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
STATE OF ARIZONA,
BLAIR LAMONT PARKER,
1 CA-CR 08-0990
RUTH A. WILLINGHAM,
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2005-009256-001 DT
The Honorable Roland J. Steinle, III, Judge
Thomas Horne, Arizona Attorney General
Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Bruce F. Peterson, Maricopa County Legal Advocate
Frances J. Gray, Deputy Legal Advocate
Attorneys for Appellant
Blair Lamont Parker
Appellant in propria persona
O R O Z C O, Judge
Blair Lamont Parker (Parker) appeals his convictions
on two counts of criminally negligent child abuse, each a class
four felony and a domestic violence offense; and one count of
Parker’s counsel filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), and State v.
Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court
that after searching the entire record on appeal, she finds no
arguable grounds for reversal and requests this Court to conduct
an Anders review and search the entire record for fundamental
We granted counsel’s motion to allow defendant to file a
supplemental brief in propria persona, and he has done so.
Our obligation in this Anders appeal is to review the
entire record for reversible error.
State v. Clark, 196 Ariz.
530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999).
We view the facts in
the light most favorable to sustaining the jury’s verdict and
resolve all inferences against defendant.
State v. Guerra, 161
Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
FACTS AND PROCEDURAL HISTORY
Parker and his wife were indicted on three counts of
intentional child abuse under circumstances likely to produce
death or serious injury, each a class two felony, a dangerous
violation of Arizona Revised Statutes (A.R.S.) section 13-3623.A
The trial court granted Parker’s motion to sever the
presented at Parker’s trial.
Parker and his wife are the parents of M., a daughter
born in May 1993; C., a son born in March 1996; and Z., a
daughter born in December 2001.
Parker had the family adopt a
vegan lifestyle, and he and his wife controlled the portions the
children were permitted to eat at each meal.
The children, who
were home-schooled by Parker’s wife, were typically not allowed
snacks between meals.
paramedics responded to the Parker’s apartment in regards to a
Paramedics found Parker lying on a bed with what
appeared to be an infant, wrapped in a robe or towel, lying on
Parker told paramedics that every time he moved, the
child, later identified as Z., would have petit mal seizures.
Z. had no palpable pulse, no palpable blood pressure,
her breathing was extremely labored and her circulation was very
Paramedics were unable to start an IV or establish a
blood sugar level.
Z.’s condition was so critical that the
We apply the substantive law in effect when the offense was
See A.R.S. § 1-246 (2002); State v. Newton, 200
Ariz. 1, 2, ¶ 3, 21 P.3d 387, 388 (2001).
revisions after the date of an offense, we cite the statute’s
transported her to the nearest hospital while she continued to
lie on Parker’s chest.
Due to her need for intensive pediatric
The admitting physician at Phoenix Children’s Hospital
Although Z. was 3 years and 4 months old at admission, she
weighed only 13 pounds, which is the average weight of a child
less than one year old.
Z.’s height was considerably less than
that of a child two years old.
She was so thin that the beating
of her heart was visible through the flesh.
Parker told the doctor that Z. seemed to have lost at
symptoms consistent with malabsorption.
Subsequent testing on
Z. for malabsorption was negative.
It was determined that Z.’s sodium and glucose levels
were so low that her nervous system was shutting down.
condition could result in seizures and heart, liver and kidney
Moreover, Z. was very “cachectic,” meaning she had
no fat stores or muscle mass.
The admitting physician believed
that Z. was gravely ill when she arrived and that Z. could have
substandard nutrient levels had affected her neurological, brain
and heart functions.
A pediatric intensivist who treated Z.,
inability to maintain her body temperature as a result of the
Upon learning of other children residing in Parker’s
Protective Services (CPS). Later that same day, CPS obtained
apartment, CPS personnel observed food in the kitchen cabinets,
refrigerator and freezer in amounts appropriate for a family
Parker, his wife refused to allow M. and C. to be admitted for
custody of M. and C.
Upon examination, both M. and C. were found to be
Based upon her height and weight, M., who was almost twelve
years old, had the average weight of a five-year-old and the
height of a child of seven and one-half years of age.
nine years old at the time he was admitted, weighed between 32–
35 pounds, the weight of an average child between three and four
years of age, and was of a height of an average four-year-old.
Pediatricians at Phoenix Children’s Hospital diagnosed
all three children as suffering from severe failure to thrive as
complication sometimes created in patients when a normal amount
of food is reintroduced into the patient’s diet and which may
throw the body into an abnormal metabolic state which could
result in death.
abnormal heart condition attributed to a prolonged period of
This condition improved by the time of
“shuffling” gait condition that can be caused by malnutrition.
discharge from the hospital.
