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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.
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No. 2 CA-CR 2017-0173
12-21-2018
THE STATE OF ARIZONA, Appellee, v. JUDY MINLEY, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Adele Ponce, Assistant Attorney General, Phoenix Counsel for Appellee Barton & Storts P.C., Tucson By Brick P. Storts, III 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20131358002
The Honorable Christopher Browning, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Adele Ponce, Assistant Attorney General, Phoenix
Counsel for Appellee Barton & Storts P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Judy Minley appeals her convictions for first-degree murder and two counts of intentional or knowing child abuse, contending the evidence was insufficient to support her convictions, the trial court erroneously denied jury instructions she requested, and the state improperly vouched for its case in its closing arguments. We affirm.
Facts and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. See State v. Allen, 235 Ariz. 72, ¶ 2 (App. 2014). On March 20, 2013, Minley beat her four-year-old son, J.D., with a sandal for getting a drink of water out of a bathroom sink without her permission while he was being punished for other behavior. When she felt the beating did not put enough "fear in him," she told her boyfriend James Robinson to take over, retreated to a bedroom to smoke marijuana, and heard Robinson brutally beat the child with the sandal in the next room. When the sandal broke apart during the assault on the child, Minley taped it up so that Robinson could continue the beating.
¶3 The next morning, J.D. lapsed into unconsciousness due to complications from severe bruising over a large percentage of his body. After Minley and Robinson unsuccessfully tried to revive him, Minley called 9-1-1 while Robinson carried the unconscious child to the apartment leasing office seeking help. An emergency squad arrived minutes later and took the child to the hospital for treatment, but he never recovered and died from his injuries two days later.
¶4 At the end of a ten-day trial, the jury convicted Minley of one count of first-degree murder and two counts of intentional or knowing child abuse under circumstances likely to cause death or serious injury—one for beating J.D. and the other for failing to timely seek medical attention for him. The trial court sentenced her to a prison term of natural life on the murder count and seventeen-year terms on each of the child abuse counts, all to be served consecutively. We have jurisdiction over Minley's appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Sufficiency of the Evidence
¶5 Minley argues the state did not present sufficient evidence to support her convictions on any of the counts, and the trial court erred in denying her motion for directed verdict as to the child abuse charge involving failure to seek medical attention. As to the child abuse count for the beating itself, she argues the state did not prove she was the proximate cause of the child's injuries, contending the evidence showed Robinson and not Minley struck the blows that caused the injuries. According to Minley, "[t]he entire cause of those injuries rested on the criminal liability of who inflicted those fatal blows." For the count of child abuse for delay in seeking medical attention, she argues that the state failed to show that she "was present at the time that [J.D.] showed any signs of being in distress" before seeking medical attention. Alternatively, Minley contends the state failed to show that any delay by Minley in seeking medical attention "caused increased harm" to the child. Finally, Minley contends her murder conviction should be overturned because the state failed to adequately prove her conduct was the proximate cause of J.D.'s death.
Minley contested the sufficiency of the evidence on all counts in her motion for directed verdict. On appeal, however, she makes no argument that the trial court erred in denying her motion for directed verdict as to the counts other than the child abuse count for failure to seek medical attention.
¶6 A trial court must grant a motion for judgment of acquittal "if there is no substantial evidence to support a conviction." Ariz. R. Crim. P. 20(a)(1). "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.'" State v. Goudeau, 239 Ariz. 421, ¶ 169 (2016) (quoting State v. West, 226 Ariz. 559, ¶ 16 (2011)). If, "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," a motion for acquittal must be denied. West, 226 Ariz. 559, ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66 (1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))). We review de novo both the sufficiency of the evidence and the trial court's denial of a motion for acquittal. Id. ¶ 15. "In determining whether substantial evidence supports a conviction, we consider both direct and circumstantial evidence, and resolve all inferences against the defendant." Goudeau, 239 Ariz. 421, ¶ 169 (citations omitted).
Absent material change relevant to our decision, we cite to the current version of a statute or rule.
