Opinion
No. 1 CA-CR 13-0271
02-11-2014
STATE OF ARIZONA, Appellee, v. FRANKIE ALMUINA, Appellant.
Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee Coconino County Public Defender's Office, Flagstaff By Brad Bransky Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Coconino County
No. S0300CR201200591
The Honorable Mark R. Moran, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee
Coconino County Public Defender's Office, Flagstaff
By Brad Bransky
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge John C. Gemmill joined. CATTANI, Judge:
¶1 Frankie Almuina appeals his conviction of criminally negligent child abuse, a class 6 felony, and the resulting sentence. He argues the superior court erred by allowing improper expert testimony into evidence, and he challenges the court's designation of his conviction as a felony instead of a class 1 misdemeanor. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The facts, viewed in the light most favorable to upholding Almuina's conviction, are as follows. In the evening hours of December 28, 2011, Almuina and his wife, K.A., were home with their two-year old son, L.A., and their eleven-month old daughter, S.A. Almuina bound the children's hands and mouths with tape, and K.A. took photographs of the children and posted them online.
¶3 The Coconino County Sheriff's Office was notified, and a sheriff's officer went to the Almuina's residence, where he saw photographs on K.A.'s cell phone of S.A. with tape over her mouth and on her wrists. Almuina was arrested and, after being advised of his Miranda rights, agreed to speak with the officer. When the officer asked Almuina if he understood that he had put his children in danger, Almuina responded that he "realized that now."
Miranda v. Arizona, 384 U.S. 436 (1966).
¶4 The State charged Almuina with two counts of intentional or knowing child abuse in violation of Arizona Revised Statutes ("A.R.S.") section 13-3623(B)(1).
Absent material revisions after the relevant date, we cite a statute's current version.
¶5 Prior to trial, the parties stipulated that Almuina had taped the children's mouths and bodies and that his wife had taken photographs of the incident and posted them online. The parties also stipulated that neither of the children suffered any resulting physical injuries.
¶6 At trial, the State placed the photographs in evidence and presented testimony from a nurse practitioner, Susann Clinton, who looked at the photographs and testified that S.A. appeared to be "extremely distressed." Nurse Clinton elaborated that S.A. was "laying down flat on her back" and crying, which could have led to extra mucous and vomiting, and could have resulted in aspiration. She also noted that, because S.A.'s arms were bound, she likely could not have rolled over to protect herself from aspirating.
¶7 Nurse Clinton also described other potential risks and health problems from the taping incident: (1) removing tape from S.A.'s skin would have been painful and possibly irritating; and (2) holding L.A. upside down while bound with tape by his wrists, ankles, and mouth, could have caused vomiting or aspirating, as well as head, neck, or spinal injuries because he lacked the ability to brace himself with his hands if he were to be dropped.
¶8 Almuina testified and admitted putting tape on his children, but he denied endangering their health or welfare. Almuina claimed he was simply "playing" with the children.
¶9 The jury acquitted Almuina of the charge involving L.A., but convicted him of criminally negligent child abuse, a lesser-included offense of the charge involving S.A. The court designated the conviction a class 6 felony and imposed 18 months of probation. Almuina timely appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033.
DISCUSSION
I. Expert Testimony.
¶10 Almuina argues that the superior court abused its discretion by permitting Nurse Clinton to testify (1) about the health risks S.A. faced by having her hands and mouth taped and (2) that the photographs depicted S.A. in distress. Almuina contends that this testimony constituted an opinion as to whether he endangered the health of S.A. and thereby violated a pre-trial stipulation prohibiting testimony regarding the ultimate issue of whether the victims had been abused.
In making this argument, Almuina refers to both victims. The specific trial testimony he challenges, however, refers only to S.A.
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¶11 Although Almuina acknowledges he did not raise this issue at trial, he argues that it should be reviewed under an abuse of discretion standard. Citing State v. Lujan, 136 Ariz. 326, 666 P.2d 71 (1983), Almuina contends that the parties' pre-trial stipulation—that witnesses would not be asked for their opinion regarding whether the conduct in question constituted "abuse" — preserved the issue for appeal. But Lujan involved an issue raised in a pre-trial motion in limine. Almuina does not cite, and we are unaware of, any authority suggesting that a pre-trial stipulation operates to preserve an objection in the same manner as a motion in limine, which involves a specific objection that results in a court ruling on a disputed issue. We conclude that the parties' pre-trial stipulation did not preserve this issue for appeal, and our review is thus for fundamental error only.
¶12 To obtain relief under fundamental error review, Almuina must show fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-22, 115 P.3d 601, 607-08 (2005). Fundamental error is error that "goes to the foundation of [the] case, takes away a right that is essential to [the] defense, and is of such magnitude that [the defendant] could not have received a fair trial." Id. at 568, ¶ 24, 115 P.3d at 608.
