Opinion
CV-18-0551-TUC-JGZ (LCK)
04-12-2024
Angela Rene Leeman, Petitioner, v. Ryan Thornell, Respondent.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins, United States Magistrate Judge
Petitioner Angela Leeman, presently incarcerated at the Arizona State Prison Complex-Perryville in Goodyear, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is the parties' Motion for Order and Judgment Granting Writ of Habeas Corpus Pursuant to Agreement of the Parties. (Doc. 34.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. The Magistrate Judge recommends the District Court, after its independent review of the record, deny the parties' motion.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was indicted in 1994 on sixteen criminal charges, fourteen of which charged a violation of the Arizona child abuse statute:
Count 1: having the care or custody of her son, intentionally or knowingly caused or permitted her son to be placed in a situation where his person or health was endangered, under circumstances likely to produce death or serious physical injury, by failing to get medical attention for the baby, on or about May 30 to June 12, 1993;
Count 2: having the care or custody of her son, intentionally or knowingly caused her son to suffer abuse by not protecting him from sexual maltreatment;
Count 3: having the care of custody of her son, intentionally or knowingly caused or permitted her son to be injured (fracture of the right distal radius), on or about May 30 to June 12, 1993;
Count 4: having the care or custody of her son, intentionally or knowingly caused or permitted her son to be placed in a situation where his person or health was endangered, under circumstances likely to produce death or serious physical injury, by failing to get medical attention for his fractured radius, on or about May 30 to June 12, 1993;
Count 5: having the care of custody of her son, intentionally or knowingly caused or permitted her son to be injured (bruising on upper right arm), on or about June 10 to June 12, 1993;
Count 6: having the care of custody of her son, intentionally or knowingly caused or permitted her son to be injured (bruising on right eye), on or about June 8 to June 12, 1993;
Count 7: having the care of custody of her son, intentionally or knowingly caused or permitted her son to be injured (avulsion fracture of right elbow), on or about June 8 to June 12, 1993;
Count 8: having the care of custody of her son, intentionally or knowingly caused or permitted her son to be injured, under circumstances likely to produce death or serious physical injury (fracture to the head of the left humerus), on or about June 8 to June 12, 1993;
Count 9: having the care of custody of her son, intentionally or knowingly caused or permitted her son to be injured (fracture of the left distal humerus), on or about May 30 to June 12, 1993;
Count 10: having the care of custody of her son, intentionally or knowingly caused or permitted her son to be injured (spiral fracture of the right tibia), on or about May 30 to June 12, 1993;
Count 11: having the care of custody of her son, intentionally or knowingly caused or permitted her son to be injured (fracture of the right femur), on or about May 30 to June 12, 1993;
Count 12: having the care of custody of her son, intentionally or knowingly caused or permitted her son to be injured (fracture of the left tibia), on or about May 30 to June 12, 1993;
Count 13: having the care of custody of her son, intentionally or knowingly caused or permitted her son to be injured (fracture of the left distal femur), on or about May 30 to June 12, 1993;
Count 14: having the care or custody of her son, recklessly caused or permitted her son to be placed in a situation where his person or health was endangered, by permitting him to suffer from malnutrition, on or about March 21 to June 12, 1993;
Count 15: possession of methamphetamine, on or about June 17, 1993; and
Count 16: possession of drug paraphernalia, on or about June 17, 1993.(Doc. 36, Ex. E, Ex. 1 at 1-3.) The trial court found Counts 1 and 4 to be multiplicitous, because Count 1 could encompass the harm charged in Count 4 and directed the State to elect between them. (Id., Ex. 2 at 22-23.) The State chose to proceed on Count 1, and the Court dismissed Count 4. (Id. at 23.)
On direct appeal, the Arizona Court of Appeals summarized the evidence in support of the verdicts:
On June 12, 1993, appellant, then seventeen-years-old, took her eight-month-old son S. to a hospital emergency room in Tucson. The child was critically ill and required pediatric intensive care. He had widespread bacterial infection, with Herpes lesions inside and outside his mouth and around his rectum. S. also had recently inflicted bruises on his head and shoulder, and later was found to have at least ten broken bones in both arms and legs and lax rectal tone most probably caused by repeated insertion of some object into his anus.
