                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                        JAMES EDWARDS, Appellant.

                             No. 1 CA-CR 16-0543
                               FILED 3-27-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-007044-002
                    The Honorable Rosa Mroz, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

Janelle A. McEachern, Chandler
Counsel for Appellant
                          STATE v. EDWARDS
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Peter B. Swann and Judge James P. Beene joined.


T H O M P S O N, Presiding Judge:

¶1             James Edwards (defendant) appeals from his convictions for
first degree murder, two counts of class 2 felony child abuse, and two
counts of class 4 felony child abuse arising from the injury and death of a
child in his care and custody. Finding no error, we affirm.

              FACTUAL AND PROCEDURAL HISTORY

¶2             Tessa1 was born in March 2008. By September 2008, Tessa’s
biological father was out of the picture. In December 2010, defendant
moved into an apartment with Tessa, her mother Ashley Buckman
(mother), mother’s sister C.A., and C.A.’s minor daughter. Defendant and
mother had met online. Prior to this time, C.A. had never seen a bruise or
other marks from discipline on Tessa and she didn’t have any concerns over
how mother was disciplining Tessa.

¶3            Initially, defendant was working and he paid rent and the
bills. Defendant soon took on a parental role that included potty training,
bathing, and disciplining Tessa. Over a short time C.A. became concerned
about the discipline defendant was meting out. Specifically, C.A. had seen
or heard defendant hit Tessa twice; each time it appeared to be a “one and
done” and Tessa cried. When she raised the discipline issue with her sister,
defendant chimed in “that’s my daughter.” In January 2011, C.A. was
kicked out of the apartment and that was the last time she saw Tessa.

¶4            Over the next year and a half, no fewer than three other
members of mother’s family saw bruises and/or injuries to Tessa leading
them to confront either mother or defendant. The injuries, bruises, and
scratches were on her back, her bottom, her face, and she had a fat lip that
was bruised to the point that the witness thought initially she had been
eating blue or purple crayons.


1“Tessa” is a pseudonym used in lieu of the victim’s true name. Ariz. R.
Crim. Pro. 31.13(c)(5).


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                           STATE v. EDWARDS
                           Decision of the Court

¶5             Mother said on various occasions that Tessa was “acting up,”
“getting’ in trouble,” “lippy,” and that she had to use the “switch” on her
or “pop” her. Mother admitted to a family member hitting Tessa with a
hanger and with a belt. Mother’s brother, on New Year’s Eve 2011, after the
fat lip incident, told defendant to do something or say something if he saw
Tessa being hurt.

¶6              Defendant referred to Tessa as his “daughter” and she
referred to him as “dad.” He stated to police he disciplined her with his
hand or a long remote control. Mother and defendant exchanged text
messages related to Tessa’s behavior and discipline. In one series of texts
in February 2012, mother stated “Your daughter just got her shit tore all the
way up,” defendant replied “why, what happened?,” mother described an
incident at Walgreens and said “when we got home I split that paddle on
her ass again,” and defendant replied “LOL, that’s what she gets.” A text a
couple of weeks later from mother to defendant said “her little ass can’t
move too fast, it hurts so much, what do you want me to do with her since
it’s so early still?” and he replied she should watch videos. In another text,
in March 2012, mother said the children2 had been bad and defendant
texted back “they better know I will beat asses when I get home.”

¶7             In or around May 2012, mother began working and defendant
was the stay at home parent for Tessa and the couple’s newborn baby W.E.
Around that time Tessa incurred an injury to her bottom that caused it to
blister, mother and defendant exchanged texts on May 1, 2012, about it and
the fact that it was “starting to blister again where [he] popped the first
ones.” Defendant replied Tessa would be okay, and “[t]hat’s what blisters
do.” Defendant claimed the injury occurred from hot water when Tessa
climbed into the bath tub unsupervised. Neither party sought medical help
for the burn.

¶8           On the evening of May 30, 2012, emergency services received
a call from mother and defendant’s home. Inside the home, paramedics
found an unresponsive girl apparently two-to-three years old.3 The girl
was not breathing and had no pulse. She many visible injuries, including
“bruising and various levels or stages of discoloration of blood from head



2 At that time defendant’s other two young minor children were staying
with them.
3 She weighed 33 pounds, which is small for a four-year old.




                                      3
                            STATE v. EDWARDS
                            Decision of the Court

to toe on various parts” of her body, and her nipples appeared burned.
Tessa was transferred to Phoenix Children’s Hospital by ambulance.