Treating physicians opined the condition of all three
children was due to many, many years of insufficient caloric
Once given 100% of her daily caloric requirements, Z.
gained weight quickly.
During their stay in the hospital, M.
gained fourteen pounds and C. gained more than six pounds.
three children eventually attained normal height and weight for
None of the treating physicians observed symptoms of
malabsorption in any of the children.
In his defense, Parker testified that he set up the
nutrition charts posted on his refrigerator.
He was familiar
with child growth charts and knew that there were no separate
charts for children eating a vegan diet.
He had studied the
calorie requirements for children at different ages.
He expected his children to move their bowels several
times a day.
When any of the children failed to do so, they
were given juice or enemas.
Parker further testified that he did not take Z. to a
local doctor in the month before her hospitalization for several
He testified his plan was to move the family to a
Seventh-Day Adventist community out of state where he believed
the people living there knew about the problem his family was
necessary only when the body could not heal itself and that he
and his wife were capable of handling Z.’s condition.
testified Z. had not been seen by a physician since birth, was
Parker disputed doctors’ claims the children exhibited physical
situation with Z.’s medical condition was more severe than he
He also admitted that he did not believe his children
Finally, Parker admitted telling a detective
that he knew when he called 911 that people might think he was
starving Z. based on her emaciated appearance.
The jury convicted defendant of three lesser-included
offenses of criminally negligent child abuse on counts one and
two pertaining to M. and C. and of reckless child abuse on count
three pertaining to Z.
The jury further found as aggravating
factors that the three offenses were domestic violence offenses
involved the infliction of a serious physical injury.
court found no mitigating factors and sentenced defendant to
consecutive aggravated terms of imprisonment of three years on
count one; three years on count two; and eight and three-quarter
years’ imprisonment as to count three with credit for ninetyeight
We have jurisdiction pursuant to Article 6, Section
(2003), 13-4031 and -4033.A.1 (2010).
issues for review: (1) insufficient evidence of culpable mental
state; (2) vagueness of child abuse statute and indictment; (3)
children; (5) improper double counting of aggravating factor;
(6) violation of free exercise clause; (7) concealment or nondisclosure
We reject the arguments raised by Parker in his
supplemental brief, and after reviewing the entire record, find
no reversible error.
Insufficient Evidence of Culpable Mental State
Parker claims that there was no proof of the requisite
culpable mental state for his offenses.
asserts that there was no evidence of any design or desire on
his part to cause harm to his children and notes that the trial
court at sentencing referenced the lack of any criminal intent
on the part of him or his wife.
Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App. 1996);
see also Ariz. R. Crim. P. 20.a (requiring trial court to enter
judgment of acquittal “if there is no substantial evidence to
warrant a conviction”).
“Substantial evidence is proof that
conclusion of a defendant’s guilt beyond a reasonable doubt.”
State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996).
We will not disturb the verdicts unless it clearly appears “that
Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).
The statute under which Parker was convicted, A.R.S. §
13-3623.A, provides, in pertinent part:
Under circumstances likely to produce
death or serious physical injury, any person
who causes a child . . . to suffer physical
injury or, having the care or custody of a
child . . . who causes or permits the . . .
health of the child . . . to be injured or
who causes or permits a child . . . to be
placed in a situation where the . . . health
of the child . . . is endangered is guilty
of an offense as follows:
1. If done intentionally or knowingly,
the offense is a class 2 felony and if the
victim is under fifteen years of age it is
punishable pursuant to § 13-705.
2. If done recklessly, the offense is a
class 3 felony.
3. If done with criminal
the offense is a class 4 felony.
As we understand his argument, Parker is claiming that
there is insufficient evidence that he acted intentionally in
harming his three children.
The problem with Parker’s argument
is that he was not convicted of intentional child abuse, but
rather the lesser-included offenses of reckless and criminally
negligent child abuse.
Thus, proof of intent or “design or
necessary to sustain the convictions.
The evidence was more than sufficient to permit the
jury to find that Parker acted recklessly in causing physical
injured and that he acted with criminal negligence in causing or
“Recklessly” means “that a person is aware of and
consciously disregards a substantial and unjustifiable risk that
A.R.S. § 13-105.10(c) (2010).
