                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


             STATE OF ARIZONA, Appellant/Cross-Appellee,

                                   v.

      JEFFREY RICHARD MARTINSON, Appellee/Cross-Appellant.

                          No. 1 CA-CR 13-0895
                           FILED 9-22-2016


          Appeal from the Superior Court in Maricopa County
                     Nos. CR 2004-124662-001 SE
                          CR 2012-007335-001
            The Honorable Sally Schneider Duncan, Judge

                    VACATED AND REMANDED


                               COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Appellant/Cross-Appellee

Michael Terribile, Attorney at Law, Phoenix
By Michael Terribile
Co-Counsel for Appellee/Cross-Appellant

Law Office of Treasure VanDreumel, PLC, Phoenix
By Treasure VanDreumel
Co-Counsel for Appellee/Cross-Appellant

Arizona Voice for Crime Victims, Scottsdale
By Colleen Clase
Co-Counsel for Crime Victim, K.E.
University of Utah Appellate Clinic, S.J. Quinney College of Law,
Salt Lake City, Utah
By Paul G. Cassell
Co-Counsel/Pro Hac Vice for Crime Victim, K.E.



                                OPINION

Judge Margaret H. Downie delivered the opinion of the Court, in which
Acting Presiding Judge John C. Gemmill (Retired) and Judge Samuel A.
Thumma joined.


D O W N I E, Judge:

¶1             The State of Arizona appeals an order dismissing with
prejudice first degree felony murder and child abuse charges against Jeffrey
Richard Martinson on the basis of prosecutorial misconduct. Martinson
cross-appeals from the denial of his motions for judgment of acquittal.

¶2            Because the State was erroneously precluded from suggesting
at trial that Martinson intentionally killed his son, the fundamental
underpinnings for a finding of prosecutorial misconduct sufficient to
warrant dismissal with prejudice are not present. We therefore vacate the
dismissal with prejudice order and remand to the superior court with
instructions to grant the State’s motion to dismiss the pending indictment
without prejudice. Treating Martinson’s cross-appeal as a cross-issue, we
deny his requested relief.

                FACTS AND PROCEDURAL HISTORY

¶3           Martinson and K.E. are the parents of J.E.M., who was born in
July 1999. After their relationship ended in 2000, K.E. obtained legal
custody of J.E.M., as well as an order of protection against Martinson.
Martinson was awarded visitation with J.E.M.

¶4           In August 2004, J.E.M. was with Martinson for a scheduled
weekend visit. When Martinson failed to return the child on Sunday
evening or return telephone calls, K.E. contacted the police. Police officers
entered Martinson’s apartment to conduct a welfare check and found him
in the master bedroom, unresponsive, with cuts on his wrists. J.E.M. was
discovered dead in another bedroom, with a frothy substance coming from


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                           Opinion of the Court

his nose. Toxicology tests revealed carisoprodol (a muscle relaxant) and a
related metabolite in J.E.M.’s blood. The medical examiner concluded
J.E.M.’s death was caused by acute carisoprodol toxicity.

¶5            In September 2004, a grand jury returned an indictment (the
“2004 Indictment”), charging Martinson with one count of first degree
felony murder and one count of child abuse pursuant to Arizona Revised
Statutes (“A.R.S.”) section 13–3623(A)(1) (A person commits child abuse if,
acting knowingly or intentionally, the person, “[u]nder circumstances
likely to produce death or serious physical injury . . . causes a child . . . to
suffer physical injury.”). Child abuse was the predicate felony for the
felony murder count. See A.R.S. § 13–1105(A)(2) (a person commits felony
murder if he commits child abuse in violation of A.R.S. § 13–3623(A)(1) and
“in the course of and in furtherance of the offense” causes death). The State
sought the death penalty.

¶6            Trial began in July 2011. After the jury was sworn, but before
the State’s opening statement, defense counsel moved to preclude evidence
that Martinson intentionally killed J.E.M. The superior court granted the
motion, reasoning that under State v. Styers, 177 Ariz. 104 (1993), alleging
child abuse as the predicate felony for felony murder barred the State from
arguing that Martinson had intentionally killed J.E.M.

¶7           The jury returned guilty verdicts as to both felony murder
and child abuse. Jurors could not reach a unanimous decision during the
penalty phase, though, resulting in a mistrial for that phase. Martinson
moved for a judgment of acquittal based on insufficiency of the evidence
or, in the alternative, for a new trial as to his guilt, asserting juror
misconduct and trial error.       Martinson also alleged prosecutorial
misconduct, claiming prosecutors repeatedly violated the court’s order
precluding evidence of an intent to kill J.E.M.

¶8            In March 2012, the superior court denied Martinson’s motion
for judgment of acquittal but granted his motion for new trial based on juror
misconduct and error in admitting expert testimony. In ordering the new
trial, the court specifically rejected Martinson’s claims of prosecutorial
misconduct.

¶9           In June 2012, the State obtained a new indictment against
Martinson in Maricopa County Case No. CR 2012–007335–001 (the “2012
Indictment”). In addition to alleging felony murder, the 2012 Indictment
charged Martinson with premeditated murder. After obtaining the 2012
Indictment, the State moved to dismiss the 2004 Indictment without



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                           Opinion of the Court

prejudice.1 Martinson objected and moved to dismiss the 2012 Indictment
instead. The superior court granted Martinson’s motion to dismiss the 2012
Indictment and denied the State’s motion to dismiss the 2004 Indictment.

¶10            The State filed a special action petition challenging the denial
of its motion to dismiss the 2004 Indictment. State ex rel. Montgomery v.
Duncan, 1 CA–SA 12–0217, 2012 WL 5867379 (Ariz. App. Nov. 20, 2012)
(mem. decision). This Court accepted jurisdiction and granted relief,
concluding the State had established good cause for dismissing the 2004
Indictment without prejudice. Id. at *5, ¶ 20. We did not, however, “reach
the issue of whether good cause would have been lacking if the trial court
had determined the State attempted to dismiss the 2004 Indictment in bad
faith or to avoid the speedy trial provisions of Rule 8.” Id. at ¶ 21. We ruled
the superior court could “amend its findings or hold further hearings” if it
intended to rely on bad faith. Id.

¶11           The superior court subsequently ordered additional briefing
and held a hearing to consider whether the State acted in bad faith by
seeking to dismiss the 2004 Indictment. The court ultimately ruled that the
State had engaged in prosecutorial misconduct and bad faith by, among
other things, “deliberately attempt[ing] to secure a conviction based on an
uncharged theory” and by “persistently violat[ing] this Court’s Styers
ruling.” Based on its findings of prosecutorial misconduct, the court
dismissed the 2004 Indictment with prejudice.

¶12           The State timely appealed, and Martinson timely cross-
appealed.2

                               DISCUSSION

    I.    Dismissal with Prejudice

¶13           We review the superior court’s dismissal order for an abuse
of discretion. See State v. Moody, 208 Ariz. 424, 448, ¶ 75 (2004) (appellate

1      At the same time, the State successfully moved to dismiss the notice
of intent to seek the death penalty.
2      K.E. filed a “crime victim’s notice of appearance” in this Court, as
well as a “Crime Victim’s Brief Pursuant to A.R.S. § 13-4437(A),” arguing
the dismissal with prejudice order violated her constitutional rights as a
victim. Martinson moved to strike K.E.’s filings. Given our determination
that the dismissal should have been without prejudice, we need not resolve
K.E.’s standing or her constitutional claims, and we deny Martinson’s
motion to strike K.E.’s filings.


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                           Opinion of the Court

court reviews rulings on motions to dismiss criminal charges for abuse of
discretion). A court abuses its discretion if it commits an error of law in
reaching its decision. State v. Cowles, 207 Ariz. 8, 9, ¶ 3 (App. 2004). We
defer to the superior court’s factual findings unless clearly erroneous but
are not bound by its legal conclusions. State v. O’Dell, 202 Ariz. 453,
456–57, ¶ 8 (App. 2002).

¶14            The bad faith and prosecutorial misconduct findings that
caused the superior court to dismiss the charges with prejudice are, at their
core, premised on the determination that prosecutors ignored the holding
in Styers and the corresponding court order in this case that they not pursue
an intent to kill theory at trial.3

¶15           The superior court ruled that because the State had charged
“felony murder --with child abuse as a predicate -- Arizona law necessarily
precluded the State from offering evidence of intent to kill and/or
argu[ment] that [Martinson] intended to kill” J.E.M. The court based this
conclusion on what it viewed as the central holding of Styers: because a
person cannot intentionally kill a child without also intentionally causing
physical injury, the crime of child abuse necessarily merges into felony
murder if based on an intent to kill. The court reasoned, though, that Styers
permits child abuse to serve as a predicate felony if it is based on an intent
to injure a child; under these circumstances, it concluded, child abuse
constitutes a separate and independent offense from felony murder, and
the two offenses do not merge. Based on this analytic framework, the court
precluded the State from presenting evidence or argument that Martinson
intended to kill J.E.M.

          A. Merger

¶16          Applying Styers to the facts of this case is not a
straightforward proposition.



3      The superior court found additional instances of prosecutorial
misconduct. As we discuss infra, though, the primary impetus for its
dismissal with prejudice order was the purported violation of Styers and
the Styers-based ruling. Most of the post-trial conduct the court categorized
as misconduct stems from its conclusion that prosecutors viewed the
“rulings about the uncharged intentional-murder theory as a roadblock”
and “used every opportunity to challenge the Court’s Styers ruling and
present evidence of intent to kill.”



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                          Opinion of the Court

¶17           Styers shot a child in the back of the head and was convicted
of first degree murder, conspiracy to commit first degree murder, child
abuse, and kidnapping. 177 Ariz. at 108–09. The fatal gunshot wounds
were the only evidence of child abuse. Id. at 110. The jury received separate
verdict forms for premeditated and felony murder. It returned guilty
verdicts on both theories. Id. at n.1.

¶18           On appeal, Styers challenged the sufficiency of the evidence
for the child abuse conviction, arguing he could not be convicted of both
murder and child abuse. The Arizona Supreme Court agreed, holding that
the “separate child abuse conviction cannot stand on the facts of this case.”
Id. at 110. The court drew an analogy to aggravated assault-murder, where
the convictions merge into one offense, reasoning: “If a defendant cannot
be convicted for an intentional aggravated assault that necessarily occurs
when there is a premeditated murder, it logically follows that he also cannot
be convicted for an intentional child abuse that necessarily occurs when
there is a premeditated murder of a child victim.” Id. The court
emphasized, though, that its decision was limited to premeditated murder
and child abuse convictions. Indeed, anticipating charges like those against
Martinson, the court added that its decision did not apply to child abuse as
a predicate felony for felony murder:

      We emphasize that nothing in this opinion should be read as
      suggesting that child abuse may not still be a predicate felony
      for felony murder. If a person intentionally injures a child, he
      is guilty of child abuse under A.R.S. § 13-3623(B)(1);[4] if that
      injury results in the death of the child it becomes a first degree
      felony murder pursuant to A.R.S. § 13-1105(A)(2). See State v.
      Lopez, 174 Ariz. 131, 141–43, 847 P.2d 1078, 1088–90 (1992)
      . . . . Although felony murder is first degree murder, it is
      arrived at differently than premeditated murder. The first
      degree murder statute, A.R.S. § 13-1105(A)(1), not the child
      abuse statute, applies when a person intentionally kills a child
      victim.

Id. at 110–11 (footnote added).

¶19         The supreme court underscored the limited holding of Styers
in the companion case of State v. Milke, 177 Ariz. 118, 123 (1993), stating:



4      This statutory section was later re-designated as A.R.S.
§ 13-3623(A)(1). See 2000 Ariz. Sess. Laws, Ch. 50, § 4 (2nd Reg. Sess.).


                                      6
                          STATE v. MARTINSON
                           Opinion of the Court

       In the companion case involving co-defendant Styers, we
       have today held that, under the facts of this case, a separate
       child abuse offense under A.R.S. § 13-3623(B)(1) did not occur
       when [the victim] was murdered with premeditation. . . . We
       emphasize, as we did in Styers, that our holding has no effect
       on the use of child abuse as a predicate offense for felony
       murder.

¶20            The holding in Styers is limited to premeditated murder and
child abuse convictions and does not address or govern the use of child
abuse as a predicate felony for felony murder. In contrast, our supreme
court squarely addressed whether child abuse merges into felony murder
in State v. Lopez, 174 Ariz. 131 (1992). The defendant in Lopez was convicted
of felony murder based on the predicate felony of child abuse. Id. at 136.
Relying on State v. Essman, 98 Ariz. 228 (1965), Lopez challenged the
conviction, arguing that child abuse, like assault, cannot serve as a predicate
felony because it merges into felony murder. Id. at 141; see Essman, 98 Ariz.
at 235 (“[A]cts of assault merge into the resultant homicide, and may not be
deemed a separate and independent offense which could support a
conviction for felony murder.”). The supreme court rejected that argument,
holding that “if the legislature explicitly states that a particular felony is a
predicate felony for felony-murder, no ‘merger’ occurs.”5 Lopez, 174 Ariz.
at 142; see also State v. Miniefield, 110 Ariz. 599, 602 (1974) (arson does not
merge into felony murder because it is designated a predicate felony under
felony murder statute).

