Opinion
2 CA-CR 2022-0176
01-30-2024
The State of Arizona, Appellee, v. Warren Ambrose Gastelum, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee The Law Offices of Stephanie K. Bond P.C., Tucson By Stephanie K. Bond Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20165595001 The Honorable James E. Marner, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee
The Law Offices of Stephanie K. Bond P.C., Tucson By Stephanie K. Bond Counsel for Appellant
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE
¶1 Warren Gastelum appeals from his conviction and sentence for negligent child abuse arising from the death of his former girlfriend's daughter. He asserts the trial court erred with regard to his motion for acquittal, motion to dismiss, jury instructions, and sentencing. For the following reasons, we affirm Gastelum's conviction and sentence.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to the jury's verdict and resolve reasonable inferences against Gastelum. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In December 2016, emergency personnel responded to a report of a child having potentially drowned in a bathtub. When the first emergency responder arrived, Gastelum yelled for him to come into the apartment and help. K.B., who was two years and nine months old, was laying on the bathroom floor unresponsive. Her hair was wet, but there was little water in the bathtub or on the floor.
¶3 K.B. presented at the hospital with a complex, depressed skull fracture, swelling on the back of her head, a subdural hematoma, bruises near her eye, hip, and back, and multiple different types of hemorrhages in multiple layers of her eyes. She later died from her brain injury. An autopsy concluded K.B.'s manner of death was homicide caused by a skull fracture with blunt force injuries.
¶4 Gastelum testified he had been at the apartment caring for four sick children while his girlfriend was at work. He stated he had placed K.B. in the bathtub with "her back toward the faucet and her face toward the wall." He then went to clean up the apartment, took out the trash, and periodically checked on K.B. to see if she was ready to get out, to which she responded "no."
¶5 He testified that, at one point, K.B. had not answered when he called out. He stated he had found her "laying in the bath tub with her eyes closed and her fists clenched, and she was unresponsive." He drained the bathtub, called 9-1-1, and performed CPR-during which K.B. vomited. He told police that K.B. did not have a history of seizures, but he thought she may have had a seizure falling backwards in the bathtub.
¶6 Gastelum was charged with first-degree murder and child abuse under circumstances likely to produce death or serious physical injury. His first trial ended in a mistrial after jurors were unable to reach unanimous verdicts. After a thirteen-day retrial, a jury found Gastelum not guilty of both murder and intentional or knowing child abuse under circumstances likely to produce death or serious injury. However, the jury found him guilty of the lesser-included offense of negligent child abuse under circumstances likely to produce death or serious physical injury.
Gastelum was also charged with two counts of child abuse not likely to produce death or serious injury but those counts were not submitted to the jury and were later dismissed without prejudice.
¶7 After a priors trial, the court found Gastelum had two prior historical felony convictions and sentenced him to an enhanced, maximum term of twelve years' imprisonment. This appeal followed. Except as noted, we have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
On appeal, Gastelum asserts the trial court erred in denying his motion for new trial pursuant to Rule 24.1, Ariz. R. Crim. P. Gastelum filed his notice of appeal in November 2022 from the judgment of guilt and sentence rendered. The court subsequently ruled on his motion for new trial in December 2022. Gastelum did not file a new or amended notice of appeal after the denial of his motion for new trial, and thus we lack jurisdiction to consider it. See Ariz. R. Crim. P. 31.2(h) ("If the superior court enters an order . . . denying relief under Rule 24 after a notice of appeal . . . has been filed, a party seeking review of the order must file an amended notice no later than 20 days after entry of the order."); State v. Wilson, 253 Ariz. 191, n.3 (App. 2022) (we lack jurisdiction to consider ruling on a motion for new trial not encompassed by notice of appeal).
Discussion
I. Negligent Child Abuse
A. Rule 20 motion
¶8 Gastelum contends insufficient evidence supports his conviction for negligent child abuse and argues the trial court erred by denying his motion for acquittal pursuant to Rule 20, Ariz. R. Crim. P. He asserts the state provided no evidence to show how he had caused K.B.'s injuries other than by "blunt force object and shaking" while his evidence solely supported a theory that K.B. accidentally fell in the bathtub. Thus, he argues, "Neither side presented evidence that K.B.'s injuries were the result of a negligent act." We review the court's denial of a Rule 20 motion de novo. State v. West, 226 Ariz. 559, ¶ 15 (2011).
¶9 After the state presented its case-in-chief, Gastelum moved for acquittal on all charges pursuant to Rule 20. He argued the state had failed to present evidence that he acted intentionally or knowingly or that he caused any injury to K.B. The state countered that intent could be inferred from the evidence and that Gastelum only needed to intend his actions, not the outcome. The trial court denied Gastelum's motion. Gastelum renewed his motion on the same grounds after he finished presenting evidence and after the state finished presenting rebuttal evidence. The court again denied the motions.
