Opinion
No. 2 CA-CR 2013-0263
04-18-2014
THE STATE OF ARIZONA, Appellee, v. JOHN JUNIOR ALVAREZ, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel By Adele Ponce, Assistant Attorney General, Phoenix Counsel for Appellee Harriette P. Levitt, 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NOT FOR PUBLICATION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 Pinal County
No. CR201300100
The Honorable Boyd T. Johnson, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel
By Adele Ponce, Assistant Attorney General, Phoenix
Counsel for Appellee
Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Following a jury trial, John Alvarez was convicted of aggravated assault and child abuse, both class two felonies and dangerous crimes against children. He was sentenced to twenty years in prison on each count, with both sentences to run consecutively. On appeal, Alvarez argues the state presented insufficient evidence to support his convictions and raises several challenges to the sentences imposed by the trial court.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the challenged convictions. See, e.g., State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App. 2008). In September 2009, Alvarez moved to his father's home in Arizona with his girlfriend, S.H., and her son, A.R., who was just under two years of age. Shortly thereafter, S.H. found a job and commuted to work every weekday with Alvarez's father and his father's girlfriend, who also lived in the house. Alvarez cared for A.R. while S.H. was at work.
¶3 On December 16, 2009, S.H. noticed a scrape on A.R.'s back while getting him ready for bed. When she questioned Alvarez about it, he said A.R. had fallen in a fire pit in the backyard. Over the weekend, S.H. observed that A.R. did not appear to be feeling well. At first, she thought he was constipated because his "belly was hard and . . . he wasn't using the bathroom." On Saturday, A.R. "wasn't . . . walking very well" and appeared to be in pain, and on Sunday, he stayed in bed all day. On Monday, S.H. went to work and left A.R. in Alvarez's care. That evening, as she was changing A.R. for bed, she observed bruising on his lower back and discovered his legs were "limp" and he was unable to stand. She took him to an urgent care clinic, where he was examined by a nurse practitioner and then transported by ambulance to a Tucson hospital, where doctors determined that he was paralyzed as the result of a fractured spine. Based on the severity of his injuries, A.R. was airlifted to a Phoenix hospital, where doctors performed emergency surgery to stabilize his spinal injury. The doctor who operated on A.R. also observed a fracture to his first rib.
This fire pit was described as a hole in the ground, approximately three feet deep, used for burning brush.
Doctors refer to human ribs using numbers, with the "first rib" lying directly below the clavicle.
¶4 Following surgery, a pediatric hospitalist examined A.R. and reviewed his x-rays to determine whether his injuries were inflicted, rather than accidental. In addition to the acute injuries to A.R.'s spine and first rib, which had occurred within the past seven days, the hospitalist found evidence of older fractures in his clavicle and five of his ribs. Based on the presence of healing tissue, she concluded these older fractures were the result of injuries that occurred more than seven days before her examination.
¶5 When S.H. was questioned about A.R.'s injuries, she told police that his biological father had come to see him on December 16, the date she found the scrape on his back. However, Alvarez's father and his girlfriend later informed police that Alvarez had been caring for A.R. during the relevant time period. After being arrested on charges of disorderly conduct and false reporting, S.H. confirmed their accounts. Alvarez initially gave police the same explanation he had given S.H.—that A.R. had fallen into the fire pit in his father's backyard. But after being advised that the child's injuries were inconsistent with that account, he added that after A.R. had fallen into the pit, he had jumped in and landed on him.
¶6 Alvarez was indicted on one count of first-degree aggravated assault, A.R.S. §§ 13-1203(A)(1), 13-1204(A)(1), and one count of child abuse under circumstances likely to cause serious physical injury or death, A.R.S. § 13-3623(A)(1). He was convicted and sentenced as set forth above. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
A. Sufficiency of Evidence
¶7 Alvarez argues the trial court improperly denied his motion for judgment of acquittal, made pursuant to Rule 20, Ariz. R. Crim. P., and claims the evidence was insufficient to support a finding that he was responsible for A.R.'s injuries. While acknowledging circumstantial evidence may suffice to support a conviction, Alvarez nevertheless argues that "[p]roof of guilt . . . must be something more than mere innuendo or inference" and contends his conviction was improper because it was based solely on his role as caregiver for A.R. Citing evidence that S.H. lacked concern about her son and had made false statements about the source of his injuries, Alvarez argues "she was just as likely" as he was "to have caused the child's injuries."
¶8 Although we review the trial court's ruling on a Rule 20 motion de novo, State v. West, 226 Ariz. 559, ¶¶ 14-15, 250 P.3d 1188, 1191 (2011), we will reverse only if we find no substantial evidence to warrant conviction, State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App. 1996). "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. 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). But such evidence may be "entirely" circumstantial, State v. Fulminante, 193 Ariz. 485, ¶ 25, 975 P.2d 75, 83-84 (1999), and if "'reasonable minds may differ on inferences drawn from the facts,'" the conviction must be upheld, West, 226 Ariz. 559, ¶ 18, 250 P.3d at 1192, quoting State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997).
¶9 As the state points out, Alvarez has not contested the sufficiency of evidence showing that A.R. suffered multiple injuries as a result of abuse. Indeed, the testimony of Dr. Lee Segal, the orthopedic surgeon who performed A.R.'s spine surgery, and Dr. Wendy Arafiles, the pediatric hospitalist who examined A.R. forensically, was more than sufficient to support a finding that A.R.'s life-threatening injuries were intentionally inflicted. Segal testified that A.R.'s first rib fracture was the type of injury one would "only sustain . . . from high energy trauma," and that his spinal fracture was a "rotational . . . or twisting" injury that could "only [be] caused by child abuse." Arafiles shared this opinion, describing the "large amount of force" required to fracture first ribs, and the "huge amount of force" and "element of torsion" required to produce the spinal injury. She noted how uncommon both types of injuries were in children, and opined they had been caused by an intentional exertion of "violent force" on A.R.'s shoulders as he was positioned over a fulcrum point, such as a chair or table. The spinal and first rib injuries, along with evidence of older fractures to A.R.'s clavicle and lower ribs, led her to conclude that A.R. had been the victim of child abuse.
¶10 Contrary to Alvarez's argument on appeal, the evidence presented at trial also was sufficient to show that he was the cause of A.R.'s injuries. Three different witnesses testified Alvarez had been caring for A.R. on weekdays during the time period when the injuries occurred. And A.R.'s only other caregiver, S.H., testified she never had harmed her son. This statement was supported by Arafiles, who thought it "highly unlikely" that a "130 or 140 pound woman" could exert the amount of force necessary to cause A.R.'s injuries. Finally, the jury's verdicts are supported by evidence that Alvarez initially told S.H. and police that A.R. had fallen into a fire pit but then provided a different (and equally untenable) explanation when confronted with evidence that such a fall could not have caused A.R.'s injuries. See Fulminante, 193 Ariz. 485, ¶ 27, 975 P.2d at 84 (circumstantial evidence that included false and inconsistent statements to police and others showed consciousness of guilt). Taken as a whole, and viewed in the light most favorable to upholding the jury's verdict, we find the evidence sufficient to support Alvarez's convictions. See id. ¶ 25.
While there was no evidence of S.H.'s weight at the time of the incident, defense counsel relied on this weight when questioning Arafiles regarding his alternate theory of the case.
¶11 Alvarez further contends the state failed to adduce evidence that A.R. "exhibited fear of [him] or that [he] had anger issues." But such argument goes to the weight of the evidence, not its sufficiency. See id. ¶ 23 (declining to disturb finding of substantial evidence based on defense evidence that was not per se exculpatory); cf. State v. Quintana, 92 Ariz. 308, 310, 376 P.2d 773, 774 (1962) (inconsistent police testimony did not affect consideration of order denying motion for new trial). For the same reason, the evidence he cites that S.H. made false statements to police, showed a lack of concern for her child, and attempted to conceal a pregnancy—while perhaps a proper consideration for the jury—is immaterial to our analysis of this issue. See Fulminante, 193 Ariz. 485, ¶ 27, 975 P.2d at 83.
B. Alvarez's Sentencing Challenges
1. Aggravating Factors
¶12 Alvarez first argues his aggravated sentences are unlawful because the trial court relied on an aggravating factor that constituted an essential element of each offense—specifically, "the severity of the injury the victim sustained." In support of this argument, he points to the following statements by the court during sentencing:
[Alvarez's probationary status and prior convictions] are aggravating factors. But that one aggravating factor, that treatment of the child, the suffering the child had physically, mentally, emotionally, and believe me, two-year-olds have as much mental and emotional capacity for feeling abused physically and emotionally as
anybody else, is really the major aggravating factor.