¶21           Neither Styers nor other precedent stands for the proposition
that a predicate felony committed with the intent to kill merges into felony
murder. Indeed, the defendant in Styers was charged with felony murder
predicated on child abuse and felony murder predicated on kidnapping.
Styers, 177 Ariz. at 110, 112. Styers argued that kidnapping could not serve
as a predicate felony because it was committed pursuant to a plan to kill
and therefore merged into the felony murder charge. Id. at 112. The court
disagreed, holding that, “[a]lthough the jury findings in this case clearly
demonstrate that the kidnapping was [committed] pursuant to a plan to

5     In distinguishing Essman, Lopez noted that when Essman was decided,
assault was not included as a predicate felony under the felony murder
statute. Id. at 141. Assault is not listed as a predicate felony under the
current felony murder statute, whereas child abuse is.              A.R.S.
§ 13-1105(A)(2).




                                       7
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                           Opinion of the Court

kill, that does not mean that only one crime was committed.” Id. As a
result, “the merger doctrine would not apply,” and “Defendant was
appropriately convicted of both kidnapping and murder.” Id.6

¶22            The court reached a similar conclusion in Miniefield, where the
defendant threw a bottle of flammable liquid into a house, causing a fire
that killed a nine-month-old child. 110 Ariz. at 601. The defendant was
charged with felony murder based on arson as the predicate felony. Id. He
argued arson could not serve as a predicate felony because it was, like a
knife or a gun, “merely the use of fire to attempt to kill the victim,” and “not
so distinct as to be an ingredient of an independent offense.” Id. Rejecting
this contention, the court held that because arson is identified as a predicate
felony under the felony murder statute, when “arson results in a death it is
first degree murder.” Id. at 602. The court further held that under the felony
murder statute, there is no “distinction between a person who intends to
kill another by fire” and a person who commits arson by only intending “to
burn down a dwelling house and accidentally kills one of the occupants.”
Id.

¶23           More recently, in State v. Moore, 222 Ariz. 1, 13, ¶ 57 (2009),
the defendant was convicted of felony murder predicated on burglary. The
burglary charge was based on entry into the victim’s home with the intent
to commit murder. Id. at 12, ¶ 50. Defendant challenged his conviction,
arguing burglary based on an intent to kill merges into felony murder. The
court disagreed, holding that under Arizona’s felony murder statute, a
predicate felony is not required to be separate or independent from
homicide. Id. at 14, ¶ 62; see also State v. Hardy, 230 Ariz. 281, 287, ¶¶ 21–26
(2012) (felony murder may be predicated on burglary and kidnapping
undertaken with intent to murder the victim).

¶24            The superior court’s order dismissing the charges with
prejudice was also based, in part, on the fact that felony murder only
requires proof of the specific mental state for the predicate felony, and proof
of an intent to kill J.E.M. was not required. See State v. McLoughlin, 139 Ariz.
481, 485–86 (1984); A.R.S. § 13-1105(A)(2). By definition, though, proof of a
more culpable mental state proves a less culpable mental state. See A.R.S. §
13-202(C). Indeed, given that crimes are designated predicate felonies
because they create a grave risk of death, and felony murder requires a close
causal connection between the predicate felony and the resulting death, it

6     The court did not address Styers’ same argument regarding child
abuse as a predicate felony because it had “reversed the child abuse
conviction on other grounds.” Id. at 117 n.3.


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                           STATE v. MARTINSON
                            Opinion of the Court

logically follows that much of the evidence used to prove a predicate felony
may also prove an intent to kill. See Miniefield, 110 Ariz. at 602 (Offenses
are designated predicate felonies because they are “committed with such a
wanton disregard for human life that there is no need to prove the elements
usually necessary for a conviction for first degree murder.”); A.R.S.
§ 13-1105(A)(2) (under felony murder statute, death must occur “in the
course of and in furtherance of” a predicate felony).

