State v. Langin

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NOTICE: THIS DECISION 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. ) ) CHRISTOPHER LANGIN, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 09/16/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CR 08-1097 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2005-104343-001 DT The Honorable Teresa A. Sanders, Judge AFFIRMED Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Julie A. Done, Assistant Attorney General Attorneys for Appellee Phoenix Kessler Law Offices by Eric W. Kessler Attorney for Appellant Mesa W E I S B E R G, Judge ¶1 Christopher convictions following for a Langin murder, jury trial ( Defendant ) child and abuse, from and the appeals from aggravated sentences his assault imposed. Defendant argues that the trial court erred by refusing to give lesser-included offense instructions and by denying his motion to preclude evidence. For reasons that follow, we affirm. BACKGROUND ¶2 Defendant was indicted on one count of first-degree felony murder, a class 1 felony; one count of child abuse, a class 2 felony and dangerous crime against children; and one count of aggravated assault, a class 4 felony. The charges stemmed from the death of A.P., a three-year-old girl left in Defendant s care by her father. father approximately When Defendant contacted A.P. s twenty-hours later to report there was something wrong with A.P., she had been dead for a number of hours. The cause of death was determined to be blunt force trauma to the head. entire body lacerations, was In addition to the head injury, A.P. s covered indicating with she had contusions, abrasions been with beaten objects over a period of time prior to her death. and multiple There were also several marks on her body consistent with bite marks and Defendant s DNA was present on the marks on her arm and buttocks. ¶3 When interviewed by the police, Defendant acknowledged that A.P. was in his care at the time of her death, but denied knowing how she was injured, claiming he had passed out hard from drinking. Defendant admitted 2 to pushing A.P. on one occasion when she stepped on the cords console, but stated he did not injure her. to his video game He further told the police there was no problem when he put A.P. to bed and that he later awoke after sleeping in the same bed with her to find she had been beaten. ¶4 The jury found Defendant guilty as charged. At the conclusion of the penalty phase, the jury declined to impose the death penalty. The trial court sentenced Defendant to life imprisonment on the murder conviction and to aggravated prison terms of twenty-four years on the child abuse conviction and three and conviction, three-quarter with all years sentences Defendant timely appealed. Arizona Revised on to the be aggravated served assault consecutively. We have jurisdiction pursuant to Statutes ( A.R.S. ) sections 12- 120.21(A)(1)(2003), 13-4031 and -4033 (2010). DISCUSSION Denial of Lesser-Included Offense Instructions ¶5 Defendant contends that the trial court erred in denying his request to give lesser-included offense instructions on the child abuse and murder charges. The trial court refused the requested instructions on the grounds that the evidence did not support lesser-included offense instructions on the child abuse charge and that Arizona law does not recognize lesserincluded offenses for felony murder. 3 We review a trial court s refusal to give requested instructions for abuse of discretion. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). ¶6 Defendant was charged with child abuse in violation of A.R.S. § 13-3623(A)(1) pertinent part, that (2010). 1 a person This statute commits provides, child abuse in by intentionally or knowingly causing physical injury to a child under circumstances likely to produce death or serious physical injury. It further designates the offense a class 2 felony and makes it punishable as a dangerous crime against children if the victim is under the age of fifteen in accordance with A.R.S. § 13-705 (2010). ¶7 Defendant claims that he was entitled to instructions on the lesser-included offenses of reckless and negligent child abuse based on his admission to pushing A.P. on one occasion, causing her to fall down when she stepped on the cords to his video game console. He argues this conduct could be reasonably viewed by the jury as merely reckless or criminally negligent and as not likely to produce death or serious injury. ¶8 can In addition to knowingly or intentionally, child abuse be committed with the lesser culpable recklessly or with criminal negligence. 13-2623(B). Reckless child abuse is mental states of A.R.S. §§ 13-3623(A), a class 3 felony when committed under circumstances likely to produce death or serious 1 Absent material revisions after the date offense, we cite a statute s current version. 