State v. Lopez ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MARIA LOPEZ, Appellant.
Nos. 1 CA-CR 22-0036
1 CA-CR 22-0146
(Consolidated)
FILED 5-9-2023
Appeal from the Superior Court in La Paz County
No. S1500CR201600044
The Honorable Matthew G. Newman, Judge, Retired
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee
Carr Law Office, PLLC, Kingman
By Sandra Carr
Counsel for Appellant
STATE v. LOPEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge David D. Weinzweig joined.
B A I L E Y, Judge:
¶1 Maria Lopez appeals her convictions and sentences for child
abuse. For the following reasons, we affirm the conviction for child abuse
1
committed recklessly, vacate the sentence for that conviction and remand
for resentencing, and vacate the conviction and sentence for child abuse
committed with criminal negligence.
FACTS AND PROCEDURAL HISTORY
¶2 Aiden was born in October 2015.2 He suffered a broken
clavicle and ruptured blood vessels in his eyes during delivery, but he
otherwise appeared healthy, and the delivery injuries resolved in due time.
In his first four months, Aiden showed no developmental concerns,
underlying medical conditions, or diseases, and no evidence of trauma.
¶3 When Aiden was three months old, his mother, Carmen,
arranged for Lopez to babysit him two days a week. Lopez lived next door
to Carmen’s mother. Lopez had only a sixth-grade education but years of
experience taking care of children.
¶4 A few days after Aiden turned four months old, Carmen
dropped him off at Lopez’s house at about 7:00 a.m. He appeared fine that
morning and was sleeping when Carmen left him. At about 10:00 a.m., two
women from a local church visited Lopez for ten to twenty minutes. Aiden
was awake, alert, and seemed “normal” and “healthy” during the visit. He
smiled, kicked his feet, looked around, and appeared “happy” when Lopez
fed him some banana.
¶5 When Carmen arrived to pick up Aiden a little after 3:00 p.m.,
Lopez met her at the door and told her he “wasn’t doing good.” Lopez told
1 Lopez also filed a notice appealing a restitution order, but she raises
no claims about that order.
2 We use pseudonyms to protect the privacy of the victim and his
mother.
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Carmen she had tried to call her, but Carmen had no record of any missed
calls from Lopez. Carmen went into the house and found Aiden already in
his car seat—which was unusual. He was “pale,” a “pink fluid” was
leaking from his nose, and he was having “trouble breathing.” Carmen
rushed outside crying and screaming for her parents’ help. The family
brought him to a local hospital, and technicians took some scans before
having him airlifted to Phoenix Children’s Hospital that same day. Carmen
called Lopez from the hospital to ask what happened, and Lopez told her
Aiden “was sleeping most of the day and he wasn’t eating.”
¶6 Aiden arrived at Phoenix Children’s Hospital with bilateral
subdural hematomas—bleeding on both sides of the brain, in the space
between the brain and the protective membrane lining the skull—and
significant brain swelling as a result. When doctors operated to relieve the
swelling, Aiden’s heart stopped. They revived him and later placed a drain
in his skull to reduce the swelling.
¶7 A pediatric neuroradiologist and a pediatric ophthalmologist
each saw Aiden about a week after he entered the hospital. The
neuroradiologist observed that Aiden had “extensive” brain swelling and
hemorrhaging that extended down into his spinal column. The
neuroradiologist also saw evidence of injury to Aiden’s neck ligaments.
The ophthalmologist found “thousands of hemorrhages throughout the
back of both eyes,” with blood sitting “in front of the retina, on the retina,
and underneath his retina.” Aiden was blind.
¶8 Police questioned Lopez. She told them that when Aiden
woke up at about 9:00 a.m., he “was having difficulty breathing” and his
“body went limp.” She said she tried to reach Carmen by calling her
personal and work phone numbers, but there was no record she had made
such calls. Lopez also said she looked next door to see if Carmen’s mother’s
car was there but did not see it. Carmen’s mother later said she was home
from work that day and did not leave the house for more than five minutes.
When police asked Lopez why she did not bring Aiden to the hospital, she
said nothing.
¶9 The State tried Lopez on one count of child abuse committed
intentionally or knowingly. See Ariz. Rev. Stat. (“A.R.S.”) § 13-3623(A)(1).