¶10 In reviewing a Rule 20 motion "the controlling question is solely whether the record contains 'substantial evidence to warrant a conviction.'" West, 226 Ariz. 559, ¶ 14 (quoting Ariz. R. Crim. P. 20(a)). 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." Id. ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 67 (1990)). We view the evidence in the light most favorable to sustaining the jury's verdict and if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," we will not reverse the denial of a Rule 20 motion. Id. (quoting Mathers, 165 Ariz. at 66); see also State v. Lee, 189 Ariz. 590, 603 (1997) (if reasonable minds can differ on factual inferences, evidence is substantial and trial court has no discretion to grant Rule 20 motion).
¶11 To sustain the conviction, the record must contain substantial evidence that Gastelum, with criminal negligence and "[u]nder circumstances likely to produce death or serious physical injury," caused K.B. to suffer physical injury. A.R.S. § 13-3623(A)(3). "Criminal negligence" means "a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists." A.R.S. § 13-105(10)(d). "The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." Id.; see also In re William G., 192 Ariz. 208, 215 (App. 1997) (likening the term "gross" to "flagrant, extreme, outrageous, heinous or grievous"). "[I]f a person acts intentionally, knowingly or recklessly," then criminal negligence has necessarily been established. A.R.S. § 13-202(C); see also State v. Nunez, 167 Ariz. 272, 278 (1991).
Absent material changes from the date of Gastelum's offense, we cite current statutory versions. Section 13-3623(A) also provides that a person is guilty of child abuse if, "[u]nder circumstances likely to produce death or serious physical injury" the person has "care or custody of a child" and "permits the person or health of the child . . . to be injured" or "permits a child . . . to be placed in a situation where the person or health of the child . . . is endangered." As explained further below, over the state's objection, the trial court did not instruct the jury on these theories in this case.
¶12 At trial, Gastelum argued K.B.'s death was the result of "a freak accident." He denied hitting K.B. with any object or shaking her. He presented expert witnesses including a forensic pathologist, injury-biomechanical engineer, and pediatric neurologist who opined that K.B.'s fatal injuries were consistent with an accidental fall resulting in her hitting her head backward on the bathtub faucet. The state, to the contrary, asserted that Gastelum had intentionally injured K.B. It did not present a specific theory of how, but presented numerous expert witnesses who had evaluated K.B. at the hospital and who opined her injuries would not have been typically caused by an accidental fall in the bathtub and instead were consistent with inflicted, non-accidental trauma or abusive head trauma.
¶13 Experts agreed that K.B. had suffered an impact injury, but disagreed as to whether she could have been shaken against something to cause her injuries. A forensic pediatrician testified that whatever object K.B. had hit "[did not] describe intent" because there are "a lot of possibilities, how hard did you hit that object, was it a fall, was it you were thrown against it, slammed into it." And Gastelum's expert witnesses all agreed with the state that they could not rule out that K.B. may not have fallen in the bathtub unaided-meaning that the injury could have been inflicted.
¶14 On appeal, Gastelum and the state primarily argue over whether there was sufficient evidence for the jury to conclude that it was negligent for Gastelum to have left K.B. unattended in the bathtub. But we need not reach this argument. Gastelum does not acknowledge that the jury could reasonably conclude from the evidence that he had caused K.B.'s fatal injury by impacting her against an object, such as the bathtub faucet, but had done so negligently rather than intentionally or knowingly. See State v. Rios, 255 Ariz. 124, ¶ 21 (App. 2023) (mental state may be difficult to prove, but may be inferred from all of the circumstances); see also State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 38 (App. 2013) (appellate court does not reweigh evidence or assess witness credibility).
The trial court initially determined substantial evidence supported all three means of commission under the child abuse statute and determined it would instruct the jury on all three means. See § 13-3623(A); see also State v. West, 238 Ariz. 482, ¶ 19 (App. 2015) (§ 13-3623(A) is alternative-means statute that provides more than one way of committing child abuse). The court later decided it would not instruct on the "permits" and "endanger[s]" means, § 13-3623(A), concluding that those "are more related to acts of omission as opposed to commission" and that Gastelum was not on notice of them. As it is unnecessary to our disposition of the appeal, we express no opinion on the correctness of those conclusions. See State v. Wood, 180 Ariz. 53, 72 (1994) (need not reach issues unnecessary to appeal's disposition).