From sometime in March 1993, appellant and S. had lived with twenty-nine-year-old Greg Hatton. The state could not establish who caused S.'s extensive injuries, but contended that both appellant and Hatton were responsible for S.'s care and that in each instance of abuse, one of them caused the injury and the other permitted it to occur. . . . Numerous witnesses testified that both appellant and Hatton were consumed with using drugs and frequently ignored S. and his needs. Those witnesses also testified to S.'s declining physical condition and to his obvious need for medical attention which several of them called to appellant's attention. Indeed, one reported the situation to Child Protective Service (CPS). In the last week before S. was taken to the hospital, a period when many of the injuries were inflicted, appellant and Hatton became reclusive and would not allow friends to visit. In short, only appellant and Hatton could have caused S.'s injuries, and from their extensiveness the jury could reasonably infer that whoever had caused those injuries, the other had permitted them to occur or knew of them and allowed them to go untreated.(Doc. 13, Ex. A at 2-3.) Petitioner was tried with co-defendant Hatton and convicted on all 15 counts sent to the jury: 13 counts of child abuse and 2 drug counts. (Id. at 2.) She was sentenced to 20 years on Count 1 and 30 years on Count 8, the two charges that qualified as dangerous crimes against children, to run consecutive to all other sentences. (Doc. 36, Ex. E, Ex. 5 at 42-43.) She was sentenced to concurrent terms of 5 years on Count 2; 7 years on Count 3; 11 years on Counts 5-7 and 9-13; 6 years on Count 14; 10 years on Count 15; and 3.75 years on Count 16. (Id.) In sum, she received a total sentence of 61 years.
Petitioner initiated this habeas proceeding in November 2018. (Doc. 1.) In March 2019, after Respondent answered (Docs. 12-16), the Court granted an unopposed stay to allow Petitioner to exhaust additional claims in state court (Doc. 20). In addition to a direct appeal, Petitioner has initiated six post-conviction relief (PCR) proceedings in state court. For purposes of evaluating the present motion, the Court recounts the history only of the most recent PCR proceeding.
In a March 2020 PCR Petition, Petitioner alleged one constitutional claim, that her multiple sentences violated Double Jeopardy, and one state law claim regarding sentencing. (Doc. 36, Ex. D at 9-11.) Petitioner argued that no evidence was presented at trial establishing that she inflicted injury upon her son; rather, the evidence of her culpability was that she failed to provide care for him. (Id. at 11.) She argued that her convictions on thirteen separate counts for one act of child abuse, which was a continuous course of failing to provide care, were multiplicitous (Id.) The PCR court ruled that the petition was untimely and did not address Petitioner's claim of multiplicity. (Id., Ex. L.) The Arizona Court of Appeals granted review but denied relief, finding the PCR court's summary denial based on timeliness was not erroneous. (Id., Ex. N.) In response to Petitioner's petition for review to the Arizona Supreme Court, the State conceded that some of the counts were multiplicitous and asked the supreme court to vacate the sentences and remand for resentencing. (Id., Ex. Q at 3, 8-13.) The supreme court vacated the appellate court's decision and remanded to the PCR court to address the issue of multiplicity. (Id., Ex. R.)
At that time, the State did not concede that Petitioner necessarily should be sentenced to a lesser term. (Doc. 36, Ex. Q at 3.) However, the State suggested that Counts 1, 2, and 14 should be treated as one offense, and that the pairs of Counts 11 and 13, Counts 10 and 12, and Counts 5 and 7 should be treated as no more than three offenses. (Id. at 1213.) Ultimately, the State asked only that the sentences be vacated and remanded for reconsideration in the superior court. (Id. at 8, 13.)
In a supplemental brief to the PCR court, Petitioner argued that her child abuse convictions on Counts 2, 3, and 5-14 were multiplicitous as to Count 1. (Doc. 36, Ex. V at 1.) Further, she posited that the trial evidence established only that she committed a single offense, failing to get medical attention for her son, under circumstances likely to cause death or serious physical injury, sufficient to establish her guilt as to Count 1. (Id. at 4-5.) Because that was a crime of omission, she argued it was necessarily a continuing offense terminating at the time she took her son to the hospital. (Id. at 5.) In its supplemental brief, the State argued that Counts 5-13 were multiplicitous of one another and Count 3; it stood by Petitioner's convictions as to Counts 1, 2, and 14. (Id., Ex. W at 2, 6.) More specifically, the State argued that Counts 3 and 5-13 were based on Petitioner's failure to protect her son from injury, which was one crime not ten. (Id. at 7-8.) The State requested that it be allowed to elect to maintain Count 3 and dismiss Counts 5-13. (Id. at 8.) The PCR court found Petitioner's convictions were not multiplicitous and denied relief. (Id., Ex. X.) The Arizona Court of Appeals, again, granted review but denied relief. (Id., Ex. AA.) The Arizona Supreme Court denied review. (Id., Ex. II.)