The neuroradiologist and ophthalmologist who examined Aiden testified
that his injuries likely arose from a single, significant trauma that caused
his head to quickly accelerate and decelerate—as by being aggressively
shaken or propelled into a stationary surface. A pediatrician who evaluated
Aiden as part of the Child Protection Team at Phoenix Children’s Hospital
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testified that because he had no reported history of trauma, the combination
of neck ligament injury, retinal hemorrhaging, and subdural hematomas
were “suspicious for abusive head trauma” that could have been caused by
an intentional whiplash motion. The pediatrician acknowledged that
Aiden had no fractures and no external injuries or marks. But she said a
child could receive internal injuries from an acceleration/deceleration
event with no external injuries or bruising. At the time of trial, Aiden was
six years old and unable to walk, see, or eat by mouth. He was permanently
disabled and would require care for the rest of his life.
¶10 Lopez testified and denied abusing Aiden. She admitted she
lied about calling Carmen and that she could have sought help for Aiden,
but she insisted she did not realize how ill he was. She said he seemed “a
little bit congested” when he woke at about 9:00 that morning and was “a
little pale” and breathing “a little bit fast” after waking from another nap at
noon but that she gave him some Tylenol and he seemed to improve after
she fed and changed him.
¶11 A neurologist testified as an expert for the defense that
Aiden’s injuries were likely caused by a chronic subdural hematoma that
arose at an earlier date and began to rebleed. In support of that hypothesis,
the expert pointed to the presence of “intermediate” and “older” blood seen
in Aiden’s initial brain scans; he testified that subdural hematomas could
easily rebleed and “enlarge suddenly and catastrophically” with little or no
force; he disputed the neuroradiologist’s conclusion that Aiden suffered
injury to his neck ligaments; and he opined that abnormalities seen in
Aiden’s neck region, as well as the retinal hemorrhages, resulted from
pressure caused by the rebleed and subsequent medical interventions. The
expert also disputed that shaking alone, or impact with a soft surface, could
cause bilateral subdural bleeding, and he contended that the amount of
force needed to cause such bleeding would have caused other injuries and
external marks that were not present.
¶12 State medical witnesses acknowledged that Aiden’s scans
showed blood at different “stages of healing or stages of bleeding” that
could “be indicative of repeated trauma,” but they also testified that it was
hard to determine the precise age of subdural blood. Apart from Aiden’s
minor injuries at birth, the defense offered no evidence to explain how or
when Aiden might have suffered earlier subdural hematomas. Aiden’s
pediatrician testified that he had never seen a baby develop a subdural
hematoma from a normal delivery, it would take “a significant force” to
cause such bleeding, and a baby with a subdural hematoma would present
as irritable and not eating well.
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¶13 The jury found Lopez not guilty of child abuse committed
intentionally or knowingly but guilty of child abuse committed recklessly
and with criminal negligence. The superior court sentenced her to
concurrent prison terms of five and three years. We have jurisdiction over
Lopez’s timely appeal under Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
DISCUSSION
I. Sufficiency of the Evidence
¶14 Lopez contends the evidence was insufficient to support her
convictions. We review a claim of insufficient evidence de novo, viewing
all facts and resolving all evidentiary conflicts in favor of the jury’s verdict.
State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014). Our review is confined to
determining whether substantial evidence supports the verdict. Id.“Substantial evidence is more than a mere scintilla and is such proof that
reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.” State v. Ellison,
213 Ariz. 116, 134, ¶ 65 (2006) (citation omitted). We do not reweigh the
evidence to determine whether we would reach the same conclusions as the
trier of fact. State v. Barger, 167 Ariz. 563, 568 (App. 1990).
¶15 Lopez was convicted of violating A.R.S. § 13-3623(A). One
commits child abuse under § 13-3623(A) if “[u]nder circumstances likely to
produce death or serious physical injury, [the] person [] 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.”
¶16 Thus, § 13-3623(A) contemplates three ways to commit child
abuse: (1) causing a child to suffer physical injury, (2) causing or permitting
a child’s person or health to be injured while in the defendant’s care or
custody, or (3) causing or permitting a child’s person or health to be
endangered while in the defendant’s care or custody. State v. West, 238 Ariz.
482, 490, ¶ 21 (App. 2015). The penalties for child abuse vary, depending
on whether the defendant acted intentionally or knowingly, recklessly, or
with criminal negligence. See A.R.S. § 13-3623(A)(1)–(3); State v. Payne, 233
Ariz. 484, 506, ¶ 71 (2013).
¶17 Lopez was found guilty of child abuse committed both
recklessly and with criminal negligence. A defendant commits child abuse
“recklessly” by being “aware of and consciously disregard[ing] a
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substantial and unjustifiable risk” that the defendant’s conduct will cause
or permit the child to be injured or endangered. A.R.S. § 13-105(10)(c). The
risk must be such that disregarding it “constitutes a gross deviation from
the standard of conduct that a reasonable person would observe in the
situation.” Id. A jury finding of recklessness necessarily establishes a
finding of criminal negligence. See A.R.S. § 13-202(C) (“If a statute provides
that criminal negligence suffices to establish an element of an offense, that
element also is established if a person acts intentionally, knowingly or
recklessly.”).
