Opinion
No. 2 CA-CR 2018-0264
12-20-2019
THE STATE OF ARIZONA, Appellee, v. NOHEMI GUZMAN-SANTOYO, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Amy M. Thorson, Assistant Attorney General, Tucson 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NOT FOR PUBLICATION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 Santa Cruz County
No. CR16094
The Honorable Anna Montoya-Paez, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee Barton & Storts P.C., Tucson
By Brick P. Storts III
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Chief Judge:
¶1 After a jury trial, Nohemi Guzman-Santoyo was convicted of five counts of child abuse. The trial court sentenced her to concurrent prison terms, the longest of which are seventeen years. On appeal, Guzman-Santoyo challenges the sufficiency of the evidence supporting her convictions. She also contends the court erred by not striking potential jurors who indicated they "would automatically believe a child's testimony" and by allowing the state to present other-acts evidence at trial. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Guzman-Santoyo's convictions. See State v. Dansdill, 246 Ariz. 593, ¶ 2 (App. 2019). In December 2013, the Nogales Police Department received a report of potential child abuse involving Guzman-Santoyo and her twelve-year-old, non-verbal, autistic daughter E.H. An officer was dispatched to the Department of Child Safety (DCS), where he met with the DCS specialist who had initially investigated the report. After she provided the officer with a family history, they went to E.H.'s middle school and spoke with E.H.'s special-education teacher, the person who had made the report to DCS. The special-education teacher showed the officer and DCS specialist the photos she had taken of injuries to E.H.'s face, feet, stomach, and back.
¶3 The officer and DCS specialist subsequently went to Guzman-Santoyo's home and, with her permission, began "physically checking [E.H.] for the injuries." The officer noted E.H. had "a bruise on her eye . . . [and] two small scratches underneath the eyelid within that bruised area," as well as "old scratches on her stomach and some redness in her back area." He also noted that E.H.'s feet were "swollen" and "bruis[ed]." The officer then took photos of the injuries, and E.H. was taken to the hospital for a medical examination.
¶4 Later that month, the DCS specialist made a follow-up contact at Guzman-Santoyo's home, where she found E.H. and her two younger siblings, A.H. and K.H., being cared for by a fourteen-year-old boy. She also noticed that "[t]he conditions of the home were very poor," "[t]he refrigerator had a bad smell of rotten food," and "there was just no food in the home that the kids could really eat." After she was unable to reach Guzman-Santoyo, DCS took custody of the children.
¶5 Guzman-Santoyo was indicted for two counts of intentionally or knowingly committing child abuse likely to produce death or serious physical injury and four counts of intentionally or knowingly committing child abuse under circumstances other than those likely to produce death or serious physical injury. A jury found her guilty of one count of intentional or knowing child abuse under circumstances likely to produce death or serious physical injury, to wit: "failure to thrive and/or malnutrition of [E.H.]"; one count of intentional or knowing child abuse under circumstances likely to produce death or serious physical injury, to wit: "physical abuse of [E.H.]"; one count of intentional or knowing child abuse under circumstances other than those likely to cause death or serious physical injury, to wit: "physical abuse of [E.H.] resulting in bruises on her person"; and two counts of the lesser-included offense of criminally negligent child abuse for actions that led A.H. and K.H. to suffer from post-traumatic stress disorder (PTSD). The trial court sentenced Guzman-Santoyo as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Sufficiency of the Evidence
¶6 Guzman-Santoyo argues the state failed to present sufficient evidence to support her convictions for child abuse. We review de novo the sufficiency of the evidence to support a conviction. Dansdill, 246 Ariz. 593, ¶ 19. We must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. West, 226 Ariz. 559, ¶ 16 (2011) (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)). And we will only reverse if no substantial evidence supports the conviction. State v. Rivera, 226 Ariz. 325, ¶ 3 (App. 2011). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Id. (quoting State v. Spears, 184 Ariz. 277, 290 (1996)). Substantial evidence may be direct or circumstantial. State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005).