Similarly, Petitioner's argument before this Court suggests there was not sufficient evidence to support her convictions on Counts 5-13. However, Petitioner did not allege sufficiency of the evidence as a claim in the Amended Petition. For purposes of this analysis, the Court assumes that constitutionally sufficient evidence underlies each conviction.
After Petitioner completed her sixth PCR proceeding, this Court lifted the stay in April 2023. (Doc. 26.) In June, Petitioner amended her petition, and the parties filed the instant motion to grant the writ. (Docs. 27, 33-35.) The Amended Petition raises four claims. The motion to grant the writ requests relief as to Claim 1, and Petitioner agreed to withdraw Claims 2 to 4 if relief is granted. (Doc. 34.) Claim 1 alleges Petitioner's conviction on Counts 5 through 13 violate double jeopardy because the conduct underlying those counts also underlay Count 1. (Doc. 27 at 20-23.) At the request of the Court, Respondent provided additional state court records for the Court's review. (Docs. 35, 36.) The Court held argument on the motion to grant the writ (Doc. 38) and requested that the parties submit a joint supplemental brief and copies of the trial transcripts (Doc. 39), which have been filed (Doc. 43). A second joint supplemental brief was submitted upon request of the Court. (Docs. 44, 45.)
DISCUSSION
The parties initially requested that the Court grant relief on the entirety of Claim 1 as alleged in the Amended Petition and order Petitioner unconditionally released from custody. (Doc. 34.) At oral argument, the parties narrowed their basis for relief to an agreement that Petitioner's convictions on Counts 1 and 8 could have been premised on the same harm to the victim. For that reason, they argued that Counts 1 and 8 were multiplicitous and violated the prohibition against double jeopardy.
As discussed in the Background section, Petitioner and the State identified the multiplicitous counts differently over time in their state court filings. (Doc. 36, Ex. D at 9-11, Ex. Q at 3, 8-13, Ex. V at 1, Ex. W at 2-8.) None of their representations in state court exactly mirror Claim 1 before this Court. However, Petitioner did allege in state court that Count 8 (as well as all other child abuse counts) were multiplicitous as to Count 1. (Doc. 36, Ex. V at 1.) Therefore, the Court finds that Claim 1 was fairly presented and exhausted in state court. Additionally, in a settlement agreement entered by the parties, the State waived any procedural defenses for purposes of a ruling on the motion to grant the writ. (Doc. 34 at 9.) Therefore, if there is an absence of exhaustion, it is not a barrier to this Court reaching the merits of Claim 1. See 28 U.S.C. § 2254(b)(3) ("A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.").
Standard for Habeas Relief
Regardless of the parties' agreement, this Court cannot grant habeas relief on any claim "adjudicated on the merits" by the state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). The last relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir. 2005). The court of appeals did not look at multiplicity between Claims 1 and 8, although it was fairly presented to that court. Therefore, the parties and the Court agreed, at oral argument, that this Court was reviewing the decision of the PCR court under § 2254(d)(1). Although that court acknowledged the variety of multiplicity arguments raised by the parties, it did not provide reasoning for rejecting Petitioner's assertion that Count 1 was multiplicitous as to any other child abuse counts. Therefore, this Court performs "an 'independent review of the record' to ascertain whether the state court decision was objectively unreasonable." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (quoting Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005)); see Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
Double Jeopardy Law
Pursuant to the Double Jeopardy Clause of the United States Constitution's Fifth Amendment, "[n]o person shall be subject for the same offence to be twice put in jeopardy of life or limb." Thus, Petitioner cannot be punished twice for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989)). "An indictment is not multiplicitous merely because it charges more than one violation of the same statute based on related conduct; instead, a defendant can be convicted of multiple violations of the same statute if the conduct underlying each violation involves a separate and distinct act." United States v. Chilaca, 909 F.3d 289, 291 (9th Cir. 2018) (quoting UnitedStates v. Technic Servs., Inc., 314 F.3d 1031, 1046 (9th Cir. 2002)). "Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165 (1977); Missouri v. Hunter, 459 U.S. 359, 366 (1983) (holding that the Double Jeopardy Clause precludes only "greater punishment than the legislature intended"); Albernaz v. United States, 450 U.S. 333, 340, 344 (1981). In other words, "the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized." Whalen v. United States, 445 U.S. 684, 688 (1980).