¶25            Although the predicate felony of child abuse required the
State to prove only that Martinson intentionally injured J.E.M., much of the
evidence establishing an intent to injure also demonstrated an intent to kill.
Cf. State v. DePiano, 187 Ariz. 41, 43, 45 (App. 1995) (sufficient evidence of
intent to commit child abuse where prosecution presented theory
defendant wanted to kill herself and her children as part of a “suicide
gesture”), vacated in part on other grounds, State v. DePiano, 187Ariz. 27 (1996).
Evidence proving an intent to kill necessarily proves an intent to injure, as
it is impossible to kill a person without causing physical injury. See State v.
Barrett, 132 Ariz. 88, 90 (1982) (“It cannot be seriously argued that death
does not involve serious physical injury as defined by [statute].”), overruled
on other grounds by State v. Burge, 167 Ariz. 25 (1990).

¶26            For the foregoing reasons, the State was entitled to pursue a
theory that Martinson committed the predicate felony of child abuse with
an intent to kill J.E.M., not merely injure him. The superior court’s contrary
ruling was therefore legally erroneous.

           B. Prosecutorial Misconduct

¶27           Federal and state double jeopardy protections prohibit
multiple prosecutions for the same offense. State v. Minnitt, 203 Ariz. 431,
437, ¶ 27 (2002). Additionally, “[a]s part of the protection against multiple
prosecutions, the clause protects a defendant’s valued right to have his or
her trial completed by the tribunal first assigned.” Id. These constitutional
protections, though, “are not absolute.” Id. at ¶ 28. In determining whether
double jeopardy principles bar retrial, we consider whether there was
“[i]ntentional and pervasive misconduct on the part of the prosecution to
the extent that the trial [was] structurally impaired” and whether the
misconduct “is so egregious that it raises concerns over the integrity and
fundamental fairness of the trial itself.” Id. at 438, ¶¶ 29-30. We review de
novo whether double jeopardy principles bar retrial of a defendant. Moody,
208 Ariz. at 437, ¶ 18.




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                           Opinion of the Court

¶28          Although as a matter of substantive law, the State was entitled
to pursue an intent to kill theory, as counsel for the State conceded at
argument before this Court, attorneys are ethically bound to abide by court
rulings — even those with which they disagree. Thus, to the extent
prosecutors violated the superior court’s Styers-based orders, such conduct
was improper.7 In discussing the appropriate sanction to impose, the
superior court stated:

       [T]he Prosecutors engaged in pervasive misconduct. First, the
       objective evidence demonstrates the Prosecutors’ intentional
       violation of the Court’s Styers rulings was prejudicial because
       jurors returned a verdict based on an intent-to-kill theory.
       Second, the Court’s Styers rulings did not result in the
       preclusion of otherwise admissible evidence. Rather, the
       rulings were an attempt to confine the State to trying the case
       it had charged. Third, the Prosecutors repeatedly violated the
       Defendant’s due process right to be tried only on the specific
       charges of which he had been accused. . . . Fourth, the 2012
       Indictment was not the product of the Prosecutors’ reaction to
       an adverse court ruling; but, in reality, the new indictment
       represents their undaunted efforts to convict the Defendant
       based on an unsupportable legal theory.

¶29            Assuming, without deciding, that prosecutors knowingly
pursued an intent to kill theory at trial in contravention of the court’s order,
as a matter of law, Martinson cannot establish the requisite prejudice
arising from that conduct that would bar retrial on double jeopardy
grounds. See State v. Aguilar, 217 Ariz. 235, 238–39, ¶ 11 (App. 2007)
(rejecting claim that prosecutorial misconduct barred retrial on double
jeopardy grounds and holding there must be “intentional conduct which
the prosecutor knows to be improper and prejudicial”) (emphasis added); see
also State v. Towery, 186 Ariz. 168, 185 (1996) (where there has been
misconduct but no error, or the error is harmless, the proper remedy is
generally not reversal but affirmance followed by appropriate sanctions
against the offending actor). Because the law permitted the State to prove

7      The record does not suggest that the State was placed on notice
during trial that it was violating a court order, yet continued doing so
unabated. Martinson made several motions for mistrial on the basis that
prosecutors were violating the court’s order by offering evidence and
argument suggesting an intent to kill. Each time, the court denied the
mistrial request. We leave to the superior court’s discretion the question of
whether lesser sanctions are appropriate on remand.