¶7 A person commits child abuse under A.R.S. § 13-3623(A) if: (1) a person "causes a child . . . to suffer physical injury" and (2) the physical injury occurred "[u]nder circumstances likely to produce death or serious physical injury." Similarly, a person commits child abuse under § 13-3623(B) if: (1) a person "causes a child . . . to suffer physical injury" and (2) the physical injury occurred "[u]nder circumstances other than those likely to produce death or serious physical injury." "[T]he level of intent . . . enhances the offense level," State v. Payne, 233 Ariz. 484, ¶ 73 (2013), and if the physical injury is "done intentionally or knowingly," it is either a class two or four felony, § 13-3623(A)(1), (B)(1). The intent requirement 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).
A person may also commit child abuse if she has "the care or custody of a child" and "causes or permits the person or health of the child . . . to be injured," or if the person "causes or permits" a child to be placed in a situation where the child's health is endangered. § 13-3623(A), (B).
¶8 A defendant's "mental state will rarely be provable by direct evidence and the jury will usually have to infer it from [her] behaviors and other circumstances surrounding the event." State v. Noriega, 187 Ariz. 282, 286 (App. 1996); see also State v. deBoucher, 135 Ariz. 220, 224 (App. 1982) ("[E]vidence of intent to cause physical injury may be circumstantial in nature."). Our supreme court has found sufficient evidence to uphold a child-abuse conviction for intentionally or knowingly physically injuring a child under circumstances other than those likely to cause death or serious physical injury when the defendant admitted that he had "routinely" hit his girlfriend's daughter with a belt and the examining doctor revealed she had "'fresh injury possibly over an older injury.'" State v. Sanders, 245 Ariz. 113, ¶¶ 2, 6, 11, 67-69 (2018), cert. denied, ___ U.S. ___, 139 S. Ct. 1327 (2019). It has also determined that sufficient evidence existed to uphold a defendant's child-abuse conviction for intentionally or knowingly physically injuring a child under circumstances likely to cause death or serious physical injury when testimony revealed the child had been seen playing outside without injury when first placed in the defendant's care and the different stages of her healing bones indicated they were not broken prior to her placement. Payne, 233 Ariz. 484, ¶¶ 76-77; see also State v. Poehnelt, 150 Ariz. 136, 139-41, 149 (App. 1985) (sufficient evidence was presented to establish defendants intentionally or knowingly physically injured child under circumstances likely to cause death or serious physical injury because child suffered from "prolonged malnourishment," as she was discovered "emaciated, her growth was stunted, [and] she had a protuberant abdomen"). With this legal backdrop, we turn to Guzman-Santoyo's claims on appeal.
Intentional Child Abuse
¶9 Guzman-Santoyo argues, "There was no 'substantial' evidence to support the offense of intentional child abuse." She, however, ignores that the state is required to prove she either intentionally or knowingly caused or permitted E.H. to suffer from these injuries and that evidence of her mental state may be circumstantial in nature. See deBoucher, 135 Ariz. at 224. Further, the state is only required to prove Guzman-Santoyo's intent to cause the physical injuries themselves, not the circumstances in which they were caused. See Millis, 242 Ariz. 33, n.7.
Malnutrition
¶10 Guzman-Santoyo was convicted of intentionally or knowingly causing E.H. to suffer from "failure to thrive and/or malnutrition" under circumstances likely to produce death or serious physical injury. She contends "there was no evidence that [she] intentionally caused that malnutrition." We disagree.
¶11 At trial, E.H.'s special-education teacher testified that her skin was "pale" with "very dark circles around her eyes," she was physically "small for her age," and her stomach appeared to be protruding and swollen. Additionally, she described E.H. as "very hungry" and "desperate for food" when she arrived at school and mentioned that E.H. would "run to the cafeteria" to eat. The DCS specialist also testified that during the follow-up visit to Guzman-Santoyo's home, it "smell[ed] of rotten food." She noted that "[t]he food in the refrigerator really looked . . . rotten," explaining "there was just no food . . . the kids could really eat."
¶12 E.H.'s pediatrician testified that E.H. suffered from a "history of failure to thrive . . . and malnutrition," meaning she was "not growing right" and was below the "3rd percentile for [her] height and [her] weight." Additionally, the doctor who had examined E.H. post-removal agreed with E.H.'s pediatrician that she was "malnourished and had failure to thrive." He also noted that E.H.'s "25 percent [body-mass-index] increase," despite having gone through a growth spurt after she was removed from Guzman-Santoyo's care, may be attributed to "[a]dequate caloric intake" and "lack of nutritional restrictions." The doctor also explained that vitamin deficiencies in a child can range between "benign or more obvious" and that "[a]cute starvation has its concerns, but chronic starvation also has its concerns, particularly when it comes to vitamin deficiencies," noting that "we can die from malnutrition."
¶13 Despite Guzman-Santoyo's assertion that she did not intentionally cause malnutrition, the state presented evidence of E.H.'s history of failure to thrive and malnutrition while under Guzman-Santoyo's care, her physical underdevelopment and appearance, her "desperat[ion] for food," as well as testimony that malnutrition can cause death. The jury could therefore have reasonably concluded Guzman-Santoyo intentionally or knowingly caused E.H. to suffer from malnutrition that was likely to produce death or serious physical injury. See Poehnelt, 150 Ariz. at 140-41, 149. Thus, there was sufficient evidence to support Guzman-Santoyo's conviction. See Rivera, 226 Ariz. 325, ¶ 3.
Strangulation
¶14 Guzman-Santoyo was convicted of intentionally or knowingly causing E.H. to suffer from physical abuse, specifically strangulation, under circumstances likely to produce death or serious physical injury. She maintains insufficient evidence was presented to establish that the injuries on E.H. were consistent with her being "strangled" or that she had intentionally strangled E.H.
¶15 Guzman-Santoyo's son A.H. testified that he had seen her "strangling [E.H.] on the couch." He described having seen his mother on three different occasions place "her arms on [E.H.'s] neck, pushing down," explaining that Guzman-Santoyo would "grab [E.H.] by the neck and squeeze" and that E.H. would "struggl[e] to breathe."
¶16 The examining doctor observed that E.H. had "multiple soft tissue injuries . . . concentrated to the neck and back," which concerned him, explaining that "[i]t's hard for someone to injure their own neck." Although the doctor testified that he had not "put anything in [his] notes that dealt with or relate[d] to strangulation," he clarified that he would not see "specific indicators" of strangulation "if strangulation had occurred in the month prior." He went on to explain that "strangulation can compromise the breathing," but the "decreasing oxygen level to our body, even though we may revive, . . . takes its toll." He further testified that "near strangulation" can cause "cognitive related issues," "low oxygen to the blood," and injury or bruising to the jugular vein and the carotid artery, "which can result in the inner lining . . . [developing] a clot . . . and essentially caus[ing] a stroke."
¶17 Based on A.H.'s testimony that he had seen Guzman-Santoyo "grab [E.H.] by the neck and squeeze" and that E.H. would "struggl[e] to breathe," coupled with the doctor's testimony of the effects of "near strangulation," the jury could have reasonably concluded E.H.'s physical injuries were consistent with strangulation and Guzman-Santoyo intentionally strangled or knowingly allowed E.H. to be strangled under circumstances likely to cause death or serious physical injury. See Payne, 233 Ariz. 484, ¶¶ 76-77. Accordingly, the state presented sufficient evidence to support Guzman-Santoyo's conviction. See Rivera, 226 Ariz. 325, ¶ 3.
Physical Abuse
¶18 Guzman-Santoyo was convicted of intentionally or knowingly causing E.H. to suffer from physical abuse, specifically bruising to her body, under circumstances other than those likely to cause death or serious physical injury. She maintains no evidence was presented to show E.H. was "intentionally abused."
¶19 A.H. testified that he had seen Guzman-Santoyo pinch E.H. in the stomach, back, and face, and punch her in the stomach, as well as "hit . . . , spank . . . , or do something to injure [E.H.]" when she did not want to clean her, or "step on [E.H.'s] feet if [E.H.] wouldn't walk." The examining doctor noted that "it would be impossible to document the degree of injuries that [E.H.] had." Additionally, the officer testified that he had observed E.H. with a bruise on her eye, as well as "old scratches on her stomach and some redness in her back area." He observed that E.H.'s feet were "swollen" and "bruis[ed]." The DCS specialist testified that she had observed E.H. with "bruising and swelling on both of her feet," new and old scratches on her stomach and back, and bruising around her left eye. The special-education teacher also testified that E.H. would come to school with "severe hematomas and scratches" on her body.
¶20 Based on A.H.'s testimony and the evidence of physical injuries to E.H.'s feet, face, stomach, and back—so numerous they were described as "impossible to document"—the jury could have, again, reasonably concluded Guzman-Santoyo intentionally caused or knew someone had caused E.H.'s physical injuries under circumstances other than those likely to produce death or serious physical injury. See Sanders, 245 Ariz. 113, ¶¶ 2, 6, 11, 67-69. Accordingly, the state presented sufficient evidence to support Guzman-Santoyo's conviction. See Rivera, 226 Ariz. 325, ¶ 3.
Criminally Negligent Child Abuse
¶21 Lastly, Guzman-Santoyo argues the state presented insufficient evidence to establish A.H. and K.H. suffered from PTSD to support her convictions for criminally negligent child abuse. We disagree.
¶22 Under § 13-3623(B)(3), a person can be convicted of criminally negligent child abuse if they "fail[] 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 what a reasonable person would do under the circumstances. Id.
¶23 As discussed above, A.H. testified that he had seen his mother "hit," "spank," "punch," and "pinch" his sister E.H. He also testified to having seen Guzman-Santoyo "strangl[e E.H.] on the couch" as she would "grab her by her neck and squeeze" to the point where E.H. was "struggling to breathe." A.H. also revealed that Guzman-Santoyo would "get really mad and . . . bang [E.H.] against the wall." She also turned her abuse toward A.H. and often would slap, punch, and kick him and hit him with "either a belt or a sandal."
¶24 A.H. testified that, after he had been removed from Guzman-Santoyo's care, he started seeing a therapist because he was having nightmares. A.H. stated that he "assumed" he was being treated for stress because he felt "scared" and "not safe." He further explained that "[w]hen [he] got taken away from [his] mom, [he] felt like [he] was safe," but he was "scared" because he knew Guzman-Santoyo "could come back." A.H. stated that he was "afraid" of "living with her" because he was scared she would continue to harm him. A mental-health counselor treated A.H. for "aggression, outbursts, night terrors, and some bedwetting," which she agreed were behaviors consistent with PTSD. Another counselor for a behavioral health agency stated that she had received a "specialty referral" to treat A.H. for PTSD because he was "irritab[le]" and had "triggers" for "things that would make him . . . nervous," which she also agreed were consistent with PTSD.
¶25 A.H. also testified that he had seen Guzman-Santoyo on at least one occasion leave "a big red bruise" on the side of K.H.'s leg after Guzman-Santoyo hit her. After removal, a child and family therapist treated K.H. for "behavioral and emotional problems." Specifically, K.H. exhibited behaviors of "emotional deregulation," she had "tantrums" and was "aggressive," she was observed "waking up having nightmares," and she was "very clingy." The therapist conducted numerous social and emotional assessments, as well as a PTSD evaluation, and diagnosed K.H. with PTSD.
Guzman-Santoyo relies on Porter v. McCollum, 558 U.S. 30 (2009), State v. Jacobson, 244 Ariz. 187 (App. 2017), and Tronsen v. Industrial Commission, 18 Ariz. App. 149 (1972), to support her position that a PTSD diagnosis by "a qualified expert" is required before she may be convicted of criminally negligent child abuse. These cases, however, are inapposite to what the state was required to prove to sustain a criminally negligent child-abuse conviction. See §§ 13-105(10)(d), 13-3623(B)(3). We therefore do not address them. --------
¶26 Testimony at trial showed that Guzman-Santoyo had physically injured and "strangl[ed]" E.H. in front of at least A.H., that A.H. suffered from "aggression, outbursts, night terrors, and some bedwetting," consistent with PTSD, and that A.H. remains scared of Guzman-Santoyo "com[ing] back." Likewise, evidence established K.H.'s "emotional[ly] deregulat[ed]" behaviors and PTSD diagnosis. From this, the jury could have reasonably concluded Guzman-Santoyo "fail[ed] to perceive a substantial and unjustifiable risk" by her behavior in the presence of A.H. and K.H. as a "gross deviation" from what a reasonable person would have done under the circumstances. §§ 13-105(10)(d), 13-3623(B)(3). Accordingly, the state presented sufficient evidence to support Guzman-Santoyo's convictions for those counts. See Rivera, 226 Ariz. 325, ¶ 3.
Challenge for Cause
¶27 Guzman-Santoyo argues the trial court erred because it "refused to strike those jurors who would automatically believe a child's testimony," which ultimately "infected the entire jury panel." We review a court's decision whether to strike a juror for cause for an abuse of discretion. State v. Burns, 237 Ariz. 1, ¶ 22 (2015).
¶28 During jury selection, the state asked, "Is there anyone who, because the witness is a child, they're either going to give less or more weight to the testimony of that child?" Although no prospective jurors responded that they would give such testimony less weight, numerous jurors indicated they would attribute more weight to a child's testimony.
¶29 Juror 30 explained, "[A] child never lies, especially if you know the trauma the child's been going through." Jurors 41 and 42 agreed with Juror 30. An unidentified juror expressed that "kids do lie, but sometimes it's good to listen to kids because they actually reveal the truth many times." Juror 7 stated that he "would believe a kid." And another unidentified juror agreed with Juror 7 and also explained that "young kids, they speak the truth," which Juror 20 subsequently agreed with. Juror 24 stated, "Yes, I would believe a child because it's something hard to think of one child's lies and another, it's hard if they're scared . . . ." Juror 4 agreed. Juror 44 expressed that he "would believe a child" because children are "not fully mentally matured, they tend to not think about actual like consequences and such. So they mostly tend to speak through their emotions. So like they wouldn't really lie at that age." Juror 50 indicated that she agreed with Juror 44, and Juror 13 stated, that in his experience, children "tell the truth." Jurors 4, 20, 24, 30, 41, and 42 were excused after the first day of jury selection.
¶30 Before passing the panel for cause, Guzman-Santoyo stated that she had an "issue" with the specific jurors "who stated they'd believe the child"—presumably referring to Jurors 7, 13, 44, and 50. The trial court pointed out that "[t]here is a jury instruction that they're to weigh the evidence," which Guzman-Santoyo agreed resolved her concern, responding, "Exactly, and that's what I think will solve that problem." Guzman-Santoyo then passed the panel for cause. The court subsequently stated that both parties were provided six peremptory strikes. Guzman-Santoyo used two of her peremptory strikes to remove Jurors 7 and 13, but Jurors 44 and 50 were ultimately empaneled on the jury.
¶31 "On motion or on its own, the court must excuse a prospective juror or jurors from service in the case if there is a reasonable ground to believe that the juror or jurors cannot render a fair and impartial verdict." Ariz. R. Crim. P. 18.4(b). The challenging party bears the burden of establishing a juror cannot be fair and unbiased. State v. Eddington, 226 Ariz. 72, ¶ 5 (App. 2010). "After any unfair or []partial jurors are excused for cause, the parties are allowed to strike additional jurors for any nondiscriminatory reason." State v. Rubio, 219 Ariz. 177, ¶ 9 (App. 2008). If, however, the trial court does not strike an alleged unfair or partial juror for cause, "a defendant is required to use an available peremptory strike to remove an objectionable juror . . . to preserve the issue for appeal." Id. ¶ 12; see State v. Paris-Sheldon, 214 Ariz. 500, ¶ 26 (App. 2007) (peremptory strikes assure qualified and unbiased jury). Failure to use a peremptory strike on an objectionable juror waives any error. Rubio, 219 Ariz. 177, ¶ 12.
