STATE v. WOOLIVER

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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. CHAD EUGENE WOOLIVER, Appellant. 1 CA-CR 11-0745 DIVISION ONE FILED: 09/18/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. S8015CR201001225 The Honorable Steven F. Conn, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Myles A. Braccio, Assistant Attorney General Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender By Diane S. McCoy, Deputy Appellate Defender Attorneys for Appellant Kingman T H O M P S O N, Judge ¶1 Chad Eugene Wooliver (Defendant) appeals from his convictions and resulting sentences imposed for three counts of child abuse by domestic violence and one count of possession of drug paraphernalia. Defendant argues the court violated his Sixth Amendment right to confront witnesses when it admitted into evidence Security s a (the copy of the Department) Arizona Department supplemental of Economic dependency petition that pertained to the children victims in this case. Defendant also argues insufficient evidence supports his convictions. For the reasons discussed below, we affirm. BACKGROUND ¶2 On November 9, 2011, Mesa police officers and a case worker with the responded to residence in outstanding Department s a complaint Kingman. 1 arrest At warrant, Child of Protective child the neglect time, lived Services with at Defendant, C.J. and (CPS) Defendant s who had their an three children aged six months to two years. ¶3 The confronted rotting observed an and overwhelming food. The running overflowing. bathtub. officers house through case . worker . was feces . entered smell filthy, in the of the body and kitchen. a home odor and [and] rodent was Garbage was Eight inches of standing dirty water filled the Illicit drugs and drug paraphernalia within a child s 1 We view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against Defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). 2 reach were found throughout the house; specifically, in the bedroom Defendant shared with C.J., officers discovered syringes containing codeine residue, a glass pipe with methamphetamine residue, and a metal spoon holding a piece of cotton that is typically used when injecting methamphetamine with syringes. The three children were found wearing only diapers and locked in a filthy unheated bedroom that reeked of excrement. 2 human Defendant was hiding behind a dresser in the children s bedroom. ¶4 The State subsequently charged Defendant with child abuse by domestic violence and possession of drug paraphernalia (methamphetamine), in violation of Arizona Revised Statutes (A.R.S.) sections 13-3601 (Supp. 2011), -3623 (2010), and -3415 (2010). A bench trial ensued. of charged the incarceration. offenses 3 Defendant The court found Defendant guilty and imposed appealed, presumptive and we have terms of jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and - 4033(A)(1) (2010). 2 The door to this room was altered so that it could only be locked from the outside. 3 The court, however, determined Defendant committed the child abuse acting recklessly, not intentionally or knowingly as alleged in the indictment. 3 DISCUSSION ¶5 In addition evidentiary to matters, the the trial court testimony considered and a other supplemental dependency petition filed by the Department on November 15, 2010 (Exhibit 8). incriminate Exhibit Defendant. 8 contains Defendant statements contends by that C.J. that admission of Exhibit 8 violated his constitutional right to confront C.J. See U.S. Const. amend. VI. We do not consider this issue because Defendant invited any error that resulted from Exhibit 8 s admission into evidence. See State v. Logan, 200 Ariz. 564, 565-66, 632-33 ¶ invited, 9, we 30 do P.3d not 631, consider (2001) whether ( If error is alleged the an error is fundamental, for doing so would run counter to the purposes of the invited held, we error will doctrine. not find Instead, reversible as we error repeatedly when the have party complaining of it invited the error. ). ¶6 Defendant not only stipulated to the admission of Exhibit 8, he requested the court admit it into evidence during the State s case. 4 Defendant s assertion that it is unknown which party prepared the stipulation for the court is of no consequence. By requesting Exhibit 4 8 s admission, Defendant When the court asked defense counsel if she had any objection to the prosecutor s request to admit exhibits 5 through 7, she responded, The only thing can we just admit 1 through 9? 