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                            Opinion of the Court

the felony murder charge with evidence that Martinson intended to kill
J.E.M., to the extent such evidence and argument was presented at trial,
Martinson suffered no cognizable prejudice.

¶30           For the foregoing reasons, we vacate the order dismissing the
2004 Indictment with prejudice and remand with instructions to grant the
State’s motion to dismiss that indictment without prejudice.

   II.     Cross-Appeal

¶31            The sole issue Martinson raises on cross-appeal is whether the
superior court erred by denying his Rule 20 motions for judgment of
acquittal. According to Martinson, even if we set aside the order of
dismissal with prejudice, double jeopardy principles bar further
prosecution due to insufficiency of the evidence. See Burks v. United States,
437 U.S. 1, 11 (1978).

¶32            We lack appellate jurisdiction to consider Martinson’s
argument as a cross-appeal. A criminal defendant may appeal only from:
(1) a final judgment of conviction; (2) an order denying a new trial; (3) an
order made after judgment affecting the substantial rights of the party; or
(4) an illegal or excessive sentence. A.R.S. § 13-4033(A); see also Campbell v.
Arnold, 121 Ariz. 370, 371 (1979) (court of appeals’ jurisdiction is dictated by
statute). Martinson was successful in having all charges against him
dismissed with prejudice. Consequently, his appeal does not fall within a
statutorily recognized category over which this Court has appellate
jurisdiction.

¶33            However, Martinson’s challenges offer an alternative basis for
affirming the superior court’s order of dismissal with prejudice. See State v.
Cañez, 202 Ariz. 133, ¶ 51 (2002) (appellate court will uphold trial court’s
ruling if legally correct for any reason), abrogated on other grounds by State v.
Valenzuela, 239 Ariz. 299 (2016). His contention that the court erred by
denying the Rule 20 motions does not necessitate a cross-appeal with an
independent showing of appellate jurisdiction; it is simply a cross-issue that
Martinson may raise in response to the State’s appeal. See Town of Miami v.
City of Globe, 195 Ariz. 176, 177 n.1, ¶ 1 (App. 1998) (“When a successful
party seeks only to uphold the judgment for reasons supported by the
record, but different from those relied upon by the trial court, its arguments
may not be raised by a cross-appeal, as it is not an ‘aggrieved’ party, but are
more properly designated as cross-issues.”). Accordingly, we consider the
merits of Martinson’s argument.




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                            Opinion of the Court

¶34             We review claims of insufficient evidence de novo. State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011). Our assessment is limited to whether
substantial evidence supports the verdicts. State v. Scott, 177 Ariz. 131, 138
(1993); see also Ariz. R. Crim. P. 20(a) (requiring trial court to enter judgment
of acquittal “if there is no substantial evidence to warrant a conviction”).
Substantial evidence is evidence that, viewed in the light most favorable to
sustaining the verdict, would permit a reasonable person to find a
defendant guilty beyond a reasonable doubt. State v. Roseberry, 210 Ariz.
360, 368–69, ¶ 45 (2005). “Evidence may be direct or circumstantial, but if
reasonable minds can differ on inferences to be drawn therefrom, the case
must be submitted to the jury.” State v. Landrigan, 176 Ariz. 1, 4 (1993).

¶35          The State presented substantial evidence from which jurors
could conclude, beyond a reasonable doubt, that Martinson was guilty of
child abuse and felony murder.

¶36             J.E.M. died while in Martinson’s sole care. When K.E. left the
boy with Martinson on Friday evening, he was in good health. Post-
mortem toxicology tests revealed carisoprodol and a related metabolite in
J.E.M.’s blood. The medical examiner who performed J.E.M.’s autopsy
testified that the cause of death was acute carisoprodol toxicity.

¶37            There was also circumstantial evidence that Martinson
administered the drug to J.E.M. See State v. Murray, 184 Ariz. 9, 31 (1995)
(probative value of evidence is not reduced because it is circumstantial). To
counter the suggestion that the child ingested the carisoprodol by himself,
the State presented evidence that J.E.M. did not take pills easily and that
K.E. never gave him medication in pill form. Moreover, an empty bottle of
carisoprodol pills — prescribed for Martinson — was found on the top shelf
of a medicine cabinet with the child-resistant cap intact. And the autopsy
revealed a recent abrasion on J.E.M.’s upper lip that the medical examiner
testified could have been caused by forcible administration of the drug.