¶18 Substantial evidence supports the verdicts. Reasonable
persons could accept a jury determination that Lopez caused Aiden “to
suffer physical injury” under A.R.S. § 13-3623(A) based on evidence that (1)
he was in her care when the injuries manifested; (2) multiple doctors
testified that his injuries were likely caused by someone recently inflicting
an acceleration/deceleration of his head, as through a violent shaking; (3)
shaking injuries would not necessarily leave external marks; (4) there was
no indication he was injured by accident; (5) there were no reports of him
suffering from a previous trauma, underlying disease, or disorder; and (6)
Lopez made false and inconsistent statements that undermined the
accuracy of her account. See West, 238 Ariz. at 487, ¶ 9 (finding substantial
evidence the defendant caused the victim’s injury where the defendant was
the only adult present when the injury occurred, the defendant’s accident
defense was refuted by “virtually every doctor involved in [the victim’s]
emergency care,” and there were inconsistencies in the defendant’s
account); Payne, 233 Ariz. at 507, ¶ 77 (finding substantial evidence the
defendant caused the victim’s injuries based on testimony that the injuries
likely occurred while in the defendant’s care); see also State v. Fulminante,
193 Ariz. 485, 494, ¶ 27 (1999) (observing that the defendant’s false and
inconsistent statements showed consciousness of guilt).
¶19 Lopez contends that the conclusions of the State’s medical
witnesses should be disregarded because those witnesses did not consider
evidence that Aiden’s condition was caused by a rebleed of a preexisting
subdural hematoma. She points to the evidence of older blood seen in
Aiden’s initial brain scans, his lack of external injuries, and her expert’s
testimony that the injuries described by the ophthalmologist and
neuroradiologist could have been caused by a rebleed and medical
interventions.
¶20 Lopez’s contentions do not establish a lack of substantial
evidence. All she shows are conflicts in the evidence—which we resolve in
favor of the verdict. The existence of a preexisting subdural hematoma was
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not a settled fact given evidence that it is hard to determine the age of
subdural blood and given the lack of evidence Aiden suffered an earlier
trauma. Furthermore, Lopez’s expert acknowledged his “rebleed” theory
was not universally accepted and that he had been censured for giving
biased testimony about rebleeds in six prior child abuse cases. In the end,
no direct evidence explained precisely how Aiden was injured, and jurors
could reasonably accept the State’s theory.
¶21 Even were we to assume the evidence supported Lopez’s
rebleed theory and was therefore insufficient to show she physically caused
Aiden’s injury, substantial evidence still supports her convictions.
Substantial evidence supports that Lopez “permit[ted] [Aiden’s] person or
health . . . to be injured” and “permit[ted] [him] to be placed in a situation
where [his] person or health . . . [was] endangered,” A.R.S. § 13-3623(A), by
failing to seek care for him. In the five-hour period between when the
women from the church left Lopez’s house and Carmen arrived to pick up
Aiden, he went from appearing to be a normal, healthy baby to suffering
from a catastrophic brain injury that left him pale, limp, and struggling to
breathe. According to Carmen’s mother, he looked “like he had already
passed” when the family brought him to the hospital that afternoon.
Lopez’s statements on the day of the incident and her testimony at trial
show she was aware of his deterioration and considered seeking help for
him. Her own expert testified that Aiden’s condition declined gradually,
as the bleeding caused swelling, which caused oxygen deprivation. Jurors
could reasonably conclude that Lopez was aware Aiden needed medical
assistance and that his prognosis would have been better had she sought
help sooner. See Payne, 233 Ariz. at 507, ¶ 77 (finding substantial evidence
the defendant permitted the victim to be injured where he made statements
conveying that he knew the victim needed medical care but did not seek it).
¶22 Substantial evidence also supports the jury’s findings that
Lopez acted recklessly, A.R.S. § 13-105(10)(c), and “[u]nder circumstances
likely to produce death or serious physical injury,” A.R.S. § 13-3623(A).