Whether particular actions involve one or more than one criminal offense depends upon how the legislature has defined the "allowable unit of prosecution" for the particular offense. Sanabria v. United States, 437 U.S. 54, 69-70 (1978) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952)). Thus, when a defendant is charged with "multiple violations of the same statutory provision" based on a singular act, the courts must examine the "allowable unit of prosecution" as established by the legislature. United States v. Keen, 104 F.3d 1111, 1118 (9th Cir. 1996), as amended on denial of reh'g (Jan. 2, 1997) (quoting Universal C.I.T. Credit Corp., 344 U.S. at 221). The courts of Arizona "have the final authority to interpret . . . that State's legislation." Brown, 432 U.S. at 167-68 (quoting Garner v. Louisiana, 368 U.S. 157 (1961)).
Arizona Criminal Law Regarding Child Abuse
Petitioner's convictions for child abuse under Counts 1 and 8 (as well as Counts 2, 3, 5-7, and 9-13) were based on the one Arizona statute delineating that crime:
B. Under circumstances likely to produce death or serious physical injury, any person who causes a child or vulnerable adult to suffer physical injury or, having the care or custody of such child or vulnerable adult, causes or permits the person or health of such child or vulnerable adult to be injured or causes or permits such child or vulnerable adult to be placed in a situation where its person or health is endangered is guilty of an offense as follows ....
C. Under circumstances other than those likely to produce death or serious physical injury to a child or vulnerable adult, any person who causes a child or vulnerable adult to suffer physical injury or abuse or, having the care or custody of such child or vulnerable adult, causes or permits the person or health of such child or vulnerable adult to be injured or causes or permits such child or vulnerable adult to be placed in a situation where its person or health is endangered is guilty of an offense as follows . . .A.R.S. § 13-3623 (1992). Subsections B and C each contained similar subparts, classifying the level of felony based on the defendant's mental state, intentionally or knowingly, recklessly, or with criminal negligence. Counts 1 and 8 both charged violations of subpart B, classified as dangerous crimes against children, because they occurred "[u]nder circumstances likely to produce death or serious physical injury."
There are three means to commit child abuse under A.R.S. § 13-3623: "(1) causing a child to suffer a physical injury; (2) having the care or custody of a child, causing or permitting the person or health of the child to be injured; and (3) having the care or custody of a child, causing or permitting the child to be placed in a situation where the person or health of the child is endangered." State v. West, 362 P.3d 1049, 1057, 238 Ariz. 482, 490 (Ct. App. 2015). Arizona's child abuse statute "'focuses on a single harm to the victim,' and the three means 'merely provide different ways of causing that single harm.'" Id. (quoting State v. Paredes-Solano, 222 P.3d 900, 906, 223 Ariz. 284, 290 (Ct. App. 2009)); see State v. Millis, 391 P.3d 1225, 1232, 242 Ariz. 33, 40 (Ct. App. 2017) (holding that child abuse is a "single unified offense"). The Arizona Court of Appeals explained, in Petitioner's case, that A.R.S. § 13-3623 was directed at "individualized protection" and the unit of prosecution was "each separate harm inflicted." State v. Leeman, No. 2 CA-CR 2021-0100-PR, 2022 WL 1043745, at *4 (Ariz.Ct.App. Apr. 7, 2022), review denied (Feb. 2, 2023); see also West, 362 P.3d at 1057, 238 Ariz. at 490 (finding that § 13-3623 "focuses on a single harm to the victim"). "Physical injury" under the statute focuses on discrete injuries such as a fracture; therefore, the term "injury" or "to be injured" refers to separate harms to the child. Leeman, 2022 WL 1043745, at *5. A "[s]erious physical injury" is defined as a "physical injury which creates a reasonable risk of death, or which causes serious or permanent disfigurement, or serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb." A.R.S. § 13-3623(A)(4) (1992). Under the Arizona law set forth above, Petitioner could be convicted and sentenced for multiple counts of child abuse, if each count was based on a separate harm.
Analysis
The parties agree that the inquiry central to resolving their Motion to Grant is whether the harm underlying Count 1 is distinct from the harm underlying Count 8. (Doc. 43 at 3.) As set forth in the indictment and the jury instructions, the harm underlying Count 8 was a fracture to the head of the left humerus. (Doc. 36, Ex. E, Ex. 1; Ex. A, Instruction 46.) The indictment did not specify a harm specific to Count 1. Similarly, the jury instruction on Count 1 laid out the following elements:
1. Angela Leeman had either care or custody of Steven Leeman; and
2. She intentionally or knowingly caused or permitted Steven Leeman to be placed in a situation where hisperson or health was endangered by failing to get Steven Leeman Medical Attention; and
3. The circumstances under which Steven Leeman's person or health were endangered were likely to produce death or serious physical injury; and
4. Steven Leeman was a person under the age of fifteen years; and
5. This happened in Pima County, Arizona on or about May 30, 1993, through June 12, 1993.(Doc. 36, Ex. A, Instruction 39.) Thus, it did not specify the particular way in which the victim's person or health was endangered by the absence of medical care. The Court must evaluate whether the jury determination on Count 1 - that Petitioner intentionally or knowingly caused or permitted her son to be endangered by her failure to get him medical care - could have been based on the harm underlying Count 8, fracture of the left humerus.
During trial, the prosecutor argued to the judge (outside the presence of the jury) that Count 1 was based on Petitioner's failure to get care for the child's herpes infection and bacteremia. (Doc. 36, Ex. E, Ex. 2 at 14.) If that injury had been included in the jury instructions, as a separate harm was included in the instructions for Count 8 and the other child abuse counts, double jeopardy would not be implicated.
The Court finds this issue most expeditiously resolved by examining the endangerment element of Count 1, which is not an element of Count 8. This is because Count 1 cannot be multiplicitous with Count 8 unless the jury was presented with evidence that the victim was endangered by Petitioner's failure to get care for the harm alleged in Count 8. The Arizona state courts have determined that "endanger" is used in its ordinary sense in the child abuse statute, which means "to subject to potential harm." State v. Mahaney, 975 P.2d 156, 159, 193 Ariz. 566, 569 (Ct. App. 1999); State v. West, No. 2 CA-CR 2008-0342, 2012 WL 723752, at *7 (Ariz.Ct.App. Mar. 5, 2012) ("'to expose to potential harm' greater than that risked in everyday life."). Thus, to satisfy the element of endangerment, the State must prove that the delay in obtaining care "increased the child's risk of harm." West, 2012 WL 723752, at *7; see State v. Minley, No. 2 CA-CR 2017-0173, 2018 WL 6721963, at *6 (Ariz.Ct.App. Dec. 21, 2018) (finding delay in obtaining care increased risk of organ damage and fatality of condition); State v. Fernane, 914 P.2d 1314, 1316, 185 Ariz. 222, 223 (Ct. App. 1995) (finding sufficient evidence of failure to get medical care based on testimony that child would have had a better chance of survival if taken for care sooner); State v. Urbina, No. 2 CA-CR 2016-0022, 2017 WL 2664596, at *6 (Ariz.Ct.App. June 20, 2017).
First, the Court looks solely at the jury instructions for Counts 1 and 8, which reflect the language of the statute. Because Count 1's endangerment element required the jury to find that a delay in obtaining care increased the child's risk of harm, the Court concludes that type of harm is necessarily different than the harm of the initial injury to the child's left humerus. It was the fracture itself that was charged as the harm in Count 8. In other words, Petitioner was subject to conviction for the injury to the child's left humerus as soon as it was inflicted. In their most recent supplemental brief, the parties disagreed with this conclusion, arguing that "the jurors need not have limited themselves to that moment in time" -the point at which the fracture was inflicted - when evaluating Count 8. (Doc. 45 at 3.) And, in the Amended Petition, Petitioner alleged that her conviction on Count 8 could have been based on a failure to get care for the humerus fracture. (Doc. 27 at 21.) To the contrary, the indictment and jury instructions limit the verdict on Count 8 to the moment of injury, as they are based on Petitioner causing or permitting the injury to the left shoulder. Although the jury instruction on Count 8 could have included endangerment as an alternative means for the shoulder fracture, it did not. This conclusion, regarding the relevant time frame, is supported by the Arizona Court of Appeals' statement that "each crime in Counts 5-13 began and was completed when Petitioner permitted (or caused) each separate injury to occur." Leeman, 2022 WL 1043745, at *5. In theory, if the trial evidence showed that Petitioner's delay in obtaining medical care for the injury to the head of the child's left humerus caused an increased risk of harm (beyond the fracture itself), then Petitioner could have been found guilty of endangerment (as charged in Count 1). However, because such a finding necessarily would rely upon a separate harm to the child, meaning a separate unit of prosecution from the harm underlying Count 8 (the fracture itself), there would be two separate harms and no multiplicity problem.
The jury instruction for Count 8 required that the jury find the following elements beyond a reasonable doubt:
1. Angela Leeman had either care or custody of Steven Leeman; and
2. She intentionally or knowingly caused or permitted Steven Leeman to be injured by the fracture of the head of Steven Leeman's right humerus; and
3. The circumstances under which Steven Leeman's person or health were injured were likely to produce death or serious physical injury; and
4. Steven Leeman was a person under the age of eighteen years; and
5. This happened in Pima County, Arizona on or about June 8, 1993.(Doc. 36, Ex. A, Instruction 46.)
The converse also is true. If there was not sufficient evidence at trial to establish that a delay in obtaining medical care for the injury to the child's left humerus caused an increased risk of harm, then the verdict on Count 1 could not have been based on the shoulder injury because there would have been an absence of endangerment. See Urbina, 2017 WL 2664596, at *7 (finding insufficient evidence of endangerment based on failure to obtain medical care when the state failed to present evidence that the child's prognosis would have been better if care had been obtained sooner); West, 2012 WL 723752, at *7 (same). In that event, the harms underlying Counts 1 and 8 also would be distinct and there would be no multiplicity problem.
The Court's above determination is exemplified by two endangerment cases in which one of two child abuse charges was based on a failure to obtain medical care. In Fernane, the endangerment conviction, based on a failure to get care, was sustained because there was evidence that at least an hour passed after the mother knew the child was injured and needed care, and the child "would have had a better chance of survival if she had been brought to the hospital sooner." 914 P.2d at 1316, 185 Ariz. at 224 (finding sufficient evidence also for defendant's second conviction for endangerment based on her leaving the child in the care of the person that inflicted the injury). In Minley, the endangerment conviction based on a failure to get care was sustained because there was evidence that the mother knew her child was just "staring" and exhibited severe bruising after an excessive beating, and the condition likely would not have been fatal if treatment had been sought sooner. 2018 WL 6721963, at *6 (finding sufficient evidence also to support defendant's second child abuse conviction for knowingly permitting her son to be beaten). As the parties noted, these two cases did not address double jeopardy or unit of prosecution. (Doc. 45 at 4.) However, they highlight the Arizona requirement that a failure-to-obtain-care endangerment charge requires proof that the child experienced an increased risk of harm beyond an initial injury or illness. This element was noted by the court of appeals in Petitioner's case: "[i]f one injury is permitted and the defendant continues not to seek medical attention for that injury, a new offense is not necessarily created," but there may be circumstances "in which evidence is presented that the failure to seek medical attention created additional, separate injuries to the child." Leeman, 2022 WL 1043745, at *3, *5 & n.4 (finding those circumstances not at issue in Leeman's case).
The Court finds that Petitioner's multiplicity argument is resolved solely by the above examination of the jury instructions and Arizona law. However, the Supreme Court has instructed that the evidence may be examined as necessary to resolve double jeopardy questions when multiple convictions are based on one statute. Blockburger v. United States, 284 U.S. 299, 302-03 (1932) (examining the trial evidence to determine there were two successive drug sales, each of which the legislature intended to punish separately); Universal C.I.T. Credit Corp., 344 U.S. at 225 (finding that "[w]hether an aggregate of acts constitute a single course of conduct and therefore a single offense, or more than one, may not be capable of ascertainment merely from the bare allegations of an information and may have to await the trial on the facts."); see also United States v. Bendis, 681 F.2d 561, 565-66 (9th Cir. 1981) (examining factual proffers of the parties); Velez v. Clarinda Corr. Facility, 791 F.3d 831, 837 (8th Cir. 2015) (relying on state supreme court's evaluation of the factual record to determine if the defendant engaged in distinct acts for which the legislature authorized separate punishments); United States v. Rigas, 605 F.3d 194, 214 (3d Cir. 2010) (remanding to the district court to hold an evidentiary hearing to determine if a second conspiracy prosecution violated double jeopardy). Therefore, the Court also will review Petitioner's arguments premised on the trial testimony.
