AFFIRMED
COUNSEL
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, Tucson
By Thomas Jacobs
Counsel for Appellant
STATE v. WEST
Opinion of the Court
OPINION
Presiding Judge Vásquez authored the opinion of the Court, in
which Judge Howard and Judge Kelly1 concurred.
V Á S Q U E Z, 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
1The Hon. Virginia C. Kelly, a retired judge of this court, is
called back to active duty to serve on this case pursuant to orders of
this court and our supreme court.
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Opinion of the Court
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.
2Penny and Randall have three children—M., K., and C.—and
were also caring for two other foster children—D. and K.M.—at the
time. Emily and K.M. were sisters.
3 One call was made so Penny could settle a bet between
Randall and M., but the content of the others was undisclosed.
Evidence that the other calls had been placed was admitted at trial,
but the court prohibited the state from speculating about their
substance.
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STATE v. WEST
Opinion of the Court
¶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.”
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Opinion of the Court
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. West, No. 2 CA-CR 2008-0342, ¶ 14
(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 § 13-
3623(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
5
STATE v. WEST
Opinion of the Court
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
4 The trial court originally imposed a term of four years’
probation, including six months’ incarceration. Penny petitioned
this court for special-action review, however, arguing that the court
erred in requiring her to serve six months in jail “based on [her]
failure to admit responsibility and express remorse.” We accepted
jurisdiction and granted relief, vacating the sentencing order and
directing the court to resentence Penny. West v. Chon-Lopez, No. 2
CA-SA 2013-0089 (decision order filed Nov. 8, 2013).
5Although Penny argues the lack of jury unanimity “creat[ed]
a due process violation,” she does not develop the argument in any
meaningful way. We therefore do not address it. See 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.”).
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Opinion of the Court
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,
[u]nder circumstances likely to produce
death or serious physical injury, . . . causes
a child . . . to suffer physical injury or,
having the care or custody of a child . . . ,
causes or permits the person or health of
the child . . . to be injured or . . . causes or
permits a child . . . to be placed in a
situation where the person or health of the
child . . . is endangered.
§ 13-3623(A). “[T]he statute increases the offense level based on the
actor’s intent: If the offense is ‘done intentionally or knowingly,’ it
becomes a class 2 felony.” Payne, 233 Ariz. 484, ¶ 71, 314 P.3d at
1261, quoting § 13-3623(A)(1). “It is a lesser offense if done
negligently or recklessly.” Id.; see § 13-3623(A)(2), (3).
¶15 In State v. Forrester, 134 Ariz. 444, 447, 657 P.2d 432, 435
(App. 1982), we explained, “If a statute describes a single offense
which may be committed in more than one way, it is unnecessary
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STATE v. WEST
Opinion of the Court
for there to be unanimity as to the means by which the crime is
committed provided there is substantial evidence to support each of
the means charged.” There, the statute at issue was A.R.S. § 13-1802
governing theft. Id. at 446-47, 657 P.2d at 434-35. The defendant was
indicted with theft by controlling the property of another with the
intent to deprive the other of that property, see § 13-1802(A)(1), or
converting property entrusted to him for an unauthorized term or
use, see § 13-1802(A)(2). Forrester, 134 Ariz. at 447, 657 P.2d at 435.
The trial court instructed the jury that it could find the defendant
guilty by either means. Id. On appeal, the defendant argued the
court “erred by failing to require the jury to specify under what
theory it found him guilty.” Id. We rejected that argument after
determining the theft statute described a single offense capable of
being committed in various ways and did not require jury
unanimity on the way it was committed. Id. at 447-48, 657 P.2d at
435-36.
¶16 In her motion for a new trial, Penny relied on Forrester
and argued § 13-3623(A) is an “alternative means” statute requiring
substantial evidence to support each of the means charged. She
maintained, however,
substantial evidence was lacking to prove
that [she] committed child abuse by either
the second or third of the statutorily-
described means, or both—that is, by
“caus[ing] or permit[ting] the person or
health of the person to be injured,” and/or
by “caus[ing] or permit[ting] a child . . . to
be placed in a situation where the person or
health of the child . . . is endangered.”
In her supplemental brief on her motion, Penny relied on this court’s
determination that substantial evidence did not support Randall’s
conviction under the third means of the statute and maintained that
the same reasoning applied to her. See West III, No. 2 CA-CR 2008-
0342, ¶ 26. At oral argument on her motion for a new trial, Penny
further asserted the state presented a “buffet of factual options” for
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Opinion of the Court
the jury to choose from, suggesting that there needed to be
substantial evidence for each of the state’s factual theories.
¶17 The trial court rejected Penny’s argument. It noted that
it was bound by this court’s determination that substantial evidence
supported Penny’s conviction under the first means of committing
child abuse in § 13-3623(A)—that Penny had caused Emily’s injury.
See West III, No. 2 CA-CR 2008-0342, ¶¶ 14, 19. And, it reasoned,
because substantial evidence existed to find
[Penny] personally injured Emily in the
morning while she was in [Penny’s] care,
the jury also necessarily had substantial
evidence before it to find that [Penny]
caused or permitted Emily’s person or
health to be injured and that [Penny]
permitted Emily to be placed in a situation
where her person or health was
endangered.
The court also concluded that its analysis focused on the substantial
evidence to support “each alternative means,” not the state’s factual
theories.
¶18 On appeal, Penny repeats her argument but seems to
focus on the state’s specific factual theories to prove the means
charged rather than the statutory means charged. She contends “the
state argued four alternate theories of criminal liability”: (1) “Penny
personally caused Emily’s head injury”; (2) “Randall personally
caused Emily’s injury, but Penny culpably left Emily alone with
him”; (3) “regardless of the genesis of Emily’s injury,” Penny
delayed calling 9-1-1 “in a joint criminal act with Randall . . . while
the two exchanged phone calls”; or (4) “regardless of the genesis of
Emily’s injury,” Penny personally delayed calling 9-1-1 “while she
stripped and splashed Emily, and then called Randall.” And, she
maintains “there was no substantial evidence to support three of the
four theories.”
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Opinion of the Court
¶19 Penny and the state apparently agree that § 13-3623(A)
is an alternative-means statute. “Alternative means statutes identify
a single crime and provide more than one means of committing the
crime.” In re Det. of Halgren, 132 P.3d 714, 720 (Wash. 2006); see also
State v. Brown, 284 P.3d 977, 985 (Kan. 2012). In Arizona, we use the
term “single unified offense” to describe a crime proscribed by an
alternative-means statute. State v. Garcia, 235 Ariz. 627, ¶ 8, 334 P.3d
1286, 1289 (App. 2014). We agree that § 13-3623(A) is an alternative-
means statute and that child abuse under the statute is a single
unified offense.
¶20 In determining whether a statute provides alternative
means of committing the same offense, we must “ascertain and give
effect to the intent of our legislature.” State v. Garcia, 219 Ariz. 104,
¶ 6, 193 P.3d 798, 800 (App. 2008); see also State v. Manzanedo, 210
Ariz. 292, ¶ 8, 110 P.3d 1026, 1028 (App. 2005). In conducting this
analysis, we may consider: “(1) the title of the statute, (2) whether
there was ‘a readily perceivable connection between the various
acts’ listed in the statute, (3) whether those acts were ‘consistent with
and not repugnant to each other,’ and (4) whether those acts might
‘inhere in the same transaction.’” Manzanedo, 210 Ariz. 292, ¶ 8, 110
P.3d at 1028, quoting State v. Dixon, 127 Ariz. 554, 561, 622 P.2d 501,
508 (App. 1980). The plain language of a statute is the best and most
reliable indicator of the legislature’s intent. State v. Christian, 202
Ariz. 462, ¶ 5, 47 P.3d 666, 667-68 (App. 2002). “‘When a statute is
clear and unambiguous, we apply its plain language and need not
engage in any other means of statutory interpretation.’” State v.
