Opinion
No. 2 CA-CR 2013-0438
10-20-2014
THE STATE OF ARIZONA, Appellee, v. ROSANNE BUSTAMANTE INZUNZA, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Lisa M. Hise, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the superior Court in Pima County
No. CR20122057
The Honorable Howard Hantaan, Judge
AFFIRMED
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Lisa M. Hise, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 Following a jury trial, Rosanne Inzunza was convicted of leaving the scene after causing an accident resulting in death or serious physical injury. The trial court sentenced her to a presumptive prison term of five years. On appeal, Inzunza argues the court erred by denying her motion for a judgment of acquittal. She also contends the court erred by refusing to include all of the elements of the offense on the jury verdict form, thereby violating her rights to due process and a fair trial. For the following reasons, we affirm Inzunza's conviction and sentence.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the verdict. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). On May 19, 2012, at around 2:00 a.m., Inzunza was driving a vehicle westbound on Golf Links Road in Tucson. B.M. was a passenger in Inzunza's vehicle, and Inzunza's co-worker, M.B., was driving behind Inzunza. Inzunza lost control of her vehicle, and it jumped the curb and hit a tree. She was able to get out of the vehicle, but the passenger side was "crushed a little bit," and B.M.'s leg was stuck. B.M. was "gasping for air" and "moaning" but was able to speak to Inzunza. Inzunza and B.M. looked for Inzunza's cellular telephone, which B.M. had been using earlier, but they could not find it. Meanwhile, M.B. unsuccessfully tried to get B.M. out of the vehicle. Neither Inzunza nor M.B. called the police. M.B. later told detectives he did not call police because his cellular telephone was dead.
¶3 D.H., who was driving on the other side of Golf Links, saw Inzunza's car, turned around, and stopped nearby. He saw a male and female outside the vehicle, and another female in the passenger seat. The male was "pulling on" the woman who was stuck in the vehicle. D.H. heard the female passenger screaming. The other female was "going through the stuff in the vehicle." After D.H. had been there for approximately six minutes, he called the police. Several minutes later, before police arrived, Inzunza put the items she had gathered from her car into the trunk of M.B.'s car, and they drove away together. B.M. ultimately died from the blunt force trauma she sustained in the accident.
¶4 Inzunza was indicted on one count of leaving the scene after causing an accident resulting in death or serious physical injury. After the close of the state's case, she moved for a judgment of acquittal, arguing the state had not presented sufficient evidence that she, rather than M.B., had caused the accident. The trial court denied the motion. After Inzunza testified, she renewed her motion for a judgment of acquittal, again arguing she did not cause the accident and did not leave the scene voluntarily. Although the court did not state on the record that it denied the renewed motion, it necessarily did so because it proceeded to settle jury instructions with counsel, instruct the jury, and allow the jury to deliberate and return a verdict. The jury found Inzunza guilty as charged, and the court sentenced her to a presumptive prison term of five years. Inzunza timely appealed.
Discussion
¶5 Inzunza first argues the trial court erred by denying her motions for a judgment of acquittal. We review de novo a trial court's denial of a motion for a judgment of acquittal, "viewing the evidence in a light most favorable to sustaining the verdict." State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). Rule 20, Ariz. R. Crim. P., provides that the court "shall enter a judgment of acquittal" after the presentation of either side's evidence "if there is no substantial evidence to warrant a conviction." "Substantial evidence is more than a mere scintilla and is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). We will reverse "only if there is 'a complete absence of probative facts to support a conviction.'" State v. Paris-Sheldon, 214 Ariz. 500, ¶ 32, 154 P.3d 1046, 1056 (App. 2007), quoting State v. Alvarez, 210 Ariz. 24, ¶ 10, 107 P.3d 350, 353 (App. 2005), vacated in part on other grounds, 213 Ariz. 467, 143 P.3d 668 (App. 2006).
¶6 Inzunza was charged under A.R.S. § 28-661(A), which provides,
The driver of a vehicle involved in an accident resulting in injury to or death of a person shall:Section 28-663(A), A.R.S., provides, in relevant part,
1. Immediately stop the vehicle at the scene of the accident or as close to the accident scene as possible but shall immediately return to the accident scene.
2. Remain at the scene of the accident until the driver has fulfilled the requirements of § 28-663.
The driver of a vehicle involved in an accident resulting in injury to or death of a person . . . shall:Inzunza argues "there was no substantial evidence that [she] did not render reasonable assistance" because she "did not leave until it was readily apparent that help was arriving," and she "would have been unable to offer any other medical assistance" to B.M.
1. Give the driver's name and address and the registration number of the vehicle the driver is driving.
2. On request, exhibit the person's driver license to the person struck or the driver or occupants of or person attending a vehicle collided with.
3. Render reasonable assistance to a person injured in the accident, including making arrangements for the carrying of the person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if the carrying is requested by the injured person.
¶7 Our supreme court rejected a similar argument in State v. Milligan, 87 Ariz. 165, 349 P.2d 180 (1960). There, the defendant argued that he was "excused from the duty to render assistance because of the prior ministrations of third parties." Id. at 170, 349 P.2d at 183. The court stated, "[t]he statutory obligation to render reasonable assistance is imposed upon defendant alone; this obligation cannot be discharged by delegation to another party." Id. The court also stated it was the defendant's duty to "'stand ready to comply with the various provisions of the law,'" whether or not the person "'was sufficiently injured to require assistance or so seriously injured that assistance was no longer necessary to [his or her] material well-being.'" Id., quoting Moore v. State, 145 S.W.2d 887, 889 (Tex. Crim. App. 1940) (alteration in Milligan). In response to Milligan's argument that "an offer of assistance would have been futile in view of the assistance already being given . . . by other parties," the court stated, "whatever may be required relative to the duty to render reasonable assistance in a given case is a question of fact for the jury." Id.