¶9             When police arrived on the scene defendant, mother, and
baby W.E. were standing outside. Defendant and mother were eventually
transported to the police station. Defendant made spontaneous statements
to the police that he “didn’t do anything” and that Tessa had fallen and
wasn’t breathing.

¶10           At the police station defendant was in an interview room,
given water, a chance to go to the bathroom, and a snack while mother was
interviewed first. After mother was interviewed, defendant was given his
Miranda rights and he agreed to speak with the officer. Defendant asserted
that Tessa had been with her aunt C.A. that day and had returned home
injured. He asserted when she left home she didn’t have an injured leg. He
denied being concerned in the past few days about a concussion. He denied
seeing any marks or lacerations on Tessa, although he admitted caring for
and disciplining Tessa as well as having seen a “lump” on her back for a
couple of days that she might have gotten as a “swat” from someone other
than him. He said he heard “a couple of swats . . . and [Tessa] cried a little
bit.” He stated when mother “whoops [Tessa] I don’t question her.”

¶11            At the hospital, physical examinations, x-ray and CT scans,
revealed evidence of extensive acute, partially healed subacute wounds,
and chronic inflicted trauma as well as bruising in various stages all over
Tessa’s body. On her face alone, she had: (1) multiple bruises of various
ages on her forehead; (2) an 8 centimeter by 8 centimeter bruise from the
bridge of her nose to her left check and jaw; (3) a bruise under her left eye;
(4) bruises to both ears; (5) a twice lacerated lip; (6) a linear pattern mark on
her right cheek; (7) and a 9-centimeter bruise that extended from her right
cheek to her jaw. The other bodily injuries included, but were not limited
to, a traumatic brain injury and multiple non-concurrent cranial subdermal
hematomas, three non-concurrent rib fractures, chest trauma causing a
collapsed lung, a spiral fracture to her left tibia, multiple linear and
curvilinear marks and scars on her arms, legs and hands likely caused,
respectively, by a hanger and a rope or phone cord, what appeared to be a
bite mark on her upper arm, lacerations on her arms and scalp, a large
swollen and bruised injury extending the landscape of her whole back, and
her nipples were defaced and variously described as burned or removed.
The ER physician testified that there were “bruises of various ages over
most every aspect of the child’s body.”




                                       4
                              STATE v. EDWARDS
                              Decision of the Court

¶12            Tessa also had a large burn or healing scar tissue on her
buttocks that came between the legs to her labia. The burn measured 12.5
by 10 centimeters on the left buttock and 9 by 5 centimeters on the right. At
trial several doctors testified that the burn was not consistent with a scald
burn from a bath tub, which would include “gloving”—the burn running
from the feet up the legs. The doctors opined, variously, that it could have
been caused by a flat iron, chemicals, a hot cloth, or by some other method.
When asked later if it could be from a severe diaper rash, the medical
examiner stated, “That’s not a diaper rash injury.”

¶13           Tessa was declared brain dead and a subsequent autopsy
indicated additional internal injuries, bruising, multiple head traumas, and
bleeding around the optic nerve. The autopsy revealed a 9 by 12-centimeter
pocket of blood had gathered under her skin in her lumbar region which
contained “15-20 percent of [Tessa’s total] blood volume.” The cause of her
death was blunt force trauma, with all of her various injuries contributing
to her death.

¶14            While most of Tessa’s injuries occurred over a period of time
from weeks to months, one of the scalp lacerations was less than 72 hours
old. The injury to the left side of her brain was recent. The injury to Tessa’s
back was extensive, it caused swelling and hemorrhaging from neck to
buttocks, flank to flank, and the blows had been severe enough to liquify
the fat in some locations. The injury to her back was less than 72 hours old.
The injury to her seventh rib was less than 72 hours old. The spiral fracture
to Tessa’s tibia could have been less than 72 hours old. The acute injuries4
to the buttocks were less than 72 hours old.

¶15            Back at the apartment, crime scene specialists found eight
pieces of toddler clothing with blood and/or hair and tissue on them. They
found blood on the bathroom floor, a hole and crack in the bedroom wall,
toilet paper in the bathroom with hair and blood in it, and a black strap with
blood stains.