4 affirmatively and independently initiated any possible error thereby precluding our review of this issue. State v. Lucero, 223 258 Ariz. 129, 138, ¶ 31, 220 P.3d 249, (App. 2009) (holding, if the party complaining on appeal affirmatively and independently initiated the error, he should be barred from raising the error on appeal. ). ¶7 Defendant next challenges the sufficiency of evidence supporting his convictions. He contends the court erred in denying his motion for a directed verdict under Arizona Rule of Criminal Procedure 20. ¶8 We review de novo a trial court s denial of a Rule 20 motion. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). We will find reversible error only if there is a complete absence charges. of substantial evidence to support the State v. Carlos, 199 Ariz. 273, 276, ¶ 7, 17 P.3d 118, 121 (App. 2001); see, e.g., State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App. 1996). ¶9 Under A.R.S. § 13-3623(B), a person is guilty of child abuse if: Under circumstances other than those likely to produce death or serious physical injury to a child . . . , any person . . . having the care or custody of a child . . . causes . . . a child . . . to be placed in a situation where the . . . health of the child . . . is endangered[.] 5 ¶10 The only element of the offense Defendant contends lacked evidentiary support is the element that he had care of the children. In the context of A.R.S. § 13 3623, the word care does not have any special legal meaning; rather, it is used in its ordinary sense. 937 P.2d 310, charge, 316 State v. Jones, 188 Ariz. 388, 394, (1997). supervision, Care is management: generally responsibility attention to safety and well-being. defined for as or Id. at 392, 937 P.2d at 314 (citing Webster s New Int l Dictionary (3d ed. 1976)). ¶11 The record reflects substantial evidence that Defendant had care of his children for purposes of determining whether he Defendant committed resided child with abuse. 5 C.J. and The their evidence biological shows that children. According to Exhibit 8, Defendant admitted to using drugs with C.J., and when they did so, they would lock the children in the bedroom stuff. ostensibly to stop the children from getting into Further, the CPS caseworker testified at trial that when Defendant was arrested, he requested that his children be placed with particular family members. Under these facts, the court could reasonably infer Defendant accepted at least some responsibility for the children s and therefore cared for them for purposes of A.R.S. § 13-3623(B). See State 5 well-being Defendant does not contend that the children were in a situation where their health was not endangered. 6 v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993) (noting if reasonable minds can differ on the inferences to be drawn from the evidence, whether direct or circumstantial, the case must be submitted to the jury.). Consequently, substantial evidence supported the child abuse charge, and the court did not err in denying Defendant his motion for a directed verdict. ¶12 Regarding the possession of paraphernalia charge, Defendant admitted to using methamphetamine, and various items of paraphernalia were found in the bedroom he shared with C.J. See supra ¶ 3. either actually, Thus, substantial evidence indicated Defendant or at possessed paraphernalia. 6 least See constructively and jointly, A.R.S. § 13-3415(A); State v. Chabolla-Hinojosa, 192 Ariz. 360, 365, ¶ 18, 965 P.2d 94, 99 (App. 1998) (noting possession need not be exclusive or personal to establish constructive possession) (quoting State v. Carroll, 111 Ariz. 216, 218, 526 P.2d 1238, 1240 (1974)). The trial court correctly denied Defendant s Rule 20 motion. 6 Possess means knowingly to have physical possession or otherwise to exercise dominion or control over property. A.R.S. § 13-105(34) (Supp. 2011). Possession means a voluntary act if the defendant knowingly exercised dominion or control over property. A.R.S. § 13-105(35) (Supp. 2011). Thus, possession includes both actual ( physical ) and constructive ( dominion and control ) possession of an item. State v. Petrak, 198 Ariz. 260, 264, ¶ 11, 8 P.3d 1174, 1178 (App. 2000). 7 CONCLUSION ¶13 Defendant invited any possible error in the admission of Exhibit 8, and the State presented sufficient evidence of child abuse and possession of drug paraphernalia. convictions and sentences are therefore affirmed. /s/ JON W. THOMPSON, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ ANDREW W. GOULD, Judge 8 Defendant s

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