Opinion
No. 2 CA-CR 2017-0148
05-23-2018
THE STATE OF ARIZONA, Appellee, v. MICHAEL EDWARD BROWN SR., Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Michael J. Miller, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20134231002
The Honorable Teresa Godoy, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Michael Brown appeals from his conviction for child abuse under circumstances likely to produce death or serious physical injury. He argues on appeal that there was insufficient evidence that he had care or custody of a child living in his home or that he placed the child in danger of death or serious injury by failing to seek medical care for injuries she suffered before arriving at the home. He also argues the trial court erred by denying his motion to sever a count alleging he personally injured the child, given that both he and his co-defendant were granted judgments of acquittal on that charge. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Brown's conviction. See State v. Allen, 235 Ariz. 72, ¶ 2 (App. 2014). Two-year-old S.M. stayed at the home of Brown and his fiancée, R.W., between September 20 and September 28, 2013. S.M. has no biological relationship with Brown or R.W., and R.W. claimed she brought her into the home.
¶3 On September 27, another mother, M.C., arrived to pick up her son, G., whom R.W. was also watching while M.C. was at work. R.W. was not home; Brown was there with his and R.W.'s infant child and G. While M.C. was there, S.M. walked into the room, and M.C. was "shocked" to see that she was "badly hurt in her facial area" and "looked like she had been beaten very badly." Brown told S.M. to go back to the other room and play, and told M.C. she had fallen in the bathtub.
¶4 M.C. called 9-1-1 the following day. When police officers responded, R.W. answered the door after a long delay, and officers found Brown in the kitchen holding the infant child. Officers asked about a female child, and Brown told them there was no one else in the home. Officers nevertheless found S.M. standing in a dry bathtub, naked, covered in bruises, and with obvious injuries to her mouth and face. The police immediately sought medical treatment for S.M., and detained Brown and R.W. Officers proceeded to obtain a search warrant for the home, and the search revealed blood spatters in fourteen distinct locations throughout multiple rooms. DNA testing matched some of the spatters to S.M.'s profile.
¶5 Brown and R.W. were indicted on three counts of child abuse under circumstances likely to cause death or serious physical injury for failure to seek medical attention for injury and infection to S.M.'s lower jaw, upper lip, and nasal septum; one count of child abuse under circumstances likely to cause death or serious injury for causing or allowing injury to her left ear; and one count of child abuse under circumstances not likely to produce death or serious injury for failure to seek medical attention for bruising over the surface of her body. See A.R.S. § 13-3623(A)-(B).
The top portion of S.M.'s left ear was torn and infected, and looked like it "had been partially pulled off of her head."
¶6 Five calendar days before trial, Brown filed a motion to dismiss or sever count four, which related to the ear injury, arguing the state could not meet its burden of proof because the court in R.W.'s trial had recently granted her motion for judgment of acquittal under Rule 20, Ariz. R. Crim. P., on the same charge, and the state did not have any additional evidence to present in Brown's case. In the alternative, he argued that he was entitled to severance of count four both as a matter of right and to avoid prejudice on the remaining counts. The trial court denied the motion, concluding the state had a good faith basis to attempt to prove count four, and that the counts were properly joined because they were "part of the same conduct." Subsequently, during trial, the court granted Brown's Rule 20 motions for judgment of acquittal on counts four and five, relating to the ear injury and bruises.
¶7 The jury found Brown guilty of two counts of intentional or knowing child abuse for failure to seek medical treatment for injuries to S.M.'s jaw and lip, and one count of negligent abuse for failure to seek treatment of the injury to her nasal septum. The trial court thereafter concluded the three counts were multiplicitous and subsumed them into a single count, for which it sentenced Brown to a mitigated term of ten years' imprisonment. This appeal followed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Sufficiency of Evidence
¶8 Child abuse pursuant to § 13-3623(A) occurs when, "[u]nder circumstances likely to produce death or serious physical injury, any person . . . having the care or custody of a child . . . causes or permits a child . . . to be placed in a situation where the person or health of the child . . . is endangered." Brown argues the state presented insufficient evidence to support his conviction, specifically the conclusion that he had "care or custody of SM, or that he placed her in danger of serious injury." We review de novo whether there is sufficient evidence to support a conviction, and will reverse only if there is no substantial evidence to support it. Allen, 235 Ariz. 72, ¶ 6. "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290 (1996).