The evidence at trial
Minley's statement to police
¶7 After agreeing to speak to police about what had happened, Minley told them J.D., who was four years old, had discipline problems and would fight and kick when she tried to discipline him. She admitted she did not deal well with his behavior because of her own "anger problems." She was afraid her anger issues might cause her to "beat [J.D.] to where he pass[es] out like he did today." At times, she would try to escape the child's bad behavior by sleeping or smoking a cigarette or marijuana; but frequently she would "whoop" him to make him listen and behave. Beatings typically lasted five to ten minutes.
¶8 Because smacking or hitting J.D. with her hand hurt her hand and "wasn't doing anything," Minley began to routinely use a rubber sandal to hit him. When that "wasn't really doing anything" to alter his behavior to her satisfaction, she began using a second, heavier and more rigid sandal with a heel to hit him. According to Minley, the child had torn that sandal up on a previous occasion when she had beaten him with it, so she repaired it with moving tape and kept it "to whoop him with." She customarily inflicted these "whoopings" on J.D. while he was naked because she "want[ed] to make sure he feels it." On previous occasions, she had "whooped" him to the point that his buttocks were swollen and at times would strike him in other areas.
¶9 Minley said she also had devised a new disciplinary method where she would force J.D. to "work out," which Minley believed would be "better than beating him." For these "workouts," Minley required the child to stand in place holding bottles of laundry detergent at his sides for extended periods. Over time, this method of punishment progressed from "a couple of hours" to "an all-day thing."
¶10 According to Minley, on the afternoon of March 20, 2013, J.D. snuck into the bathroom and got a drink of water, which he was not allowed to do because, according to Minley, "he like[d] to pee everywhere." For punishment, Minley had the child "work out" for several hours with a timed break to eat. But J.D. kept dropping the laundry jugs and became disobedient; for example, he attempted to go to the bathroom without Minley's permission.
¶11 According to Minley, she and J.D. had lived with her boyfriend James Robinson in his apartment since October 2012. She did not work and normally took care of the child during the day. On a typical day, Robinson left for work in the early afternoon and would come home late in the evening. But his wisdom teeth had been removed that morning, and he was woozy from medication and at home in bed recovering. Around nightfall, Minley—who was angry by this time—told Robinson her patience with the child was at an end. Robinson told her to "whoop" the child. She commanded the child to take off his pants for his "whooping," but "didn't give him a bad whooping," and hit him "maybe two, three times" with the heavier sandal, which she had taped that night around the heel so that it would not injure J.D. when she struck him with it. She then had him resume the workout, but when he once again kept dropping the laundry jugs, she became enraged and appealed to Robinson to "put fear in him."
¶12 According to Minley, Robinson was already mad because he was in pain. After Robinson took over supervision of the "workout," J.D. continued to be disobedient, and "start[ed] demanding stuff, like he's running something." At around 7:00 or 8:00 p.m., Minley told Robinson, "If you have to whoop him, whoop him," and indicated she was done dealing with the child for the night. She told Robinson to "make sure [he took] off his pants" to "make sure he felt it." She taped up another sandal for Robinson to strike J.D., and retreated to her bed, because she "didn't want to watch and . . . didn't want to hear it." At some point, she smoked some marijuana to calm down.
¶13 Minley said that Robinson then beat J.D. with the sandal. This was the second time he had beaten the child but the first time he had done it "to the extreme." She estimated Robinson beat J.D. for thirty to forty minutes off and on, and had never before "hit him, like, that bad, or that long"; J.D. was screaming. She stayed in bed because she did not want to see the beating. She never told Robinson to stop.
¶14 Around 10:00 p.m., Minley said she tried to get J.D. to eat a sandwich. According to Minley, Robinson had only "whooped him a little bit" by this point. She did not see the child go to bed. She claimed to be unsure of exactly how long Robinson was hitting him because she fell asleep. She checked on J.D. around 3:00 or 4:00 a.m. but did not notice any injuries because it was dark. According to Minley, he was asleep and was moving around and snoring and seemed fine.
¶15 Minley stated that when she got up in the morning just before 10:00 a.m. and checked on J.D., however, "he was just laying there, staring," and "didn't look healthy." Minley saw that he was "bruised pretty bad," and thought that "James must have beat the shit out of him." At first she just thought he might be faking or tired or sore from getting beaten. Though she knew the beating had been excessive when she first saw him that morning, she did not think about calling 9-1-1 then, because he bruised easily and she thought he might recover in a couple days. She was also worried about getting in trouble and worried that she did not have insurance.