Jurors could consider Lopez’s knowledge that Aiden was unwell, together
with the catastrophic brain damage apparent after he left her care, in
determining that she “consciously disregard[ed] a substantial and
unjustifiable risk,” A.R.S. § 13-105(10)(c), that her actions or omissions
would harm him “[u]nder circumstances likely to produce death or serious
physical injury,” A.R.S. § 13-3623(A). See State v. Allen, 253 Ariz. 306, 312,
¶ 78 (2022) (reasoning that jurors may consider the defendant’s knowledge
that the victim was in a dangerous situation and the severity of the victim’s
resulting injuries in determining the defendant’s guilt of child abuse); State
v. Martinson, 241 Ariz. 93, 102, ¶ 41 (App. 2016) (reasoning that jurors may
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Decision of the Court
consider severity of the victim’s injuries “to conclude the abuse occurred
under circumstances likely to produce death or serious physical injury”).
II. Juror Unanimity
¶23 Criminal convictions require unanimous verdicts. Ariz.
Const. art. 2, § 23; Payne, 233 Ariz. at 508, ¶ 81. Lopez argues she was
deprived of a unanimous verdict because A.R.S. § 13-3623(A) provides
multiple ways to commit child abuse and the court refused to instruct jurors
they could only find her guilty if they agreed on how she abused Aiden.
We review the denial of a requested jury instruction for an abuse of
discretion, but we consider de novo questions of statutory interpretation
and whether the court’s instructions correctly reflect the law. State v. Cox,
217 Ariz. 353, 356, ¶ 15 (2007); Allen, 253 Ariz. at 312, ¶ 79.
¶24 The indictment against Lopez mirrored the language of § 13-
3623(A). The State alleged that “under circumstances likely to produce
death or serious physical injury, [Lopez] intentionally or knowingly caused
[Aiden], a child under fifteen years of age, to suffer physical injury, or
having the care or custody of the child caused or permitted the person or
health of the child to be injured or caused or permitted the child to be placed
in a situation where the person or health of the child was endangered.”
¶25 “If an indictment is facially valid, but the [S]tate introduces
evidence of several acts, each of which might satisfy the charge, the risk of
a non-unanimous verdict is presented.” Payne, 233 Ariz. at 508, ¶ 81(citation omitted). “However, jurors may find a defendant guilty based
upon a combination of alternative findings if only one charge is alleged.”
Allen, 253 Ariz. at 313, ¶ 81 (citations omitted).
¶26 It is well-settled that § 13-3623(A) is an alternative-means
statute—which means it provides more than one way to commit the single
unified offense of child abuse. Id. at ¶ 82; accord West, 238 Ariz. at 489–90,
¶¶ 19–22. When a defendant is charged with violating an alternative-
means statute, “[j]uror unanimity as to the theory under which [the]
defendant committed [the] crime is not required.” Allen, 253 Ariz. at 313,
¶ 83 (citation omitted). The superior court may instruct jurors on any of the
alternative means charged and reasonably supported by the evidence. See
West, 238 Ariz. at 488, ¶ 15 (“If a statute describes a single offense which
may be committed in more than one way, it is unnecessary 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.” (quoting
State v. Forrester, 134 Ariz. 444, 447 (App. 1982))); see also State v. Cotten, 228
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Ariz. 105, 108, ¶ 5 (App. 2011) (holding the “trial court correctly instructed
the jurors that they could return a guilty verdict if defendant violated
[either one of two means in an alternative-means statute]” because there
was evidence to support each of those means). It matters not, therefore,
whether some jurors found Lopez committed child abuse by physically
harming Aiden while others found her guilty by failing to seek help,
provided there was substantial evidence to support her guilt under each of
the three means set forth in § 13-3623(A).
¶27 As our analysis in the preceding section establishes,
substantial evidence supports Lopez’s guilt under each of the three means
set forth in § 13-3623(A): causing Aiden to suffer physical injury, causing or
permitting him to be injured while in her care, and causing or permitting
him to be endangered while in her care. The superior court did not err by
instructing jurors they could find Lopez guilty based on any of those means.
¶28 Lopez’s efforts to distinguish her case from prior decisions
rejecting a unanimity requirement in child abuse cases is unavailing. In
West, this court rejected the defendant’s argument that the superior court
had to instruct jurors they must unanimously agree on a means of child
abuse. 238 Ariz. at 492–96, ¶¶ 31–46. Lopez’s case is indistinguishable from
West in all relevant respects. In West, the sixteen-month-old victim died
from “blunt impacts to the head with subdural hemorrhage” that occurred
while in the defendant’s care. Id. at 486, ¶¶ 2–3. As in this case, the State
charged the defendant in West with intentional or knowing child abuse by
the alternative means set forth in § 13-3623(A). Id. at ¶ 4. The State “had to
allege the multiple acts” in West—as in Lopez’s case—“because it did not
know the precise timing and nature of the injury leading to [the victim’s
demise].” Id. at 496, ¶ 45. The defendant in West, like Lopez, “maintained
she did not injure [the victim] and offered other possibilities as to what
ultimately caused [the victim’s condition].” Id. at 495, ¶ 42. In other words,
the defense in both West and this case was an “overarching claim” that the
defendant “did not injure” the victim. Id. at ¶ 43. Just as this court found
in West, Lopez has “failed to demonstrate a reasonable basis for
distinguishing among the multiple acts” alleged. Id. at 496, ¶ 45. No
unanimity instruction was required under the circumstances.