Gongora, 235 Ariz. 178, ¶ 5, 330 P.3d 368, 369 (App. 2014), quoting
State v. Arellano, 213 Ariz. 474, ¶ 9, 143 P.3d 1015, 1018 (2006).
¶21 The language of § 13-3623(A) is clear and unambiguous.
The title, child abuse, “summarizes the statute as dealing with a
single offense.” Forrester, 134 Ariz. at 448, 657 P.2d at 436. Within
the first paragraph, the statute plainly provides three ways—or
means—of committing child abuse. They include: (1) causing a
child to suffer a physical injury; (2) having the care or custody of a
child, causing or permitting the person or health of the child to be
injured; and (3) having the care or custody of a child, causing or
permitting the child to be placed in a situation where the person or
10
STATE v. WEST
Opinion of the Court
health of the child is endangered. § 13-3623(A). The three means are
not repugnant to each other because proof of one “does not disprove
the other.” Manzanedo, 210 Ariz. 292, ¶ 9, 110 P.3d at 1028.
Moreover, § 13-3623(A) “focuses on a single harm to the victim,”
and the three means “merely provide different ways of causing that
single harm.” State v. Paredes-Solano, 223 Ariz. 284, ¶ 14, 222 P.3d
900, 906 (App. 2009); see also In re Jeremiah T., 212 Ariz. 30, ¶ 12, 126
P.3d 177, 181 (App. 2006). The child-abuse statute is therefore
similar to the theft statute addressed in Forrester. See Paredes-Solano,
223 Ariz. 284, ¶ 14, 222 P.3d at 906 (theft statute focuses on single
harm: “deprivation of control over one’s property”).
¶22 We recognize that, in addition to providing the three
means of committing child abuse, § 13-3623(A) also contains three
subsections that classify the offense based on the defendant’s mental
state: intentional or knowing child abuse, reckless child abuse, and
criminally negligent child abuse. See State v. Freeney, 223 Ariz. 110,
¶ 16, 219 P.3d 1039, 1042 (2009) (if elements of one offense differ
from those of another, they are distinct and separate crimes); Black’s
Law Dictionary 634 (10th ed. 2014) (defining “elements of crime” as
“constituent parts,” usually including mens rea); see also Brown, 284
P.3d at 988 (in considering whether statute provides alternative
means, court must ask if it lists “distinct, material elements of a
crime—that is, the necessary mens rea, actus reas, and, in some
statutes, a causation element”). But regardless of which mental state
is implicated, child abuse is still one offense that can be committed
the same three ways. Cf. State v. Valentini, 231 Ariz. 579, ¶ 9, 299
P.3d 751, 754 (App. 2013) (“[S]econd-degree murder is one offense
regardless of the culpable mental state with which it is committed.”).
The mental states are separate from the means, and the subsections
merely “increase[] the offense level based on the actor’s intent.”
Payne, 233 Ariz. 484, ¶ 71, 314 P.3d at 1261 (mens rea applies to act
that defendant commits). We therefore conclude that § 13-3623(A) is
an alternative-means statute, and child abuse is a single unified
offense, the classification of which changes depending on the
defendant’s mental state.
¶23 For the first time on appeal, Penny argues “there are
fully eight different ways for a person to commit child abuse” under
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Opinion of the Court
§ 13-3623(A). She separates the three means in the statute by
distinguishing between active and passive conduct and mental and
physical injury. She claims that “causing” is active while
“permitting” is passive, and “person” refers to a physical injury
while “health” connotes a mental harm. But we are aware of no case
law supporting this approach. See Brown, 284 P.3d at 992 (“[I]t is
unlikely that the legislature intended for options within a means to
constitute alternative means . . . .”); cf. Payne, 233 Ariz. 484, ¶ 86, 314
P.3d at 1263 (describing “causing or permitting” injury as “discrete
method of committing child abuse under § 13-3623(A)”). We thus
treat the statute as providing three alternative means, as the parties
and the trial court did below, and as we did in our memorandum
decision in the prior appeal. See West III, No. 2 CA-CR 2008-0342,
¶¶ 13-14.
¶24 Having determined that child abuse under § 13-3623(A)
is a single offense that may be committed in three ways, we turn to
Penny’s Forrester argument.6 As an initial matter, Forrester generally
requires substantial evidence supporting “each of the means
charged,” not the state’s factual theories of the case, as Penny seems
to suggest. 134 Ariz. at 447, 657 P.2d at 435; see also Dixon, 127 Ariz.
at 561, 622 P.2d at 508. This is consistent with due process, which
“requires that a defendant be given ‘notice of the specific charge’”
but not the state’s theory of the charge. State v. Rivera, 207 Ariz. 69,
¶ 12, 83 P.3d 69, 73 (App. 2004), quoting State v. Blakley, 204 Ariz. 429,
¶ 47, 65 P.3d 77, 87 (2003). However, with an alternative-means
statute like § 13-3623(A), where the offense level is based on the
defendant’s mental state, and the jury is provided instructions on
6 At oral argument, the state asserted for the first time that
Forrester may no longer apply in light of Griffin v. United States, 502
U.S. 46, 47, 59-60 (1991), where the Supreme Court concluded that “a
general guilty verdict on a multiple-object conspiracy [need not] be
set aside if the evidence is inadequate to support conviction as to
one of the objects.” However, the parties did not brief this issue.
We therefore do not address it. See State v. Edmisten, 220 Ariz. 517,
¶ 19, 207 P.3d 770, 776-77 (App. 2009) (“[A]rguments raised for the
first time at oral argument are generally waived.”).
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Opinion of the Court
the lesser mental states, we must determine whether substantial
evidence supports all three means involving the mental state for
which the defendant was convicted. See Brown, 284 P.3d at 983
(requiring substantial evidence to support means “set out in the jury
instructions”); State v. Smith, 154 P.3d 873, 875 (Wash. 2007)
(requiring substantial evidence “of each of the relied-on alternative
means”).
¶25 Here, the indictment essentially mirrored the language
of § 13-3623(A)(1), alleging that Penny had 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.” Penny, however, was convicted
of the lesser offense of criminally negligent child abuse under § 13-
3623(A)(3). Substantial evidence supports each of the three means of
that offense.
¶26 Our memorandum decision in West III is now law of the
case. See State v. Whelan, 208 Ariz. 168, ¶ 8, 91 P.3d 1011, 1014 (App.
