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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
FILED BY CLERK
MAR 30 2011
COURT OF APPEALS
IN THE COURT OF APPEALS
STATE OF ARIZONA
THE STATE OF ARIZONA,
SCOTT DAVID SULLIVAN,
2 CA-CR 2010-0132
Not for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20083472
Honorable Richard S. Fields, Judge
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani and David A. Sullivan
R. Lamar Couser
V A S Q U E Z, Presiding Judge.
Attorneys for Appellee
Attorney for Appellant
Scott Sullivan was convicted after a jury trial of reckless child abuse and
sentenced to a presumptive, 3.5-year prison term.1 In this appeal, he asserts police
officers lacked probable cause to arrest him and, therefore, the trial court erred by
denying his motion to suppress statements he had made during a post-arrest interview
with police. We affirm.
Typically, “[i]n reviewing the denial of a motion to suppress evidence, we
consider only the evidence that was presented at the suppression hearing.” State v.
Kinney, 225 Ariz. 550, ¶ 2, 241 P.3d 914, 917 (App. 2010). Here, however, the trial
court did not conduct an evidentiary hearing, instead basing its ruling on the parties‟
filings and its review of “the files and record.” Sullivan did not request a hearing or
object to this procedure. Nor does he argue on appeal that the court erred in denying his
motion without conducting a hearing or that any of the court‟s factual findings were
incorrect. Additionally, the relevant facts appear undisputed. We view those facts in the
light most favorable to upholding the court‟s ruling. Id.
In August 2008, Tucson Fire Department (TFD) and Tucson Police
Department (TPD) personnel responded to a 9-1-1 call made by Sullivan‟s wife, Terri, in
which she stated her infant was “unresponsive.”
At the scene they found Sullivan
attempting to administer cardiopulmonary resuscitation to his daughter, six-week-old K.
She appeared severely malnourished, so thin that her face was sunken, her skin “was very
The jury acquitted Sullivan of first-degree felony murder and failed to reach a
verdict on the charge of intentional or knowing child abuse.
loose and elastic,” and “her bones were protruding through her skin.” TFD personnel
were unable to resuscitate her and pronounced her dead at the scene.
Terri told a TPD officer she did not wish to remain in the residence, so the
officer allowed Terri and Sullivan to sit in her patrol car. Approximately an hour later,
Sullivan was moved to a separate patrol car. After another hour had passed, officers
placed Sullivan under arrest and read him the warnings required by Miranda v. Arizona,
384 U.S. 436 (1966). Sullivan waived his rights and agreed to speak with police. Before
trial, Sullivan moved to suppress the statements he had made during the subsequent
interview. The trial court denied Sullivan‟s motion, concluding the death of a six-weekold, emaciated infant provided sufficient factual basis for officers to conclude an offense
had occurred, and that Sullivan‟s presence in the home as a custodial parent was
sufficient for officers to conclude “he had committed, or was involved in committing, the
“We review rulings on motions to suppress evidence for a clear abuse of
State v. Sanchez, 200 Ariz. 163, ¶ 5, 24 P.3d 610, 612 (App. 2001).
However, we review de novo the trial court‟s legal conclusions, such as whether probable
cause existed. See id. Sullivan argues on appeal that, when he initially was “placed in a
patrol car,” he had been arrested illegally and that the statement he later made to police
was improperly “used to establish probabl[e] cause for the arrest.” But Sullivan fails to
challenge properly the trial court‟s conclusion that, even if that were the case, police
officers had probable cause to arrest him at that time.
He merely recites without
elaboration an argument similar to the one he made below—that officers lacked probable
cause because they did not know at that time the cause of K.‟s death, whether K. had
“underlying health problems,” how much time Sullivan had “spent taking care of [her],”
what Sullivan “knew about [her] health,” or “if a crime had been committed.”
A police officer may make a warrantless arrest if “the officer has probable
cause to believe” that “[a] felony has been committed and probable cause to believe the
person to be arrested has committed the felony.” A.R.S. § 13-3883(A)(1).2 “[P]robable
cause exists if the collective knowledge of the officers establishes that they had
„reasonably trustworthy information of facts and circumstances which are sufficient in
themselves to lead a reasonable [person] to believe an offense . . . has been committed
and that the person to be arrested . . . did commit it.‟” State v. Aleman, 210 Ariz. 232,
¶ 15, 109 P.3d 571, 576 (App. 2005), quoting State v. Richards, 110 Ariz. 290, 291, 518
P.2d 113, 114 (1974) (alterations in Aleman).
A person commits child abuse if, “[u]nder circumstances likely to produce
death or serious physical injury,” that person recklessly injures a child, or “having the
care or custody of a child,” “causes or permits” a child to be injured or “placed in a
situation where the . . . health of the child . . . is endangered.” A.R.S. § 13-3623(A).3
The definition of physical injury includes malnutrition. § 13-3623(F)(4). Irrespective of
whether K. had some “underlying health problem,” her physical appearance was so
abnormal that any reasonable person would have concluded she needed prompt medical
This statute has been amended since Sullivan committed this offense, but none of
the changes are material here. 2010 Ariz. Sess. Laws, ch. 113, § 6.
This statute is the same, in relevant part, as when Sullivan committed his offense.
See 2008 Ariz. Sess. Laws, ch. 301, § 85.
attention which apparently had not been obtained. Moreover, her physical appearance
also permitted officers to conclude malnutrition had played a significant role in her death.
These facts plainly were sufficient for the officers to have concluded reckless child abuse
Sullivan was present when officers arrived, and he does not suggest they
were unaware that he was K.‟s father or had any reason to believe he did not live in the
home. Thus, they reasonably could conclude he was involved in K.‟s care, was aware of
her condition, and had failed to take any action to remedy it.
suggestion to the contrary, the officers were not required to confirm those conclusions
definitively or learn the precise extent of his involvement with K., or his knowledge of
her condition, before arresting him. See State v. Dixon, 153 Ariz. 151, 153, 735 P.2d
761, 763 (1987) (“Only the probability and not a prima facie showing of criminal activity
is the standard of probable cause.”). We find no error in the trial court‟s denial of
Sullivan‟s motion to suppress.
In any event, we conclude any error was harmless beyond a reasonable
doubt. See State v. Davolt, 207 Ariz. 191, ¶ 64, 84 P.3d 456, 474 (2004) (erroneous
admission of evidence reviewed for harmless error). The evidence that Sullivan had
committed reckless child abuse was overwhelming. See id. (error harmless if properly
admitted evidence of guilt “overwhelming”). Although he admitted in his statements to
police that he had participated in caring for K. and acknowledged that she seemed
underweight, those facts were demonstrated amply by other evidence as well. The
evidence established that it would have taken several weeks for K. to starve to death, that
she had not been fed for “many hours” before her death, and that no reasonable person
would have believed she did not require medical care as her condition deteriorated. And
the evidence established Sullivan had been involved in K.‟s care and therefore had known
of and consciously disregarded her condition.
See A.R.S. § 13-105(10)(c) (person
reckless if “aware of and consciously disregards a substantial and unjustifiable risk that
the result will occur or that the circumstance exists”; disregard of risk must be “gross
deviation from the [reasonable] standard of conduct”); see also § 13-3623(A)(2).
For the reasons stated, we affirm Sullivan‟s conviction and sentence.
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge