                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                ROBERT THOMAS MCMORRIS, Appellant.

                             No. 1 CA-CR 17-0379
                               FILED 5-17-2018


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201301328
                 The Honorable David M. Haws, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Cynthia Brubaker
Counsel for Appellant
                          STATE v. MCMORRIS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge James B. Morse Jr. joined.


H O W E, Judge:

¶1             Robert Thomas McMorris appeals his convictions and
sentences for aggravated assault, a class 2 felony, and reckless child abuse,
a class 3 felony. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            We view the facts in the light most favorable to upholding the
jury verdicts. State v. Miranda-Cabrera, 209 Ariz. 220, 221 ¶ 2 (App. 2004).
McMorris is the father of M.M. and L.M. McMorris and the children’s
mother, N.E., split from each other in October 2013. The following month,
4-month-old M.M. and 18-month-old L.M. spent the weekend with
McMorris. This was the first solo weekend the children had with McMorris
since the couple ended their relationship.

¶3            During the weekend, McMorris gave M.M. a bath. While
taking M.M. out of the bathtub, McMorris became frustrated, squeezed and
shook M.M., and then dropped M.M. on the bathroom floor. M.M.
immediately became unresponsive and was “stiffening up and grunting.”
McMorris called N.E. and informed her that M.M. “was not responding”
and together they took M.M. to Yuma Regional Medical Center. Because
M.M.’s injuries required more specialized care, M.M. was airlifted to
Phoenix Children’s Hospital for emergency care. Phoenix Children’s
Hospital staff were unable to control M.M.’s seizures and placed him in a
week-long medical coma. M.M.’s test results showed mild swelling,
damaged retinas causing partial blindness, and subdural hematomas
spanning the occipital and posterior parietal lobes of his brain, which
required the insertion of tubes into his head to drain the fluid.

¶4           A Yuma police detective interviewed McMorris at Phoenix
Children’s Hospital. McMorris told the detective that while he was giving
M.M. a bath, M.M. fainted, fell backward, and hit his head on the plastic
bather McMorris was using in the bathtub. A couple weeks later, the
detective asked McMorris to conduct a reenactment interview at



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                           STATE v. MCMORRIS
                            Decision of the Court

McMorris’s apartment to which McMorris agreed. McMorris explained
what had occurred in roughly the same way he had explained two weeks
prior. After the reenactment interview, the detective asked McMorris to
come to the police station for an additional interview. McMorris followed
the detective to the police station.

¶5            While at the police station, the detective told McMorris that
he was not under arrest but nonetheless read McMorris his Miranda1 rights.
During the interview, the detective explained to McMorris that his story
was inconsistent with M.M.’s injuries as the doctors described them. Faced
with this information, McMorris told the detective that M.M. had been
crying and screaming while getting bathed and that he had pulled M.M.
out of the bath to grab a towel and M.M. slipped out of his hands and fell.
The detective asked more questions and McMorris then admitted that he
had squeezed, shaken, and dropped M.M. on the bathroom floor. When
asked how hard he had shaken M.M., McMorris responded, “[h]ard
enough.” McMorris then told the detective that if he could tell N.E.
anything he would tell her that he “was frustrated.” McMorris was
subsequently indicted on one count of intentional and knowing child abuse,
and one count of aggravated assault causing serious physical injury to a
person under 15 years of age, each charged as dangerous crimes against
children under A.R.S. § 13–705.

¶6             During trial in June 2016, N.E. testified that M.M. was born
without any complications and was healthy before this incident. She also
testified that she had received a call from McMorris telling her that M.M.
“was not responding” and that she and McMorris took M.M. to the hospital.
She further testified that for the first couple of days after the incident
McMorris kept stating that he had no idea how M.M. had been hurt. Finally,
she testified that by the time of trial, M.M. (1) still needed physical,
occupational, and speech therapy; (2) was no longer seizing; (3) had started
to make improvements in his vision; and (4) had started walking two
months earlier. Two child abuse pediatricians who observed M.M. testified
at trial. One testified that M.M.’s injuries were “much more severe and
widespread” than she would have expected from falling backwards in a
plastic bather. She also testified that the injuries were “highly suspicious for
inflicted injury, or abus[ive] head trauma.” The other pediatrician testified
that his medical opinion was that M.M.’s injuries were not accidental and
that the injuries were likely caused by shaking M.M.