2004) (“‘Law of the case concerns the practice of refusing to reopen
questions previously decided in the same case by the same court or a
higher appellate court.’”), quoting Davis v. Davis, 195 Ariz. 158, ¶ 13,
985 P.2d 643, 647 (App. 1999). We determined there was substantial
evidence that Penny had caused Emily’s injury under the first means
of committing child abuse under § 13-3623(A). West III, No. 2 CA-
CR 2008-0342, ¶¶ 14, 19. And we also noted that Emily was in
Penny’s care. Id. ¶¶ 15, 18. We agree with the trial court’s
determination that these two findings compel the conclusion that
substantial evidence supports the other two means under § 13-
3623(A). Because substantial evidence supports a finding that Penny
“cause[d Emily] to suffer physical injury,” there is also sufficient
evidence that Penny “cause[d] or permit[ted] the person or health of
[Emily] to be injured” and that Penny “cause[d] or permit[ted
Emily] to be placed in a situation where [her] person or health . . .
[wa]s endangered.” 7 § 13-3623(A). Indeed, Penny admits that
7Atoral argument, Penny insisted that there was insufficient
evidence to support the third means because the content of the
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Opinion of the Court
causing a child to suffer physical injury under the first means “is
equivalent” to causing the person of the child to be injured under
the second.
¶27 Penny nevertheless argues that we must “disaggregate
the different means of commission argued, and then once
disaggregated, . . . decide if sufficient evidence was presented to
prove each disaggregated, alternative means.” As we understand
her argument, she seems to suggest we must be able to identify
distinct evidence that separately establishes each of the three means.
But she does not appear to have raised this argument below, and she
does not cite authority to support her argument on appeal; we
therefore could deem the argument waived. See State v. Bolton, 182
Ariz. 290, 297-98, 896 P.2d 830, 837-38 (1995) (argument not raised
below generally waived for all but fundamental error on appeal;
failure to sufficiently argue claim on appeal constitutes waiver). In
any event, we disagree.
¶28 Because child abuse under § 13-3623(A) is a single
unified offense, the same evidence can be used to prove all three
means. Cf. State v. Sustaita, 119 Ariz. 583, 591, 583 P.2d 239, 247
(1978) (“We have stated that ‘. . . [a]n offense which requires
different evidence or elements than the principal charge is a separate
offense . . . .’”), quoting State v. Woody, 108 Ariz. 284, 287, 496 P.2d
584, 587 (1972) (first alteration in Sustaita). Indeed, the connection
between the means is a unique feature of alternative-means statutes.
See Manzanedo, 210 Ariz. 292, ¶ 8, 110 P.3d at 1028 (considering
“‘readily perceivable connection’” between means and whether
telephone calls exchanged between Penny and Randall was
unknown and the medical experts testified that the delay
encompassed by those calls did not contribute to Emily’s injury.
However, Penny is conflating the means charged and the state’s
factual theories to prove those means. The issue is whether Penny
“cause[d] or permit[ted Emily] to be placed in a situation where
[her] person or health . . . [wa]s endangered.” § 13-3623(A).
Resolution of that issue is not solely dependent upon whether
Penny’s delay in calling 9-1-1 caused further injury.
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Opinion of the Court
means “‘inhere in the same transaction’”), quoting Dixon, 127 Ariz. at
561, 622 P.2d at 508. For example, in Forrester, we recognized that
the jury could not find the elements of § 13-1802(A)(2) “without
necessarily finding . . . the elements” of § 13-1802(A)(1). 134 Ariz. at
448, 657 P.2d at 436.
¶29 Our supreme court’s decision in Payne supports our
conclusion. In that case, the defendant was charged with several
offenses, including two counts of child abuse—one for each of his
children—alleging he had “caused or permitted [their] health to be
endangered by failing to seek medical attention for them or allowing
them to starve to death.” Payne, 233 Ariz. 484, ¶ 88, 314 P.3d at 1263.
The defendant argued that the “counts were duplicitous because he
could be found guilty based on two separate acts: failing to seek
medical attention ‘and/or’ starving the children to death.” Id. The
court disagreed, however, because “each count of the indictment
charge[d] only one crime of child abuse, essentially by neglect.”
Id. ¶ 90. It further reasoned that the counts were not duplicitous
because the defendant “was not entitled to a unanimous verdict on
the manner in which the act was performed.” Id. And, the court
concluded that, even assuming error had occurred, the defendant
was not prejudiced because no reasonable jury could have found
him not guilty of child abuse based on his failure to seek medical
care. Id.
¶30 Similarly, although Penny was entitled to a unanimous
jury verdict on whether she committed child abuse, she was not
entitled to a unanimous jury verdict “‘on the precise manner in
which the act was committed.’” Herrera, 176 Ariz. at 16, 859 P.2d at
126, quoting Encinas, 132 Ariz. at 496, 647 P.2d at 627. And,
consistent with Forrester, substantial evidence supports Penny’s
conviction based on all three means of § 13-3623(A). See Forrester,
134 Ariz. at 447, 657 P.2d at 435. The trial court therefore did not err
by denying Penny’s motion for a new trial based on a lack of jury
unanimity. See Hoskins, 199 Ariz. 127, ¶ 52, 14 P.3d at 1012; Bolding,
227 Ariz. 82, ¶ 5, 253 P.3d at 282.
15
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Opinion of the Court
Jury Instructions
¶31 Penny also contends the trial court erred by denying her
motion for a new trial based on State v. Klokic, 219 Ariz. 241, 196 P.3d
844 (App. 2008). Relying on Klokic, she argues the court should have
provided a unanimity instruction to the jury or, alternatively,
required the state to elect one theory of criminal liability on which to
proceed. Again, we review the denial of a motion for a new trial for
an abuse of discretion, Hoskins, 199 Ariz. 127, ¶ 52, 14 P.3d at 1012,
but we review questions of law de novo, Bolding, 227 Ariz. 82, ¶ 5,
253 P.3d at 282.
¶32 In Klokic, the defendant was convicted of one count of
aggravated assault stemming from a road-rage incident. 219 Ariz.
241, ¶¶ 1-2, 196 P.3d at 845. To prove that count, the state
introduced evidence at trial that the defendant had pointed a gun at
the victim on two separate occasions. Id. ¶ 6. The defendant asked
the trial court to require the state “either to elect which particular act
it was charging as the assault or to instruct the jurors that they must
unanimously agree [on the] particular act that constituted the crime
of assault.” Id. ¶ 7. The court, however, refused. Id.
¶33 On appeal, this court explained, “[I]f the State
introduces evidence of multiple criminal acts to prove a single
charge, the trial court is normally obliged to take one of two
remedial measures to insure that the defendant receives a
unanimous jury verdict”: (1) require the state to elect which of the
alleged acts constitutes the crime or (2) instruct the jury that they
must unanimously agree on the act that constitutes the crime.
Id. ¶ 14. However, we also pointed out that “it is not error for the
trial court to fail to require such curative measures in those instances
in which all the separate acts that the State intends to introduce into
evidence are part of a single criminal transaction.” Id. ¶ 15. We
explained that “multiple acts may be considered part of the same
criminal transaction ‘when the defendant offers essentially the same
defense to each of the acts and there is no reasonable basis for the
jury to distinguish between them.’” Id. ¶ 18, quoting People v.
Stankewitz, 793 P.2d 23, 41 (Cal. 1990). Under the facts of that case,
we concluded the separate acts were not part of the same criminal
16
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Opinion of the Court
transaction and, consequently, the trial court erred in refusing to
provide one of the curative measures. Id. ¶ 38.
¶34 In her motion for a new trial, Penny cited Klokic,
asserting that the state had argued she committed child abuse by
“any one o[f] several different acts.” She thus maintained the trial
court should have taken one of the two curative measures outlined
in Klokic but failed to do so. She further asserted that this case did
not involve a single criminal transaction.
