United States v. Christopher Carlson , 533 F. App'x 743 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 12-10319
)
Plaintiff – Appellee, ) D.C. No. 3:11-cr-08185-FJM-1
)
v. ) MEMORANDUM*
)
CHRISTOPHER ALAN CARLSON, )
)
Defendant – Appellant. )
)
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted July 9, 2013**
San Francisco, California
Before: FERNANDEZ, PAEZ, and BERZON, Circuit Judges.
Christopher Alan Carlson appeals his conviction for endangering the person
or health of a child. See 18 U.S.C. § 13; Ariz. Rev. Stat. § 13-3623(B)(3). We
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
(1) Carlson first asserts that the evidence was insufficient to support the
verdict. We disagree. “[V]iewing the evidence in the light most favorable to the
prosecution,”1 as we must, we hold that a “rational trier of fact”2 could certainly
have found beyond a reasonable doubt that Carlson did cause or permit a child in
his care “to be placed in a situation where the person or health of the child” was
endangered,3 and that he did so with criminal negligence.4 The presence of
evidence that could have led to a different verdict does not affect our conclusion.
See Nevils, 598 F.3d at 1164–65.
(2) Carlson’s second assertion is that there was a constructive amendment
of the indictment5 because he was charged with endangering a child “[u]nder
1
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); see also United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir.
2010) (en banc).
2
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Nevils, 598 F.3d at 1164.
3
Ariz. Rev. Stat. § 13-3623(B). However that endangerment was not “likely
to produce death or serious physical injury.” Id.4
Id. at (B)(3). Criminal negligence is “a gross deviation from the standard of
care that a reasonable person would observe in the situation.” Ariz. Rev. Stat.
§ 13-105(10)(d); see also State v. Far W. Water & Sewer Inc., 228 P.3d 909,
936–37 (Ariz. Ct. App. 2010); cf. In re William G., 963 P.2d 287, 294 (Ariz. Ct.
App. 1997).
5
See United States v. Mancuso, __ F.3d __, __, No. 12-30174, 2013 WL
1811276, at *6 (9th Cir. 2013); United States v. Howick, 263 F.3d 1056, 1063 (9th
(continued...)
2
circumstances likely to produce death or serious physical injury,”6 but found guilty
(on a lesser included offense theory7) of endangering a child “[u]nder
circumstances other than those likely to produce death or serious physical injury.”8
We disagree. The uncharged offense is, indeed, a lesser included offense of the
charged offense because, as relevant here, the only difference between the two is
that while in both the child must be placed in danger of injury to person or health,
in the charged offense that danger must rise to the level of a serious physical injury
or death. That is to say, the uncharged offense elements are a subset of the charged
offense elements, and one cannot commit the latter without having committed the
former. See United States v. Pierre, 254 F.3d 872, 875 (9th Cir. 2001); see also
Schmuck v. United States, 489 U.S. 705, 716, 109 S. Ct. 1443, 1450, 103 L. Ed. 2d
734 (1989); Beck v. Alabama, 447 U.S. 625, 633, 100 S. Ct. 2382, 2387, 65 L. Ed.
2d 392 (1980). In other words, this is a classic lesser included offense situation.
See United States v. Quintero, 21 F.3d 885, 889–90 (9th Cir. 1994); Salinas v.
United States, 277 F.2d 914, 916 (9th Cir. 1960); State v. Bass, 911 P.2d 549, 551
5
(...continued)
Cir. 2001).
6
Ariz. Rev. Stat. § 13-3623(A) (“the charged offense”).
7
See Fed. R. Crim. P. 31(c)(1).
8
Ariz. Rev. Stat. § 13-3623(B) (“the uncharged offense”).
3
(Ariz. Ct. App. 1995); State v. Torres, 750 P.2d 908, 910 (Ariz. Ct. App. 1988);
see also State v. Mott, 931 P.2d 1046, 1049 (Ariz. 1997); State v. Mahaney, 975
P.2d 156, 157–58 (Ariz. Ct. App. 1999).
AFFIRMED.
4