STATE v. VARELA

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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 DIVISION ONE FILED: 9/24/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) TRICIA VARELA, ) ) Appellant. ) ) __________________________________) 1 CA-CR 12-0607 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-007018-002 The Honorable Pamela H. Svoboda, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section and Jana Zinman, Assistant Attorney General Attorneys for Appellee Phoenix Michael J. Dew Attorney for Appellant Phoenix T H O M P S O N, Judge ¶1 child Tricia Varela (defendant) appeals her convictions for abuse. For the reasons set defendant s convictions and sentences. forth below, we affirm FACTUAL AND PROCEDURAL BACKGROUND ¶2 The defendant and four-year-old her husband victim, in adopted by them in April 2009. trained, she began to hold E.V., August was 2008 and placed then with formally Although E.V. was already pottyher defecate on herself at times. urine and stool, and would E.V. s behavior worsened and it became a constant power struggle to force her to go to the bathroom. Defendant would hold [E.V.] onto the toilet . . . sometimes upwards of 45 minutes to an hour to try to get her to use the bathroom. ¶3 On April 25, 2009, E.V. s refusal to go to the bathroom resulted in a three-hour fight between defendant and E.V. Defendant held E.V. on the toilet with E.V. s head between her legs, pushing on her back so [E.V. s] chest was going into her knees. At some point during the incident, defendant removed all of E.V. s clothing and took her into the closet where she restrained E.V. face down on the ground with her hands pulled up behind her back so E.V. couldn t move, and struck E.V. repeatedly with a patent leather shoe. striking wall. E.V. six times and Defendant admitted to restrain[ing] her against the Defendant explained that her fingernails or wedding ring caused the scratching [found] on [E.V. s] back. ¶4 Two days later, defendant took E.V. to the hospital because she was vomiting green bile. 2 Nurses were concerned about possible abuse because of lots of bruising on [E.V. s] extremities and her legs from suspected nonaccidental trauma, and they contacted Child Protective Goodyear police department. Services (CPS) and the Dr. David Rosenberg, a pediatric critical care physician, admitted E.V. to the Intensive Care Unit (ICU) because she was seriously ill. ¶5 E.V. had multiple bruises and abrasions on her abdomen and back, as well as scattered bruising all over the remainder of her body, with scabs and multiple bruises of different colors and ages on her extremities. abdomen with dehydration, decreased decreased She suffered from a distended bowel kidney sounds, functions, vomiting, red blood severe cells and protein in her urine, abnormal blood counts, and abnormal liver function tests. E.V. exhibited swelling throughout her body, including a very swollen pubic region with an abrasion, and an abrasion on her neck. E.V. had a fever, was very confused, and had slurred speech. ¶6 E.V. s Doctors discovered bleeding in the muscle layers of abdomen that became requiring two surgeries. infected and caused an abscess Dr. Rosenberg testified that it was unusual for someone to have this type of injury and that it was the result of blunt trauma, most likely a blow of some kind. E.V. also had an infection in her right groin area that was related to her abdominal infection. 3 She received a blood transfusion because her hemoglobin blood counts were so low that the doctors were worried she getting oxygen in her body. would not be able condition was maintain E.V. received intravenous fluids and nutrition, and antibiotics for infection. hospital for thirty days. to She was in the Several doctors testified that E.V. s life-threatening, could have been fatal, extremely critically ill, and that [s]he could have died if she had not received medical attention, and that her injuries were consistent with nonaccidental trauma given the entire clinical picture and the history . . . as well as from the medical chart. ¶7 The state charged defendant with four counts of child abuse, class 2 felonies, and dangerous crimes against children (counts 1, 2, 4, and 5). 1 In March 2012, a jury found defendant guilty of count 4, reckless child abuse, a class 5 felony and domestic violence offense. 2 The trial court declared a mistrial on the remaining three counts. Defendant was retried on counts 1 (abdominal tear), 2 (failure to seek medical care), and 5 (prior bruising), and the jury found her guilty of the following: count 1, reckless child abuse, a class 3 felony and domestic violence offense committed in an especially heinous or 1 Defendant s husband was charged with counts 3 and 6. is not a party to this appeal. 