¶35 The trial court rejected Penny’s Klokic argument, finding
that “the acts in this case [were a] single criminal transaction” and,
consequently, “neither election nor a unanimity instruction was
required.” The court reasoned that Penny and Randall had “offered
one unified defense to the child abuse charge”—they “both asserted
that they did not injure Emily while she was in their care, either the
night before or the morning of Emily’s tragic injury.” Thus,
according to the court, “the jury was left with only one issue: was
[Penny] responsible for Emily’s injury as the State charged or was
someone else responsible for her injury as [Penny] asserted.” Based
on the verdict, the court concluded that the jury did not believe
Penny’s defense. The court further noted that, “in child abuse cases
in California, a unanimity instruction is not required where . . . the
offense itself consists of a continuous course of conduct.” See People
v. Diedrich, 643 P.2d 971, 980-81 (Cal. 1982). It then concluded,
“Even if this case were not a single transaction case, it is without
question a continuous course of conduct child abuse case and no
unanimity instruction was required.”
¶36 Penny repeats her Klokic argument on appeal. In
particular, she disputes the trial court’s conclusion that this was a
single criminal transaction. She maintains the court failed to
“substantiate” its conclusion that Penny presented one unified
defense to the multiple acts because she had separate defenses to the
state’s theories that she had delayed in calling 9-1-1. She also
contends the court omitted any consideration of whether there was a
reasonable basis for the jury to distinguish between the acts.
17
STATE v. WEST
Opinion of the Court
¶37 However, Klokic does not apply here. Klokic involved
aggravated assault under A.R.S. § 13-1203(A), which is not a single
unified offense or an alternative-means statute. 219 Ariz. 241, ¶¶ 1,
22, 196 P.3d at 845, 849; see Jeremiah T., 212 Ariz. 30, ¶ 12, 126 P.3d at
181 (describing three subsections of § 13-1203(A) as “different
crimes”). Klokic addressed those situations where the state charges
“as one count separate criminal acts that occurred during the course
of a single criminal undertaking even if those acts might otherwise
provide a basis for charging multiple criminal violations” and then
“introduces evidence of multiple criminal acts to prove [that] single
charge.” Klokic, 219 Ariz. 241, ¶ 14, 196 P.3d at 847. In other words,
the curative measures in Klokic are required in cases involving
multiple acts. See id. ¶ 15.
¶38 But multiple-acts cases are distinct from alternative-
means cases. As the Washington Supreme Court has explained:
In an alternative means case, where a
single offense may be committed in more
than one way, there must be jury
unanimity as to guilt for the single crime
charged. Unanimity is not required,
however, as to the means by which the
crime was committed so long as substantial
evidence supports each alternative means.
In reviewing an alternative means case, the
court must determine whether a rational
trier of fact could have found each means
of committing the crime proved beyond a
reasonable doubt.
In multiple acts cases, on the other
hand, several acts are alleged and any one
of them could constitute the crime charged.
In these cases, the jury must be unanimous
as to which act or incident constitutes the
crime. To ensure jury unanimity in
multiple acts cases, we require that either
the state elect the particular criminal act
18
STATE v. WEST
Opinion of the Court
upon which it will rely for conviction, or
that the trial court instruct the jury that all
of them must agree that the same
underlying criminal act has been proved
beyond a reasonable doubt.
State v. Kitchen, 756 P.2d 105, 109 (Wash. 1988) (citations omitted),
abrogated on other grounds by In re Stockwell, 316 P.3d 1007 (Wash.
2014); see also State v. Timley, 875 P.2d 242, 246 (Kan. 1994),
disapproved on other grounds by State v. Brooks, 317 P.3d 54 (Kan. 2014).
Generally, a case will fall into one of the two categories. See State v.
Hooker, 21 P.3d 964, 968 (Kan. 2001) (“Our analysis of the
instructions and charges leads to the conclusion that this was an
alternative means case, not a multiple acts case, and, thus, no
unanimity instruction was required.”); State v. Gardner, 889 N.E.2d
995, 1005 (Ohio 2008) (“[T]he critical inquiry is whether the case
involves ‘alternative means’ or ‘multiple acts.’”); State v. Bobenhouse,
214 P.3d 907, 911 (Wash. 2009) (“The review standard for whether
the failure to provide a unanimity instruction was error hinges on
whether we are dealing with an alternative means case or a multiple
acts case.”) (emphasis omitted).
¶39 As explained above, this is an alternative-means case.
Thus, Penny’s reliance on Klokic’s multiple-acts analysis is
misplaced. Simply put, unanimity instructions were not required.
See Hooker, 21 P.3d at 968; see also Schad v. Arizona, 501 U.S. 624, 631-
32 (1991) (“‘[D]ifferent jurors may be persuaded by different pieces
of evidence, even when they agree upon the bottom line. Plainly,
there is no general requirement that the jury reach agreement on the
preliminary factual issues which underlie the verdict.’”), quoting
McKoy v. North Carolina, 494 U.S. 433, 449 (1990). In similar contexts,
we have concluded that instructions indicating the jury need not
unanimously agree on the manner in which an offense was
committed were proper. See State v. Cotten, 228 Ariz. 105, ¶ 5, 263
P.3d 654, 657 (App. 2011); State v. Pena, 209 Ariz. 503, ¶¶ 11-12, 104
P.3d 873, 876 (App. 2005).
¶40 Penny nevertheless appears to suggest that this case
involves both alternative means and multiple acts based on the
19
STATE v. WEST
Opinion of the Court
state’s various theories of criminal liability. The two concepts may
overlap where the state charges the defendant with one offense
under an alternative-means statute and then alleges multiple,
distinct acts as to the separate means. See Payne, 233 Ariz. 484,
¶¶ 85-86, 314 P.3d at 1263 (discussing Klokic under § 13-3623(A)).
However, even assuming this were a multiple-acts case, “‘there is no
reasonable basis’ for distinguishing” between the acts. Id., quoting
Klokic, 219 Ariz. 241, ¶ 25, 196 P.3d at 849. Rather, we agree with the
trial court that the multiple acts alleged by the state constitute a
single criminal transaction. In turn, we explain our conclusions that
Penny offered “‘essentially the same defense to each of the acts’”
and that there was no “‘reasonable basis for the jury to distinguish’”
among the acts. Klokic, 219 Ariz. 241, ¶ 18, 196 P.3d at 848, quoting
Stankewitz, 793 P.2d at 41.
¶41 In considering whether Penny presented the same
defense to the multiple acts alleged by the state, we find Klokic
instructive. There, the defendant presented two materially different
defenses. The defendant “both denied drawing the handgun on
either occasion and also, in the alternative, asserted different
justifications for each time he drew the handgun.” Id. ¶ 37. We
concluded that the jury possibly could have disagreed as to which of
the acts gave rise to the defendant’s criminal liability, “a possibility
raised by these different defenses,” and the defendant was,
therefore, entitled to one of the curative measures. Id. ¶¶ 37-38.
¶42 Here, Penny’s defenses were inextricably intertwined.