¶15 And although Gastelum was acquitted of intentional or knowing child abuse, substantial evidence was presented such that reasonable minds could have reached that alternative result. Therefore, there is necessarily substantial evidence to support a finding of criminal negligence. See § 13-202(C) ("If a statute provides that criminal negligence suffices to establish an element of an offense, that element also is established if a person acts intentionally, knowingly or recklessly."); Nunez, 167 Ariz. at 278-79 (applying § 13-202(C) in sufficiency of the evidence analysis of negligent homicide); cf. State v. Valentini, 231 Ariz. 579, ¶ 12 (App. 2013) ("[I]f the State proves a defendant acted intentionally, by definition, it has proved the defendant acted knowingly and recklessly."). Despite conflicting evidence, substantial evidence supports the jury's verdict, and the trial court did not err by denying Gastelum's Rule 20 motion.
Gastelum does not assert there is insufficient evidence of "circumstances likely to produce death or serious physical injury," but we nevertheless observe that K.B.'s death is sufficient proof of this element. See State v. Martinson, 241 Ariz. 93, ¶ 41 (App. 2016).
B. Jury instruction
¶16 Gastelum also argues the trial court erred by instructing the jury on negligent child abuse over his objection. In addition to asserting there was insufficient evidence to support the instruction, Gastelum argues the court could not provide the instruction because, on the facts of this case, negligent child abuse is not a necessarily included offense of intentional child abuse. He further asserts the court was precluded from providing the negligent child abuse instruction because he lacked notice that the state would pursue that theory. We review the court's decision on whether to provide a jury instruction for an abuse of discretion. State v. Dann, 220 Ariz. 351, ¶ 51 (2009). 1. Necessarily included offense
¶17 During his second trial, Gastelum objected to the trial court instructing the jury on lesser-included offenses. He argued criminal negligence was not a "lesser included offense of abusive head trauma" and he was not on notice of it. Over his objection, the court instructed the jury on reckless and negligent child abuse. It reasoned that "only the first prong of the child abuse statute is applicable" however "the lesser included is warranted because . . . the jury could find that although Mr. Gastelum committed the affirmative act that it could have been done recklessly or with criminal negligence."
An expert at trial testified that "abusive head trauma" is a medical diagnosis that can encompass impact trauma, shaking trauma, or a combination of both that impacts the brain. The jury was instructed that "[t]he diagnosis of abusive head trauma/non-accidental trauma testified about by the doctors who testified at trial is not a comment on whether the defendant is guilty or not guilty. The diagnosis is a medical opinion and is not a legal finding."
¶18 A party is entitled to a jury instruction on "any theory reasonably supported by the evidence." State v. Rodriguez, 192 Ariz. 58, ¶ 16 (1998). "An instruction on an offense other than that charged is proper if the offense is included within the charged offense and the evidence supports giving the instruction." State v. Agueda, 253 Ariz. 388, ¶ 11 (2022) (quoting State v. Lua, 237 Ariz. 301, ¶ 5 (2015)); see also Ariz. R. Crim. P. 21.4(a)(1) (on request of party and if supported by evidence, jury must be provided verdict forms for "all offenses necessarily included in the offense charged").
¶19 Gastelum concedes that negligent child abuse is a lesser- included offense of intentional child abuse. See § 13-202(C); cf. State v. Bay, 150 Ariz. 112, 117 (1986) (reckless burning is lesser-included of arson of an occupied structure because only significant difference between crimes is required mental state). However, as he argues, a lesser-included offense is not always a necessarily included offense:
An offense is "lesser included" when the "greater offense cannot be committed without necessarily committing the lesser offense." But an offense is "necessarily included," and so requires that a jury instruction be given, only when it is lesser included and the evidence is sufficient to support giving the instruction.State v. Wall, 212 Ariz. 1, ¶ 14 (2006) (citation omitted) (quoting State v. Dugan, 125 Ariz. 194, 195 (1980)). Evidence is sufficient to support the instruction if the jury can find "(a) that the State failed to prove an element of the greater offense and (b) that the evidence is sufficient to support a conviction on the lesser offense." Id. ¶ 18; see also State v. Schroeder, 95 Ariz. 255, 259 (1964); State v. Salazar, 173 Ariz. 399, 408 (1992) (court should refuse lesser-included instruction when defendant is either guilty of crime charged or not guilty at all).
Wall interpreted former Rule 23.3, Ariz. R. Crim. P., which similarly to the current Rule 21.4 provided that "[f]orms of verdicts shall be submitted to the jury for all offenses necessarily included in the offense charged." See 212 Ariz. 1, ¶ 13; see also Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017).
¶20 On appeal, Gastelum asserts that he presented "an all-or- nothing 'accident' defense" and that if the jury had believed his version of events, they would be required to acquit him, meaning the trial court should have refused the lesser-included instruction. A trial court is not "automatically precluded from instructing on a lesser-included offense because a defendant elects to present an all-or-nothing defense." State v. Bearup, 221 Ariz. 163, ¶ 26 (2009). A lesser-included instruction is proper if the evidence creates a factual dispute as to the offered defense. Id. ¶ 27.