4 of an alleged physical injury. A.R.S. § 13-3623(A)(2). When reckless child abuse is committed under circumstances other than those likely to produce death or serious physical injury, it is a class 5 felony. A.R.S. § 13-3623(B)(2). Criminally negligent child abuse is similarly classified as either a class 4 or a class 6 felony depending on these 3623(A)(3), 13-3623(B)(3). circumstances. A.R.S. §§ 13- Not only would conviction on one of these lesser offenses reduce the applicable punishment on the child abuse charge, if Defendant was found guilty of an offense other than circumstances intentional likely to or knowing produce death child or abuse serious under injury, he could not be convicted of felony murder because none of the lesser offenses is a predicate offense for felony murder. See A.R.S. § 13-1105(A)(2) (2010) (listing felony murder predicate offenses). ¶9 A defendant is entitled to an instruction on a lesser- included offense if an instruction is requested, the offense is in fact a lesser-included offense, and the evidence supports the instruction. State v. Miranda, 200 Ariz. 67, 68, ¶ 2, 22 P.3d 506, 507 (2001); State v. Detrich, 178 Ariz. 380, 383, 873 P.2d 1302, 1305 (1994); see also Ariz. R. Crim. P. 23.3. (requiring forms of verdicts for all offenses necessarily included in the offense charged). Our supreme court has held that evidence is "sufficient" to require instruction on a lesser-included offense 5 if two conditions are satisfied: "The jury must be able to find (a) that the State failed to prove an element of the greater offense and (b) that the evidence is sufficient to support a conviction on the lesser offense." State v. Wall, 212 Ariz. 1, 4, ¶ 18, 126 P.3d 148, 151 (2006). However, it is not enough that the jury might simply disbelieve the state's evidence on one element because this would require instructions on all offenses theoretically included in every charged offense. Id. (quoting State v. Schroeder, 95 Ariz. 255, 259, 389 P.2d 255, 258 (1964)); see also Bolton, 182 Ariz. at 309, 896 P.2d at 849 ( The fact that a jury could disbelieve all the evidence of the greater charge in a given case except the elements of the lesser does not necessarily require an instruction on the lesser. ). Instead, the evidence must be such that a rational juror could conclude that the defendant committed only the lesser offense. Wall, 212 Ariz. at 4, ¶ 18, 126 P.3d at 151. Our review of the trial was evidence shows that neither condition met in this case. ¶10 First, to commit the offense of child abuse as charged and, thus, the lesser-included offenses of reckless or negligent child abuse instructed, on a which person Defendant must cause injury. A.R.S. § 13-3623(A). physical injury is defined sought a child to to have suffer the jury physical For purposes of this statute, as 6 the impairment of physical condition and includes but shall not be limited to any skin bruising, pressure sores, bleeding, failure to thrive, malnutrition, dehydration, burns, fracture of any bone, subdural hematoma, soft tissue swelling, injury to any internal organ or any physical welfare. condition that imperils A.R.S. § 13-3623((F)(4). a child's health or Although Defendant admitted pushing A.P. and causing her to fall, he denied that he injured her and stated she was fine when he gave her a bottle and put her to bed. Thus, if the jury were to accept Defendant s version of his conduct regarding A.P., there would be no factual basis to convict him of either reckless or criminally negligent child abuse because there is no evidence that Defendant s act of pushing A.P. caused her to suffer physical injury. ¶11 Second, the evidence is clear that the injuries that A.P. suffered were not the result of mere reckless or criminal negligent conduct. injuries beating where with a The medical examiner testified that A.P. s consistent variety with of being different subjected objects to such repeated as fists, electrical cords, and curtain rods over an ongoing period of time. He further opined that the head injury was inflicted by slamming her head into a hard flat surface like a wall or floor. Given the methods extensive used to nature inflict of them, A.P. s there injuries is no and logical multiple factual scenario in which the injuries could have been caused other than 7 deliberately. Because the evidence does not permit a rational juror to conclude that the person who injured and killed A.P. did so recklessly or negligently as opposed to knowingly or intentionally, the trial court did not abuse it discretion in refusing Defendant s requests for instructions on reckless and negligent child abuse. ¶12 Further, the trial court did not err in refusing to instruct the jury on second-degree murder and reckless manslaughter as lesser-included offenses on the murder charge. The State charged Defendant with first-degree felony murder, not premeditated murder. It is well established that there is no lesser-included homicide offense to felony murder because the mens rea necessary to satisfy the premeditation element of first-degree murder is supplied by the specific intent required by the felony. State v. LaGrand, 153 Ariz. 21, 30, 734 P.2d 563, 572 (1987); see also State v. Davolt, 207 Ariz. 191, 213, ¶ 92, 84 P.3d 456, 478 (2004) (noting there is no lesser included offense to felony murder ). Where no lesser included offense exists, it is not error to refuse the instruction. LaGrand, 153 Ariz. at 30, 734 P.2d at 572. Denial of Motion to Preclude Evidence ¶13 Defendant moved in limine to preclude admission of any evidence of molestation of A.P. by Defendant based on the fact that A.P. was found to have a scratch