As the trial court noted, her defenses to the multiple acts can be
distilled to a denial of liability or a claim of actual innocence. Penny
maintained she did not injure Emily and offered other possibilities
as to what ultimately caused her death. See State v. Schroeder, 167
Ariz. 47, 53, 804 P.2d 776, 782 (App. 1990) (where defense was acts of
fondling did not occur, jury left with weighing credibility of
defendant, and verdict implied jury rejected defense; thus,
defendant not prejudiced by trial court’s failure to provide
unanimity instruction or require election by state). Penny’s counsel
argued in closing that “none of [the acts alleged by the state]
happened” and that Penny “did everything [she] could to help
[Emily].”
20
STATE v. WEST
Opinion of the Court
¶43 As for Penny’s assertion that she presented separate
defenses concerning the state’s theories of delay, we disagree.
Penny characterizes those separate defenses as follows:
(1) “Randall’s failure to volunteer information about phone calls he
traded with Penny . . . cannot circumstantially imply that either
defendant delayed a 911 call,” (2) evidence that one of the calls was
made to settle a bet shows that the calls were “of benign content,”
and (3) “absent testimony, no content whatsoever could be imputed
to any call, making speculative the State’s claim that Emily’s
distressed condition was the subject of any call except the one made
right before the 911 call.” But these “defenses” all are directed at
showing that Penny did not delay in calling 9-1-1, which relates back
to her overarching claim that she did not injure Emily.8 It is only
how that injury occurred—by a physical act, delay, or otherwise—
that changed based on the state’s allegations. These defenses were
not separate, alternative theories. See Klokic, 219 Ariz. 241, ¶ 19, 196
P.3d at 848 (suggesting that defenses were same where “defendant
did not offer different justifications that could have been separately
believed or disbelieved”). Thus, Penny presented “essentially” the
same defense to the multiple acts alleged by the state. Id. ¶ 18.
¶44 Turning to the next factor in the single criminal-
transaction analysis, the defendant must demonstrate some
reasonable basis for the jury to distinguish among the multiple acts
alleged by the state. See id. ¶¶ 32-34, 36. On appeal, Penny contends
that her role in the multiple acts alleged by the state provides a
distinguishing feature: she either “personally caus[ed]” Emily’s
injury, “passively permitt[ed]” Emily’s injury, or had “no
knowledge . . . about what caused Emily’s distress.” But she did not
present this argument below, perhaps explaining why the trial court
did not explicitly address it in its ruling, as Penny complains.
Indeed, the court identified the reasonable-basis factor in its ruling,
8In her opening brief, Penny admits she delayed calling 9-1-1
to the extent she took Emily to the bathroom and splashed her with
water. She offers this as a further example of how the defenses
differed. But, for the reasons stated above, the overarching defense
of innocence is still the same.
21
STATE v. WEST
Opinion of the Court
suggesting that it did not entirely omit consideration of it. In any
event, we decline to adopt Penny’s argument on appeal. Penny has
pointed us to no authority, and we are aware of none, indicating that
the nature of her conduct in relation to Emily’s injury is a sufficient
distinguishing feature.
¶45 The multiple acts alleged by the state in this case “only
caused a single result”—Emily’s death—and were part of a “single
criminal undertaking.” Id. ¶ 28. Notably, the state had to allege the
multiple acts in this case because it did not know the precise timing
and nature of the injury leading to Emily’s death. In addition, the
multiple acts “occurred over a relatively short period of time,” the
evening before or morning of the incident. Schroeder, 167 Ariz. at 53,
804 P.2d at 782. Thus, Penny failed to demonstrate a reasonable
basis for distinguishing among the multiple acts.
¶46 In sum, because this is an alternative-means case, the
trial court did not need to instruct the jury on unanimity or
otherwise compel the state to elect the theory on which it wished to
proceed. See Klokic, 219 Ariz. 241, ¶ 14, 196 P.3d at 847. Even if this
were a multiple-acts case, no curative measures were necessary
because the acts amounted to a single criminal transaction. See id.
¶ 15. Thus, it was sufficient that, in returning a guilty verdict, the
jurors unanimously agreed Penny committed child abuse; they were
not required to unanimously agree on how the offense was
committed. See Herrera, 176 Ariz. at 16, 859 P.2d at 126; Encinas, 132
Ariz. at 496-97, 647 P.2d at 627-28. Consequently, the court did not
err in denying Penny’s motion for a new trial on this basis. See
Hoskins, 199 Ariz. 127, ¶ 52, 14 P.3d at 1012; Bolding, 227 Ariz. 82, ¶ 5,
253 P.3d at 282; see also State v. Perez, 141 Ariz. 459, 464, 687 P.2d
1214, 1219 (1984) (“We are obliged to affirm the trial court’s ruling if
the result was legally correct for any reason.”).
Weight of the Evidence
¶47 Penny also contends the trial court erred by denying her
motion for a new trial because the verdict was against the weight of
the evidence. Generally, we review a court’s decision on a motion
for a new trial based on the weight of the evidence for an abuse of
22
STATE v. WEST
Opinion of the Court
discretion. State v. Davis, 226 Ariz. 97, ¶ 5, 244 P.3d 101, 103 (App.
2010). The state maintains, however, that this argument is waived
because Penny did not raise the issue below and failed to argue on
appeal that the error was fundamental. See State v. Moreno-Medrano,
218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008).
¶48 In the introductory paragraph of her motion for a new
trial, Penny listed the reasons requiring a new trial. Those reasons
largely coincided with the language of Rule 24.1(c), Ariz. R. Crim. P.,
which provides the grounds upon which a new trial may be granted.
The first reason listed in the motion was: “[T]he verdicts were
contrary to law and the weight of the evidence.” See Ariz. R.
Crim. P. 24.1(c)(1). However, the remainder of Penny’s motion did
not mention the weight of the evidence. And, in her supplemental
brief on the motion, that ground likewise was not discussed. It also
does not appear to have been raised at oral argument on the motion.
¶49 A passing reference to the verdict being contrary to the
weight of the evidence is not sufficient to raise this argument below.
Cf. State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008)
(general objection insufficient to preserve issue for appeal; objection
on one ground does not preserve issue on another ground). Indeed,
as Penny points out, the trial court did not address this ground in its
ruling on the motion for a new trial, presumably because it did not
realize it was an issue. And, because Penny does not argue that the
alleged error is fundamental—and we can find none that can be so
characterized—we agree with the state that the argument is waived.
See Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140. We find
waiver particularly appropriate here where the Rule 24.1(c)(1)
determination falls within the trial court’s purview and discretion.
See State v. Clifton, 134 Ariz. 345, 348-49, 656 P.2d 634, 637-38 (App.
1982).
Prosecutorial Misconduct
¶50 Last, Penny argues the trial court erred in denying her
motion for a new trial based on prosecutorial misconduct. She
points to four incidents that she contends demonstrate a “pervasive
and persistent course of misconduct[,] which deprived [her] of a fair
23
STATE v. WEST
Opinion of the Court
trial.” She maintains the prosecutor: (1) attacked the credibility of
the West family by claiming they conspired to lie; (2) attacked the
credibility of defense expert witnesses; (3) violated Rule 803(18),
Ariz. R. Evid., by referring to irrelevant and prejudicial evidence;
and (4) attacked defense counsel by suggesting they attempted to
mislead the medical examiner.9 We review the denial of a motion
for a new trial based upon prosecutorial misconduct for an abuse of
discretion. State v. Anaya, 170 Ariz. 436, 441, 825 P.2d 961, 966 (App.
1991).