¶13 We review the trial court's use of a specific aggravator under a de novo standard, State v. Alvarez, 205 Ariz. 110, ¶ 6, 67 P.3d 706, 708-09 (App. 2003), and, here, where the issue was not raised below, for fundamental error, see State v. Gillen, 171 Ariz. 358, 359, 830 P.2d 879, 880 (App. 1992). We accept the premise that serious physical injury may not be used to aggravate a crime involving "[i]nfliction or threatened infliction of serious physical injury." A.R.S. § 13-701(D)(1). However, we are unpersuaded by Alvarez's attempt to conflate the "suffering" described by the trial court with "serious physical injury." As noted above, his sentences were aggravated not by the victim's injury itself, but, rather, by the "physical[], mental[, and] emotional[]" suffering endured as a result. For purposes of weighing aggravating and mitigating circumstances, this was separate and distinct from the victim's injury. See § 13-701(D)(1), (9) (identifying "physical, emotional or financial harm" and "[i]nfliction . . . of serious physical injury" as separate aggravating factors); see also State v. Munninger, 213 Ariz. 393, ¶ 7, 142 P.3d 701, 704 (App. 2006) (affirming use of "enormous suffering" as aggravator in aggravated assault case). Accordingly, we find no fundamental error in the court's consideration of the victim's suffering as an aggravating factor.
2. Aggravation Based on Prior Convictions
¶14 Alvarez next challenges the aggravation of his sentence based on his having two prior felony convictions within the ten years immediately preceding the date of the offense. See A.R.S. § 13-701(D)(11). He argues the trial court erred because the state had alleged only a single prior conviction as an aggravating circumstance.
¶15 As this issue was not raised below, we review solely for fundamental error. See Gillen, 171 Ariz. at 359, 830 P.2d at 880. Alvarez is correct that the trial court considered his 2008 felony convictions for misconduct involving weapons and theft, among other aggravating circumstances, in imposing aggravated sentences pursuant to § 13-701(D). But in support of his argument, Alvarez cites A.R.S. § 13-703, which permits sentence enhancements for repetitive offenders if the state has filed allegations of prior convictions before trial. See § 13-703(N). Section 13-701, however, imposes no such requirement for the allegation of prior convictions as aggravating circumstances under § 13-701(D)(11). See State v. Scott, 177 Ariz. 131, 141-42, 865 P.2d 792, 802-03 (1993) (defendant only entitled to sufficient notice of aggravating factors to "'have a reasonable opportunity to prepare rebuttal'"), quoting State v. Ortiz, 131 Ariz. 195, 207, 639 P.2d 1020, 1032 (1981).
¶16 In any event, although the state had alleged only a single felony conviction in its allegation of aggravating factors under § 13-701(D), that filing clearly stated, "if . . . the defendant has felony convictions that were not used to enhance the sentence under [A.R.S.] §§ 13-703 or 13-704[,] the state intends to allege the multiple convictions as an aggravating circumstance." And the state's allegations of factors relevant to sentence enhancements pursuant to A.R.S. §§ 13-703 and 13-708 expressly identified both of Alvarez's prior felony convictions. Thus, he clearly had notice of the state's allegations of prior convictions found to be aggravating circumstances at sentencing. See State v. Benak, 199 Ariz. 333, ¶ 16, 18 P.3d 127, 131 (App. 2001) (defendants denied adequate notice if "'misled, surprised or deceived'" by allegations of prior convictions), quoting State v. Bayliss, 146 Ariz. 218, 219, 704 P.2d 1363, 1364 (App. 1985). Accordingly, we find Alvarez has failed to establish error in the court's use of his felony convictions as aggravating circumstances at sentencing.
3. Enhancement Based on Status as Probationer
¶17 In his final argument, Alvarez asserts the trial court "did not make a specific finding that [he] was on probation at the time he committed the alleged offenses." But the court found that evidence in the record "clearly establish[ed Alvarez] was on probation in December of 2009" prior to the pronouncement of sentence. And Alvarez does not dispute the state's assertion that this was sufficient to comply with the requirements of the rules of procedure, nor has he cited any authority to the contrary. See Ariz. R. Crim. P. 19.1(b) (governing proceedings to determine sentencing allegations); Ariz. R. Crim. P. 26.10(b) (governing pronouncement of sentence). Moreover, Alvarez has failed to assert, much less establish, any prejudice resulting from the court's purportedly deficient record. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (appellant not entitled to relief for unpreserved trial error absent showing of prejudice).
The state points out that Alvarez does not appear to challenge either the sufficiency of the evidence on this finding or the procedure followed by the court. To the extent the trial court's sentencing procedure implicates the type of error addressed in Alleyne v. United States, ___ U.S. ___, ___, 133 S. Ct. 2151, 2163 (2013), Alvarez's failure to allege any resulting prejudice forestalls further inquiry. See State v. Lizardi, No. 2 CA-CR 2013-0188, ¶ 18, 2014 WL 1415193 (Ariz. Ct. App. Apr. 11, 2014) (characterizing Alleyne violations as trial error).
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Disposition
¶18 Pursuant to the foregoing analysis, Alvarez's convictions and sentences are affirmed.