Care or Custody
¶9 The terms "care" and "custody" as used in § 13-3623 are construed according to their everyday or dictionary meanings, and thus "imply accepting responsibility for a child in some manner." State v. Jones, 188 Ariz. 388, 392 (1997). Care in this context means more than the ordinary duty of care to avoid negligently injuring someone, but it does not require assertion of full parental rights. Id. at 393-94 (rejecting definition of custody used for adoptions). Evidence of having care or custody may include providing food, shelter, acting as a caregiver, supervising or disciplining a child, and voluntarily being alone with a child. See id. at 394.
¶10 Here, the evidence indicated Brown and R.W. lived together in a shared household, Brown's name was on the lease, and it could be inferred that he paid for all or most of the household expenses. Brown was the only adult in the home with S.M. on at least one occasion, when M.C. came to pick up her child, and Brown exercised supervision over S.M. on that occasion by ordering her to return to another room.
¶11 Also, Brown told law enforcement officers that he sometimes watched, fed, and played with S.M., but did not change her diapers. And, though he insisted he worked all day and that S.M. was the responsibility of S.M.'s mother and R.W., he was around S.M. enough to observe that she was "constantly" picking at the scab on her ear, picking at and licking her lips, and "constantly" walking into things or falling down. Throughout his interview with law enforcement officers, he repeatedly used the first person terms "I" and "we," insisting both he and R.W. had "been taking care of" S.M. and acknowledging the need to have done more to care for her. He directed treatment of S.M.'s injuries, instructing R.W. to clean her ear injury to prevent infection, and to rinse the injuries in her mouth with hydrogen peroxide. Further, Brown claimed he was "doing . . . the right thing" by "bringing her into my house and trying to nurse her to good health."
¶12 We conclude this evidence was sufficient to allow reasonable jurors to find Brown had accepted responsibility for S.M. and thus had care or custody of her. Further, we reject Brown's suggestion that R.W.'s completion of a greater quantity of childcare tasks while he worked outside the home effectively absolved him of responsibility for a child living in his household. See id. at 394 (appellate court does not reweigh evidence). Despite Brown's general assertion that the evidence was insufficient, the jury was free to draw its own conclusions. See State v. Garfield, 208 Ariz. 275, ¶ 6 (App. 2004) ("If reasonable persons could differ on whether the evidence establishes a fact at issue, that evidence is substantial.").
Failure to Seek Medical Care
¶13 Brown's conviction also required substantial evidence that he allowed S.M. to be placed in danger and that he did so "[u]nder circumstances likely to produce death or serious physical injury." § 13-3623(A). Whether such circumstances are present is "an objective factual inquiry," not subject to any mens rea requirement. State v. Payne, 233 Ariz. 484, ¶¶ 70-71 (2013). Thus, in order to support a conviction for child abuse under § 13-3623(A)(1), there must be substantial evidence that a defendant intentionally or knowingly allowed the child's health to be endangered, but not that the defendant was aware of any likelihood of death or serious physical injury. See id. "'Serious physical injury' means physical injury that creates a reasonable risk of death or that causes serious or permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb." § 13-3623(F)(5).
¶14 Brown asserts that the evidence here showed that injury to S.M. was possible, but not that it was likely, and that there was no evidence he knew delaying treatment was endangering her. Because the record indicates otherwise, we disagree.
¶15 When S.M. was removed from Brown's home and began receiving medical treatment, she was missing four teeth, her lower lip was pulled away from the gum line, and her lower jaw was infected and swollen. One police officer observed what she described as exposed bone on the gum line, though a doctor later testified the area contained necrotic tissue as well as granulation tissue, which begins to form five to seven days after an injury as part of the healing process. Part of her upper lip was missing, and her injuries prevented her from closing her mouth all the way. Because of this, liquid "would just pour out" of S.M.'s mouth when she tried to drink, and she required intravenous fluids when she arrived at the emergency room. Also, she initially required assistance removing drool and secretions from her mouth in order to maintain her airway.
¶16 S.M.'s eyes were nearly shut because of facial swelling. She could not breathe through her nose, which had an obvious "saddle nose deformity," meaning that the "nasal bridge appeared flattened," "basically like a saddle." Initially she had "a lot of drainage from her nose." As of September 30, she had "pus coming out of her nose," and there was "a very foul odor" coming from either her nose or mouth. An October 2 surgical examination revealed that S.M.'s nasal septum had almost completely disintegrated. The process of disintegration could have begun in as little as one week following initial traumatic injury to the nose, but would be "certain" to occur "by a few weeks" after an injury left untreated. Correcting the deformity to S.M.'s nose would ultimately require surgical reconstruction using cartilage from elsewhere in her body.