¶16 She ran bathwater for him, as usual. He got in the tub and "just sat there." When first asked whether she had noticed any injuries other than bruising when he got in the bathtub, she said she had not noticed any. But when pressed, she admitted that his buttocks were bleeding. She went away and smoked a cigarette and went to the kitchen to boil some noodles for herself, and when she came back to check on him, he looked sad and tired. She decided she did not want the noodles and left again to turn off the stove, and poured herself some juice. Robinson went in the bathroom and began screaming. When she went to the bathroom Robinson had already picked up J.D. out of the tub. Robinson took him to the kitchen and laid him on the counter; he was losing consciousness and his eyes rolled. She then called 9-1-1 and, along with Robinson, tried to perform CPR. Robinson told her to dress him to get him ready to go to the hospital, which she did.
Robinson's statement to police
¶17 Robinson's account of the "workouts" was similar to Minley's. When J.D. would not listen or talk back, Robinson would "pop" him on his buttocks or arms or legs with a sandal. Minley had given her consent for Robinson to discipline him this way, and Robinson had been doing so for about a month. Minley had specifically asked Robinson to discipline him on one occasion about a week before. She had never intervened when Robinson struck him.
¶18 Robinson said he beat J.D. at around 11:00 p.m. to midnight. He claimed the child continued to disobey him and he became angrier. With a sandal, Robinson hit him on the buttocks, arms, legs, back, and stomach more than ten times. When he lay on the ground and would not get up on command, Robinson continued to strike him with the sandal. J.D. got up, and Robinson told him to lift the laundry jugs again. J.D. picked them up, but then put them down and started to walk away. Robinson then hit him again on his buttocks with the sandal. J.D. picked the jugs up again, but put them down within two or three minutes. Robinson again hit him on his buttocks with the sandal, and the child again picked up the jugs, held them for a couple of minutes, and put them down. Robinson "popped" J.D. yet again and told him to go to bed, which the child did without assistance.
¶19 At some point during this beating, Robinson had J.D. take off his pants and underwear to administer the blows. During the beating, the child told Robinson he was hurting him and pleaded with him to stop. The child's buttocks began to bleed, and at one point, he hit his head on the ground when he was attempting to shield himself from Robinson's blows. But he "seemed fine" to Robinson.
¶20 Robinson said Minley did not participate in this beating, which took place over the course of approximately an hour. Minley was in the master bedroom for the most part but came out at some point and did not tell him to stop. During the beating, the sandal Robinson was using fell apart. Minley taped it up and another one as well so that he could continue the beating. Robinson continued to use the one that was falling apart. At another point during the beating, J.D. ran into the master bedroom.
¶21 According to Robinson, he woke up J.D. about 9:30 a.m. the next day. The child got out of bed on his own and took his clothes off for his bath. Robinson ran water in the tub, and Minley came in during the bath. The water level was up to the child's stomach when he was sitting down. They left him in the tub by himself for five to ten minutes. When Robinson returned, J.D. reportedly was lying motionless in the tub on his back. Robinson lifted him out of the tub and carried him to the kitchen counter and tried to perform CPR. When his attempts at CPR were ineffective, Robinson told Minley to call 9-1-1. She dressed J.D. and Robinson carried him to the apartment office to try to find someone more knowledgeable about CPR.
The child's medical treatment and death
¶22 Minley called 9-1-1 at 11:01 a.m., highly agitated. When asked by the dispatcher if the child had been sick, she told him, "No, yesterday he was being bad and I whooped him." She later repeated that she had "whooped" him. She also told the dispatcher that the night before she had tried to give him something to eat and he would not eat.
¶23 Meanwhile, Robinson carried unconscious J.D. to the apartment leasing office, seeking help; according to the apartment manager, the child's pajamas were dry and his long hair did not appear to be wet, which struck the apartment manager as odd because Robinson told him they had found the child in the tub. Emergency medical personnel arrived within a few minutes; Minley arrived shortly thereafter. When the apartment manager asked Minley what happened, she said she had beaten the child last night and that this morning he was not waking up and not moving very fast, so they had put him in the tub to try to awaken him.
¶24 A paramedic on the scene testified that the child was in cardiac arrest. Emergency medical personnel removed J.D.'s clothing and the paramedic saw bruising on his chest, abdomen, arms, and legs. According to the paramedic, the child's hair, body, and clothes were all dry. The child was taken to the hospital.
¶25 At trial, J.D.'s attending physician in the pediatric intensive care unit testified that J.D. had severe bruising over most of his body. According to the doctor, the child's heart and kidneys were not working well, he was dehydrated, and he had very little neurological function. The kidney failure was likely caused by rhabdomyolysis, a condition in which the child's kidneys were essentially clogged by large numbers of proteins released into the bloodstream from his injuries. J.D.'s dehydration likely contributed to his kidney failure but dehydration alone would not likely have caused it. The child's cardiac arrest was likely caused by high levels of potassium released into the bloodstream from the injuries. Finally, the cardiac arrest and resulting lack of blood flow to J.D.'s brain had likely caused the harm to his neurological function. By his second day in the hospital, he no longer showed any sign of neurological function, and testing determined he was brain dead. J.D. was pronounced dead on his third day in the hospital.
¶26 The forensic pathologist who performed J.D.'s autopsy testified that he had extensive bruising caused by blunt force trauma on his upper torso, abdomen, arms, and legs. Fifty percent of the soft tissue on the child's arms, back, and buttocks had swelling or hemorrhaging; eighty percent of the child's left leg was similarly injured. The bruising involved not only the skin but also the fat and muscle underneath the skin, indicating multiple blows of "significant force." The injuries appeared to have all occurred at about the same time.
¶27 The pathologist's internal exam showed that J.D. had also suffered rhabdomyolysis, caused by muscle damage and resulting in chemicals being released into the bloodstream from the damaged muscle cells and fluid being trapped in tissue. The pathologist explained that rhabdomyolysis progresses slowly, and if treated within the first several hours after their injuries, patients generally survive. If not treated, however, the combination of the loss of circulating fluids and the chemical imbalance in the bloodstream causes organ damage and organ failure, and at some point organs become so dysfunctional that a person cannot recover.
¶28 The pathologist concluded that the child had died from complications of multiple blunt force injuries, which were most likely inflicted by another person. The pathologist estimated that the child suffered his injuries roughly twelve hours before he was taken to the hospital with organ failure.
Evidence from Minley's apartment
¶29 On the afternoon the child entered the hospital, police searched Robinson's and Minley's apartment and found, among other things, several sandals that had been taped. Police also found blood matching J.D.'s DNA profile on his mattress, the carpet in his bedroom, his pajama shorts and underwear, and the master bedroom wall. An officer had noted that morning that the area around the tub was wet but the tub itself was dry.
Substantial evidence supported Minley's convictions
¶30 When "circumstances likely to produce death or serious physical injury" exist, a person may be convicted for knowing or intentional child abuse on any of several theories. A.R.S. § 13-3623(A)(1). Any person in that circumstance commits that offense if she "causes a child . . . to suffer physical injury." Id. Furthermore, if a person "ha[s] the care or custody of [the] child," such a person commits that offense if the person "causes or permits the person or health of the child . . . to be injured." Id. (emphasis added). Alternatively, the offense is committed if she "causes or permits a child . . . to be placed in a situation where the person or health of the child . . . is endangered." Id.
"The knowing or intentional mens rea for child abuse . . . applies only to the defendant's actions, not to the 'under circumstances likely to produce death or serious physical injury' prong." State v. Millis, 242 Ariz. 33, n.7 (App. 2017) (quoting A.R.S. § 13-3623(A)(1)). Minley does not contest that this prong was met, and sufficient evidence supports it, including testimony from the medical professionals about the severity of the child's injuries and the processes by which those injuries caused organ failure and death. --------
¶31 Because Minley had care or custody of J.D., she could be convicted for the charged offense if, under circumstances likely to cause serious physical injury or death, she knowingly permitted him to be physically injured. Minley admitted that Robinson beat the child at her direction, with a weapon she had supplied, and she heard the sounds of the beating from the next room. Though she claimed to have fallen asleep at some point, she knew that the beating went on for at least what she estimated to be thirty or forty minutes—longer than the five to ten minutes she customarily beat J.D., and longer than Robinson had beaten him before. Minley's and Robinson's statements revealed that despite the child's screams, she permitted the beating to proceed, failing to intervene even when presented opportunities to do so, such as when she tried to feed J.D. and he failed to eat, or when he ran into her bedroom, or when Robinson broke the sandal from beating J.D. with it. On the latter occasion, she actively assisted Robinson by taping up the sandal for him to deliver more blows. A reasonable inference arises that Minley, at the very least, knowingly permitted Robinson to inflict a brutal, injurious beating on a four year old.
¶32 Moreover, Minley's statement supports the conclusion that she intended the severe beating. She admitted to a pattern of escalating physical discipline, and indicated frustration that each increasingly severe method of punishment was not accomplishing her desired results. She admitted that she regularly beat J.D. with a sandal, sometimes to the point of causing swelling—a physical injury. See § 13-3623(F)(4) (defining "[p]hysical injury" to include "any skin bruising" or "soft tissue swelling"). She admitted that she struck J.D. multiple times on the fatal night and was so frustrated that she did not want to deal with him anymore. She also admitted she enlisted Robinson to "put fear in him" that night, suggested that he "whoop" the child, and told Robinson to make sure J.D.'s pants were off so that the blows would be more painful. From these facts and others, a reasonable juror could conclude that Minley intended for Robinson to deliver a beating at least as severe as the physically injurious ones she had previously inflicted on the child.
¶33 Minley suggests her conviction should not stand because the state did not show that anyone but Robinson struck the fatal blows. But Minley could be properly convicted for the beating under § 13-3623(A)(1) because a reasonable juror could conclude beyond a reasonable doubt that Minley knowingly permitted the injuries, regardless of whether she struck the blows herself. Cf. State v. West, 238 Ariz. 482, ¶ 30 (App. 2015) (defendant "entitled to a unanimous jury verdict on whether she committed child abuse" but "not entitled to a unanimous jury verdict 'on the precise manner in which the act was committed'" (quoting State v. Herrera, 176 Ariz. 9, 16 (1993))). The evidence was sufficient to support her conviction for child abuse based on the beating.
¶34 Nor did the trial court err finding that sufficient evidence supported Minley's child abuse conviction for failure to seek medical attention. Section 13-3623(A)(1) makes punishable a caretaker's knowing or intentional delay in seeking medical treatment that endangers the child by increasing the child's risk of harm. See West, 238 Ariz. 482, ¶ 10; State v. Fernane, 185 Ariz. 222, 224 (App. 1995) (upholding child abuse conviction for delay in seeking medical treatment where evidence showed "a better chance of survival" if treatment were sought earlier). Here, Minley admitted she saw J.D.'s severe bruising the morning after the beating, and saw that he did not look healthy and was just lying in bed, staring. She further admitted she did not call for help at that point because of economic concerns and fear of getting in trouble. These admissions are substantial evidence that Minley knew the child needed medical treatment. And her decision to instead boil water to make noodles for herself and smoke a cigarette are substantial evidence that she delayed in seeking that treatment.
¶35 Substantial evidence also showed that Minley's delay increased the risk of harm to J.D. The pathologist described the child's rhabdomyolysis as a slowly progressing condition that likely would not have been fatal even several hours after the injuries if medical treatment were sought, and only became fatal at a point where the condition caused irreversible organ dysfunction. A reasonable juror could conclude that Minley's delay in seeking treatment, only about ten hours after the beating ended and at a time when, according to Minley's own testimony, the child was still conscious and responsive, increased the risk that the point of irreversible organ damage would occur before the needed treatment.
¶36 Finally, sufficient evidence supported the first-degree murder conviction. A person is guilty of first-degree murder if she commits intentional or knowing child abuse under § 13-3623(A)(1) and "in the course of and in furtherance of the offense . . . , the person or another person causes the death of any person." A.R.S. § 13-1105(A)(2). "This causation requirement is satisfied when '[b]ut for the conduct the result in question would not have occurred.'" State v. Bennett, 213 Ariz. 562, ¶ 23 (2006) (alteration in original) (quoting A.R.S. § 13-203(A)(1)). If a death "'emanates' from the crime itself, and is a natural and proximate result thereof, it is committed in furtherance of the felony within the meaning of the statute." State v. Lopez, 173 Ariz. 552, 555 (App. 1992). A defendant is the proximate cause of the victim's harm if she caused the harm and the difference between the defendant's intended result and the harm the victim actually suffered "is not so extraordinary that it would be unfair to hold the defendant responsible for the result." State v. Marty, 166 Ariz. 233, 237 (App. 1990) (quoting 1 W. LaFave & A. Scott, Substantive Criminal Law, § 3.12 at 390 (1986)). Whether proximate cause exists depends on whether the risk of the harm the victim suffered was foreseeable. See id.
¶37 Here, the pathologist testified that the multiple blunt-force injuries caused J.D.'s death, and as explained above, Minley was properly convicted of child abuse for inflicting those injuries. The child's treating physician and the pathologist described natural, foreseeable processes by which the severe bruising caused the child's organ failure and death. Substantial evidence thus showed that the beating was the proximate cause of the child's death supporting Minley's first-degree murder conviction.
Proximate Cause Jury Instruction
¶38 Minley argues the court committed fundamental error by failing to give the jury a proximate cause jury instruction. As the state points out, however, the court did give the jury a proximate cause instruction. This argument is without merit.
Intoxication Instructions
¶39 Minley also contends the trial court erred in failing to give the jury an intoxication instruction she requested. The record shows that the court removed the requested voluntary intoxication instruction with Minley's consent, and denied only her request for a voluntary act instruction—a decision that Minley does not now contest. Minley therefore has waived all but fundamental error review on this issue. See State v. Felix, 234 Ariz. 118, ¶ 15 (App. 2014) (citing State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005)). And because Minley does not argue that any error in failing to give the instruction was fundamental and prejudicial, and because no such error is apparent to us, she has waived all review of this issue. See id. ¶ 15 (citing State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008)).
¶40 At any rate, Minley was not entitled to an intoxication instruction. Her defense related to Robinson's alleged temporary intoxication at the time of J.D.'s beating, resulting from taking drugs as prescribed, but the relevant instruction only applies to a defendant's intoxication. See Rev. Ariz. Jury Instr. ("RAJI") Stand. Crim. 5.03-21a (4th ed. 2016) (defendant may be justified in committing offense if it was due to temporary intoxication from non-abusive use of prescribed drugs). Minley, not Robinson, was the defendant here, and the state was not required to establish Robinson's mental state to prove that Minley committed child abuse. See § 13-3623(A)(1); cf. State v. Wall, 212 Ariz. 1, ¶ 20 (2006) ("[I]t is the intent of the one charged as an accomplice, rather than the intent of the main actor, that controls the accomplice's criminal responsibility."). Therefore an intoxication instruction would have been inappropriate and misleading.
¶41 Minley further argues that by not providing an instruction relating to Robinson's alleged intoxication, the trial court "negated this Court's special action ruling," in which we vacated the trial court's ruling precluding evidence that Robinson's conduct on the night he beat J.D. was caused by "emergent delirium" from the prescribed medications he had taken earlier in the day and "[c]hronic solvent intoxication" from fueling jets for his job. Minley v. Browning, No. 2 CA-SA 2016-0006, 2016 WL 2585925, ¶¶ 4-5, 17 (Ariz. App. May 4, 2016) (mem. decision). In that decision, we ruled that evidence was relevant to the issues whether Minley "knew or intended that her child would be injured or endangered" and whether the particular circumstances were likely to produce serious injury or death. Id. ¶¶ 10-11, 13. But the trial court allowed her to present the evidence at issue in the special action; as Minley in fact acknowledges. The jury was free to consider that evidence, contrary to Minley's contention, and our special action ruling required nothing more. See generally id. Similarly, Minley was not "virtually precluded from arguing [her] position on the involuntary intoxication issue"; indeed, she repeatedly argued that position in her closing. To the extent that the lack of an instruction "precluded [Minley] from backing [her] argument with a statement of the law," as she contends, it denied only the opportunity to make a misleading, legally inaccurate argument that Robinson's state of mind could be imputed to her.
¶42 In short, the trial court did not err in failing to give the jury an intoxication instruction.
Prosecutorial Misconduct
¶43 Minley lastly contends the state repeatedly vouched for its case, citing the following excerpts from the state's closing arguments:
This is an intentional or knowing child abuse case.
[E]ven if you want to believe [Minley] never laid a hand on [J.D.] that night, she is still guilty of child abuse.