The question is whether sufficient evidence supports the instruction. Wall, 212 Ariz. 1, ¶ 31. We therefore "must examine whether the jury could rationally fail to find the distinguishing element of the greater offense." State v. Delahanty, 226 Ariz. 502, ¶ 23 (2011) (quoting Bearup, 221 Ariz. 163, ¶ 23).
¶21 The parties presented evidence from which a jury could reasonably conclude that the state had failed to prove intentional or knowing conduct and instead solely find that Gastelum had committed negligent child abuse. As illustrated above, Gastelum's expert witnesses testified K.B.'s injuries were consistent with an accident, but none of them could rule out that her injuries may have been inflicted. Thus, a rational jury could conclude that K.B.'s injuries had been inflicted, but with a lesser culpable mental state than intentional or knowing. See State v. Borquez, 232 Ariz. 484, ¶ 11 (App. 2013) (circumstantial evidence can be sufficient to support conviction). Because negligent child abuse is a lesser-included offense of intentional or knowing child abuse and because the evidence was sufficient to support the conviction, the trial court did not err in instructing the jury on negligent child abuse.
2. Notice
¶22 Gastelum also argues he was "blind-sided with the new theory" of negligent child abuse and contends he was solely on notice of "[i]ntentional acts to the exclusion of lesser included offenses." He asserts that because the indictment charged intentional or knowing child abuse "to wit: Abusive Head Trauma" and because the state maintained that theory throughout trial, the negligent child abuse jury instruction was impermissible. The state responds that Gastelum received notice of the criminal negligence theory from both the indictment and his request for the instruction in the first trial.
¶23 The indictment charged Gastelum with intentional or knowing child abuse in violation of § 13-3623(A)(1), "to wit: Abusive Head Trauma." It alleged he had, under circumstances likely to produce death or serious physical injury, intentionally or knowingly caused physical injury to K.B. At his first trial, Gastelum requested the trial court include instructions on reckless and negligent child abuse as lesser-included offenses of intentional child abuse. The court did so. During jury selection at his second trial, Gastelum attempted to ask prospective jurors whether they thought leaving a child "who is two years old and nine months unattended for five minutes . . . is just unreasonable." The state objected, and the court sustained the objection.
The indictment also charged that Gastelum "having care or custody of K.B. caus[ed] or permitt[ed] . . . [her] health . . . to be injured or, having care or custody of K.B. caus[ed] or permitt[ed] [her] to be placed in a situation where her person or health was endangered." But, as explained above, over the state's objection, the trial court did not instruct the jury on these theories.
Gastelum also asked to include similar questions in the jury questionnaire, but the trial court denied the request.
¶24 Gastelum later objected to the state's request to submit the lesser-included offenses to the jury asserting that he was not "on notice" of them. The trial court was unpersuaded given the instructions had been provided in the first trial and Gastelum had sought to ask prospective jurors about criminal negligence in the second trial.
¶25 "An offense specified in an indictment, information, or complaint is a charge of that offense and all necessarily included offenses." Ariz. R. Crim. P. 13.1(e). "Thus, the defendant is on notice from the beginning of the proceedings against him that the jury may be asked to consider any lesser included offenses supported by the trial evidence." State v. Gipson, 229 Ariz. 484, ¶ 14 (2012); see also State v. Erivez, 236 Ariz. 472, ¶¶ 20, 21 (App. 2015).
¶26 Gastelum attempts to distinguish Gipson, asserting that unlike him the defendant there was on notice of the lesser-included offense "via the complaint and the indictment." However, we see no meaningful difference between Gipson and this case as it relates to notice provided from the indictment. In Gipson, the indictment only facially charged first-degree murder. 229 Ariz. 484, ¶ 4. The trial court nevertheless instructed on second-degree murder and manslaughter over both parties' objections, and the defendant was subsequently convicted of manslaughter. Id. Because manslaughter is a lesser-included offense of first-degree murder, the defendant was on notice that the jury might be asked to consider it if it was supported by the evidence, and the instruction was permissible. Id. ¶ 14.
¶27 Similarly, here, Gastelum argues he was only facially charged with intentional or knowing child abuse. As explained above, negligent child abuse is a lesser-included offense of intentional child abuse. See § 13-202(C); cf. Bay, 150 Ariz. at 117. The means by which the crime was allegedly committed-"Abusive Head Trauma"-is a medical diagnosis, not a legal conclusion. And even though "abusive head trauma" is characterized by an affirmative act, as explained above, that act could have been done negligently, and therefore did not prevent Gastelum from receiving notice of criminal negligence.
¶28 Moreover, the trial court gave the instruction in the first trial at Gastelum's request, and Gastelum apparently sought to question prospective jurors on a theory of criminal negligence during the second trial. Cf. State v. Moore, 222 Ariz. 1, ¶¶ 55-56 (2009) (notice of predicate felony not inadequate when defendant failed to show prejudice or unfair surprise). Gastelum had notice of the negligent child abuse charge, and the court did not err in providing a corresponding instruction.
Because we conclude the indictment put Gastelum on notice of the negligent child abuse charge, we need not reach his arguments that the initial complaint and grand jury transcript similarly failed to provide him with notice. See Wood, 180 Ariz. at 72.
II. Failure to Preserve Evidence
A. Motion to dismiss
¶29 Gastelum also asserts the trial court should have dismissed the charges against him because the state violated his due process rights by failing to preserve exculpatory evidence. We review a court's ruling on a motion to dismiss an indictment for an abuse of discretion. See State v. O'Dell, 202 Ariz. 453, ¶ 8 (App. 2002). We review an alleged due process violation de novo. See id.
¶30 After they arrived at the apartment, police detectives conducted a search, seized various items, and took pictures. Some of the pictures show long, dark hair in the bathtub. K.B. had long, dark hair, and others in the family also have long, dark hair. The detectives did not collect the hair.
¶31 Before his second trial, Gastelum moved to dismiss the indictment based on the state's failure to collect the hair. He asserted disclosure of the hair was required under Rule 15.1, Ariz. R. Crim. P., and the due process clauses of the United States and Arizona Constitutions. He argued he was prejudiced by the failure to collect the hair because it was exculpatory and would have corroborated his testimony that K.B. had been injured in the bathtub. The state responded that the hair had "limited to no relevance and is certainly not exculpatory." It further asserted Gastelum could not show prejudice.
¶32 The trial court denied Gastelum's motion to dismiss. On appeal, Gastelum reasserts his arguments.
¶33 Due process requires a criminal defendant be "afforded a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485 (1984). To safeguard that right, the state is "required to disclose all plainly exculpatory evidence within its possession." O'Dell, 202 Ariz. 453, ¶ 10 (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)); see also State v. Lehr, 227 Ariz. 140, ¶¶ 39-41 (2011); Ariz. R. Crim. P. 15.1(b)(8) (state required to provide defendant with evidence within its possession or control "that tends to mitigate or negate the defendant's guilt or would tend to reduce the defendant's punishment" within its possession or control).
¶34 At trial, an investigating detective testified the hair had not been collected because there was no need to identify any unknown person at the scene. She further testified that even if they had collected the hair, they would not necessarily have been able to determine who the hair belonged to, how it had been removed, or when it had transferred to the bathtub. Another detective stated that, in her experience, when children suffer head trauma, "it is often the case that people will place them in a bath . . . to try to wake them up." One of the responding officers testified that it was not unusual to find some human hair strewn about a bathtub or sink during an investigation.
¶35 As the state's witnesses testified, the uncollected hair could have come from a prior bath, might not have belonged to K.B., or could have been made wet while Gastelum tried to resuscitate K.B. Therefore, Gastelum's claim that the hair would have corroborated his version of events is purely speculative, and the hair was of marginal, if any, relevance to the defense. See O'Dell, 202 Ariz. 453, ¶ 13 ("The mere possibility that destroyed evidence could have exculpated a defendant is insufficient to establish a due process violation ....").
¶36 Even assuming, as Gastelum asserts, that the hair found in the bathtub were shown to have been K.B.'s, to have been wet, and to have had blood on it, this still would not exculpate him. The evidence did not preclude the possibility that Gastelum had caused K.B.'s injuries in the bathtub, and supported by the testimony above, the state argued as much, stating that K.B.'s injuries could have been the result of a non-accidental impact against the faucet. Because the hair was not "material exculpatory evidence," the state's failure to preserve it did not violate Gastelum's right to present a complete defense. Lehr, 227 Ariz. 140, ¶¶ 39-40 (quoting State v. Speer, 221 Ariz. 449, ¶ 37 (2009)).
When evidence no longer exists, "due process is violated only if a defendant shows the state had acted in bad faith in failing to preserve the evidence." O'Dell, 202 Ariz. 453, ¶ 12. Because the evidence was not exculpatory, we need not reach bad faith, but nonetheless observe that Gastelum has not alleged it. He argues "substantial prejudice" applies, but has not sustained that burden either. See State v. Gerhardt, 161 Ariz. 410, 412 (App. 1989). His due process claim necessarily fails.