1      Miranda v. Arizona, 384 U.S. 436 (1966).


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                           STATE v. MCMORRIS
                            Decision of the Court

¶7             Before releasing the jury for deliberations, the trial court read
the final jury instructions, which included an instruction on the dangerous
crimes against children statute. The instruction stated that if the jury found
McMorris guilty of either crime, it must determine beyond a reasonable
doubt whether the offense was a dangerous crime against a child, that is, if
McMorris’s conduct “was focused on, directed against, aimed at, or
targeted a victim” under 15. But the jury was not given any verdict form
that allowed it to make that designation. After deliberations, the jury found
McMorris guilty of aggravated assault causing serious physical injury and
guilty of reckless child abuse, the lesser-included offense of the intentional
and knowing child abuse charge. The jury also found that both convictions
were domestic violence crimes and that M.M. was under age 15. But the
jury did not expressly find that McMorris’s aggravated assault crime was a
dangerous crime against a child.

¶8             After a hearing on aggravating and mitigating circumstances,
the trial court sentenced McMorris to a mitigated but enhanced sentence of
ten years’ imprisonment for the aggravated assault conviction pursuant to
the dangerous crimes against children statute. For the lesser-included
offense of reckless child abuse, the court imposed a consecutive term of 36
months’ probation. McMorris timely appealed.

                               DISCUSSION

              1. Dangerous Crimes Against Children

¶9            McMorris argues that the trial court erred by sentencing him
under A.R.S. § 13–705, the dangerous crimes against children statute,
because the jury did not find that his conviction was a dangerous crime
against a child. McMorris failed to object below, however, and we therefore
review only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567
¶ 19 (2005). Whether the trial court correctly enhanced a sentence as a
dangerous crime against children is a legal question we review de novo. See
State v. Sepahi, 206 Ariz. 321, 321 ¶ 2 (2003). Because any reasonable jury
would have found that McMorris’s crime was a dangerous crime against a
child, any error was harmless.

¶10           To prove that a defendant has committed a dangerous crime
against a child, the State must show that the defendant committed one of
the enumerated crimes in A.R.S. § 13–705 and that “his conduct was focused
on, directed against, aimed at, or target[ed] a victim under the age of
fifteen.” Sepahi, 206 Ariz. at 324 ¶ 19. McMorris does not dispute that the
jury found him guilty of aggravated assault—one of the enumerated crimes



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                             Decision of the Court

in A.R.S. § 13–705(D). Nor does McMorris challenge that the jury expressly
found that four-month-old M.M. was under the age of 15 at the time of the
crime. He argues, however, that the jury did not find that his conduct “was
focused on, directed against, aimed at, or targeted” M.M. and therefore he
could not be subject to an enhanced sentence under A.R.S. § 13–705.

¶11             The State concedes that the jury did not return a finding on
the targeting factor but contends that the “error was harmless because
overwhelming trial evidence satisfied the factor.” The State is correct.
“Blakely[2] error . . . can be harmless if no reasonable jury, on the basis of the
evidence before it, could have failed to find [the facts] . . . necessary to
expose the defendant to the sentence imposed.” State v. Hampton, 213 Ariz.
167, 183 ¶ 72 (2006). Here, the evidence at trial showed that M.M. was a
healthy four-month-old before spending the weekend with McMorris. The
jury heard from the detective that McMorris admitted to being frustrated
and squeezing, shaking, and dropping M.M. Further, the two pediatricians
that saw M.M. testified that the injuries to M.M. did not seem accidental
and that McMorris’s original story of events was improbable. As such, any
reasonable jury would have found that McMorris’s conduct was focused on
and directed against M.M.—a child. See Miranda-Cabrera, 209 Ariz. at 227
¶ 30 (App. 2004) (finding harmless error where defendant argued that the
jury verdict did not satisfy the targeting requirement of the dangerous
crimes against children sentencing enhancement).