¶17 Further, one of S.M.'s physicians testified that her inability to eat or drink without assistance placed her at risk of dehydration and related complications, including kidney failure and resulting death. Most importantly, S.M.'s doctors testified that going without treatment for the injuries to her jaw, lip, and septum during the week she lived in Brown's home each made it "probable" or "likely" that she would suffer serious physical injury, including physical disfigurement and complications of infection. This represented substantial evidence of circumstances likely to produce death or serious physical injury.
Although the injury to S.M.'s ear was particularly likely to result in serious complications, the state had elected not to proceed on a theory based on failure to seek treatment for the ear injury. --------
¶18 As for Brown's mens rea, the extent and severity of S.M.'s injuries was such that they were obvious even to non-medically trained individuals. M.C. testified that she had been "shocked" and "couldn't believe [S.M.] was walking out of the bedroom." And Brown's comments to law enforcement indicating he knew S.M.'s injuries "d[id]n't seem to get any better," and that "we need to do something" were sufficient to allow an inference Brown knew he was endangering S.M. by delaying medical treatment. See State v. Borquez, 232 Ariz. 484, ¶ 11 (App. 2013) (reviewing court does not distinguish between direct and circumstantial evidence). The same can also be said of Brown's attempt to conceal S.M. from the responding officers.
¶19 On this record, we conclude Brown's conviction was supported by substantial evidence.
Severance of Count Four
¶20 Brown also argues the trial court erred in denying his motion to sever count four, which alleged he had caused the injury to S.M.'s ear. We review for an abuse of discretion, and will reverse only when an appellant establishes "compelling prejudice against which the trial court was unable to protect." State v. Prince, 204 Ariz. 156, ¶ 13 (2003), quoting State v. Murray, 184 Ariz. 9, 25 (1995). "[A] defendant is not prejudiced by a denial of severance where the jury is instructed to consider each offense separately and advised that each must be proven beyond a reasonable doubt." Id. ¶ 17.
¶21 Joinder of separate offenses is authorized when they "(1) are of the same or similar character; (2) are based on the same conduct or are otherwise connected together in their commission; or (3) are alleged to have been part of a common scheme or plan." Ariz. R. Crim. P. 13.3(a). Joinder of separate offenses is appropriate under Rule 13.3(a)(2) for "a series of connected acts, provable by much of the same evidence," such as charges arising from a single domestic dispute during a short time period. Prince, 204 Ariz. 156, ¶¶ 15, 17; see also State v. Mincey, 115 Ariz. 472, 475-76, 483 (1977) (murder, assault with a deadly weapon, and drug charges committed during "buy-bust" operation properly joined because "part of a continuing series of events"), reversed on other grounds by Mincey v. Arizona, 437 U.S. 385, 388, 402 (1978); State v. Tynes, 95 Ariz. 251, 253-54 (1964) (joinder appropriate for charges of robbery, kidnapping, and rape of same victim during continuing ordeal). Although "temporal proximity" of charges is not enough by itself to establish a connection, it may be considered when other common factors are present. See State v. Comer, 165 Ariz. 413, 418-19 (1990) (counts committed same day against unrelated victims properly joined when connected by "common purpose of obtaining money and supplies").
¶22 When offenses are joined solely because they "are of the same or similar character," Ariz. R. Crim. P. 13.3(a)(1), a defendant is entitled to severance as of right, Ariz. R. Crim. P. 13.4(b). Otherwise, severance of separate counts is required when it is "necessary to promote a fair determination of any defendant's guilt or innocence." Ariz. R. Crim. P. 13.4(a). A trial court considering a motion for severance "must balance the possible prejudice to the defendant against interests of judicial economy." State v. Cruz, 137 Ariz. 541, 544 (1983). Generally, "[a] defendant must move to sever at least 20 days before trial" and "[i]f the motion is denied . . . must renew the motion during trial before or at the close of evidence." Ariz. R. Crim. P. 13.4(c). And, the right to severance is waived when the motion is untimely or not renewed at trial. Id. In such instances, the right to relief on appeal is forfeited unless the defendant establishes that fundamental error occurred. State v. Gonzales, 181 Ariz. 502, 507-08 (1995) (reviewing for fundamental error where defendant failed to renew motion to sever at trial); accord State v. Flythe, 219 Ariz. 117, ¶¶ 3-4 (App. 2008).
Waiver
¶23 Here, Brown filed his motion to sever only five calendar days before his trial, and consideration of the motion ultimately delayed jury selection and commencement of the trial. Brown insists the grounds for severance, specifically the paucity of evidence that he personally had caused the ear injury, could not have been raised until R.W.'s Rule 20 motion for judgment of acquittal was granted in her separate trial. But we agree with the state that the basis for requesting severance, including the basis to claim prejudice regardless of the weight of the evidence, could have been raised in a timely motion. Because Brown does not argue denial of severance was fundamental error, the claim is waived on appeal. See State v. Moreno-Medrano, 218 Ariz. 349, ¶¶ 16-17 (App. 2008) (waiver for failure to argue fundamental error).
Joinder
¶24 However, even were we to conclude that the likelihood of a Rule 20 acquittal on count four was a "previously unknown" ground for severance, making Brown's motion timely under Rule 13.4(c), the trial court did not err in denying it. In this case, joinder was appropriate under Rule 13.3(a)(2), though not because the counts were "part of the same conduct" as the trial court concluded. The injury to S.M.'s ear was not precisely the same conduct as the other charges because, as Brown observes, failure to seek medical care involved an ongoing failure to act, while the ear injury was likely caused by trauma, such as "a pinch and a pull, or a punch." Nevertheless, the charged offenses involved the same victim, and were alleged to have occurred in the same location during the same relatively brief period of time. Cf. Comer, 165 Ariz. at 418-19 (counts involving different victims properly joined when connected by "temporal proximity" and "common purpose of obtaining money and supplies"). Because the counts all demonstrate a general pattern of neglect and poor treatment of S.M., we reject Brown's suggestion that they are wholly unconnected simply because no evidence shows Brown planned to harm S.M.
¶25 In light of these circumstances, the same witnesses would have testified about the circumstances surrounding the discovery of S.M.'s injuries and her subsequent removal from Brown's home. Exhibits and testimony regarding the blood spatter found in the home were relevant to all charges because this evidence suggested the ear injury may have occurred in Brown's home, and also shows Brown was or should have been aware of S.M.'s injuries and corresponding need for medical care. Furthermore, contrary to Brown's assertion, the exhibits showing S.M.'s ear injury were not completely different from those showing other injuries. Two exhibits showed injuries to both S.M.'s face and left ear. These were not duplicative of the one exhibit showing only the cut to the ear, because they showed injury to the ear was visible from the front. On these facts, the evidence overlapped and offenses were sufficiently "connected together in their commission" to be joined under Rule 13.3(a)(2).
Severance
¶26 Because the charges were properly joined under Rule 13.3(a)(2), Brown was not entitled to severance as a matter of right under Rule 13.4(b). Nor has he established that fairness required severance of the charges under Rule 13.4(a). We are unpersuaded by Brown's argument that he suffered prejudice because the allegation that he had caused the injury to S.M.'s ear was worse than passively failing to seek medical care for her other injuries. The extent and severity of S.M.'s other injuries made them no less serious than the ear injury. The actual and potential consequences of failing to treat them, which included the risk of permanent disfigurement and death, were no less dangerous than the ear injury. Despite testimony that S.M.'s ear looked like it "had been partially pulled off of her head," the evidence of her other injuries included descriptions of "missing" portions of her face, mouth, and nose, as well as dead and injured tissue easily mistaken for exposed bone, and obvious odor associated with infection. The descriptions and photos of those injuries were no less graphic than those of the ear injury. In light of these facts, the charges for what Brown attempts to minimize as the "passive failure to get medical care" are not appreciably less serious than the charge that he actively caused injury to S.M.
¶27 Finally, there is no indication the jury was confused about the requirement to find S.M. had been in Brown's care or custody, or that they failed to follow their instructions to consider the charges separately. See Prince, 204 Ariz. 156, ¶ 17 (defendant not prejudiced by denial of severance when jury instructed to consider offenses separately and that each must be proven beyond a reasonable doubt). On this record, Brown cannot establish that severance was "necessary to promote a fair determination of [his] guilt" under Rule 13.4(a), much less the compelling prejudice required to reverse his conviction, see Prince, 204 Ariz. 156, ¶ 13. The trial court did not err in denying the motion for severance.
Disposition
¶28 We affirm Brown's conviction and sentence.