¶13 Prior to trial, the parties stipulated that they would not ask any witness for their "conclusion, opinion, or speculation as to whether the conduct in question constitutes 'abuse,' as this is the ultimate issue for the trier of fact." During trial, the prosecutor questioned Nurse Clinton about one of the photographs of S.A., resulting in the following exchange:
Q. Okay. But I want to switch gears for a bit and ask about risk or endangering the health of the kids. As a[n] expert . . . can you explain to the jury whether taping in this manner would be associated with any risks to the kids? . . . Can you, with reference to Exhibit 23, talk to us about whether this sort of taping might in any way endanger the health of [S.A.].Nurse Clinton further explained how infants experience distress as a result of their mouths being covered and arms immobilized, and she described the resulting health risks associated with this stress, including vomiting and excess mucous that can be aspirated into the lungs.
A. Um, there's a couple of different things that is [sic] very concerning for me as a health care provider. One is, is that she's extremely distressed. The way her eyes are -- just her facial expression, she's really crying. . . . When I -- in seeing
this picture, I feel -- in my experience in seeing thousands of kids, including my time as a pediatric nurse, this kid is really distressed. This infant is really distressed.
¶14 Almuina contends that Nurse Clinton's testimony regarding whether the children's health was endangered was tantamount to testifying that Almuina abused the children. We conclude otherwise because "abuse" and "endangering health" have different meanings.
"Abuse" means the infliction or allowing of physical injury, impairment of bodily function or disfigurement or the infliction of or allowing another person to cause serious emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior and which emotional damage is diagnosed by a medical doctor or psychologist and is caused by the acts or omissions of an individual having care, custody and control of a child. Abuse includes . . . [u]nreasonable confinement of a child.A.R.S. § 8-201(2).
¶15 In contrast, "endanger" "means to subject to potential harm." State v. Mahaney, 193 Ariz. 566, 569, ¶ 18, 975 P.2d 156, 159 (App. 1999). Because someone could be endangered without suffering physical or emotional injury, "endangerment" and "abuse" are not synonymous. See id. at 568-69, ¶¶ 15-18, 975 P.2d at 158-59. Thus, Nurse Clinton did not offer an opinion regarding the ultimate issue of whether Almuina abused the children.
¶16 Almuina further argues that it was improper for Nurse Clinton to testify regarding S.A.'s "degree of distress." But Nurse Clinton's testimony that a crying child is "distressed" did not constitute an opinion that Almuina had "abused" the children. Nurse Clinton's testimony did not violate the pre-trial stipulation or otherwise improperly opine on the ultimate issue of abuse.
¶17 Moreover, even assuming Nurse Clinton's testimony violated the pre-trial stipulation, allowing the testimony did not deny Almuina a fair trial. Almuina's proffered defense was a rebuttal to the charged crime of intentional or knowing child abuse. He testified that he applied tape to S.A. as part of some sort of game. He did not rebut the charge on the basis that infants do not adversely react to having their mouths and hands bound. Nurse Clinton's testimony did not improperly undermine Almuina's defense, and Almuina was in fact successful in persuading the jurors that he did not intentionally or knowingly abuse the children.
¶18 Almuina was convicted only of the lesser-included offense of criminal negligence, which results when "[u]nder circumstances other than those likely to produce death or serious physical injury to a child . . . , any person [ ] causes a child . . . to suffer physical injury or abuse or . . . causes . . . a child . . . to be placed in a situation where the person or health of the child . . . is endangered." A.R.S. § 13-3623(B). The State presented overwhelming evidence establishing this crime, and Almuina has not established error, much less fundamental error.
II. Designation of Conviction.
¶19 Almuina alleges that the superior court improperly considered the jury's verdicts and his lack of remorse in designating the conviction a felony. Almuina did not raise this objection at sentencing, so we review for fundamental error only. See State v. Velazquez, 216 Ariz. 300, 309-10, ¶ 37, 166 P.3d 91, 100-01 (2007) (fundamental error review applies when defendant fails to object at sentencing).
¶20 Under A.R.S. § 13-604(A), the superior court has discretion to designate a non-dangerous class 6 felony conviction as a misdemeanor if in the court's opinion "it would be unduly harsh to sentence the defendant for a felony." In relevant part, the statute provides:
Notwithstanding any other provision of this title, if a person is convicted of any class 6 felony not involving a dangerous offense and if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that it would be unduly harsh to sentence the defendant for a felony, the court may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation in accordance with chapter 9 of this title and refrain from designating the offense as a felony or misdemeanor until the probation is terminated.Id.
¶21 Almuina asserts that the superior court incorrectly felt bound by the jury's verdict and improperly considered Almuina's lack of remorse in declining to designate the crime as a misdemeanor. Citing State v. Tinajero, 188 Ariz. 350, 357, 935 P.2d 928, 935 (App. 1997), Almuina argues that the court's consideration of allegedly inappropriate factors requires a remand for resentencing. But Tinajero involved consideration of an improper aggravating circumstance during a sentencing proceeding. In contrast, here the court was not assessing aggravating circumstances to determine the appropriate sentence within a prescribed range. The court was instead exercising discretion under § 13-604(A), which specifically permits consideration of the nature and circumstances of the crime and the history and character of the defendant. Almuina has not established error, much less fundamental error, in the superior court's discretionary decision to leave his crime designated as a class 6 felony.
CONCLUSION
¶22 Almuina's conviction and sentence are affirmed.