B. Willits instruction
¶37 Relying on State v. Willits, 96 Ariz. 184 (1964), Gastelum alternatively asserts the trial court erred by failing to instruct the jury that it could draw an inference adverse to the state from its failure to preserve the hair. We review the court's decision on whether to provide a Willits instruction for an abuse of discretion. State v. Glissendorf, 235 Ariz. 147, ¶ 7 (2014).
¶38 In his motion to dismiss, Gastelum alternatively requested the trial court provide a Willits instruction. The court deferred ruling on the instruction and denied it at trial, stating that Gastelum's arguments raised "ancillary issues and by no stretch rise to the level of giving the Willits instruction."
At trial, Gastelum also requested a Willits instruction concerning his unrecorded statements to police and an untested substance on K.B.'s shirt. On appeal, Gastelum makes no arguments as to this evidence, and thus we do not address it. See State v. Vargas, 249 Ariz. 186, ¶ 22 (2020).
¶39 "Generally, a defendant is entitled to a Willits instruction if:
(1) the state failed to preserve obviously material and reasonably accessible evidence that could have had a tendency to exonerate the accused; and (2) there was resulting prejudice." State v. Hernandez, 250 Ariz. 28, ¶ 10 (2020). "[E]vidence is 'obviously material' when, at the time the state encounters the evidence during its investigation, the state relies on the evidence or knows the defendant will use the evidence for his or her
defense." Id. ¶ 16. And to show a "tendency to exonerate," the defendant must show more than mere speculation about the evidence's usefulness, "there must be a real likelihood that the evidence would have had evidentiary value." Glissendorf, 235 Ariz. 147, ¶ 9; see also Hernandez, 250 Ariz. 28, ¶ 20. Even assuming, without deciding, that the evidence was "obviously material," as explained above, Gastelum has not shown the evidence had a "tendency to exonerate," and thus he was not entitled to a Willits instruction. Hernandez, 250 Ariz. 28, ¶ 10.
¶40 Gastelum argues the trial court "implied that the standard [it] used was 'ancillary issues'" which was the "incorrect standard" to determine whether or not he was entitled to a Willits instruction. We do not, however, read the court's comment regarding "ancillary issues" as applying an incorrect standard. The comment suggests the court did not find the evidence relevant, perhaps suggesting it was immaterial. See id. (evidence must be "obviously material" to receive Willits instruction). In any event, we will affirm if the court was legally correct even for the wrong reason. State v. Perez, 141 Ariz. 459, 464 (1984). Gastelum was not entitled to a Willits instruction, and the court did not abuse its discretion by refusing to provide one here.
III. Sentencing
A. Prior convictions
¶41 With regard to sentencing, Gastelum contends "law of the case" precluded the state from presenting evidence of his prior convictions and the trial court therefore erred when it used those convictions to enhance his prison sentence. We review a court's evidentiary rulings and any reconsideration of law of the case for an abuse of discretion. State v. Todd, 244 Ariz. 374, ¶ 5 (App. 2018) (evidentiary ruling); State v. King, 180 Ariz. 268, 279 (1994) (law of the case).
¶42 Before Gastelum's first trial, the state alleged Gastelum had two prior felony convictions that it intended to use to enhance his sentence-(1) "solicitation to possess a narcotic drug and possession of drug paraphernalia" and (2) "theft by controlling stolen property." The state also gave notice of its intent to use the prior convictions to impeach Gastelum's credibility should he testify at trial. Gastelum subsequently filed a motion in limine to preclude "[a]ny reference to [his] prior felony conviction or being on probation at the time of the incident." On the first day of the first trial, the state avowed that it did not intend to offer Gastelum's prior convictions or probationary status, and the court granted Gastelum's request to preclude that evidence.
¶43 During the second trial, Gastelum raised that he had "an issue about the admissibility of [his] prior felony offenses that have been alleged in case he decides to testify." He asserted that based on the prior proceedings, "the State is precluded by stipulation from discussing if [he] does take the stand anything about his priors or being on probation." The state maintained the exclusion related to using Gastelum's prior convictions in its case-in-chief and did not preclude impeachment should Gastelum testify. The trial court determined the state was "bound by the previous agreement, that they wouldn't be offering any evidence of any prior felony convictions as indicated by . . . the motion in limine hearing in the last trial." The court further found that "admitting evidence of the prior convictions would be unfairly prejudicial [and] would outweigh any probative value" and that the state had other means by which it could foreseeably impeach Gastelum's credibility. The court ultimately concluded "the State may not introduce evidence of any felony conviction, should Mr. Gastelum take the stand or even if he does not."
¶44 After the jury returned the verdict, the trial court told the parties it needed to set a "priors trial." Gastelum stated he wanted to "renew [his] assertion that the State has waived any priors." The court responded, "If the motion was that the State couldn't address priors on cross-examination of Mr. Gastelum, that doesn't affect the allegation of priors and my consideration of sentencing," but it granted leave for briefing on the issue.
¶45 Gastelum filed a motion to vacate the priors trial. The trial court denied the motion, stating,
If anybody knows the intention of the [prior] ruling, it is certainly me. It was my intention when I accepted the stipulation and then subsequently ruled on it in the second trial that the admission of any priors would be in the case in chief and actually in trial and wouldn't affect the State's ability to request a priors trial for purposes of sentence enhancement.
At the conclusion of the priors trial, the court found the state had proved both of the alleged prior convictions by sufficient evidence and the convictions were historical priors. It stated it could "consider these as priors in terms of sentencing." The court subsequently sentenced Gastelum as a category-three-repetitive offender and imposed a term of twelve years' imprisonment within the maximum range. See A.R.S. § 13-703(C), (J).
¶46 On appeal, Gastelum asserts the trial court "erroneously permitted the State to introduce [his] prior convictions at a 'priors trial'" because the stipulation had not been limited to the guilt phase of trial and was "law of the case." The state counters that Gastelum's claim fails because "it is clear from the context that the State agreed to refrain from, and was precluded only from, using Gastelum's criminal history at trial." It further argues that the court was permitted to reconsider its ruling even if it had precluded the evidence for sentencing purposes.
¶47 "'Law of the case' concerns the practice of refusing to reopen questions previously decided in the same case by the same court or a higher appellate court." State v. Whelan, 208 Ariz. 168, ¶ 8 (App. 2004) (emphasis omitted) (quoting Davis v. Davis, 195 Ariz. 158, ¶ 13 (App. 1999)). Consistent with this principle, Rule 16.1(d), Ariz. R. Crim. P., provides for finality of pre-trial determinations: "A court may not reconsider an issue previously decided in the case except for good cause or as these rules provide otherwise." The law of the case doctrine and Rule 16.1(d) are both procedural rules-not rules of substance. King, 180 Ariz. at 278; see also Whelan, 208 Ariz. 168, ¶¶ 8-9. "A court does not lack the power to change a ruling simply because it ruled on the question at an earlier stage." King, 180 Ariz. at 279 (quoting Love v. Farmers Ins. Grp., 121 Ariz. 71, 73 (App. 1978)).
¶48 We agree with the state that it is clear, in context, that the trial court's ruling prohibited the parties from mentioning Gastelum's prior convictions or probationary status only during the guilt phase of trial. In his pre-trial motion in limine Gastelum brought up a variety of evidence he sought to preclude and cautioned he would request a mistrial should the state violate a subsequent court order. See State v. Alvarez, 228 Ariz. 579, ¶ 11 (App. 2012) (in criminal cases, pre-trial motions in limine are substitute for objections to evidence at trial); State v. Miller, 234 Ariz. 31, ¶ 25 (2013) (mistrial is concerned with whether the jury hears and is influenced by something improper). The court bound the state to its prior ruling in the second trial when Gastelum specifically brought up the state's possible use of priors "in case he decides to testify." The court additionally noted that use of the prior convictions would be "unfairly prejudicial" and improper for impeachment purposes if Gastelum testified or for other purposes if he did not.
¶49 Gastelum asserts that because his motion in limine used no limiting language or legal authority, the order granting it was likewise unlimited. But the trial court explicitly clarified that its intent in accepting the stipulation had been not to "affect the State's ability to request a priors trial for purposes of sentence enhancement." And although we disagree with Gastelum's view of the record, even if we were to assume the court had initially precluded the state from presenting evidence of Gastelum's prior convictions at any stage of the proceedings, the court would not have abused its discretion by subsequently changing that ruling. See King, 180 Ariz. at 279; Ariz. R. Crim. P. 16.1(d). Accordingly, the court did not err by considering Gastelum's prior convictions for the purpose of sentence enhancement or by enhancing Gastelum's sentences on that ground.
B. Maximum sentence
¶50 Gastelum also contends the trial court erred by sentencing him to a maximum term when the jury had not found any aggravating factors. We review de novo whether a court may use a particular factor to aggravate a sentence. State v. Dunbar, 249 Ariz. 37, ¶ 41 (App. 2020). "We will not disturb a sentence that is within the statutory range absent an abuse of the trial court's discretion." State v. Joyner, 215 Ariz. 134, ¶ 5 (App. 2007).
¶51 At sentencing the trial court found,
On aggravation, while I do recognize the priors and the on probation where aggravators are properly considered per A.R.S. § 13-701(d), . . . it is the impact, the impact on [K.B.'s mother], the impact on the kids and probably the impact on you as well.... So I think the aggravators are significant. The victim impact, . . . on probation and priors.
In mitigation, . . . [i]t sounds like there were efforts made by Mr. Gastelum to in some way, I guess, soften the loss suffered by [K.B.'s mother] and the kids.