¶51 “To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that the prosecutor’s misconduct ‘so
infected the trial with unfairness as to make the resulting conviction
a denial of due process.’” State v. Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d
1184, 1191 (1998), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974). “‘Reversal on the basis of prosecutorial misconduct requires
that the conduct be so pronounced and persistent that it permeates
the entire atmosphere of the trial.’” Id., quoting State v. Atwood, 171
Ariz. 576, 611, 832 P.2d 593, 628 (1992), overruled on other grounds by
State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001). However,
prosecutorial misconduct is harmless if we are satisfied “beyond a
reasonable doubt that it did not contribute to or affect the verdict.”
State v. Roque, 213 Ariz. 193, ¶ 152, 141 P.3d 368, 403 (2006).
¶52 Even if an error is harmless and does not warrant
reversal by itself, “an incident may nonetheless contribute to a
finding of persistent and pervasive misconduct if the cumulative
effect of the incidents shows that the prosecutor intentionally
engaged in improper conduct and ‘did so with indifference, if not a
specific intent, to prejudice the defendant.’” Id. ¶ 155 (internal
citation omitted), quoting Hughes, 193 Ariz. 72, ¶ 31, 969 P.2d at 1192.
9 Penny also summarily claims the prosecutor committed
misconduct by presenting “false evidence in rebuttal regarding
scientific findings made by the defense pathologists.” However, she
failed to develop this argument as required by Rule 31.13(c)(1)(vi),
Ariz. R. Crim. P. It is therefore waived. See State v. Sanchez, 200
Ariz. 163, ¶ 8, 24 P.3d 610, 613 (App. 2001).
24
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Opinion of the Court
Thus, after reviewing each individual incident, we must identify
those constituting misconduct and evaluate their cumulative effect
on the trial. Id.
¶53 In its ruling on Penny’s motion for a new trial, the trial
court found “no prosecutorial misconduct occurred in any of these
incidents alone or in combination.” The court noted that “the
prosecution may have struck hard blows in this case,” but “it did not
strike any foul ones in either its cross-examination of defense expert
witnesses or in its summations to the jury.” And, quoting Pool v.
Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984), the
court further determined that, even if any of the incidents
constituted misconduct, it “was not ‘intentional conduct that the
prosecutor knew was improper and prejudicial.’” We agree.
Attack on the West Family’s Credibility
¶54 Penny first contends the prosecutor “adopted a strategy
to attempt to prove that Penny and Rand[all] . . . had coached their
children to lie” by keeping K. and C. home from school on the
morning of the incident so Randall could help them “fabricate a lie
to cover up a crime.” She claims the prosecutor knew the girls had
been at school that morning based on attendance and telephone
records and statements from Randall and the girls. She thus
maintains the prosecutor “chose a strategy of subterfuge to unfairly
attack the credibility of the entire West family.”
¶55 Penny’s argument on this point, however, contains
absolutely no citations to the record. 10 See Ariz. R.
10Penny’s attempt to incorporate by reference the arguments
she made below is improper. An opening brief may not incorporate
by reference any issue or argument but, rather, must set forth
specific claims, present sufficient argument supported by legal
authority, and include citations to the record. See Ariz. R.
Crim. P. 31.13(c)(1)(vi); State v. Dominguez, 236 Ariz. 226, ¶ 8, 338
P.3d 966, 970 (App. 2014) (“[I]ncorporation by reference is
forbidden.”).
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STATE v. WEST
Opinion of the Court
Crim. P. 31.13(c)(1)(vi). We therefore cannot confirm that the
prosecutor knew Randall had taken K. and C. to school that
morning, as Penny alleges. She also fails to point us to the
prosecutor’s alleged “subterfuge, innuendo and insinuation.” We
thus have no conduct to review and deem the argument waived. See
Bolton, 182 Ariz. at 298, 896 P.2d at 838 (failure to sufficiently argue
claim constitutes waiver and abandonment).
¶56 In her reply brief, Penny nevertheless directs us to the
following portion of the prosecutor’s closing argument:
Now, on the same hand, when
[defense counsel] suggested to you . . . how
. . . in control and what a caring, concerned,
and whatever father [Randall] was, you
heard [what counsel] said in his opening, in
his closing statement, and you heard
testimony not only at trial, but in the
defendant’s own statements that school
gets out at 1:15 on Wednesday. I would
submit, why did he even take the girls to
school at 11:00 that morning after such a
traumatic morning? And by now, he
clearly knows, because he’s been talking to
Penny, that this is not a minor injury.
....
Rand[all] said—as far as whether he
was concerned and caring about what had
happened that morning, he admits in his
own statement, when he got home, the
paramedics are there, and that he didn’t
ask them anything. He didn’t ask them
what had happened. He didn’t ask them
how Emily was. He didn’t ask them
anything. That’s his words in his statement
to the detectives that day. He said he
didn’t recall whether he asked the kids
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STATE v. WEST
Opinion of the Court
anything about what had happened. Folks,
I would submit to you that that’s got to
strike you as a little bit odd. His wife
call[ed] him frantic, Emily has fallen, she
won’t move, she’s not moving, I don’t
know if she’s breathing, and she’s frantic
and hysterical, and he has to rush home,
and he doesn’t ask the paramedics how the
child is. What happened? He doesn’t ask
his children what happened this morning?
He didn’t go to the hospital until after 4:00
that day to be with his wife.
¶57 Even assuming Penny’s argument is not waived, see
State v. Oakley, 180 Ariz. 34, 36 n.1, 881 P.2d 366, 368 n.1 (App. 1994)
(issue raised for first time in reply brief waived), we can discern no
suggestion by the prosecutor that Randall kept the girls home from
school to coach them to lie. Rather, the prosecutor was responding
to defense counsel’s claim that Randall was a “concerned, caring
father.”
¶58 Moreover, it is not readily apparent to us how Randall’s
conduct affected Penny’s case. Penny cites nothing to suggest that
the prosecutor argued she had encouraged or otherwise knew
Randall had kept the girls home from school in order to “fabricate a
lie.” We thus agree with the trial court that no prosecutorial
misconduct occurred as to this incident.
Attack on Defense Expert Witnesses
¶59 Penny contends the prosecutor “unfair[ly] attack[ed]”
three defense expert witnesses: Dr. Joseph Scheller, Dr. John
Plunkett, and Dr. Ronald Uscinski. We address each in turn.
1. Dr. Scheller
¶60 As to Scheller, Penny maintains the prosecutor
“insinuated a bias” by suggesting Scheller trained criminal defense
attorneys. She points to the following question posed by the
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STATE v. WEST
Opinion of the Court
prosecutor during Scheller’s cross-examination: “When you’ve gone
and done . . . defense bar training on how to defend child abuse
cases, have you seen some of your colleagues?” But Penny has not
directed us to where she objected to this particular question at trial
or raised this instance of alleged misconduct in her motion for a new
trial. And we cannot find any such challenge in the record. We
therefore deem the issue waived. See State v. Milton, 85 Ariz. 69, 74,
331 P.2d 846, 849 (1958) (issue waived where not objected to at trial
or set forth as ground for new trial); see also Moreno-Medrano, 218
Ariz. 349, ¶¶ 16-17, 185 P.3d at 140 (argument forfeited for all but
fundamental, prejudicial error if not raised below; argument then
waived if fundamental error not argued on appeal).