The parties contend that the factual circumstances of the injury to the victim's left shoulder were only "likely to produce death or serious physical injury" (in the form of permanent disfigurement), as required for conviction on Count 8, because Petitioner delayed in obtaining medical care for the fracture. Thus, they argue, the harm underlying Counts 1 and 8 is the same. As the indictment and jury instructions establish, the harm charged in Count 8 was the fracture of the child's left humerus. Period. It was not a harm that arose because Petitioner failed to get timely care for the fracture. And the trial testimony does not establish otherwise.
The parties contend the trial evidence revealed that Petitioner's delay in seeking medical care for the left humerus fracture was the sole cause of it resulting in a “permanent disfigurement.” The Court reached a different conclusion after reviewing the entirety of the medical testimony presented at trial, with a focus on the evidence cited by the parties (Doc. 43 at 4-5, 6; Doc. 45 at 3-4). The medical testimony established that the fracture was inflicted approximately one week prior to the child's hospital admission; that opinion was based, in part, on the absence of healing at the time he was admitted plus the timing of when healing was visible on x-rays. (Doc. 43, Ex. F at 55, 58-59; see also Ex. D at 114, 117 (dating the fracture from 1 day to 2 weeks prior to admission, most probably occurring within a week).) The fracture went through the growth center of the upper end of the humerus bone and the bone had been displaced. (Doc. 43, Ex. F at 52.) When a growth center is injured and not surgically repaired, it can cause abnormal growth or deformity of the bone. (Id. at 53; Ex. G at 99-101.) Based on x-rays taken within a few weeks of the victim's hospital admission, an orthopedic surgeon testified that he believed surgery was needed to repair the left humerus fracture. (Id., Ex. G at 100.) There was no testimony as to whether surgery was performed on the fracture and, if not, why not. X-rays taken in 1994, the year after the fracture, revealed "tremendous" and permanent deformity at the upper end of the humerus because the growth center was distorted (Id. at 104-05.)
There was no testimony that surgery was precluded, or had a lower chance of success, because care for the fracture was not sought within the first week after it was inflicted. In fact, the orthopedic surgeon testified that surgery was appropriate at the time he reviewed the child's x-rays in July 1993. (Doc. 43, Ex. G at 100.) Because the fracture damaged the growth center of the left humerus, the evidence indicated the injury (at the time it was inflicted) was likely to result in permanent disfigurement or protracted impairment of the victim's left arm. In other words, the harm as inflicted was likely to produce a serious physical injury. Although surgery had the possibility of preventing a deformity from coming to fruition, it did not change the circumstances present at the time of injury. The doctors did not testify that the ultimate deformity was due to a delay in care or that the child's prognosis would have been better if care had been obtained sooner. In fact, there was zero testimony that surgery was foreclosed due to the passing of time between the fracture and Petitioner seeking care for her child. Because there was no trial evidence that a failure to obtain care for the child's left humerus fracture increased his risk of harm, the jury's verdict on Count 1 could not have been based on the fracture to the victim's left humerus. Similarly, the jury's finding of guilt on Count 8 could not have been based on endangerment for failure to obtain care for the left humerus fracture.
As a final matter, under Arizona law, it is not a particular broken bone that must be a serious physical injury to classify a particular charge as a dangerous crime against a child. Rather, "the State had to prove only that [the defendant] caused or permitted abuse or injuries-here, broken bones-to occur in circumstances likely to cause serious injury or death. In § 13-3623(A), 'serious physical injury' is used only to describe circumstances that must exist when the abuse occurs." State v. Payne, 314 P.3d 1239, 1261-62, 233 Ariz. 484, 506-07 (2013); see also State v. Johnson, 890 P.2d 641, 645, 181 Ariz. 346, 350 (Ct. App. 1995) (looking at all the circumstances in which the abuse occurred, not just circumstances of a specific injury). A conviction meets these requirements if the injury was caused or permitted, and all the circumstances present at that time are likely to cause serious injury or death. Here, the victim's left humerus fracture occurred during a period in which numerous other bones were broken, he was being malnourished and experiencing sexual abuse, and he was suffering from serious infections, all without medical care. The Arizona Supreme Court has found similar evidence sufficient to establish circumstances likely to cause death or serious physical injury, without testimony that a specific broken bone was a serious physical injury. Payne, 314 P.3d at 1262, 233 Ariz. at 507 (finding the injuries occurred while the victim "was being punished by being locked in the closet and not being fed or cared for."). Even if the fracture of the left humerus was itself not likely to produce a serious physical injury the moment it was inflicted, it occurred under circumstances likely to produce death or a serious physical injury considering the entirety of the conditions present at that time.
