State v. Lopez

1

STATE OF ARIZONA, Appellee, v. MARIA LOPEZ, Appellant.

Nos. 1 CA-CR 22-0036, 1 CA-CR 22-0146

Court of Appeals of Arizona, First Division

May 9, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in La Paz County No. S1500CR201600044 The Honorable Matthew G. Newman, Judge, Retired

Arizona Attorney General's Office, Phoenix By Eliza C Ybarra Counsel for Appellee

Carr Law Office, PLLC, Kingman By Sandra Carr Counsel for Appellant

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in which Judge Jennifer B. Campbell and Judge David D. Weinzweig joined.

MEMORANDUM DECISION

BAILEY, JUDGE

¶1 Maria Lopez appeals her convictions and sentences for child abuse.^[1] For the following reasons, we affirm the conviction for child abuse committed recklessly, vacate the sentence for that conviction and remand for resentencing, and vacate the conviction and sentence for child abuse committed with criminal negligence.

FACTS AND PROCEDURAL HISTORY

¶2 Aiden was born in October 2015.^[2] He suffered a broken clavicle and ruptured blood vessels in his eyes during delivery, but he otherwise appeared healthy, and the delivery injuries resolved in due time. In his first four months, Aiden showed no developmental concerns, underlying medical conditions, or diseases, and no evidence of trauma.

¶3 When Aiden was three months old, his mother, Carmen, arranged for Lopez to babysit him two days a week. Lopez lived next door to Carmen's mother. Lopez had only a sixth-grade education but years of experience taking care of children.

¶4 A few days after Aiden turned four months old, Carmen dropped him off at Lopez's house at about 7:00 a.m. He appeared fine that morning and was sleeping when Carmen left him. At about 10:00 a.m., two women from a local church visited Lopez for ten to twenty minutes. Aiden was awake, alert, and seemed "normal" and "healthy" during the visit. He smiled, kicked his feet, looked around, and appeared "happy" when Lopez fed him some banana.

¶5 When Carmen arrived to pick up Aiden a little after 3:00 p.m., Lopez met her at the door and told her he "wasn't doing good." Lopez told Carmen she had tried to call her, but Carmen had no record of any missed calls from Lopez. Carmen went into the house and found Aiden already in his car seat-which was unusual. He was "pale," a "pink fluid" was leaking from his nose, and he was having "trouble breathing." Carmen rushed outside crying and screaming for her parents' help. The family brought him to a local hospital, and technicians took some scans before having him airlifted to Phoenix Children's Hospital that same day. Carmen called Lopez from the hospital to ask what happened, and Lopez told her Aiden "was sleeping most of the day and he wasn't eating."

¶6 Aiden arrived at Phoenix Children's Hospital with bilateral subdural hematomas-bleeding on both sides of the brain, in the space between the brain and the protective membrane lining the skull-and significant brain swelling as a result. When doctors operated to relieve the swelling, Aiden's heart stopped. They revived him and later placed a drain in his skull to reduce the swelling.

¶7 A pediatric neuroradiologist and a pediatric ophthalmologist each saw Aiden about a week after he entered the hospital. The neuroradiologist observed that Aiden had "extensive" brain swelling and hemorrhaging that extended down into his spinal column. The neuroradiologist also saw evidence of injury to Aiden's neck ligaments. The ophthalmologist found "thousands of hemorrhages throughout the back of both eyes," with blood sitting "in front of the retina, on the retina, and underneath his retina." Aiden was blind.

¶8 Police questioned Lopez. She told them that when Aiden woke up at about 9:00 a.m., he "was having difficulty breathing" and his "body went limp." She said she tried to reach Carmen by calling her personal and work phone numbers, but there was no record she had made such calls. Lopez also said she looked next door to see if Carmen's mother's car was there but did not see it. Carmen's mother later said she was home from work that day and did not leave the house for more than five minutes. When police asked Lopez why she did not bring Aiden to the hospital, she said nothing.

¶9 The State tried Lopez on one count of child abuse committed intentionally or knowingly. See Ariz. Rev. Stat. ("A.R.S.") § 13-3623(A)(1). The neuroradiologist and ophthalmologist who examined Aiden testified that his injuries likely arose from a single, significant trauma that caused his head to quickly accelerate and decelerate-as by being aggressively shaken or propelled into a stationary surface. A pediatrician who evaluated Aiden as part of the Child Protection Team at Phoenix Children's Hospital testified that because he had no reported history of trauma, the combination of neck ligament injury, retinal hemorrhaging, and subdural hematomas were "suspicious for abusive head trauma" that could have been caused by an intentional whiplash motion. The pediatrician acknowledged that Aiden had no fractures and no external injuries or marks. But she said a child could receive internal injuries from an acceleration/deceleration event with no external injuries or bruising. At the time of trial, Aiden was six years old and unable to walk, see, or eat by mouth. He was permanently disabled and would require care for the rest of his life.

¶10 Lopez testified and denied abusing Aiden. She admitted she lied about calling Carmen and that she could have sought help for Aiden, but she insisted she did not realize how ill he was. She said he seemed "a little bit congested" when he woke at about 9:00 that morning and was "a little pale" and breathing "a little bit fast" after waking from another nap at noon but that she gave him some Tylenol and he seemed to improve after she fed and changed him.

¶11 A neurologist testified as an expert for the defense that Aiden's injuries were likely caused by a chronic subdural hematoma that arose at an earlier date and began to rebleed. In support of that hypothesis, the expert pointed to the presence of "intermediate" and "older" blood seen in Aiden's initial brain scans; he testified that subdural hematomas could easily rebleed and "enlarge suddenly and catastrophically" with little or no force; he disputed the neuroradiologist's conclusion that Aiden suffered injury to his neck ligaments; and he opined that abnormalities seen in Aiden's neck region, as well as the retinal hemorrhages, resulted from pressure caused by the rebleed and subsequent medical interventions. The expert also disputed that shaking alone, or impact with a soft surface, could cause bilateral subdural bleeding, and he contended that the amount of force needed to cause such bleeding would have caused other injuries and external marks that were not present.

¶12 State medical witnesses acknowledged that Aiden's scans showed blood at different "stages of healing or stages of bleeding" that could "be indicative of repeated trauma," but they also testified that it was hard to determine the precise age of subdural blood. Apart from Aiden's minor injuries at birth, the defense offered no evidence to explain how or when Aiden might have suffered earlier subdural hematomas. Aiden's pediatrician testified that he had never seen a baby develop a subdural hematoma from a normal delivery, it would take "a significant force" to cause such bleeding, and a baby with a subdural hematoma would present as irritable and not eating well.

¶13 The jury found Lopez not guilty of child abuse committed intentionally or knowingly but guilty of child abuse committed recklessly and with criminal negligence. The superior court sentenced her to concurrent prison terms of five and three years. We have jurisdiction over Lopez's timely appeal under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

DISCUSSION

I. Sufficiency of the Evidence

¶14 Lopez contends the evidence was insufficient to support her convictions. We review a claim of insufficient evidence de novo, viewing all facts and resolving all evidentiary conflicts in favor of the jury's verdict. State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014). Our review is confined to determining whether substantial evidence supports the verdict. Id. "Substantial evidence is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Ellison, 213 Ariz. 116, 134, ¶ 65 (2006) (citation omitted). We do not reweigh the evidence to determine whether we would reach the same conclusions as the trier of fact. State v. Barger, 167 Ariz. 563, 568 (App. 1990).

¶15 Lopez was convicted of violating A.R.S. § 13-3623(A). One commits child abuse under § 13-3623(A) if "[u]nder circumstances likely to produce death or serious physical injury, [the] person [] causes a child . . . to suffer physical injury or, having the care or custody of a child . . . causes or permits the person or health of the child . . . to be injured or [] causes or permits a child . . . to be placed in a situation where the person or health of the child . . . is endangered."

¶16 Thus, § 13-3623(A) contemplates three ways to commit child abuse: (1) causing a child to suffer physical injury (2) causing or permitting a child's person or health to be injured while in the defendant's care or custody, or (3) causing or permitting a child's person or health to be endangered while in the defendant's care or custody. State v. West, 238 Ariz. 482, 490, ¶ 21 (App. 2015). The penalties for child abuse vary, depending on whether the...