on her genitalia at the 8 time of her death. Defendant argued irrelevant and unduly prejudicial. that the evidence was The trial court denied the motion, ruling that evidence of the injury was admissible for purposes of showing an element of the offense of child abuse and to show motivation for the offenses charged. We review rulings on the admissibility of evidence for abuse of discretion. State v. Gulbrandson, 184 Ariz. 46, 60, 906 P.2d 579, 593 (1985). ¶14 The medical examiner testified about the laceration he observed in A.P. s vaginal area and opined that it occurred during the same time frame as the victim's other injuries. He further explained that there existed two possibilities for the injury: a self scratch or an object being forced into the area causing it to tear. Based on this testimony and evidence of other injuries to the victim, including the bite mark on A.P. s buttocks and a zipper injury on her inner thigh, the prosecutor argued to the jury in closing that the beating may have resulted from the victim resisting a sexual assault by Defendant. ¶15 On appeal, Defendant contends the trial court abused its discretion in admitting evidence of the laceration because the medical examiner s testimony indicated that the injury to the victim s genitalia occurred outside the Defendant was alleged to have committed the abuse. time period Citing State v. Anthony, 218 Ariz. 439, 444, ¶ 33, 189 P.3d 366, 371 (2008), Defendant argues that the evidence 9 was therefore other act evidence and its admission violated Rule 404(b) of the Rules of Evidence. ¶16 However, Defendant misstates the testimony about the timing of the injury. medical examiner s Although the medical examiner testified that a microscopic examination of a section taken from the victim s vagina showed older cell injury, he attributed the older injury to chronic vaginitis and explained he believed that the section did not come from the precise area where he observed the fresh laceration. The medical examiner further testified that based on his observation of the actual laceration, he was confident that the vaginal injury occurred during the last day of A.P. s life and at the same time as her other injuries. Given the testimony that the injury to the victim s vaginal area occurred at the same time as her other injuries, there was no error in the trial court s finding that the evidence evidence offered relevant child abuse. to is an not [Rule] element of 404(b) the evidence, charged but offense of See State v. Dickens, 187 Ariz. 1, 18 n.7, 926 P.2d 468, 485 n.7 (1996) (noting that evidence intrinsic to the crime is not governed by Rule 404(b)). ¶17 Defendant further argues that the trial court erred by allowing evidence testifying about that the A.P. s hymen collection of was perforated. vaginal swabs While for DNA testing, the medical examiner referred to A.P. s hymen being 10 perforated. However, he made it clear that A.P. s hymen had been perforated at some point prior to the last day of her life and did not offer any more specific testimony on that subject. Defendant argues on appeal that this evidence should have been precluded by the trial court as irrelevant and unduly prejudicial. ¶18 Defendant did not move to preclude evidence of the perforated hymen in his motion in limine and did not object at trial to this testimony. fundamental error only. Accordingly, we review this claim for State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). standard both that fundamental error occurred and actual prejudice resulted. Id. at ¶ 20. of review, the To obtain reversal under this defendant must establish Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. Id. at ¶ 19 (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). In consider the circumstances. determining entire whether record and error the is fundamental, totality of we the State v. Hughes, 193 Ariz. 72, 86, ¶ 62, 969 P.2d 1184, 1198 (1998). ¶19 Defendant argues that testimony about the perforated hymen constitutes other act evidence indicating that he molested 11 A.P. The State did not, however, tie the existence of the perforated hymen to Defendant. To the contrary, the medical examiner mentioned the condition of the victim s hymen simply to explain his examination of her body and to document what portion of the vaginal area was swabbed for DNA. Moreover, his testimony established that A.P. s perforated hymen was unrelated to the time period that she was in Defendant s care and no evidence was offered that the perforated hymen was the result of molestation. perforated In addition, the prosecutor did not argue that the hymen was caused by otherwise evidence of his guilt. Defendant or that it was Under these circumstances, the medical examiner s reference to the victim s perforated hymen does not rise to the level of fundamental error and Defendant is unable to meet his burden of showing he was prejudiced by this testimony. CONCLUSION ¶20 Finding no reversible error, we affirm Defendant s convictions and sentences. CONCURRING: /s/_____________________________ SHELDON H. WEISBERG, Presiding Judge /s/________________________________ PETER B. SWANN, Judge _/s/_______________________________ JON W. THOMPSON, Judge 12

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