A person acts with
“criminal negligence” when “with respect to a result or to a
circumstance described by a statute defining an offense, that a
person fails to perceive a substantial and unjustifiable risk
that the result will occur or that the circumstance exists.”
A.R.S. § 13-105.10(d).
The risk for both these culpable mental
states must be of such a nature and degree that the act of
disregarding it or failing to perceive it “constitutes a gross
reasonable person would observe in the situation.
A.R.S. § 13-
Parker testified regarding his knowledge of nutrition
and the caloric requirements of children.
He also testified
that he was aware of the dramatic weight loss suffered by Z. in
the month before her hospitalization and that he observed from
nutrition she needed to thrive.
Nevertheless, he permitted her
condition to deteriorate to the point that Z. was near death
before he took appropriate action.
The jury could reasonably
conclude from this evidence that his actions in regard to Z.
were reckless in the extreme.
Although the health conditions of M. and C. had not
convicted of criminally negligent child abuse with respect to
Parker admitted he was aware that none of his children
were thriving and again could see from their emaciated bodies
that they were severely malnourished.
This evidence permitted
continuing to feed all three children in the same manner was
creating a substantial and unjustifiable risk to their health
and that his failure to perceive this risk rose to the level of
“a gross deviation from the standard of care that a reasonable
person would observe in the situation.”
A.R.S. § 13-105.10(d).
Vagueness of Statute and Indictment
Parker claims A.R.S. § 13-3623 is unconstitutionally
In particular, he asserts that use of the phrase “likely
to” in the preface of the statute fails to clearly define the
conduct it prohibits.
In State v. Poehnelt, 150 Ariz. 136, 145,
722 P.2d 304, 313 (App. 1985), this court held that the clause
physical injury’ . . . sets a clear standard as to the degree of
risk involved in the proscribed endangering.”
Thus, we reject
Parker’s void-for-vagueness challenge to A.R.S. § 13-3623.
Parker also complains that the indictment is overly
vague in setting forth a one-year time frame for the offenses.
Parker did not challenge the indictment before or during trial;
this alleged defect is raised for the first time on appeal.
defect in a charging document be raised in accordance with Rule
Pursuant to Rule 16.1.b, all motions must be made more than
twenty days prior to trial.
“Any motion, defense, objection, or
request not timely raised under Rule 16.1(b) shall be precluded,
exercise of reasonable diligence could not then have been known,
and the party raises it promptly upon learning of it.”
Crim. P. 16.1.c.
Because Parker has failed to establish a valid
basis for non-compliance with Rule 16.1(b), the issue is not
properly before this court on appeal.
State v. Fullem, 185
Ariz. 134, 136, 912 P.2d 1363, 1365 (App. 1995).
Lack of Statute Regarding Conscience and Medical Care
Citing United States v. Hinton, 218 F.3d 910 (8th Cir.
dictates conscience or deems what is appropriate medical care
according to the masses and for the State to punish a person
because he had done what the law plainly allows is a due process
Parker was not convicted based on his beliefs or
causing or permitting physical injury to his children’s health
in violation of A.R.S. § 13-3623.A.
None of the elements of
this statute involve matters of conscience or medical care for
Thus, the absence of a law or statute addressing
these subjects does not provide grounds for a claim of violation
of due process.
Parker’s reliance on Hinton as support for his claim
district court violated his right to due process by forcing him
to proceed to sentencing while incompetent.
218 F.3d at 912.
On appeal, the district court’s ruling that Hinton was competent
was found not to be erroneous and the sentencing was affirmed.
Hinton has no applicability to the present case.
Improper Sentencing under A.R.S. § 13-604.01
Parker argues that he was improperly sentenced under
A.R.S. § 13-604.01 (Supp. 2005), which provides for enhanced
The offense of child abuse is a dangerous crime
A.R.S. § 13-604.01.M.1.
Parker asserts that his
children” because he was only convicted of the lesser-included
offenses of reckless and criminally negligent child abuse.
sentence Parker pursuant to A.R.S. § 13-604.01, but rather in
accordance with the standard sentencing provisions of A.R.S. §§
13-702 and 13-702.01 (1994).
This fact is clearly indicated in
Parker’s three offenses as “non-dangerous.”
Improper Double Counting of Aggravating Factor
In imposing the aggravated sentence on count three,
the trial court considered two aggravating factors found by the
jury with respect to this count: (1) domestic violence committed
Parker contends the trial court improperly
“double counted” the second of these factors in violation of
A.R.S. § 13-702.C (Supp. 2005).