III. Alleged Prosecutorial Misconduct
¶29 Lopez argues that the prosecutor’s improper trial conduct,
and the superior court’s failure to curb it, deprived her of a fair trial. She
contends the prosecutor’s behavior amounted to intentional misconduct.
See State v. Murray, 250 Ariz. 543, 548, ¶ 12 (2021).
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¶30 Whether based on allegations of inadvertent error or
intentional misconduct, our analysis of a prosecutorial misconduct claim is
the same. Id. The defendant must establish “that the prosecutor’s
misconduct so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Id. at ¶ 13 (citations omitted). A
defendant does so by showing that “(1) misconduct exists and (2) a
reasonable likelihood exists that the misconduct could have affected the
jury’s verdict, thereby denying defendant a fair trial.” Id. (citations and
internal quotation marks omitted).
¶31 When a defendant objects to allegations of prosecutorial
misconduct, we review for harmless error, and when they do not object, we
review allegations for fundamental error. State v. Arias, 248 Ariz. 546, 555,
¶ 31 (App. 2020). We assess each allegation independently and consider
whether multiple acts of misconduct cumulatively led to an unfair trial. Id.
at 556, ¶ 32; State v. Johnson, 247 Ariz. 166, 200, ¶ 133 (2019). We “evaluate
[a defendant’s] claims of prosecutorial misconduct in the context of the
issues presented to the jury at trial.” Arias, 248 Ariz. at 556, ¶ 33.
A. Cross-examination
¶32 Lopez asserts that the prosecutor intentionally badgered and
intimidated her during cross-examination. On direct examination, Lopez
admitted she lied about phoning Carmen. The prosecutor revisited that
testimony on cross-examination—repeatedly asking Lopez if she called
Carmen and if she lied to police about doing so. Lopez contends the
prosecutor repeated the same questions in an intimidating manner,
confused her by quickly changing the subject, and then badgered her when
she could not follow his line of thought. The superior court overruled
defense counsel’s objections that the prosecutor was badgering Lopez and
repeating questions she had already answered.
¶33 The State has “great latitude” to impeach a defendant on
cross-examination and “to show any matter which bears on the
[defendant’s] credibility.” State v. Torres, 97 Ariz. 364, 366 (1965). Lopez’s
credibility was a key factor in the case, and the State had a right to question
her about the false statements she made to Carmen and later to law
enforcement. The line of questioning she challenges reveals no
improprieties. It simply shows the prosecutor following up on questions
about Lopez’s statements after she answers the prosecutor’s questions
inconsistently with her prior testimony. Although the record is unclear
whether Lopez’s inconsistent testimony resulted from a misunderstanding
of the questions, difficulties with the court interpreter, or an intent to
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mislead, the record does not support her argument that the prosecutor
intentionally set out to confuse her and then capitalize on that confusion.
¶34 Lopez also contends the prosecutor badgered her expert
witness by repeating questions he had already answered, yelling at him,
and harassing him about irrelevant issues. Lopez objected more than a
dozen times during the expert’s cross-examination. The superior court
sustained many of her objections to questions being “asked and answered.”
But the court overruled, or did not formally rule on, objections based on
relevance, badgering, and yelling.
¶35 The testimony of Lopez’s expert was critical to her defense.
Because the believability of her rebleed theory was largely tied to the
expert’s credibility, we consider the allegations of misconduct during his
cross-examination in that context. See Arias, 248 Ariz. at 556, ¶ 33. As with
lay witnesses, “[w]ide latitude is allowed in cross-examination of expert
witnesses . . . for purposes of testing their knowledge, judgment, bias and
the validity of their opinions.” City of Tucson v. LaForge, 8 Ariz. App. 413,
417 (1968).
¶36 The State has met its burden of showing that any improper
questions to which Lopez objected were harmless. The superior court
sustained many of Lopez’s objections to the prosecutor’s repetitive
questions, and the jury was instructed to disregard questions to which an
objection was sustained. We presume the jury followed that instruction
here. See Payne, 233 Ariz. at 513, ¶ 120. As to Lopez’s objections about
badgering and yelling, the record does not show an intent to harass the
defense expert. It shows, rather, that the prosecutor at times raised his
voice, or repeated a question, when the defense expert gave what might be
considered an evasive or nonresponsive answer.