¶38           The State also presented circumstantial evidence that
Martinson gave the drug to J.E.M. as a means of retaliating against K.E. See
State v. Routhier, 137 Ariz. 90, 99 (1983) (“Criminal intent, being a state of
mind, is shown by circumstantial evidence.”). Trial evidence established
acrimony between Martinson and K.E. dating back to 2000, when K.E.
called the police and had Martinson forcibly removed for assaulting her.
After K.E. obtained legal custody of J.E.M. and an order of protection
against Martinson, Martinson violated the protective order and visitation
schedule, resulting in renewal and expansion of the protective order, and
ultimately including a requirement that he participate in domestic violence


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                          Opinion of the Court

counseling and undergo a psychological assessment. There was also
evidence that, at the time of J.E.M.’s death, Martinson was upset because
K.E. had recently filed a motion to reinstate supervised visitation
exchanges. Martinson expressed fear that having to bear the expense of
supervised exchanges would mean he would not be able to see J.E.M.
Indeed, when officers questioned Martinson about J.E.M.’s death, he
accused K.E. of wanting to limit his involvement with the child.

¶39           During police interviews, Martinson claimed he could not
remember what happened to J.E.M. However, post-mortem lividity on the
child’s body indicated he had been moved and placed on the bed after his
death. Additionally, Martinson sent a text message around 8:00 p.m. on
Saturday to a friend who was close to J.E.M. The text read: “We love you
and will miss you.” When the friend called around 9:45 p.m., Martinson
spoke of legal paperwork he had received about the motion for supervised
exchanges. He complained that he received a letter from K.E. or her
attorney every week and that K.E. would just not go away. He also told the
friend J.E.M. did not care about him and only wanted to talk about and be
with his mother. When the friend asked about J.E.M., Martinson responded
that the boy was in his bedroom with the lights out, and he did not know
whether he was awake or asleep. Yet at trial, Martinson testified that he
had discovered J.E.M. dead hours earlier.

¶40          The State also presented evidence that Martinson tried to
commit suicide by taking pills, cutting his wrists, and attempting to
suffocate himself with garbage bags. Reasonable jurors could find such
conduct indicative of consciousness of guilt and/or acts undertaken as part
of a murder-suicide plan.

¶41            Martinson argues there was no evidence the child abuse
occurred under “circumstances likely to produce death or serious physical
injury.” Proof of this element requires “objective evidence of the existence
of such circumstances.” State v. Payne, 233 Ariz. 484, 506, ¶ 70 (2013). But
the fact J.E.M. died as a result of the child abuse is “objective evidence”
permitting the jury to conclude the abuse occurred under circumstances
likely to produce death or serious physical injury. Martinson’s claim of
insufficient evidence of “physical injury” also fails. The evidence showing
that Martinson caused J.E.M.’s death necessarily established that he caused
physical injury. Barrett, 132 Ariz. at 90 (death necessarily involves serious
physical injury).

¶42          Martinson also asserts there was insufficient proof of a causal
link between ingestion of carisoprodol and J.E.M.’s death. Specifically, he


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                         STATE v. MARTINSON
                          Opinion of the Court

argues that, “[a]side from the fact that the court erroneously admitted
Dr. Hu’s testimony that carisoprodol caused death, the testimony admitted
at trial failed to establish the ‘independent causation requirement’
necessary to prove felony murder.” But even if Dr. Hu’s causation
testimony was erroneously admitted, we may still consider it in
determining whether retrial is barred by double jeopardy principles. See
State v. May, 210 Ariz. 452, 459, ¶ 26 (App. 2005) (“[R]etrial is permitted
even though evidence is insufficient to sustain a verdict once erroneously
admitted evidence has been discounted, and for purposes of double
jeopardy all evidence submitted at the original trial may be considered
when determining the sufficiency of the evidence.” (quoting People v.
Olivera, 647 N.E.2d 926, 931 (Ill. 1995)).

¶43           Considered in totality, the trial evidence was sufficient to
support a finding of guilt beyond a reasonable doubt for knowing or
intentional child abuse under circumstances likely to produce death or
serious physical injury and for felony murder based on that predicate
felony. As a result, double jeopardy principles do not bar retrial of
Martinson.

                             CONCLUSION

¶44           We vacate the order dismissing the 2004 Indictment with
prejudice and remand to the superior court with instructions to grant the
State’s motion to dismiss the indictment without prejudice.




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




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