Finding the aggravators outweighed the mitigators, the court sentenced Gastelum to a maximum sentence as described above.
Gastelum later filed a motion for resentencing, which the trial court denied. Because the denial came after Gastelum's notice of appeal, and because Gastelum did not file a new or amended notice of appeal to encompass it, we lack jurisdiction to consider it. See Ariz. R. Crim. P. 24.3(c)(1); State v. Wynn, 114 Ariz. 561, 563 (App. 1977) (rulings on criminal post-trial motions are separately appealable and no jurisdiction to review if not timely appealed). But see State v. Renner, 177 Ariz. 395, 397 (App. 1993) (court of appeals has jurisdiction to consider appeal of original sentence which raises same issues where denial of modification of sentence not properly appealed).
¶52 On appeal, Gastelum asserts the trial court exceeded its authority when it sentenced him because the jury did not find, and he did not admit, any statutory aggravating factors. The state responds that the court properly used Gastelum's prior convictions to impose a maximum sentence.
¶53 "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In Arizona, "the statutory maximum sentence for Apprendi purposes in a case in which no aggravating factors have been proved to a jury beyond a reasonable doubt is the presumptive sentence." State v. Martinez, 210 Ariz. 578, ¶ 17 (2005). But Apprendi permits the judge, instead of the jury, to find a prior conviction to aggravate the sentence. State v. Allen, 248 Ariz. 352, ¶ 65 (2020); see also State v. Bonfiglio, 231 Ariz. 371, ¶¶ 8-15 (2013). Thus, the "maximum term" may be imposed pursuant to § 13-703 if the court finds "[t]he defendant was previously convicted of a felony within the ten years immediately preceding the date of the offense." § 13-701(C), (D)(11).
¶54 As Gastelum points out, the jury here did not find any statutory aggravating factors. But, as explained above, the trial court found two prior historical felonies, and Gastelum does not contest the correctness of those findings. Gastelum acknowledges "that the Arizona Supreme Court determined in State v. Bonfiglio, that a trial court could aggravate a sentence based on a prior conviction." However he asserts his case is distinguishable from Bonfiglio because there the jury had found an aggravating factor. See 231 Ariz. 371, ¶ 2.
¶55 In Bonfiglio the jury found an aggravating factor, but it was not an enumerated aggravating factor under § 13-701(D), and therefore could not, alone, serve to expose the defendant to an aggravated sentence. Id. ¶¶ 2, 10-11. But because the trial court had found that Bonfiglio had prior qualifying convictions, due process was satisfied, and the court could then consider the jury's finding under the "catch-all" aggravator. Id. ¶¶ 11, 13. Therefore, Bonfiglio is not distinguishable on this ground. A jury finding of an aggravating factor is not required before the court can find a prior conviction as an aggravating factor. See id.; § 13-701(C), (D)(11); Allen, 248 Ariz. 352, ¶ 65.
¶56 Gastelum also challenges the trial court's use of his probationary status as an aggravating factor. He asserts this fact had to be found by the jury. But once a statutorily enumerated aggravating factor, such as a prior conviction, is properly found, see § 13-701(D)(11), the court is to consider "[a]ny other factor that the state alleges is relevant to the defendant's character or background or to the nature or circumstances of the crime," § 13-701(D)(27); see also Bonfiglio, 231 Ariz. 371, ¶¶ 10-11, 13 (once a specifically enumerated factor relied upon, court may use "catchall" aggravator). The court did not err by considering that Gastelum had been on probation at the time of the offense.
¶57 Gastelum alternatively asserts the trial court improperly "aggravat[ed his] sentence twice based on his prior convictions" and that because his prior convictions were "non-violent" and factually dissimilar from the present case, the court could not consider them to aggravate his sentence. These arguments are without merit. We interpret Gastelum's argument that the court aggravated his "sentence twice" to relate to the court's use of his prior convictions to both enhance and aggravate his sentence. This, however, is permissible. See Bonfiglio, 231 Ariz. 371, ¶ 11 (court may use prior convictions to enhance and aggravate sentence); State v. Cota, 229 Ariz. 136, ¶ 85 (2012). And Gastelum cites no relevant authority requiring a prior felony conviction to have been violent or factually similar to the crime at issue, and nothing in § 13-701(D)(11) so mandates.
¶58 Gastelum, again alternatively, asserts that "even if the trial court could have relied on [his] prior convictions to aggravate his sentence, it did not do so." The record does not support this claim, as the court during sentencing noted the "aggravators are significant," specifically, "[t]he victim impact, the on probation and priors." We therefore reject the argument.
Disposition
¶59 For the foregoing reasons, we affirm Gastelum's conviction and sentence.