¶37 Lopez fails to show that the misconduct allegations to which
she did not object amounted to fundamental, prejudicial error. She
contends that the prosecutor spent too much time criticizing irrelevant
details in the expert’s written report—including mistaken references to
Aiden being a girl and being dropped off at a daycare center rather than
Lopez’s home, and the lack of footnotes, page numbers, or inclusion of
Aiden’s doctors’ names in the report. However, the prosecutor’s questions
were relevant to the expert’s credibility and theory by suggesting the expert
did not fully consider and address the facts of Aiden’s case. Given the
latitude afforded on cross-examination and the importance of the defense
expert’s testimony in this case, the prosecutor’s conduct was not improper.
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B. Closing Argument
¶38 Lopez also argues the prosecutor committed misconduct
during closing argument by denigrating the defense expert and by
expressing the prosecutor’s personal beliefs. Because Lopez did not object
at trial, we review the challenged statements for fundamental error only.
¶39 Lopez first contends the prosecutor engaged in a “wholesale
denigration” of the defense expert’s testimony based on the expert’s
decade-old censure. In the State’s initial and rebuttal closing arguments,
the prosecutor repeatedly referred to the defense expert being “censured,”
“disciplined,” “punished,” and “biased.”
¶40 “Because attorneys are given wide latitude in closing
arguments and may draw reasonable inferences from the evidence,” Arias,
248 Ariz. at 563, ¶ 67 (citation omitted), the prosecutor’s characterization of
the defense expert here was permissible. The credibility of the expert’s
rebleed theory was paramount to the jury’s assessment of Lopez’s guilt, and
evidence that the expert had been censured for giving similar testimony in
similar cases was therefore highly relevant. Under the circumstances, the
prosecutor did not engage in misconduct by emphasizing the expert’s prior
censure as a reason to discredit his opinion. Cf. id. at ¶ 69 (concluding that
characterization of an expert’s testimony as “contaminated” and “foul” was
improper because it was not reasonably supported by the evidence).
¶41 Lopez also argues that the prosecutor impermissibly vouched
for the State’s case by conveying his personal beliefs during closing
arguments. First, she challenges two statements he made using the phrase
“I submit to you”:
Then I asked [the defense expert], and I was surprised
he answered it this way, if the child had a pre-existing
condition and the child was shaken, could you get those
bilateral subdural hematomas? And he said yes. He said yes,
I sat down. Then he started talking on his own. And I submit
to you that he knew that what he just said was accurate.
....
I submit to you, ladies and gentlemen, that [the defense
expert] has no credibility. He testified that a child with a
chronic subdural hematoma can poop and end up the way
[Aiden] ends up? That’s insulting. That’s not a defense.
That’s an insult. And I am not here to insult your intelligence.
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I’m here to appeal to it. [The defense expert] has no
credibility.
¶42 Second, Lopez challenges the prosecutor’s frequent use of the
phrases “how do we know that” and “we know.” She offers five examples:
[A State expert] said that in a child of [Aiden’s] age, four
months, there was no history of trauma. Well, how do we
know that? Because [Aiden’s pediatrician] testified to the
same thing.
....
We know from [a State expert] in his testimony that
nothing was wrong with that baby. Because if [] that baby
[had] been abused, and the juror asked the question, we
would have seen the results immediately. The child was
healthy.
. . . What happened in that short time frame from when
those ladies left when the baby was absolutely healthy until
the mom picked the child up and ran out of the house
screaming? We know what happened. The evidence shows
us that the defendant abused the child. . . .
....
Well, how do we know that [the defense’s rebleed
theory] didn’t happen? [The defense expert witness], biased
testimony. He was disciplined, punished . . . for six cases
where he gave biased testimony in rebleeds. Just like he
talked about here.
....
. . . And we know that [the defense expert has] already
been biased [sic] and disciplined for it, based on his own
theory, that he’s never done any independent research [on],
never.
¶43 A prosecutor may not vouch for the State’s case by “plac[ing]
the prestige of the government behind its evidence” or “suggest[ing] that
information not presented to the jury supports the evidence.” State v.
Martinez, 230 Ariz. 208, 215, ¶ 29 (2012) (citations omitted). To that end, “[a]
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Decision of the Court
prosecutor must not convey his personal belief about the credibility of a
witness,” State v. Lamar, 205 Ariz. 431, 441, ¶ 54 (2003) (citation omitted), or
“a defendant’s guilt or innocence,” State v. King, 110 Ariz. 36, 42 (1973). But
prosecutors are otherwise “given wide latitude in argument.” State v.