¶12           McMorris counters that because the jury found him guilty of
only reckless child abuse and not intentional or knowing child abuse, the
jury “may not have believed that his conduct was ‘focused’ at all.” Even
assuming that the jury found McMorris guilty of the aggravated assault
charge because of reckless conduct instead of intentional or knowing
conduct, this argument is without merit. A defendant’s reckless conduct
can give rise to a dangerous crime against children sentence. See State v.
Gurrola, 219 Ariz. 438, 440 ¶ 8 (App. 2008) (“The requirement that conduct
be focused on a child does not mean . . . that a dangerous crime against
children may not be committed by reckless conduct.”). Thus, no error
occurred.

              2. Alleged Double Jeopardy Violation

¶13           McMorris next argues that his convictions and consecutive
sentences for aggravated assault and reckless child abuse violates double
jeopardy “because it is impossible to commit aggravated assault on a child


2      Blakely v. Washington, 542 U.S. 296 (2004).


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                           STATE v. MCMORRIS
                            Decision of the Court

without also committing child abuse.” We review de novo whether double
jeopardy applies. State v. Cope, 241 Ariz. 323, 325 ¶ 8 (App. 2016). Because
each crime requires at least one element that is not found in the other,
McMorris’s convictions do not violate double jeopardy.

¶14            “The Double Jeopardy Clause prohibits the imposition of
multiple punishments for the same offense.” State v. Eagle, 196 Ariz. 188,
190 ¶ 6 (2000). “The applicable rule is that, where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one is whether
each provision requires proof of an additional fact which the other does
not.” State v. Anderson, 210 Ariz. 327, 399 ¶ 139 (2005). Accordingly, to
analyze a double jeopardy claim, the court will look to the elements of the
crimes for which a defendant was sentenced “to ensure that each crime
contains an element not present in the other.” Id.

¶15            McMorris was convicted and sentenced for class 2 felony
aggravated assault and class 3 felony reckless child abuse. A defendant is
guilty of class 2 felony aggravated assault if he or she (1) intentionally,
knowingly, or recklessly (2) causes serious physical injury (3) to a victim
under 15 years old. A.R.S. §§ 13–1203(A)(1), –1204(A)(1), (E). Child abuse
under A.R.S. § 13–3623(A) is an alternative means statute that provides
three ways of committing child abuse. State v. West, 238 Ariz. 482, 490
¶¶ 21–22 (App. 2015). Reckless child abuse occurs when a person, “[u]nder
circumstances likely to produce death or serious physical injury,”
(1) recklessly causes a child to suffer a physical injury; (2) having the care
or custody of a child, recklessly causes or permits the child to be injured; or
(3) having the care or custody of a child, recklessly causes or permits the
child to be placed in a situation where the child is endangered. A.R.S. § 13–
3623(A)(2).

¶16           In analyzing the two crimes to determine whether each crime
has an element not present in the other, class 2 felony aggravated assault as
charged here requires proof of two elements not contained in reckless child
abuse—serious physical injury and a victim under 15 years old. Class 3
felony reckless child abuse as charged here, on the other hand, requires
proof that a child was injured or endangered while in the care and custody
of the defendant, that a child suffer physical injury, and that the victim be
under 18 years old. See A.R.S. § 13–3623(F)(2) (noting that under the child
abuse statute, “child” means an individual under 18 years old). Because
aggravated assault and reckless child abuse require at least one element that
the other does not, McMorris’s convictions do not violate double jeopardy.



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                  STATE v. MCMORRIS
                   Decision of the Court

                      CONCLUSION

¶17   For the foregoing reasons, we affirm.




                AMY M. WOOD • Clerk of the Court
                FILED: AA




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