2 Defendant does not contest the conviction for count 4. 4 He depraved manner; count 2, intentional or knowing child abuse, a class 2 felony and domestic violence offense committed in an especially physical cruel, or intentional domestic heinous emotional or harm knowing violence or to the manner that victim; and abuse, a 4 committed in child offense, depraved class an caused count felony especially 5, and cruel manner that caused physical or emotional harm to the victim. The trial court sentenced defendant to concurrent terms of 3.5 years imprisonment for count 1, 17 flat years for count 2, 1.5 years for count 4, and 2.5 years for count 5. gave defendant seventy-two days of The trial court presentence-incarceration credit for each count. ¶8 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031, and 13-4033(A) (2010). DISCUSSION ¶9 counts Defendant 1 and circumstances 2 argues to likely insufficient show to her actions produce death evidence were or existed committed serious for under physical injury, or that she was even minimally aware that her actions could produce such a result. are reviewed de novo. Claims of insufficient evidence State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). We view the evidence in the light 5 most favorable to sustaining the verdict reasonable inferences against defendant. and resolve State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). not reweigh the evidence. all We do State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). ¶10 On a motion for a judgment of acquittal the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Parker, 231 Ariz. 391, ¶ 70, 296 P.3d 54, 70 (2013) (emphasis omitted) (citations omitted). the record elements contains of the substantial offense then acquittal must be denied. evidence the See id. establishing motion for judgment If the of Substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. West, 226 Ariz. at 568, ¶ 16, 250 P.3d at 1191 (citation omitted). ¶11 committed Counts the 1 acts and 2 [u]nder required evidence circumstances death or serious physical injury. that likely defendant to produce A.R.S. § 13-3623(A) (2010). Serious physical injury is defined as physical injury that creates a reasonable risk of death or that causes serious or permanent disfigurement, serious impairment of health or loss or 6 protracted impairment of the function of any bodily organ or limb. A.R.S. § 13-3623(F)(5). ¶12 Defendant asserts that E.V. was kept in the hospital only because the doctors could not figure out what was wrong, that she was only diagnosed and treated for an infected abscess caused by a hematoma, and that no medical expert testified that E.V. ever experienced serious physical injury. The evidence presented at trial, however, was sufficient to prove otherwise. ¶13 E.V. had extensive injuries and symptoms, as discussed supra ¶¶ 5-6, that resulted in two surgeries and a thirty-day hospital stay. Dr. Rosenberg testified that E.V. s condition was life-threatening, and that she could have died if she had not received medical treatment. Dr. Koteswarn Chundu opined that E.V. s injuries could have been fatal. Dr. Linda Kirsch determined that E.V. could have potentially died, that she was extremely critically ill, and that her injuries were lifethreatening had she Consequently, the state counts 2 1 and were not received presented committed medical sufficient under treatment. evidence circumstances that likely to produce death or serious physical injury. ¶14 Defendant next argues that there was no way she could have known that holding a child on a toilet to produce a bowel movement . . . had the remotest capability of producing death or serious physical injury. A similar argument was recently 7 addressed by our supreme court in State v. Payne, __ Ariz. __, __, ¶¶ 68-73, 306 P.3d 17, 33-35 (2013). state had to show that he Payne argued that the intended or knew that the circumstances were likely to produce death or serious injury. Id. at __, ¶ 69, 306 P.3d at 34. The supreme court held that the mens rea portion of the statute refers to the act that the defendant does, and not to the background circumstances. at ¶ 71. Id. Thus, the state must prove that defendant caused or permitted abuse or injuries . . . to occur in circumstances likely to cause serious injury or death ; the state is not required to prove defendant s intent that the circumstances be such that death or serious injury might occur. 