Bailey, 132 Ariz. 472, 478 (1982). They may make comments “based on the
evidence or reasonable inferences which may be drawn from it,” id., and
may also criticize defense theories and tactics, State v. Ramos, 235 Ariz. 230,
238, ¶ 25 (App. 2014).
¶44 We see no improper vouching in the prosecutor’s “I submit to
you” statements. In each case, the prosecutor was not expressing a personal
belief but submitting that jurors accept a reasonable inference from the
evidence. See State v. Maddasion, 24 Ariz. App. 492, 494, 496 (1975) (“Viewed
in context, [the prosecutor’s] remarks [preceded by “I submit to you”]
appear merely to argue justifiable inferences from the evidence.”); Ramos,
235 Ariz. at 238, ¶ 27 (“[T]he prosecutor’s use of the phrase ‘the State
submits’ [was not improper because it] was limited to discussing the
evidence presented at trial and did not suggest he was aware of information
not presented to the jury that would support a finding of guilt.”).
¶45 “[B]ecause there is a fine contextual line between the use of
‘we know’ inclusively, i.e., to describe evidence and outline inferences from
that evidence with the jury, and the use of ‘we know’ in an exclusive
manner, i.e., to refer to the State collectively,” our supreme court has
“caution[ed] prosecutors to refrain from using ‘we know’ and similar
phrases to suggest that their argument bears the imprimatur of the [S]tate.”
State v. Acuna Valenzuela, 245 Ariz. 197, 218, ¶ 85 (2018). Whether a
prosecutor’s use of such phrases crosses the line must be considered in
context. See id. at ¶¶ 84–85. Lopez fails to show improper vouching here
because each challenged remark was used to summarize or characterize
specific trial evidence. Using “we know” as a rhetorical device to marshal
reasonable inferences from the evidence is permissible. See id. at ¶ 84 (citing
United States v. Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013)).
¶46 Even if the prosecutor’s statements constituted impermissible
vouching, Lopez has not established a “reasonable likelihood” that the
statements “could have affected the jury’s verdict, thereby denying [her] a
fair trial.” Murray, 250 Ariz. at 548, ¶ 13 (citations omitted). The superior
court instructed jurors that the lawyers’ comments were not evidence and
it was the jury’s province to determine the facts of the case, including what
testimony to accept and reject. “These instructions were sufficient to dispel
any taint if vouching occurred.” Payne, 233 Ariz. at 512, ¶ 113 (citation
omitted).
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STATE v. LOPEZ
Decision of the Court
C. Cumulative Effect
¶47 Lopez argues that the prosecutor’s misconduct was “nearly
continuous” during the defense’s case-in-chief and that it was intentionally
calculated to obtain a conviction by shifting jurors’ attention from the
defense’s medical evidence. She contends that the cumulative effect of the
misconduct deprived her of due process.
¶48 To prevail on a claim of cumulative misconduct, the
defendant must show misconduct that is “so pronounced and persistent
that it permeated the entire atmosphere of the trial, indicating that the
prosecutor intentionally engaged in improper conduct and did so with
indifference, if not a specific intent, to prejudice the defendant.” Payne, 233
Ariz. at 515, ¶ 134 (citations and internal quotation marks omitted).
Because the record does not establish that the State engaged in pervasive
misconduct that deprived Lopez of a fair trial, we reject her claim of
cumulative misconduct.
D. The Superior Court’s Control of Courtroom Decorum
¶49 Finally, Lopez argues that the superior court deprived her of
a fair trial by failing to control the prosecutor’s behavior during cross-
examination. Because she did not timely object on that basis, we review for
fundamental error only. State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018).
¶50 The superior court has “discretion to determine and control
the method of interrogation,” Pool v. Superior Court, 139 Ariz. 98, 104 (1984),
and it should reasonably exercise that discretion “so as to: (1) make those
procedures effective for determining the truth; (2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment,” Ariz. R.
Evid. 611(a). The record shows no abuse of discretion here. As we observed
above, the prosecutor’s examination of Lopez and her defense expert was
generally reasonable under the circumstances. To the extent that the
prosecutor may have crossed the line, the record shows that the superior
court adequately maintained control. The court sustained many of Lopez’s
“asked and answered” objections, and even if the court did not technically
sustain her objections that the prosecutor was badgering or yelling at a
witness, the court cautioned the prosecutor about his conduct several
times—instructing him to “start over” after one objection, to “tone it down
just a hair” after a second, and saying, “I’m sure he’ll tone it down in a
second,” after a third.
