Opinion
No. 2 CA-CR 2013-0292
09-02-2014
THE STATE OF ARIZONA, Appellee, v. DENISE NICOLE PESQUEIRA, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Alan L. Amann, Assistant Attorney General, Tucson Counsel for Appellee Harriette P. Levitt, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20101039001
The Honorable Scott Rash, Judge
AFFIRMED
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee
Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 After a jury trial, Denise Pesqueira was convicted of reckless child abuse likely to cause death or serious physical injury. Pursuant to a plea agreement, she also was convicted of negligent homicide. The trial court suspended the imposition of sentence and placed Pesqueira on consecutive, four-year terms of probation. On appeal, Pesqueira argues the court erred by allowing the state to amend the indictment to allege previously uncharged acts. She also challenges the sufficiency of the evidence to support her reckless child abuse conviction and contends the court's imposition of consecutive probationary terms constitutes double punishment. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Pesqueira's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). In January 2010, Pesqueira reconnected with a childhood friend, M.L., and began attending church services with him. One night after church, M.L. could tell that "[s]omething was bothering [Pesqueira]." He asked her "what was wrong," and she told him that she had been pregnant, gave birth nine months later, and "got[] rid of it." She also told him that "[n]obody knew." A couple days later, Pesqueira told M.L. that in preparing for the delivery "she had done the research for . . . when the garbage schedules run."
Although Pesqueira told her cousin and a friend she was pregnant, both thought she had undergone an abortion.
¶3 M.L. contacted the police. He agreed to record a conversation with Pesqueira discussing the incident. During that conversation, Pesqueira told M.S. the following: Pesqueira was nineteen years old at the time she was pregnant and was living at home with her parents. Her "Plan A" for delivering the baby was to do so at home and then take the newborn to a safe haven provider. Her "Plan B," assuming her parents were home at the time, was to deliver the baby at an alternative location so they would not hear what was happening.
Safe haven providers, which include firefighters, health care workers, and church personnel, must take custody of a newborn infant if the parent does not express any intent to return for the child. A.R.S. § 13-3623.01(C), (H)(2).
¶4 However, when Pesqueira went into labor, her parents were home and her alternative locations were unavailable, so she decided to have the baby in her bathroom. After the delivery, she wrapped the baby in a blanket. Pesqueira's mother knocked on the door when the baby cried; Pesqueira told her mother that she had made the noise. She then put the baby in a trash can outside. Pesqueira did not respond directly when M.L. asked whether she had suffocated the baby. However, she told him "murder cases don't expire for like thirty years . . . that's another twenty-nine years from now that I still can be held responsible."
¶5 A grand jury indicted Pesqueira for first-degree murder and intentional or knowing child abuse likely to cause death or serious physical injury, "to wit: by wrapping the baby in towels and/or blankets and throwing the baby in the trash." Pesqueira's first jury trial resulted in a mistrial when the jury could not reach a verdict on either count. She did not testify.
¶6 During her testimony at the second trial, Pesqueira explained, for the first time, that after giving birth to a baby boy in her bathroom and wrapping him in a blanket, she took him outside and placed him in the passenger seat of her car. She then went back inside to clean up the bathroom, putting all of the towels she had used during the delivery in a bag. When she returned to her car, the baby was not breathing. She further testified that, although she had originally planned to take the baby to a safe haven provider, she instead put him in the bag with the towels and placed the bag in a trash can outside.
¶7 The jury found Pesqueira not guilty of first-degree murder but could not reach a verdict on the lesser-included offenses. The jury also acquitted her of intentional or knowing child abuse but found her guilty of the lesser-included offense of reckless child abuse. Pesqueira later pled guilty to negligent homicide. The trial court sentenced her 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).
In this appeal, we are concerned only with Pesqueira's conviction for reckless child abuse. See A.R.S. § 13-4033(B) ("In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement.").
Amendment of Indictment
¶8 Pesqueira argues the trial court erred by allowing the state to amend the indictment "to argue uncharged acts as evidence of guilt" for her reckless child abuse conviction. We review a trial court's decision to amend a charging document for an abuse of discretion. State v. Johnson, 198 Ariz. 245, ¶ 4, 8 P.3d 1159, 1161 (App. 2000). However, we review the court's interpretation of court rules de novo. State v. Bernstein, 234 Ariz. 89, ¶ 10, 317 P.3d 630, 635 (App. 2014).
¶9 At trial, Pesqueira did not object when the trial court instructed the jury on the lesser-included offenses for intentional or knowing child abuse, including reckless child abuse. However, after the court finished reading the instructions to the jury, Pesqueira asked the court to also read the "to wit" language from the indictment, specifically that she had committed child abuse by wrapping the baby in a blanket and putting him in the trash. She further suggested that the state should be precluded from arguing any other theory of child abuse, such as wrapping the baby in a blanket and leaving him in her car unattended. The state responded that leaving the baby in the car could "produce just as much serious physical injury or death as putting him in the trash can." The state further maintained that under Rule 13.5(b), Ariz. R. Crim. P., the indictment is deemed "amended to conform to the evidence, even on a factual discrepancy like trash can versus the car." The court denied Pesqueira's requests, concluding that "the rule does allow for amendments to . . . the Indictment to conform to the evidence."
On appeal, Pesqueira also refers to a motion, filed on the last day of trial, to limit the state "to proving the homicide charge . . . by the information presented to the Grand Jury," specifically the "to wit" language contained in the child abuse charge. That motion and subsequent argument on the motion, however, specifically concerned homicide, not child abuse. See State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008) ("[A]n objection on one ground does not preserve the issue on another ground."). And, for the reasons discussed below, because we conclude the amendment was permitted under Rule 13.5, Ariz. R. Crim. P., the argument is without merit in any event.
¶10 Rule 13.5(b) permits the amendment of an indictment "to correct mistakes of fact or remedy formal or technical defects." "A defect may be considered formal or technical when its amendment does not operate to change the nature of the offense charged or to prejudice the defendant in any way." State v. Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980). But Rule 13.5(b) does not allow an amendment that alters the elements of the charged offense. State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 17, 312 P.3d 123, 128 (App. 2013). Moreover, an indictment is "deemed amended to conform to the evidence adduced at any court proceeding." Ariz. R. Crim. P. 13.5(b).
¶11 Pesqueira argues the trial court erred in allowing the state to amend the indictment to argue new facts—that she wrapped the baby in a blanket and left him in her car unattended—to prove reckless child abuse. But this is the kind of factual mistake Rule 13.5(b) is intended to remedy.
¶12 In Buccheri-Bianca, this court approved a similar amendment to conform to the evidence presented at trial. There, the defendant was indicted with two counts of child molestation—the indictment alleged that one incident had occurred "in the kitchen" while the other had occurred "in the bedroom." Buccheri-Bianca, 233 Ariz. 324, ¶ 18, 312 P.3d at 128. At trial, however, the victim suggested that both incidents had occurred in the living room. Id. The trial court granted the state's motion to amend the indictment by deleting any mention of the locations. Id. On appeal, we concluded that Rule 13.5(b) allowed the amendment of the language contained in the "to wit" portion of the indictment. Buccheri-Bianca, 233 Ariz. 324, ¶ 19, 312 P.3d at 129. We pointed out that "changing the location where the conduct was alleged to have occurred did not change the elements necessary to prove the crime and therefore did not change the nature of the offense." Id.
¶13 Similarly, here, amendment of the indictment "d[id] not operate to change the nature of the offense." Bruce, 125 Ariz. at 423, 610 P.2d at 57. All that changed were the facts used to prove the offense—the risk to the baby arose from wrapping him in a blanket and leaving him in the car unattended, rather than wrapping him in a blanket and leaving him in the trash. Like Buccheri-Bianca, this variation essentially changed the location of the offense to conform to the evidence—the car versus the trash. Thus, we agree with the trial court that, under Rule 13.5(b), the indictment was "deemed amended to conform to the evidence." Cf. Buccheri-Bianca, 233 Ariz. 324, ¶ 19, 312 P.3d at 129; see also State v. Sanders, 205 Ariz. 208, ¶ 38, 68 P.3d 434, 443-44 (App. 2003) (last sentence of Rule 13.5(b) applies "to minor factual or technical variances between the original charge and the proof that resulted in the conviction").
¶14 Relying on Johnson, 198 Ariz. 245, ¶¶ 8-9, 8 P.3d at 1162, Pesqueira nevertheless suggests she did not have adequate notice of the state's new theory that she committed reckless child abuse by wrapping the baby in a blanket and leaving him in her car unattended. She further contends that she "was prejudiced because, by telling the truth, she was convicted for a crime for which she was not previously charged." Pesqueira's reliance on Johnson is misplaced.
¶15 In Johnson, the trial court allowed the state to amend one count in an indictment twice, once before trial and once during trial, and to amend another count in the indictment once, during trial, to conform to the victim's account of the incident. 198 Ariz. 245, ¶¶ 2-3, 8 P.3d at 1161. As to the count that was amended twice, it was changed the second time to match the language in the original indictment. Id. On appeal, we found the amendments had prejudiced the defendant because "he was not given adequate notice of the charges 'with ample opportunity to prepare to defend against them.'" Id. ¶ 9. Specifically as to the count amended twice, we reasoned that, "once the state's first motion to amend . . . was granted before trial, [the defendant] had no reason to expect the victim to testify in accordance with the original allegation." Id.
¶16 Here, by contrast, the state argued that amendment of the indictment was proper, not based on the victim's new testimony but on Pesqueira's. And, Pesqueira cannot claim surprise by her own testimony. Moreover, Pesqueira had notice that the state may pursue the charge of reckless child abuse as a lesser-included offense. See Ariz. R. Crim. P. 13.2(c) ("Specification of an offense in an indictment, information, or complaint shall constitute a charge of that offense and of all offenses necessarily included therein."); State v. Hurley, 197 Ariz. 400, ¶ 14, 4 P.3d 455, 458 (App. 2000) ("[R]ecklessly is a lesser-included mental state of knowingly."). The trial court therefore did not abuse its discretion by allowing the amendment. See Johnson, 198 Ariz. 245, ¶ 4, 8 P.3d at 1161.
Sufficiency of the Evidence
¶17 Pesqueira next challenges the sufficiency of the evidence to support her conviction for reckless child abuse. "The sufficiency of the evidence is a question of law we review de novo." State v. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d 656, 658 (App. 2013). "We will not reverse a jury's verdict if it is supported by substantial evidence." State v. Garfield, 208 Ariz. 275, ¶ 6, 92 P.3d 905, 907 (App. 2004). Substantial evidence "'is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of [a] defendant's guilt beyond a reasonable doubt.'" State v. West, 226 Ariz. 559, ¶ 16, 250 P.3d 1188, 1191 (2011), quoting State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990).
¶18 Section 13-3623(A), A.R.S., makes it a crime, "[u]nder circumstances likely to produce death or serious physical injury," for a person to cause "a child . . . to suffer physical injury or, having the care or custody of a child," to cause or permit "the person or health of the child . . . to be injured" or to cause or permit "a child . . . to be placed in a situation where the person or health of the child . . . is endangered." The offense is a class-three felony "[i]f done recklessly." § 13-3623(A)(2).
¶19 The evidence presented at trial included the following: During her pregnancy, an endocrinologist diagnosed Pesqueira with Graves' disease, which causes an overactive thyroid. He prescribed a medication that would be safe to take while pregnant and instructed her of the importance of taking the medication. However, Pesqueira never refilled that prescription or followed up with that doctor. And, Pesqueira's own expert testified that a mother's failure to treat Graves' disease creates an increased risk to her baby's survival after birth, at least in part to the baby's "growth restriction." Also contrary to her doctor's advice, Pesqueira stopped taking prenatal vitamins after the first month of pregnancy and never went to any "well-baby [doctor] visits."
Although we do not consider Pesqueira's prenatal conduct as evidence of reckless child abuse, see Reinesto v. Superior Court, 182 Ariz. 190, 192-93, 894 P.2d 733, 735-36 (App. 1995) ("[C]hild abuse statute [does not] apply to situations in which harm to a fetus subsequently affects the newborn."), it nonetheless bears on her knowledge of the increased health risks her baby faced when she did not seek medical assistance during delivery or immediately thereafter.
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¶20 Pesqueira testified that she gave birth to the baby unassisted in her bathroom without any sort of medical equipment. She described the baby as small, fitting into her cupped hands, with "[r]eally light" skin color, and said he cried only once. Despite this, she explained that she wrapped the baby in a blanket and left him in her car unattended. Sufficient evidence therefore supports Pesqueira's conviction for reckless child abuse. See Snider, 233 Ariz. 243, ¶ 4, 311 P.3d at 658.
¶21 Pesqueira, however, argues that "[t]here was no evidence to support the state's theory that the baby died because he was left unattended." Rather, she insists that "the evidence established that something was apparently radically wrong with this baby from the start, and that he was unlikely to survive, no matter what." First, we disagree with Pesqueira's characterization of the evidence. Pesqueira testified that the baby was breathing when he was born and when she left him in the car. And, Pesqueira's own expert testified that leaving a baby wrapped in blankets unattended in a car is potentially harmful because the baby "could get wrapped up in the blankets and suffocate." Second, even without the baby's death, Pesqueira could be convicted of reckless child abuse likely to cause death or serious physical injury. Section 13-3623(A) provides that a person may commit the offense in three different ways, including by placing a child in a situation where the child's life is endangered. See also State v. Fernane, 185 Ariz. 222, 224, 914 P.2d 1314, 1316 (App. 1995).
Double Punishment
¶22 Pesqueira lastly contends she "was illegally subjected to double punishment by virtue of the imposition of consecutive sentences of probation." We review a trial court's decision to impose consecutive sentences de novo. State v. Urquidez, 213 Ariz. 50, ¶ 6, 138 P.3d 1177, 1179 (App. 2006).
¶23 "An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent." A.R.S. § 13-116. Thus, to impose consecutive sentences, the conduct supporting the offenses must constitute separate acts. And, we "focus[] on the 'facts of the transaction' to determine if the defendant committed a single act." State v. Siddle, 202 Ariz. 512, ¶ 17, 47 P.3d 1150, 1155 (App. 2002), quoting State v. Gordon, 161 Ariz. 308, 313 n.5, 778 P.2d 1204, 1209 n.5 (1989). To determine whether conduct constitutes a single act, we apply the Gordon test:
First, we must decide which of the two crimes is the "ultimate charge—the oneUrquidez, 213 Ariz. 50, ¶ 7, 138 P.3d at 1179 (alteration in original; citations omitted), quoting Gordon, 161 Ariz. at 315, 778 P.2d at 1211.
that is at the essence of the factual nexus and that will often be the most serious of the charges." Then, we "subtract[] from the factual transaction the evidence necessary to convict on the ultimate charge." If the remaining evidence satisfies the elements of the secondary crime, the crimes may constitute multiple acts and consecutive sentences would be permissible. We also consider whether "it was factually impossible to commit the ultimate crime without also committing the secondary crime." Finally, we consider whether the defendant's conduct in committing the lesser crime "caused the victim to suffer a risk of harm different from or additional to that inherent in the ultimate crime."
¶24 Pesqueira argues that her conduct constituted a single act because the factual basis for her negligent homicide plea "was identical to the facts adduced at trial which resulted in the reckless child abuse conviction." She relies on State v. Jones, 232 Ariz. 448, 306 P.3d 105 (App. 2013). In Jones, this court concluded that the defendant's sentences for felony murder and child abuse had to be concurrent under § 13-116. 232 Ariz. 448, ¶ 1, 306 P.3d at 105-06. But the parties agreed the defendant's convictions were based on a single act. Id. ¶ 6. Here, the state maintains that Pesqueira's "convictions stem from different conduct."
¶25 Applying the Gordon test here, we first must determine the ultimate offense. Although Pesqueira does not take a position on this issue, the state contends that reckless child abuse is the ultimate offense. We agree. Reckless child abuse is classified as a more serious offense than negligent homicide. Compare § 13-3623(A)(2) (describing reckless child abuse as class-three felony), with A.R.S. § 13-1102(C) (describing negligent homicide as class-four felony); see also State v. Roseberry, 210 Ariz. 360, ¶ 59, 111 P.3d 402, 412-13 (2005) (using class of felony to determine ultimate offense). Reckless child abuse also requires a more culpable mental state than negligent homicide. See A.R.S. § 13-105(10)(c), (d) (defining "recklessly" and "criminal negligence"); see also A.R.S. § 13-202(C) (establishing culpable mental state hierarchy of intentionally, knowingly, recklessly, and negligently).
¶26 We must next subtract from the factual transaction the evidence necessary to convict Pesqueira of the ultimate offense—reckless child abuse. As discussed above, the evidence necessary to convict Pesqueira of reckless child abuse consisted of her giving birth to a very small, pale baby in her bathroom unassisted, wrapping the newborn in a blanket, and leaving him in her car unattended.
¶27 Next, we must determine whether the remaining evidence supports the secondary offense—negligent homicide. "A person commits negligent homicide if with criminal negligence the person causes the death of another person." § 13-1102(A). In laying the factual basis for her negligent homicide plea, Pesqueira stated it was not only "negligent for [her] to leave the baby in the car unattended," but "it was also negligent for [her] not to seek any further help afterwards." This additional conduct of not seeking medical assistance when she returned to her car and instead placing the baby in a bag in the trash was sufficient to satisfy the elements of negligent homicide. As the state's expert explained, "[i]f you put a bag over [a baby], . . . it is going to asphyxiate it; [the baby] won't be able to get oxygen."
¶28 We recognize Pesqueira testified at trial that the baby was "limp" and not breathing when she returned to her car. This evidence in isolation seems to suggest that Pesqueira committed a single act because, if the baby was already dead at that point, her later conduct did not create any additional risk of harm. However, Pesqueira also testified that she "didn't have the medical equipment to be sure that he was [dead]." And, Pesqueira's expert explained that "[n]ewborn assessment requires expertise" because a small child "can manifest confusing and unclear signs of life that would really require a professional to discern and treat." As the state points out, the jury could have rejected Pesqueira's testimony that the baby was not breathing when she placed him in the bag. See State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974) (trier of fact weighs credibility of witnesses and, even where testimony is uncontradicted, may reject testimony as unconvincing). Moreover, Pesqueira's statement during the change-of-plea hearing that "it was also negligent for [her] not to seek any further help afterwards," reasonably can be interpreted as suggesting the baby could have been alive and resuscitated when she returned to her car. The first element of the Gordon test therefore supports the trial court's imposition of consecutive probationary terms under § 13-116.
¶29 The other considerations under the Gordon test also support consecutive terms of probation. First, it was factually possible to commit the ultimate offense without also committing the secondary offense because the reckless child abuse ended when Pesqueira left the baby in the car unattended and the negligent homicide occurred after she returned to the car. Second, Pesqueira's commission of the negligent homicide posed an additional risk of harm to the baby. Because Pesqueira's conduct constitutes multiple acts under the Gordon test, the trial court did not err by placing Pesqueira on consecutive probationary terms. See Urquidez, 213 Ariz. 50, ¶ 6, 138 P.3d at 1179.
¶30 Citing State v. Styers, 177 Ariz. 104, 865 P.2d 765 (1993), Pesqueira alternatively argues that her reckless child abuse conviction must be reversed because, once she pled guilty to negligent homicide, the two offenses merged. In Styers, the defendant was convicted of both first-degree murder and child abuse in the shooting death of a four-year-old boy. 177 Ariz. at 108-09, 865 P.2d at 769-70. Our supreme court set aside the child abuse conviction, reasoning that "the only evidence of child abuse is the shooting itself" and a person "cannot be convicted for an intentional child abuse that necessarily occurs when there is a premeditated murder of a child victim." Id. at 110, 865 P.2d at 771.
¶31 Here, the baby suffered two independent harms: being wrapped in a blanket and left in the car unattended—the reckless child abuse—and being placed in a bag in a trash can rather than provided medical assistance—the negligent homicide. Consequently, Pesqueira's conviction for reckless child abuse does not merge into her conviction for negligent homicide. Cf. State v. Salazar, 173 Ariz. 399, 410, 844 P.2d 566, 577 (1992) (kidnapping and murder convictions did not merge because facts supporting them were not "conceptually identical").
Disposition
¶32 For the foregoing reasons, we affirm Pesqueira's conviction and sentence.