70, 75, 306 P.3d at 34-35. [A]bsent a Id. at __, ¶¶ person s outright admission regarding his state of mind, his mental state must necessarily be ascertained surrounding circumstances. by inference from all relevant In re William G., 192 Ariz. 208, 213, 963 P.2d 287, 292 (App. 1997); see also State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983) ( Criminal intent, being a state of mind, is shown by circumstantial evidence. Defendant s conduct and comments are evidence of his state of mind. ). ¶15 On intentional count or reckless child 1, the knowingly abuse. level because Defendant 8 of intent defendant admitted was that is less than convicted of the 25 April incident was a three-hour long fight where she held E.V. on the toilet, put her head between defendant s knees and defendant would squeeze her legs to hold E.V. in place while she would push on E.V. s lower back and mid-section. Defendant admitted to restraining E.V. against the wall and on the floor face down with her hands pulled up while defendant struck her with a shoe. She admitted that she was the only one who was responsible for [E.V.] being injured and the only person . . . who restrained E.V. The detective investigating the case testified that he concluded defendant knowingly caused E.V. s injuries and that causing injury to defendant knew [E.V.]. This what [she evidence was] was doing sufficient was to support the jury s finding. ¶16 Defendant relies on Martineau v. Angelone, 25 F.3d 734 (9th Cir. 1994), to argue that there was insufficient evidence that she delayed in seeking treatment for E.V. because she did not know the extent of injury or risk involved and that she immediately sought help after E.V. began throwing up. In Martineau, the two-year-old victim had been with a babysitter overnight when she was mother. Id. at 736-37. family, she dinner table. appeared picked up the next afternoon by her After the victim went swimming with her very Id. at 738. sleepy, and fell asleep at the Later, the victim s mother noticed that the victim was foaming at the mouth and having trouble 9 breathing, and she immediately attempted CPR and called 911. Id. The victim had no obvious injuries or bruises, and nothing presented at trial proved that the defendants knew the victim was seriously injured, yet delayed in seeking help. Id. at 736-41. ¶17 In contrast, defendant inflicted the injuries to E.V. herself. Although she may not have noticed at the time of the incident on Saturday night that E.V. was injured, she admitted that on Sunday morning she knew E.V. was bruised and hurt. Defendant kept E.V. home from church on Sunday because she was complaining about her stomach hurting, and stated that she thought E.V. had the stomach flu or constipation, but she did not have Later a on stiff, working in the wasn t thermometer day defendant moving the to take noticed way she that did following not seek evening, medical attention forty-eight was would, very and However, defendant for hours temperature. E.V. normally couldn t get up on the bed by herself. still E.V. s after E.V. the until the incident. Additionally, defendant indicated that she knew CPS would be called based on E.V. s injuries, which suggests that she knew E.V. was potentially seriously injured. sufficient evidence to support the Therefore, there was jury s defendant failed to seek medical treatment. 10 findings that ¶18 Defendant also evidence for count 5. challenges the sufficiency of the Count 5 alleged that between November 27, 2008, and April 24, 2009, defendant intentionally or knowingly caused E.V. to suffer physical injury or abuse. 13-3623(B). physical See A.R.S. § Physical injury is defined as the impairment of condition and includes any skin bruising . . . . A.R.S. § 13-3623(F)(4). ¶19 Defendant asserts that she did not intend to cause E.V. harm and that she never noticed any bruises on E.V. prior to April 25. However, the evidence at trial showed that E.V. had multiple bruises and abrasions on her abdomen and back, as well as scattered bruising all over the remainder of her body, with scabs and multiple bruises of different colors and ages on her extremities. Dr. Kirsch was concerned about the extensive bruising on E.V. s back, abdomen, the inside of her legs and knees, and the inside of her elbow because the bruising was consistent with nonaccidental injuries. She concluded that E.V. s injuries were from inflicted trauma because she was told that there was fighting between [E.V.] and the parents and that [E.V.] was being forced on the toilet and that there was a lot of squeezing and crushing of E.V. s abdominal area. Additionally, defendant s husband told police that bruising to E.V. did occur in the past, that it was common that bruising 11 occurred. E.V. was homeschooled and defendant and her husband were the only two adults that [were] around [E.V.]. ¶20 Therefore, we conclude the state presented sufficient evidence. CONCLUSION ¶21 For the foregoing reasons, we affirm convictions and sentences. /s/ JON W. THOMPSON, Judge CONCURRING: /s/ LAWRENCE F. WINTHROP, Presiding Judge /s/ MARGARET H. DOWNIE, Judge 12 defendant s

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