IV. Sentencing Errors
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STATE v. LOPEZ
Decision of the Court
¶51 Lopez argues the superior court erred by (1) sentencing her
on two child abuse convictions (one committed recklessly and the other
committed with criminal negligence) and (2) aggravating those sentences.
Lopez timely objected at the time of sentencing, and the State concedes
error on appeal. Although we need not accept a concession, see State v.
Sanchez, 174 Ariz. 44, 45 (App. 1993), we agree that the court erred.
A. Double Jeopardy
¶52 Lopez was charged with a single count of child abuse, but the
jury found her guilty of child abuse committed recklessly and with criminal
negligence in two separate verdicts. She submits that the superior court
violated double jeopardy principles by refusing to vacate the conviction for
child abuse committed with criminal negligence. We review a double
jeopardy claim de novo. State v. Carter, 249 Ariz. 312, 315, ¶ 7 (2020).
¶53 The double jeopardy clauses of our state and federal
constitutions protect a defendant from being punished twice for the same
offense. Id. A greater and its lesser-included offense are considered the
same offense for double jeopardy purposes, see id. at 316, ¶ 13, and the
protection against double jeopardy applies even if a defendant receives
concurrent sentences for those offenses, id. at 314, ¶ 1 n.1. As we observed
above, the jury finding that Lopez committed child abuse recklessly
necessarily included a finding that she committed child abuse with criminal
negligence. See A.R.S. § 13-202(C). Lopez’s conviction of child abuse
committed with criminal negligence was therefore a lesser-included offense
of child abuse committed recklessly. See Carter, 249 Ariz. at 316, ¶ 10. The
protection against double jeopardy requires that the conviction and
sentence for child abuse committed with criminal negligence be vacated.
See id. at 320, ¶ 27; State v. Nunn, 250 Ariz. 366, 370, ¶¶ 16–17 (App. 2020).
B. Aggravation
¶54 The State did not allege, and the jury did not find, any
statutory aggravating circumstances. And yet the superior court
aggravated Lopez’s sentence based on harm to the victim. See A.R.S. § 13–
701(D)(9). When Lopez objected that no aggravating factors had been
presented to the jury, the court said it was treating harm to the victim as “a
non-statutory aggravating factor” and also agreed with the prosecutor’s
position that such harm was implicit in the offense.
¶55 Whether the superior court may use a particular factor to
aggravate the defendant’s sentence presents a question of law that we
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STATE v. LOPEZ
Decision of the Court
review de novo. See State v. Dunbar, 249 Ariz. 37, 51, ¶ 41 (App. 2020). We
agree with the parties that the court erred by aggravating Lopez’s sentence.
¶56 A defendant has a right to pretrial notice of statutory
allegations that could increase her sentence. See Ariz. R. Crim. P. 13.5(a),
16.1(b); see also State v. Benak, 199 Ariz. 333, 336–37, ¶ 14 (App. 2001)
(“Pretrial notice enables a defendant to know the full range of potential
punishment he faces upon conviction; fundamental fairness and due
process require that allegations that would enhance a sentence be made
before trial so that the defendant can evaluate his options.” (citations
omitted)). As the State correctly observes, the lack of notice here prejudiced
Lopez. It deprived her of an opportunity to argue against an aggravated
sentence in her presentence memorandum, and she appeared surprised
when the court “spontaneous[ly]” decided to aggravate her sentence. Cf.
Benak, 199 Ariz. at 337, ¶ 16 (observing that alternative notice in lieu of
statutorily required notice may be sufficient if the notice is “such that the
defendant is not ‘misled, surprised or deceived in any way by the [sentence-
enhancement] allegations’” (citation omitted)). Nor could the superior
court aggravate Lopez’s sentence under A.R.S. § 13-701(D)(27), the catch-all
provision, which broadly encompasses factors “relevant to the defendant’s
character or background or to the nature or circumstances of the crime.”
See State v. Schmidt, 220 Ariz. 563, 564, ¶ 1 (2009) (“[A] court may not,
consistent with due process, increase a defendant’s maximum potential
sentence based solely on a so-called ‘catch-all’ aggravator . . . .”). Because
no aggravating factors were properly alleged and proved, Lopez must be
resentenced on her conviction for child abuse committed recklessly to no
greater than the statutory presumptive term. See id. at 565–66, ¶¶ 7, 12.
CONCLUSION
¶57 We affirm Lopez’s conviction for child abuse committed
recklessly, vacate the sentence on that count and remand for resentencing
in accordance with this decision, and vacate the conviction and sentence for
child abuse committed with criminal negligence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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