2. Dr. Plunkett
¶61 As to Plunkett, Penny first contends the prosecutor
created a “false impression” about the existence of more recent
medical studies on determining the age of brain injuries while cross-
examining him. Plunkett testified that Emily’s subdural hemorrhage
“pre-dated” August 17, reasoning that “[i]t takes seven to 10 to 14
days to get fibroblast growth in the dura to the extent that” Emily
had. During cross-examination, the following exchange occurred:
Q. Could [Emily’s membrane] be
newer?
A. Pretty unlikely to be newer. It
could be. But I wouldn’t go . . . below five
or six days, at least from the published
literature on the development of
membranes.
Q. Now can you tell us what the
published literature says about the
development of membranes, does it go in
stages as to how many fibroblasts you
might expect to see?
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STATE v. WEST
Opinion of the Court
A. Meritt and Munro wrote an
article in ’36, ’37, ’38, on this topic, it was
on adults but there is no reason to expect
that kids are going to be any different. A
fellow, I am blocking on his name right
now, published an article in the Archives of
Pathology in 1947 or 1948 in which he
described the development of iron as his
primary focus of the article, and the
development of a membrane as a
secondary focus of the article. And so he
plugged this into the Meritt and Munro
chart, and that’s about what you come up
with.
....
Q. Now, again, you have read the
more recent literature? When you said ’38,
you are talking 1938 when these studies
came out. Have you read more recent
literature about the development of
fibroblasts?
A. There isn’t one. ’47 is the most
recent one I’m aware of. Well, there are a
whole number of articles in Japanese
written by Japanese neuro-surgeons
published in the Journal of Neuro-surgery
in this country. . . .
Q. You are not aware though of
any more recent literature that talks about
how rapidly fibroblasts will form and at
what stages?
Penny asserts, “The clear insinuation from this line of questioning
was that the prosecutor had recent research studies that undermined
[Plunkett’s] testimony regarding the fibroblast membrane.” But she
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STATE v. WEST
Opinion of the Court
argues the prosecutor did not produce any such research and none
exists.
¶62 We disagree that the prosecutor committed misconduct
by suggesting more recent research existed. Plunkett was the first to
bring up the “published literature,” and only at that point did the
prosecutor ask what that literature consisted of. Based on Plunkett’s
response, the prosecutor asked generally if more recent research
existed. And, after Plunkett referred to more recent Japanese
studies, the prosecutor attempted to clarify the issue. The questions
were relevant to impeach Plunkett’s testimony about when Emily’s
brain injury likely occurred. See State v. Burns, 237 Ariz. 1, ¶ 104, 344
P.3d 303, 327 (2015).
¶63 Next, Penny contends the prosecutor “tried to
mischaracterize the evidence in order to prejudice the jury” while
questioning Plunkett about whether Emily’s injury had resulted
from a “violent force.” Her argument is based on the following
exchange:
Q. Your ultimate conclusion as to
the cause of Emily’s death was that it was, I
think you said you agreed with [the county
medical examiner, Dr. Eric Peters,] and that
it was due to blunt impact?
A. Correct.
Q. And did you agree with Dr.
Peters’[s] assessment that it was a violent
force?
A. No.
Q. So you didn’t agree with Dr.
Peters?
A. I don’t recall Dr. Peters ever
using the term violent force in his report of
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STATE v. WEST
Opinion of the Court
it. Let me take a look. He doesn’t use the
term violent force. This child’s death is due
to a non-natural and violent cause.
Violence is a generic term used to indicate
anything other than natural disease. He
does not use the term violent force.
Q. Unnatural and violent cause?
A. Correct.
Q. And you don’t believe that in
any way connotates the level of force it
would have had to take?
A. I certainly wouldn’t use that.
The connotation was there was something
other than a low velocity impact.
Q. Would you agree with me that
violent cause does not equate to low
velocity impact?
A. Violence, if you look it up in
the dictionary, does not have a quantitative
term. Any time you strike somebody in the
arm, regardless of the force that is used,
that’s an act of violence.
¶64 We disagree that the prosecutor mischaracterized the
county medical examiner’s conclusion about Emily’s cause of death.
Even assuming he did, we are satisfied beyond a reasonable doubt
that the prosecutor’s actions did not contribute to or affect the
verdict. See Roque, 213 Ariz. 193, ¶ 152, 141 P.3d at 403. As the state
points out, “[t]he prosecutor was attempting to impeach . . . Plunkett
by using language from the medical examiner’s report to undermine
his conclusion [Emily] had not been the victim of a crime.” But,
because Plunkett had the medical examiner’s report with him, he
was able to cite directly from it and distinguish between the
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STATE v. WEST
Opinion of the Court
prosecutor’s use of “violent force” and the medical examiner’s use of
“non-natural and violent cause.” Thus, Plunkett’s testimony
clarified the medical examiner’s conclusion, and, if his testimony
had any effect on the verdict, it was in Penny’s favor.
3. Dr. Uscinski
¶65 Penny also argues the prosecutor “improperly injected a
false claim” into the trial while cross-examining Uscinski “by using a
hypothetical that had no basis in fact.” The prosecutor’s question
was: “So if for example hypothetically speaking if the caretaker
says, I lost my cool and I shook the child violently, and you see a
child with retinal hemorrhages, because you don’t believe shaking
can cause retinal hemorrhages you would not consider the
admission the caretaker made to a paramedic about shaking the
child.”
¶66 However, after the prosecutor posed the hypothetical,
defense counsel objected and the trial court sustained the objection.
The court also instructed the jury to disregard questions to which it
had sustained objections. We assume the jury follows its
instructions. See State v. Canion, 199 Ariz. 227, ¶ 43, 16 P.3d 788, 798
(App. 2000). Thus, even if the hypothetical was improper, we are
satisfied beyond a reasonable doubt that the prosecutor’s conduct
did not contribute to or affect the verdict. See Roque, 213 Ariz. 193,
¶ 152, 141 P.3d at 403.
Violation of Rule 803(18)
¶67 Penny next contends the prosecutor introduced hearsay
evidence during the trial while questioning Scheller, Plunkett, and
Dr. Patrick Barnes by reading from “articles that w[ere] not
established as reliable.” She argues this conduct violated
Rule 803(18), Ariz. R. Evid., and constituted misconduct.
¶68 Rule 803 provides exceptions to the hearsay rule.
Subsection (18) explains that a “statement contained in a treatise,
periodical, or pamphlet” is not excluded by the rule against hearsay
if “the statement is called to the attention of an expert witness on
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STATE v. WEST
Opinion of the Court
cross-examination or relied on by the expert on direct examination”
and “the publication is established as a reliable authority by the
expert’s admission or testimony, by another expert’s testimony, or
by judicial notice.”
1. Dr. Scheller
¶69 As to Scheller, Penny appears to challenge the
prosecutor’s citation to the American Pediatrics Journal, the Journal
of Neurosurgery, the Journal of Trauma, and the Archives of
Pediatric and Adolescent Medicine. But, before reading articles
from each of those journals, the prosecutor asked Scheller if the
journals were “reputable,” to which Scheller agreed. He also
confirmed that the latter three were “peer-reviewed.” The
prosecutor thus complied with Rule 803(18).
¶70 Penny nevertheless seems to suggest that, under
Rule 803(18), the individual articles, rather than the journals as a
whole, need to be verified as reliable. We disagree. Rule 803(18)
specifically provides that “the publication” must be “established as
. . . reliable.” Establishing the publication—or, in this case, the
journal—in which the article is printed as reliable provides sufficient
“guarantees of trustworthiness” to overcome any hearsay concerns.