Multiplicity as to Counts 5-7 and 9-13
In the Motion to Grant, the parties sought relief on the basis that each one of Claims 5-13 were multiplicitous with Count 1, as raised in Claim 1 of the Amended Petition. Because the parties could achieve the relief they sought if the Court found Count 1 multiplicitous with Count 8, alone, the parties narrowed their argument to those two claims. Because the Court did not find relief warranted on that narrowed claim, the Court evaluates whether Petitioner is entitled to relief on the remainder of Claim 1. Thus, the Court asks whether it would reach a different result in its double jeopardy analysis if multiplicity were analyzed between Count 1 and any of the counts numbered 5-7 and 9-13. The answer is no.
The jury's finding of guilt on Count 1, for endangerment, could have been based on one or more of the injuries underlying Counts 5-7 and 9-13 only if, by delaying medical care, Petitioner increased the risk that the child would suffer additional harm beyond those initial bruises and fractures. Therefore, if the jury based Count 1 on any of the harms underlying Counts 5-7 or 9-13, it had to have been because the delay in care endangered the child. Because this increased risk of harm, arising from a caregiver's failure to obtain medical care, is a separate and distinct harm from the initial injury, there is no multiplicity problem with the counts based on the original injury. The converse also is true. If there was not sufficient evidence at trial to establish that a delay in obtaining medical care for the injuries underlying Counts 5-7 and 9-13 caused an increased risk of harm, then the verdict on Count 1 could not have been related to those injuries. See Urbina, 2017 WL 2664596, at *7 (finding insufficient evidence of endangerment based on failure to obtain medical care when the state failed to present evidence that the child's prognosis would have been better if care had been obtained sooner); West, 2012 WL 723752, at *7 (same). Under those circumstances, Count 1 would not be multiplicitous with Counts 5-7 or 9-13. Additionally, there was no trial evidence of endangerment as to these counts - that the child would have had a better outcome from the injuries underlying Counts 5-7 or 9-13 if he had received care sooner. For these reasons, there is no basis to find that Count 1 is multiplicitous as to Counts 5-7 or 9-13.
CONCLUSION
In one of the parties' supplemental briefs, they agreed with the Court's framework of Supreme Court law on double jeopardy, which is set forth in this Report and Recommendation. (Doc. 39 at 1-3; Doc. 43 at 2-3.) Applying that law, the Court has determined that Count 1 is not multiplicitous with Counts 5-13 and there is no basis to find the prohibition against double jeopardy was violated by these convictions or sentences. Because the endangerment element of Count 1 requires a showing that the failure to get care charged in that count increased the risk of harm to the victim, that necessarily is a separate harm (and separate unit of prosecution) from the specific injuries caused or permitted under Counts 5-13. Additionally, there was no trial evidence that the victim would have recovered better from the injuries alleged in Counts 5-13 if care had been sought earlier for those injuries. Therefore, the Court finds that the PCR court's denial of the double jeopardy claim did not involve on an unreasonable application of clearly established Supreme Court law.
As a final matter, in the Amended Petition, Petitioner also alleged that she was entitled to relief under § 2254(d)(2), because the state court's rejection of her claim was based on an unreasonable determination of the facts. If a federal court finds a (d)(2) violation, it does not automatically grant relief; rather, the Court then reviews the legal claim de novo, without applying the deference required by the AEDPA. Kipp v. Davis, 971 F.3d 939, 955 (9th Cir. 2020); Maxwell v. Roe, 628 F.3d 486, 506 (9th Cir. 2010) ("because the state court's decision was 'based on an unreasonable determination of the facts' under § 2254(d)(2), the AEDPA deference no longer applies."). Here, examining the double jeopardy claim without deference, the Court found no relief was warranted. For that reason, Petitioner also is not entitled to relief based on her (d)(2) factual argument. Thus, Petitioner is not entitled to relief on any portion of Claim 1.
RECOMMENDATION
Based on the foregoing, the Magistrate Judge recommends that the District Court enter an order denying the joint Motion to Grant the Petition. (Doc. 34.) Additionally, the Magistrate Judge recommends the District Court deny Claim 1 in entirety. If the District Court adopts the Report and Recommendation and denies relief on Claim, the Court should set a deadline for Respondent to file an Answer to Claims 2 to 4.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived.