State v. DePiano

926 P.2d 508, 187 Ariz. 41, 181 Ariz. Adv. Rep. 16, 1995 Ariz. App. LEXIS 3
CourtCourt of Appeals of Arizona
DecidedJanuary 10, 1995
DocketNo. 1 CA-CR 92-1855
StatusPublished
Cited by6 cases

This text of 926 P.2d 508 (State v. DePiano) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. DePiano, 926 P.2d 508, 187 Ariz. 41, 181 Ariz. Adv. Rep. 16, 1995 Ariz. App. LEXIS 3 (Ark. Ct. App. 1995).

Opinions

OPINION

WEISBERG, Presiding Judge.

Colette Renee DePiano (“defendant”) appeals her convictions and sentences on two counts of child abuse. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant is the mother of two sons, ages three and five years old at the time of the incident. At approximately 2:30 a.m. on October 16,1991, an officer of the Tempe police department found defendant and her sons in defendant’s car, with the engine running, in the garage of the house where they were living. The garage was full of smoke and exhaust fumes, as the garage door and the door into the house were closed, and towels had been placed along the bottom of both doors. Notwithstanding, defendant and the children were fully conscious, and did not appear to be suffering any ill effects. The record is unclear as to how long defendant and her children were in the ear with the engine running, and whether all of the car windows were closed at the time. Defendant had written a note, found on the dashboard of the car, which police construed to be a suicide note. After taking defendant and her children to a nearby hospital for examination, Tempe police officers placed defendant under arrest.

A grand jury issued an indictment against defendant charging her with two counts of child abuse under Ariz.Rev.Stat.Ann. (“A.R.S.”) section 13-3623(B)(1) (1989). Defendant pled not guilty and the case proceeded to trial.

The state theorized that defendant intended to kill herself and her children. Most of the state’s case consisted of circumstantial evidence to establish the scienter element. The state also relied on testimony of the emergency room physician who treated defendant on the night of the incident. He testified that defendant told him she did not want to live any longer, and he opined that her actions on the night in question were a “suicide gesture.” Because A.R.S. section 13-3623(B)(1) requires proof that the conditions defendant created in the garage were likely to produce death or serious physical injury, the state introduced expert opinion testimony to prove that the atmosphere in the garage would have been lethal but for the arrival of the police.

In defense, defendant testified that she was repairing her automobile and was not suicidal. Defendant’s witnesses corroborated her statement that the automobile was in need of repair, that defendant was capable of performing the necessary repair work, and that defendant was neither unduly depressed nor suicidal at the time of the incident.

A jury found defendant guilty on both counts, and the trial court subsequently sentenced defendant to the presumptive term of imprisonment pursuant to A.R.S. section 13-604.01: two seventeen year sentences to be served consecutively. Defendant timely appealed pursuant to Rule 31 of the Arizona Rules of Criminal Procedure (“Rule”).

ISSUES PRESENTED FOR REVIEW

1. Did the state’s expert witness provide sufficient evidence to support a finding that defendant had placed her children in a situation where their persons or health were endangered, under circumstances likely to produce death or serious physical injury?

2. Was evidence of a prior bad act of defendant admissible under Rule 404(b) of [44]*44the Arizona Rules of Evidence where (i) defendant did not raise a timely, specific objection to the evidence at trial, and (ii) defendant’s intent and mistake of fact were in issue?

3. Was lay opinion testimony interpreting a handwritten note admissible under Rule 701 of the Arizona Rules of Evidence where the objecting party had broached the subject on cross-examination?

4. Did the jury instruction on reasonable doubt, which stated, “[t]his does not mean an imaginary or possible doubt,” constitute fundamental error?

5. Did imposition of two consecutive, flat seventeen-year sentences constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article II, Section 15 of the Arizona Constitution?

DISCUSSION

A The State Introduced Sufficient Proof to Support a Finding of Defendant’s Guilt Beyond a Reasonable Doubt

The substantive criminal statute in question, Section 13-3623(B)(1), reads:

Under circumstances likely to produce death or serious physical injury, any person who causes a child or vulnerable adult to suffer physical injury or, having the care or custody of such child or vulnerable adult, causes or permits the person or health of such child or vulnerable adult to be injured or causes or permits such child or vulnerable adult to be placed in a situation where its person or health is endangered is guilty of an offense as follows: 1. If done intentionally or knowingly, the offense is a class 2 felony and if the victim is under fifteen years of age it is punishable pursuant to [A.R.S.] § 13-604.01.

Defendant correctly cites State v. Greene, 168 Ariz. 104, 108, 811 P.2d 356, 360 (App.1991), in support of her argument that the state was required to show a likelihood, rather than the mere potential, of harm to her sons from the circumstances in the garage. Defendant challenged the sufficiency of the evidence on this issue, and moved for acquittal at the close of the state’s evidence. The trial court denied the motion, and defendant assigns error to that ruling.

We must determine whether there was substantial evidence that defendant committed the crime. Rule 20(a); State v. Neal, 143 Ariz. 93, 98, 692 P.2d 272, 277 (1984). In so doing, we view the evidence in favor of upholding the jury’s verdict. Neal, 143 Ariz. at 98, 692 P.2d at 277; State v. Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013 (1983). “Substantial evidence” for these purposes is evidence that “reasonable persons could accept as adequate and sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt.” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980).

In denying defendant’s motion, the court, outside the presence of the jury, stated:

Your Rule 20 motion is denied based upon the evidence that indicates that the jury can consider in this matter that obviously the children [are] under the age of 15[;] based upon the evidence there may be some substantial evidence, [f]or at least the jury to infer that defendant’s acts were intentional and she placed the children in a situation where each child could have put their person or health in danger, or they could have suffered death or serious physical injury as opposed to actually suffering death or physical injury.

(Emphasis added). Defendant focuses on the trial court’s use of the words “could have” to establish a misapplication of law on this point. Her argument turns on the required showing that there was a likelihood, rather than a possibility or potential, of death or serious physical injury. Greene, 168 Ariz. at 107-08, 811 P.2d at 359-60.

We agree that the above-quoted passage appears to misstate the applicable law.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Martinson
384 P.3d 307 (Court of Appeals of Arizona, 2016)
State of Arizona v. Andre Michael Leteve
354 P.3d 393 (Arizona Supreme Court, 2015)
State v. DePiano
926 P.2d 494 (Arizona Supreme Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
926 P.2d 508, 187 Ariz. 41, 181 Ariz. Adv. Rep. 16, 1995 Ariz. App. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-depiano-arizctapp-1995.