State v. Gastelum

1

The State of Arizona, Appellee, v. Warren Ambrose Gastelum, Appellant.

No. 2 CA-CR 2022-0176

Court of Appeals of Arizona, Second Division

January 30, 2024

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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.^[1] 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.

¶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).^[2]

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).^[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).

¶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.^[4] 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).

¶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.^[5] 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...