State v. Church
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NOTICE: THIS DESION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ROBERT CHARLES CHURCH, Appellant. ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 08-0812 DIVISION ONE FILED: 12/15/09 PHILIP G. URRY,CLERK BY: DN DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2006-012844-001 DT The Honorable Michael D. Jones, Judge AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Edith M. Lucero, Deputy Public Defender Attorneys for Appellant Phoenix W E I S B E R G, Judge ¶1 Robert Charles Church ("Defendant") appeals his conviction for vulnerable adult abuse, a class 5 felony, and the sentence imposed. For reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 The victim suffers from physical and developmental disabilities caused by a car/pedestrian accident that occurred when she was three years old. She does not have full use of her left arm, walks with a limp, has minor visual impairment and a mild speech impediment. Although she can do most things, she does them at a slower pace and can only take care of herself with supervision. ¶3 The victim attended special classes for children with disabilities and had reading deficiencies. She experienced a high level of anxiety when she had to learn something new and required constant oversight and repetitive instruction to do so. She did not graduate from high school. has mental medications. health issues for In addition, the victim which she takes several She is emotionally dependent, does not have normal relationships with friends, is used by those around her, and craves attention from men. ¶4 At the time of the incident, the victim's stepmother took primary responsibility for looking after her, managing her money and arranging for state programs to assist her. included services through the Developmental These Disability Department of the Department of Economic Security, Behavioral 2 Health Services and Child Protective Services, which monitored the welfare of the victim's minor child. to work, the subsistence. victim received Because she was unable governmental aid for her Although the victim lived in her own apartment with her child, the victim's stepmother checked on them every seven to ten days and provided care or necessities. ¶5 On October 14, 2005, Defendant was living with the victim in her apartment. That afternoon, the victim called her stepmother and said that she and Defendant had a fight and that she wanted her father and sounded scared and anxious. stepmother to pick her up. She When they arrived, the victim was outside the apartment crying and visibly upset. She had facial abrasions and a puffy swollen area right below her mouth. She also had bruising around her eye which later turned into a black eye. Her stepmother told Defendant they were taking the victim with them, and Defendant responded that "she would be sorry if she left at that time . . . I will be angrier when I see her again". ¶6 The victim later told her stepmother that Defendant got angry, that they were yelling at each other and pushing back and forth. The victim fell on the bed and Defendant restrained her by holding his hands on her wrist and straddling her body with his legs. contact the He then hit her. police without help, Because the victim could not her police and took her to the police station. 3 stepmother called the ¶7 A detective met with the victim and her stepmother after the incident. She observed that the victim had a black eye and bruising on her lip, behind her ear and on her shoulder and arm. She noticed that the victim had speech difficulties and was slow in understanding questions and responding to them. ¶8 At trial, the victim's stepmother testified that the victim was "definitely disadvantaged" in the situation because she is unable to maintain balance, is "more easily taken off guard [and] doesn't effectively." have the ability to focus her defense She stated that, while the victim is strong, because she does not have full use of her upper body and left arm, she would have some difficulty fending off a person attacking her. ¶9 Victim's stepmother also said that although the victim is "able to live independently with supervision" and is "street smart," "she does not have the ability to handle and identify a situation before making an informed decision." She explained that the victim "does not have the ability to think ahead of a situation, to know what the consequences of her actions might be [and] unless it were obvious to her, she could not understand the subtlies [sic] of a problem arising." ¶10 The victim testified she is not able to work because of her disabilities and is unable to manage her own finances. She cannot drive and relies on her stepmother and others to take her grocery shopping if she needs more than just a few items. 4 The victim testified that she did not remember much about the assault, except that Defendant was high on methamphetamine. The victim thought she said something to Defendant that he took the wrong way and he "flipped." He knocked her on the bed, pinned her down and hit her in the face. She admitted that she also had used methamphetamine that day. ¶11 class Defendant was indicted for vulnerable adult abuse, a 4 felony, and a domestic-violence offense. The jury convicted him of the lesser-included offense of vulnerable adult abuse committed recklessly, a class 5 felony. The court suspended Defendant's sentence and placed him on probation for two years. ¶12 Defendant filed a timely notice of appeal. jurisdiction pursuant to Arizona Revised Statutes We have (AA.R.S.@) sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033 (A) (2001). DISCUSSION ¶13 At the end of the State's case, Defendant made a motion for judgment of acquittal pursuant to Rule 20(a), Arizona Rules of Criminal Procedure, alleging that "the victim lived independently and was able to protect herself." denied the motion. The trial court Defendant's sole argument on appeal is that the evidence was insufficient to support the conviction as the offense was not predicated upon 5 the victim's "inability to protect herself from abuse because of her mental or physical impairments." ¶14 When reviewing the sufficiency of the evidence, "[a]ll evidence will be viewed in the light most favorable to sustaining the conviction and all reasonable inferences will be resolved against the defendant." State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). ¶15 Section 13-3623(B)(2)(Supp. 2008) 1 provides in part that "[u]nder circumstances other than those likely to produce death or serious physical injury to a child or vulnerable adult, any person who causes a child or vulnerable adult to suffer physical injury or abuse . . . ," if done recklessly, is guilty of a class 5 felony. "Physical injury" includes "any skin bruising" or "soft tissue swelling" or "any physical condition that imperils health or welfare." A.R.S. § 13-3623(F)(4). "Vulnerable adult" means "an individual who is eighteen years of age or older and who is unable to protect himself from abuse, 1 We cite the current version of the statute because no revisions material to this decision occurred since the date of the offense. 