Rossell v. Volkswagen of Am., 147 Ariz. 160, 173, 709 P.2d 517, 530
(1985).
2. Dr. Plunkett
¶71 As to Plunkett, Penny challenges the prosecutor’s
reference to “a great deal of literature . . . in the Journal of Pediatrics,
the Journal of Neurosurgery that says . . . the most common cause
for retinal hemorrhages is non-accidental inflicted trauma.” But,
before Plunkett responded, defense counsel objected and the trial
court sustained the objection. As previously mentioned, the court
instructed the jury to disregard such questions, and we assume the
jury followed its instructions. We are therefore satisfied beyond a
reasonable doubt that this incident did not contribute to or affect the
verdict. See Roque, 213 Ariz. 193, ¶ 152, 141 P.3d at 403.
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STATE v. WEST
Opinion of the Court
3. Dr. Barnes
¶72 Penny challenges the prosecutor’s questioning of Barnes
about a book chapter he had co-authored with Dr. Paul Kleinman.
She points out that Barnes “specifically stated that the information in
that text had been updated and . . . that the textbook was no longer
reliable.” She thus suggests there was no verification of reliability as
required by Rule 803(18). In response, the state argues that
“Rule 803(18) was not implicated” because the prosecutor used the
contents of the book chapter, which was inconsistent with Barnes’s
trial testimony, for impeachment purposes. It maintains the book
chapter constituted a prior inconsistent statement, admissible under
Rule 801(d)(1)(A), Ariz. R. Evid. We agree.
¶73 Rule 801(d)(1)(A) provides that a statement is not
hearsay if “[t]he declarant testifies and is subject to cross-
examination about a prior statement, and the statement . . . is
inconsistent with the declarant’s testimony.” This is a “broad
exception to the hearsay rule” because “[i]t is based upon a belief
that a jury ordinarily should be permitted to consider a prior
inconsistent statement in determining credibility.” State v. Carr, 154
Ariz. 468, 471, 743 P.2d 1386, 1389 (1987); see also State v. Miller, 187
Ariz. 254, 257, 928 P.2d 678, 681 (App. 1996).
¶74 Here, Barnes’s testimony and opinions in this case were
generally inconsistent with the cited portions of the book chapter he
co-wrote. See State v. Hines, 130 Ariz. 68, 71, 633 P.2d 1384, 1387
(1981) (inconsistency determined by “whole impression or effect of
what has been said or done”; “absolute oppositeness” not required)
(citation omitted). Penny nevertheless argues that the contents of
the book chapter do not qualify as prior inconsistent statements
because “[Barnes] agreed that the statement[s] w[ere] no longer
true.” But this argument misses the point of the rule allowing prior
inconsistent statements, which are typically used for impeachment
as to the witness’s credibility. See Carr, 154 Ariz. at 471, 743 P.2d at
1389. The requirements under Rule 801(d)(1)(A) were met here.
¶75 In a related argument, Penny contends the prosecutor
improperly questioned Barnes about the “unknown opinions” of
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STATE v. WEST
Opinion of the Court
Kleinman, who did not testify at trial. She maintains such
questioning was “collateral, irrelevant and argumentative and . . . an
unfair insinuation that . . . Barnes’[s] opinion was in conflict with
that of . . . Kleinman.” But Penny has not supported her argument.
See Ariz. R. Crim. P. 31.13(c)(1)(vi); Bolton, 182 Ariz. at 298, 896 P.2d
at 838 (failure to argue claim constitutes waiver and abandonment).
We therefore do not address it further.
¶76 Penny has not shown any violation of Rule 801 or
Rule 803. Accordingly, she also has failed to meet the higher
standard of showing that any error “‘infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’” Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d at 1191, quoting
Donnelly, 416 U.S. at 643.
Attack on Defense Counsel
¶77 Penny lastly contends the prosecutor unfairly attacked
“the credibility of defense counsel.” According to Penny, the day
before Emily’s death, during a scheduled visitation with her
biological family, Emily fell and hit her head on a changing table,
but a witness mistakenly reported that she had hit her head on a
bookshelf. Penny claims she “had cleared the issue up prior to trial”
but the prosecutor “improperly impugned defense counsel” while
questioning Plunkett “by suggesting that defense counsel had
misled the medical examiner regarding this prior incident.”
¶78 Penny, however, has failed to provide citations to the
record showing that the prosecutor in fact knew Emily had hit her
head on a changing table and not a bookshelf. Consequently, we
cannot determine whether the prosecutor’s question to Plunkett was
knowingly improper. We therefore deem the argument waived. See
Ariz. R. Crim. P. 31.13(c)(1)(vi); Bolton, 182 Ariz. at 298, 896 P.2d at
838.
¶79 But, even assuming the argument is not waived, we
agree with the trial court that no prosecutorial misconduct occurred.
Despite alleging that the prosecutor “persistently” brought this issue
up, Penny directs us to only one portion of Plunkett’s cross-
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STATE v. WEST
Opinion of the Court
examination. The prosecutor showed Plunkett a letter defense
counsel had written to him and asked whether he had relied on
information contained in that letter in forming his opinions in this
case. Penny takes issue with the following questions:
Q. . . . I will ask specifically as far
as there was a description of some falls in
this letter. And under number three of the
letter, and let me ask you if you recall being
. . . given information from the defense that
there was a fall the day prior where Emily
struck her head on a wooden book shelf?
A. Well, that letter actually states
that on the 24th, which was the day that
Emily collapsed, so that’s wrong. . . .
Q. Correct. And assuming that is
just a typographical error, that incident
occurred on the 23rd, did you take into
account whether Emily had fallen the day
previous to her collapse and struck her
head on a wooden book shelf?
¶80 Through this questioning, however, we can discern no
attempt by the prosecutor to “impugn defense counsel.” Rather, we
agree with the state that “[t]he obvious thrust of this questioning
was to impeach . . . Plunkett about the basis of his expert opinion,
i.e. whether he had considered incomplete or inaccurate information
when rendering his expert opinion.” The emphasis of the questions
was that Emily had fallen the day before—not what she had hit
when she fell—and how that affected Plunkett’s opinion. This was a
proper topic for impeachment. See Burns, 237 Ariz. 1, ¶ 104, 344 P.3d
at 327.
Cumulative Effect
¶81 As to all the incidents above, we have either determined
that no prosecutorial misconduct occurred or, assuming there was
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STATE v. WEST
Opinion of the Court
some misconduct, it was harmless. Turning to those incidents
where we assumed some misconduct, we agree with the trial court
that the prosecutor did not “intentionally engage[] in improper
conduct . . . ‘with indifference, if not a specific intent, to prejudice
[Penny].’” Roque, 213 Ariz. 193, ¶ 155, 141 P.3d at 403, quoting
Hughes, 193 Ariz. 72, ¶ 31, 969 P.2d at 1192. Thus, the cumulative
effect was not “so pronounced and persistent that it permeate[d] the
entire atmosphere of the trial.” Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d
at 1191. And, based on the foregoing, we cannot say the court erred
in denying Penny’s motion for a mistrial based on prosecutorial
misconduct. See Anaya, 170 Ariz. at 441, 825 P.2d at 966.
Disposition
¶82 For the foregoing reasons, we affirm Penny’s conviction
and sentence.
37