You don't get to say, . . . I'm going to sit in my room and smoke weed and pretend this is not happening. You don't get to do that. You are, when you do that, permitting James Robinson to commit abuse. That's the best case scenario for her. And so she's still guilty.
So, you know, I didn't know if I burned my kid with an iron that that would cause serious physical injuries[,] right? I mean we don't let people get out from under child abuse that way.
[W]hile both James Robinson and Judy Minley tell parts of what happened that night, it is clear that neither of them tell the entire truth[,] right? . . . [T]he whole bath thing, . . . that didn't happen. . . . [T]hey're both lying about that. They're both making that up. . . . That did not happen. . . . None of that occurred.
[T]hey've beat this child. James has beat him, Judy has beat him.
We may never know how many blows were inflicted by Judy, how many by James. We simply don't know. But it doesn't matter. It doesn't matter . . . .
I mean we all know, there is no question, this kid is beaten from 2:00 in the afternoon to whenever it is they decided to put him to bed, or until he collapsed . . . .
I mean your intent is to cause an injury[,] right? You want it to hurt.
[S]he is James'[s] accomplice when she says go ahead and hit him.
What mother sits there and watches someone beat their kid to the point where the sandal starts falling apart? I mean most people, you would hope, their reaction would be, oh, my gosh, stop, he's had enough. But, no, hers is,
gee, James, hang on a second, let me tape up another sandal for you. I mean[,] what on earth? She is absolutely involved in this crime. . . . So she is guilty under that theory.Minley suggests the cumulative effect of these remarks constitute fundamental error, requiring reversal of her convictions.
I mean, like I said, she is clearly an accomplice to the injuries. . . . she is still guilty . . . .
[When she] handed the discipline over to James, . . . that wasn't the end of it[,] right?
So she's aware of what's happening.
¶44 "Vouching may occur in two ways: the prosecution may place the prestige of the government behind the witness or may indicate that information not presented to the jury supports the witness's testimony." State v. Salcido, 140 Ariz. 342, 344 (App. 1984) (quoting United States v. Roberts, 618 F.2d 530, 533-34 (9th Cir. 1980)). "The first type of vouching involves [a prosecutor's] personal assurances of a witness's veracity . . . ." Id. (quoting Roberts, 618 F.2d at 533-34). "The second type of vouching involves prosecutorial remarks that bolster a witness's credibility by reference to matters outside the record," and may require reversal if "the remarks, fairly construed, were based on [the prosecutor's] personal knowledge apart from the evidence in the case and that the jury might have so understood them." Id. (quoting Roberts, 618 F.2d at 533-34).
¶45 Fairly construed and taken in context, none of the cited statements constitute either type of vouching; they are argument on the evidence the jury heard and the relevant law. In many of the instances Minley cites, the state explicitly referred to evidence the jury heard either within the excerpt or directly before or after.
¶46 According to Minley, the comments are improper commentary on "the State's own belief" about the case. "It is improper and unethical for an attorney in his closing argument to express his personal opinion as to a defendant's guilt or innocence." State v. Van Den Berg, 164 Ariz. 192, 196 (App. 1990). In a Ninth Circuit case Minley cites, Orebo v. United States, the court considered a prosecutor's explicit expressions of belief in the defendant's guilt during the state's closing arguments and found no prejudice, deeming any impropriety in the comments "at most an occasional slip of the tongue not unknown in extemporaneous speaking." 293 F.2d 747, 749 & n.1 (9th Cir. 1961). None of the comments here contain explicit expressions of the prosecutor's belief in the defendant's guilt; at most, a few of the comments (e.g. "she is still guilty") could be taken to imply such a belief. As in Orebo, Minley failed to object at trial to any of the state's comments, in which any imprecision would have been "easily correctible by the trial court upon seasonable objection." Id. at 749. Because Minley's failure to object precludes all but fundamental error review, and because the prosecutor's remarks were not "so egregious as to deprive the defendant of a fair trial," we decline Minley's request for a new trial on this basis. Van Den Berg, 164 Ariz. at 196 (upholding conviction where prosecutor "stat[ed] his opinion that the ultimate question at issue had been established" during closing argument in "a solitary remark with no objection").
Disposition
¶47 We affirm Minley's convictions and sentences.