¶8 Here, Inzunza argues she was not required to render assistance because "it was readily apparent that help was arriving." But Milligan establishes that the duty to render reasonable assistance does not cease simply because other assistance already is being given. Id. Inzunza attempts to distinguish Milligan on the basis that the individuals rendering assistance in that case "were not medical personnel, but rather were bystanders and witnesses." Apparently referring to her testimony that she heard sirens and saw emergency vehicles before she left the scene, Inzunza asserts that she "did not leave until it was clear that her passenger would be receiving medical help." But the court in Milligan did not qualify its statement that "the statutory obligation to render reasonable assistance . . . cannot be discharged by delegation to another party." Id. The court made no distinction between the obligation to render reasonable assistance when a medically trained third party also is offering assistance, and the obligation to render reasonable assistance when a mere bystander also is offering assistance, and we see no reason to make such a distinction here. In addition, Inzunza's argument focuses on her inability to provide medical assistance to B.M., but we find nothing in the statute that indicates "reasonable assistance" means only medical assistance; indeed, the statute explicitly defines "reasonable assistance" to include "making arrangements" for the injured person to receive medical treatment. § 28-663(A)(3). Inzunza's attempt to distinguish Milligan is unavailing.
¶9 The jury reasonably could have found that Inzunza made no attempt to help B.M. get out of the vehicle and that, after Inzunza had failed to find her cell phone, she made no attempt to call 9-1-1. The evidence further supported a finding that Inzunza had instead collected some belongings from her car and left the scene before emergency vehicles arrived, thereby depriving paramedics of information about the accident that might have aided them in treating B.M. We conclude there was substantial evidence to support Inzunza's conviction.
¶10 Inzunza also argues the trial court erred by "refus[ing] to include all elements of the offense on the verdict form." She claims this error violated her rights to due process and a fair trial.
¶11 Near the end of trial, Inzunza objected to the verdict form because it only required the jury to find that Inzunza had failed to render reasonable assistance, rather than requiring the jury to find that Inzunza had failed to fulfill each requirement of § 28-663(A). The court stated the verdict form did not need to contain all three requirements of § 28-663(A) "[b]ecause the facts don't apply to all three things." The court agreed with the state that the verdict form only needed to contain "the [requirements] that makes sense." The court stated it "under[stood] it seems like an inconsistency," but reasoned that if its reading of the statute was correct, the jury could "find what's appropriate and not just something because it's listed. The two don't count because it didn't happen that way." Inzunza also noted the "verbiage" on the verdict form was different from the statute. The court stated that it thought it was "clear under the third subsection," and the jurors will "know what they're doing." The court reiterated that "the other two [requirements] do not apply" and including them would be "confusing for [the jury]."
As the trial court noted, the first two requirements contemplate a two-vehicle accident involving strangers—not a single-vehicle accident in which the occupants know each other, as was the case here. See State v. Korovkin, 202 Ariz. 493, ¶ 18, 47 P.3d 1131, 1136 (App. 2002) ("'The primary purpose of A.R.S. § 28-661 is to prohibit drivers from seeking to evade civil or criminal liability by escaping before their identity can be established.'"), quoting State v. Powers, 200 Ariz. 363, ¶ 9, 26 P.3d 1134, 1135 (2001).
¶12 The jury instructions included all three requirements of § 28-663(A). We assume, arguendo, that the verdict form should have mirrored the instructions and contained interrogatories for all three requirements, and we review for harmless error. State v. King, 226 Ariz. 253, ¶ 29, 245 P.3d 938, 946 (App. 2011) (applying harmless error standard to error in jury instructions and verdict forms); State v. Green, 200 Ariz. 496, ¶ 21, 29 P.3d 271, 276 (2001) (conviction will not be reversed if "error is clearly harmless"). Error "is harmless if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict." State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993).
The Revised Arizona Jury Instruction verdict form for leaving the scene of an accident includes interrogatories for each of the three requirements and directs the jury to "check each that applies." State Bar of Arizona, Revised Arizona Jury Instructions (Non-Criminal) 28.6612 (2011).
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¶13 Inzunza was charged under § 28-661, which criminalizes failing immediately to stop one's vehicle at the scene of an accident or failing immediately to return to the scene, and failing to remain at the scene until the driver has "fulfilled the requirements of § 28-663[(A)]." Section 28-661 does not provide that the driver must stay at the scene until he or she has fulfilled any one of the three requirements of § 28-663(A); thus, although the statute does not use the word "and," we construe the requirements of § 28-663(A) in the conjunctive, such that if the driver fails to fulfill any one of the three requirements, he or she has violated § 28-661.
¶14 Neither party presented evidence at trial regarding Inzunza's compliance with the first two requirements of § 28-663(A). If the verdict form had included interrogatories regarding the first two requirements, the jury could not have found that the state had proven Inzunza had failed to fulfill those requirements. But that would not have affected the jury's finding that Inzunza failed to render reasonable assistance to B.M. The jury would have rendered a guilty verdict regardless of whether the verdict form contained interrogatories regarding all three requirements of § 28-663(A), because the state needed to prove only that Inzunza failed to fulfill one of those requirements. Thus, we conclude any error in not including each requirement of § 28-663(A) on the verdict form was harmless.
Disposition
¶15 For the foregoing reasons, we affirm Inzunza's conviction and sentence.