¶16             Defendant was indicted on five felony counts and the case
was designated a capital case. Count 1, a class 1 felony, was felony-murder
for Tessa’s death arising from child abuse. Count 3, a class 2 felony, relates
to defendant’s failure to seek medical care for Tessa for child abuse that
occurred in the 72 hours prior to her hospitalization. Count 5, a class 2
felony, relates to defendant’s failure to protect Tessa from ongoing abuse
from January 2012 to the date of her hospitalization. Counts 6 and 7, both


4   Fresh bruising over the existing scar tissue.


                                         5
                          STATE v. EDWARDS
                          Decision of the Court

class 4 felonies, relate to the burns on Tessa’s buttocks, count 6 being the
cause of the injury and count 7 being the failure to seek medical care.

¶17            Defendant had a jury trial with sixty days of testimony and
was convicted on all five counts. During the aggravation phase the jury
found that count 5 had been committed in an especially cruel manner, that
defendant was over 18, and Tessa was under age 15. The jury found that
counts 1, 3, and 5 were Dangerous Crimes Against Children. The jury was
unable to determine his level of participation in the abuse. The trial court
sentenced him to life with the possibility of release in 35 years for first-
degree murder, and gave him 1,521 days of presentence incarceration
credit. For each of counts 3 and 5 defendant was sentenced to consecutive
presumptive 17-year terms. For each of counts 6 and 7, defendant was
sentenced to consecutive presumptive 2.5-year sentences which would run
concurrent to each other. Defendant filed a timely notice of appeal.



                                 ISSUES

¶18          Defendant asserts the following on appeal:

       (1) The trial court erred when it denied the motion to sever
      the murder count from the three child abuse counts that did
      not result in the death of Tessa;

      (2) The trial court should have disallowed defendant’s entire
      interview with Detective Martin because the statements were
      involuntary;

      (3) The trial court erred in denying defendant’s motion for
      mistrial regarding Detective Martin’s testimony as to
      defendant’s truthfulness;

      (4) The trial court erred in denying a mistrial due to juror
      misconduct;

      (5) The trial court erred in denying defendant’s Rule 20
      motion for judgment of acquittal;

      (6) The jury’s verdicts were unsupported by substantial
      evidence; and

      (7) The trial court erred in denying defendant’s motion for a
      new trial.


                                     6
                            STATE v. EDWARDS
                            Decision of the Court

                               DISCUSSION

              A. Severance

¶19           Defendant argues that the felony-murder count, count 1,
should have been severed from counts 5-7. The basis for his argument was
that the counts not related to the fatal injury are also not related in time or
seriousness, and thus should have been severed to promote a fair
determination of guilt or innocence. We find no error.

¶20            Generally, we review a court’s denial of severance for abuse
of discretion. State v. Prince, 204 Ariz. 156, 159, ¶ 13 (2003). However, when
the defendant has failed to renew his motion, “during trial at or before the
close of evidence,“ as is required by Arizona Rule of Criminal Procedure
13.4(c), the denial of severance is reviewed for fundamental error only.
State v. Goudeau, 239 Ariz. 421, 443, ¶ 54 (2016). Because defendant failed to
renew severance argument during or before the close of evidence here, he
must show not only that the trial court erred by denying his motion to sever,
but that the error was fundamental, and that the error prejudiced him. See
State v. Juarez–Orci, 236 Ariz. 520, 523, ¶ 11 (App. 2015).

¶21           The state may join charged offenses if they are “of the same
or similar character.” Ariz. R. Crim. P. 13.3(a)(1). Joinder of the counts is
permissible when “separate crimes arise from a series of connected acts,
provable by much of the same evidence.” Prince, 204 Ariz. at 160, ¶ 17.

¶22            The trial court found count 3 (incidents occurring between
May 29 and 30, 2012) and count 5 (incidents occurring between January and
May 2012) applied to what was the ongoing abuse of Tessa and both were
predicate offenses to the felony-murder. See Arizona Revised Statutes
(A.R.S.) sections 13-1105(A)(2), -3623(A)(1) (2018). It examined the evidence
supporting counts 6 and 7, relating to the burns on Tessa’s buttocks, and
found that “[a]lthough this injury was not the cause of death, it still
contributed to the victim’s death because all of the injuries in combination
caused significant physiological stress on the victim.” These counts
represented specific instances of conduct and the supporting evidence
would be cross-admissible under Rule 404(b), even if the matters were
severed. Further, the text messages between defendant and mother could
be used not only to prove the specific crimes related the Tessa’s burns, but
also to show Tessa was under defendant’s care and control.