This statute authorizes the
trial court to consider “infliction or threatened inflection of
serious physical injury” as an aggravating factor, “except if
this circumstance is an essential element of the offense of
punishment under § 13-604.”
A.R.S. § 13-702.C.1.
Parker was convicted on count three of child abuse in
offense by causing “physical injury,” by causing or permitting
the “health of the child . . . to be injured,” or by causing or
permitting the “health of the child [to be] endangered.”
Thus, “inflection of serious physical injury” is
not an essential element of this offense.
Because inflection of
serious physical injury is not an element of the offense and
this factor was not used to enhance Parker’s sentence under
considering this factor in imposing an aggravated sentence on
Violation of Free Exercise Clause
Parker argues that his convictions violate the Free
Exercise Clause of the First Amendment, claiming his actions
were predicated upon the tenets of his faith as a Seventh-Day
Because A.R.S. § 13-3623.A is a neutral, generally
constitute a violation of the Free Exercise Clause, even if it
does burden a defendant’s religious beliefs.
Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872, 884-85
Suppression of Evidence
Parker next argues that his right to due process was
violated by the suppression of material evidence not presented
Parker asserts that there was “deliberate concealment
and/or inadvertent or negligent non-disclosure of evidence [that
would] be materially favorable to [him].”
This claim was not
Because we are limited to considering only those
evaluate the admissibility and materiality of any alleged nondisclosed evidence.
This is especially true in the instant
case, given that Parker has failed to provide details regarding
the alleged non-disclosed evidence.
Finally, Parker argues that the sentences imposed by
the trial court were unreasonable.
In particular, he contends
his history and the recommendation as stated in the presentence
report, his lack of prior convictions, and his conduct while out
on bond, were not weighed or considered by the trial court.
“A trial court has broad discretion in sentencing and,
if the sentence imposed is within the statutory limits, we will
State v. Ward, 200 Ariz. 387, 389, ¶ 5, 26 P.3d
1158, 1160 (App. 2001).
This discretion includes the latitude
to weigh aggravating and mitigating factors during sentencing.
State v. Harvey, 193 Ariz. 472, 477, ¶ 24, 974 P.2d 451, 456
And, although a trial court must consider all
evidence offered in mitigation, it is not required to find the
State v. Long, 207 Ariz. 140, 148, ¶ 41,
83 P.3d 618, 626 (App. 2004).
An abuse of discretion is limited
to “an exercise of discretion which is manifestly unreasonable,
exercised on untenable grounds or for untenable reasons.”
v. Wassenaar, 215 Ariz. 565, 570, ¶ 11, 161 P.3d 608, 613 (App.
2007) (quoting State v. Woody, 173 Ariz. 561, 563, 845 P.2d 487,
489 (App. 1992)).
In the present case, the record reflects the trial
factors offered and found there to be no mitigating factors that
would outweigh the aggravating factors found by the jury.
amenable to probation and concluded that he was not based on the
extent of abuse, the history of the abuse, the manner in which
the offenses came to light and what happened after they came to
whether to impose concurrent or consecutive sentences and found
that the evidence supported consecutive sentences.
trial court’s conclusion that consecutive aggravated sentences
were appropriate was informed and not “manifestly unreasonable.”
Accordingly, we find no abuse of discretion by the trial
court in finding and weighing the sentencing factors.
207 Ariz. at 148, ¶ 41, 83 P.3d at 626; Harvey, 193 Ariz. at
477, ¶ 24, 974 P.2d at 456.
error and have found none.
See Leon, 104 Ariz. at 300, 451 P.2d
All of the proceedings were conducted in accordance
represented by counsel.
The sentences imposed were
within the statutory limits and are not excessive.
At sentencing, Parker and his counsel
were given an opportunity to speak.
The jury was properly impaneled and
Accordingly, we affirm Parker’s convictions and
After the filing of this decision, defense counsel’s
obligations in this appeal have ended. Counsel need do nothing
issue appropriate for submission to the Arizona Supreme Court by
petition for review.
State v. Shattuck, 140 Ariz. 582, 584-85,
684 P.2d 154, 156-57 (1984).
Parker has thirty days from the
date of this decision to proceed, if he so desires, with an in
PATRICIA A. OROZCO, Presiding Judge
DONN KESSLER, Judge
MICHAEL J. BROWN, Judge
Pursuant to Rule 31.18.b., Defendant or his counsel have
fifteen days to file a motion for reconsideration.
Court’s own motion, we extend the time to file such a motion to
thirty days from the date of this decision.