6 neglect or exploitation physical impairment." vulnerable adult by means, Defendant physical and does mental because of a A.R.S. § 13-3623(F)(6). among infliction of physical harm." ¶16 others other mental or "Abuse" of a things, "intentional A.R.S. § 13-3623(F)(1)(a). 2 not dispute disabilities, that nor caused her physical injury or harm. does the he victim deny that had he He argues, however, that the "the assault experienced by [the victim] was not due to her being a 'vulnerable adult' as those words are statutorily defined." ¶17 In sufficiently particular, independent he claims and strong that enough the to victim ward off was his attack, that her disabilities "did not impede her ability to leave the situation," that the "assault was not furthered in any way because of her disability," and that the evidence did not show her injuries "were caused by her disabilities." He concludes that "to be a 'vulnerable adult,' the harm experienced must directly themselves relate because of to that their person's mental or inability physical to protect impairment." Defendant asserts this was merely an assault of a weaker woman by a stronger man, not abuse of a vulnerable adult. ¶18 First, we reject Defendant's interpretation of the statute. "Our primary purpose in interpreting a statute is to 2 The jury instructions tracked the language of the statutes. 7 give effect to the intent of the legislature." State v. Tschilar, 200 Ariz. 427, 434, ¶ 25, 27 P.3d 331, 338 (App. 2001). "To that end, we look first to the plain language of the statute as the best evidence of that intent [and] [i]f the statute's language is clear and unambiguous, we give effect to that language and construction." Id. ¶19 do not apply other rules of statutory Under the plain language of A.R.S. § 13-3623(B)(2), it is an offense for a person to cause a child or vulnerable adult to suffer a physical injury. The victim's status as vulnerable adult is an essential element of the offense. a See State v. Olquin, 216 Ariz. 250, 254, ¶¶ 21, 23, 165 P.3d 228, 232 (App. 2007) (nature of victim is an element of offense of aggravated DUI if defendant commits fifteen years of age is in vehicle). language of the statute, however, DUI while person under There is nothing in the requiring proof that the victim's physical injury is caused by, furthered or results from the victim's status as a vulnerable adult. "Defining crimes and fixing punishments are functions of the legislature . . . [and] [c]ourts may not add elements to crimes defined by statutes." State v. Miranda, 200 Ariz. 67, 69, ¶ 5, 22 P.3d 506, 508 (2001) (citation omitted). Defendant's interpretation of the statute does just that. 3 3 Although we cannot find specific legislative history on this statute, we assume that the legislature intended to provide 8 ¶20 Second, there was sufficient evidence for a reasonable juror to find that the victim was a vulnerable adult, i.e., was "unable to protect herself . . . because of a mental or physical impairment." vulnerable No adult Arizona under cases A.R.S. § have construed 13-3623(F)(6). the term However, in Davis v. Zlatos, 211 Ariz. 519, 524-25, ¶ 21, 123 P.3d 1156, 1161-62 (App. 2005), our court construed the same term under A.R.S. § 46-451(A)(10) of the Adult Protective Services Act, which definition is identical to that found in A.R.S. § 133623(F)(6). ¶21 In Davis, the court first considered whether Zlatos, an elderly woman, suffered from a physical impairment. Relying on dictionary definitions, it defined impairment as "something that causes a 'decrease in strength, value, amount or quality' . . . [or weakening.'" omitted). as] 'deterioration; injurious lessening or Id. at 525, ¶ 24, 123 P.2d at 1162 (citations The court found that although Zlatos was not incapacitated, she needed assistance to carry out many of her daily activities, that her "ability to care for herself was plainly lessened due to her age and health problems" and that she was physically impaired. Id. at 525-26, ¶¶ 26-27, 123 P.3d greater protection to children and vulnerable adults who are harmed because it considers that inflicting injury on these classes of persons is more blameworthy. See Olquin, 216 Ariz. at 254, ¶ 23, 165 P.3d at 232 (legislature considers conduct of DUI committed with child under fifteen in vehicle more blameworthy). 9 at 1162-63. The court also found that because of her impairment and her dependence on others, she was unable to protect herself from abuse, neglect or exploitation. Id. at 526-27, ¶¶ 28-31, 123 P.3d at 1163-64. ¶22 Here, there was sufficient evidence from which a reasonable juror could conclude that the victim was a vulnerable adult. She did not have particularly, her left arm. full use of her others her to shopping. assistance balance. assist her She with body and She walked with a limp, had some visual impairment and a speech impediment. maintain upper could not daily She was unable to drive activities and such depended as on grocery She was only able to live independently with ongoing and supervision. From these facts, one could reasonably conclude that the victim's physical abilities were lessened and that she was physically impaired. ¶23 In addition, the victim had difficulty learning and attended special classes at school. own finances and was unable to work. She could not handle her She had a high level of anxiety, managed to some extent by medications. understand and respond. She was slow to She did not have the ability to think ahead of a situation, focus on or identify a potential problem and determine how to handle it. From these facts, one could conclude that the victim's mental abilities were lessened and that she was mentally impaired. 10 ¶24 Furthermore, a reasonable juror could have concluded that because of the victim's physical and mental impairments, she was unable to protect herself from abuse. stepmother testified she was disadvantaged The victim's because of her physical limitations, which made it difficult for her to defend against injury or harm. Further, because she did not recognize a consequences problem or know the unable to take steps to avoid abuse. of her actions, she was Although the victim was not incapacitated, there is sufficient evidence from which the jury could have concluded she was a vulnerable adult as that term is defined and that Defendant recklessly committed the offense of abuse of a vulnerable adult. CONCLUSION ¶25 We have reviewed the issue raised by Defendant. For the foregoing reasons, we affirm his conviction and sentence. _/S/_________________________ SHELDON H. WEISBERG, Judge CONCURRING: /S/__________________________________ PATRICIA K. NORRIS, Presiding Judge /S/__________________________________ MARGARET H. DOWNIE, Judge 11
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