¶32 Further, the defendant has the burden of showing a juror's comments during voir dire prejudiced the others. State v. Davis, 137 Ariz. 551, 558 (App. 1983); see also State v. Tison, 129 Ariz. 526, 535 (1981) (we will not presume jury was prejudiced unless "objective indications" present). And "[t]he trial court can rehabilitate a challenged juror through follow-up questions to assure the court that he can sit as a fair and impartial juror." State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 24 (2018), cert. denied, ___ U.S. ___, 139 S. Ct. 1326 (2019). Because that court is in "the best position to observe the potential jurors," it is given great deference on whether to strike a juror or jury panel. State v. Johnson, 247 Ariz. 166, ¶ 106 (2019); see also State v. Martinez, 196 Ariz. 451, ¶ 28 (2000) ("A juror's preconceived notions or opinions about a case do not necessarily render that juror incompetent to fairly and impartially sit in a case.").
¶33 Guzman-Santoyo contends that she was "denied her due process rights to a fair and impartial jury" because "[i]t was patently unfair for jurors who admitted that they would consider a child's testimony to be credible and believable, prior to hearing the testimony, to remain as prospective jurors." Guzman-Santoyo, however, was required to establish Jurors 44 and 50, as well as the rest of the prospective panel, could not be fair and impartial. See Eddington, 226 Ariz. 72, ¶ 5; Davis, 137 Ariz. at 558. Despite the jurors' opinions that they would believe a child's testimony, she failed to explain how their opinions prevented them from being fair and impartial. See Eddington, 226 Ariz. 72, ¶ 5. And in any event, if Guzman-Santoyo did believe Jurors 44 and 50 could not be fair and impartial, she was required to use available peremptory strikes to remove them, see Rubio, 219 Ariz. 177, ¶ 12, to ensure a qualified and unbiased jury, see Paris-Sheldon, 214 Ariz. 500, ¶ 26. But Guzman-Santoyo neglected to strike Jurors 44 and 50—two of the four alleged "objectionable juror[s]"—despite having six peremptory strikes. Rubio, 219 Ariz. 177, ¶ 12. Guzman-Santoyo has therefore waived error on appeal as to those jurors. See id.
¶34 Further, Guzman-Santoyo bears the burden to show that Juror 44's and Juror 50's comments prejudiced the other jurors who were empaneled. See Davis, 137 Ariz. at 558. And based on the record before us, no "objective indications" of prejudice existed, suggesting that the entire jury was tainted. Tison, 129 Ariz. at 535. And in any event, Jurors 44 and 50's opinion that they "would believe a child," even if transmitted to the other jurors, does not automatically render jurors "incompetent to fairly and impartially sit in a case," Martinez, 196 Ariz. 451, ¶ 28, so long as they are "willing to put aside [their] opinions and base [their] decision solely upon the evidence," Acuna Valenzuela, 245 Ariz. 197, ¶ 24 (quoting Martinez, 196 Ariz. 451, ¶ 28). The jurors were admonished by the trial court, "You must decide the facts only from the evidence produced in court. You must not speculate or guess about any fact. You must not be influenced by sympathy or prejudice." We presume the jurors followed the court's instructions. See State v. Newell, 212 Ariz. 389, ¶ 68 (2006). Moreover, Guzman-Santoyo agreed that the court's proposed jury instruction resolved her concern. The court therefore did not abuse its discretion when it did not strike the potential jurors who indicated they would believe a child's testimony. See Burns, 237 Ariz. 1, ¶ 22.
Other-Acts Evidence
¶35 Guzman-Santoyo argues the trial court erred by allowing the state to introduce other-acts evidence. She contends the state "effectively and improperly introduced" such evidence to prove "Guzman-Santoyo is a bad mother who likely committed the offenses charged." We disagree.
¶36 Guzman-Santoyo filed a motion to preclude evidence of her prior DCS reports at trial. She reasoned that "[e]vidence from other purported acts entirely distinct and independent of those for which [she was] on trial, even though they may be of the same class, are neither relevant nor admissible." She further explained that "the State being allowed to introduce the alleged prior act evidence . . . would effectively be showing the jury that [she] acted in conformity with her bad character." The state argued that it was permitted to introduce other-acts evidence to show "motive, intent, knowledge, lack of mistake, element of the offense, and to complete the story surrounding the events at issue," as it specifically sought to rebut Guzman-Santoyo's defense that E.H.'s injuries were self-inflicted.
¶37 The trial court held an evidentiary hearing, at which the state declared that it did not intend to offer any evidence related to Guzman-Santoyo's involvement with DCS before 2010. The court accepted this as the parties' understanding, stating, "Sounds like there's an agreement between August 11, 2010 to December 11, 2013," to which the parties were to limit all questioning. Although the court later clarified the permissible time frame, it did not specifically rule on the motion to preclude. At trial, the state asked the DCS specialist, "[H]ow many allegations were there in the file?" She answered that there was a total of "23 prior reports." During cross-examination, Guzman-Santoyo asked the DCS specialist if the twenty-three "abuse or neglect" reports were unsubstantiated, to which she responded, "There had been one substantiated . . . but there was a large number of unsubstantiated ones, too." Later, during redirect, the state asked the DCS specialist, "[H]ow many of the 23 allegations were substantiated?" She responded that there were three, one before 2010. At no time did Guzman-Santoyo object to the questioning.
¶38 "A previously made motion to preclude particular testimony preserves the issue for appeal . . . ." State v. Bolton, 182 Ariz. 290, 306 n.5 (1995); cf. State v. Holder, 155 Ariz. 83, 86 (1987) (cannot allow error to occur when prompt objection may cure issue); State v. Briggs, 112 Ariz. 379, 382 (1975) ("The essential question is whether or not the objectionable matter is brought to the attention of the trial court in a manner sufficient to advise the court that the error was not waived."). However, when a court does not rule on a motion, the defendant must object at trial to preserve the issue on appeal. See State v. Garcia-Quintana, 234 Ariz. 267, ¶ 5 (App. 2014).
¶39 Guzman-Santoyo argues, "The State effectively and improperly introduced other act evidence which all parties agreed was precluded." She, however, ignores that the parties reached an agreement during the hearing, and the trial court did not specifically rule on the motion. See id. Consequently, because she did not object to the testimony at trial, the issue was not preserved for appeal, see Bolton, 182 Ariz. at 306 n.5, and is waived for all but fundamental, prejudicial error, see State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). Further, on appeal, Guzman-Santoyo does not argue the alleged error was fundamental. It is therefore waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008).
¶40 Even assuming, however, that Guzman-Santoyo's motion to preclude had preserved the issue, and it was error to allow testimony concerning the twenty-three total reports, such error was harmless. See State v. Gomez, 211 Ariz. 494, ¶ 26 (2005) ("Reviewing courts consider alleged trial error under the harmless error standard when a defendant objects at trial and thereby preserves an issue for appeal."); see also State v. Bible, 175 Ariz. 549, 588 (1993) (error considered harmless if confident, beyond a reasonable doubt, that error did not affect or contribute to verdict). Despite the DCS specialist's statement that Guzman-Santoyo had twenty-three prior DCS reports in her file, the majority of her testimony was limited to E.H., A.H., and K.H.'s removal in December 2013 and January 2014. Further, the testimony concerning the twenty-three reports was limited to four statements in the midst of a six-day trial with twenty witnesses. Additionally, the jurors were provided a jury instruction that read, "Evidence of other acts has been presented. . . . You may only consider these acts to establish the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." See State v. Pandeli, 215 Ariz. 514, ¶ 33 (2007) (potential error may be cured by jury instructions). We assume the jurors followed the trial court's instructions. See State v. Prince, 204 Ariz. 156, ¶ 9 (2003). We are thus satisfied beyond a reasonable doubt that any potential error did not contribute to or affect the verdicts. See Bible, 175 Ariz. at 588.
Disposition
¶41 For the reasons stated above, we affirm Guzman-Santoyo's convictions and sentences.