¶23          The trial court denied the motion to sever as not necessary to
promote a fair determination of the guilt or innocence of defendant. See



                                      7
                           STATE v. EDWARDS
                           Decision of the Court

Ariz. R. Crim. P. 13.3(a)(1)–(3). We agree and find no abuse of discretion in
this ruling.

             B. Defendant’s Statements

¶24           Defendant argues that the trial court “should have disallowed
[his] entire [pre-arrest] interview with Detective Martin because his
statements were involuntary in their entirety.” To this end defendant
points to how long he was awake, that he had been held for more than five
hours since the emergency responders came until he was interviewed,
asserted the Detective badgered him and said Tessa was probably going to
die, and handed defendant his homicide division business card. The failure
to preclude all of defendant’s statements, he argues, is fundamental error.

¶25            The state counters that there is no evidence that defendant’s
will was overborn by the detective’s actions in the pertinent section of the
interview and none of the cited instances rendered his statements
involuntary. The state notes both that Detective Martin had taken nearly
two hours to interview mother first and that defendant was “eager” to
speak to the officer. In fact, he asked to talk to someone. The state argues
it has carried its burden of proof by the preponderance of the evidence. The
state further asserts that if there was error in the admission of the
statements, it was surely harmless as both direct and circumstantial
evidence overwhelmingly supports defendant’s convictions.

¶26           Defendant requested a voluntariness hearing for statements
made to six different persons. His claim on appeal is limited to his
statements to Detective Martin. That interview began at 3:15 a.m.,
defendant was read his Miranda rights and indicated he understood them.
At no time did defendant indicate he wanted to end the interview or speak
with an attorney. Defendant testified at the hearing that he didn’t believe
at that time that he was under arrest. He admits that he was willing to
speak to the officer.

¶27             The court reviewed the video of the interview. It noted that
although defendant had a long wait prior to the interview, he was given
food and water and a chance to go to the bathroom. There was no physical
force in evidence and defendant was composed throughout the interview.
It stated that aside from a single exception in which Detective Martin yelled
at defendant to tell the truth, the detective’s voice was calm and his
questions were clear. The court issued ten pages of detailed ruling in which
some of the statements were determined to be voluntary and some were
determined to be involuntary. The court found the interview voluntary and



                                     8
                             STATE v. EDWARDS
                             Decision of the Court

admissible from Exhibit 1227 page 1, line 1, to page 32, line 1404. It was
found inadmissible after that point because Detective Martin did “make
promises that [defendant] would [not] face serious charges and would go
to jail if he told the truth and talked” with the officer. Defendant did not
make an unambiguous request for counsel until the very end of the
interview when “all that was left to do was the processing … before booking
him into jail.”

¶28              When the defendant freely answers questions without asking
for counsel or invoking his right to silence, he has waived the rights
guaranteed by Miranda. State v. Pineda, 110 Ariz. 342, 345 (1974). Advice to
tell the truth unaccompanied by a threat or promise, does not make a
confession involuntary. State v. Blakely, 204 Ariz. 429, 436, ¶ 27 (2003). In
fact, it is a valid interrogation tactic. State v. Amaya-Ruiz, 166 Ariz. 152, 165
(1990). Further, although it was as the trial court noted a “long wait,” it was
because Detective Martin had been to the hospital to see the extent of
Tessa’s injuries himself and had spent significant time interviewing mother.

¶29          We review a trial court’s evidentiary ruling to admit a
defendant’s statement for an abuse of discretion. State v. Ellison, 213 Ariz.
116, 126, ¶ 25 (2006) (citation omitted). In determining whether the
statements were voluntary we look only the evidence presented at the
hearing, and nothing else. See State v. Huerstel, 206 Ariz. 93, 107, ¶ 62 (2003).
Finding no abuse of discretion in the admission of the first portion of
defendant’s statements to Detective Martin as voluntary, we affirm.

              C. Defendant’s Motions for Mistrial

¶30            We review the denial of a motion for mistrial under an abuse
of discretion standard. State v. Kuhs, 223 Ariz. 376, 380, ¶ 18 (2010). Courts
have considerable discretion to determine whether conduct warranting a
mistrial exists or whether there is need for a corrective action. State v. Slover,
220 Ariz. 239, 246, ¶ 22 (App. 2009).

¶31            Defendant moved for mistrial on two occasions. In December
2015, he sought a mistrial based on alleged juror misconduct. One juror,
juror 11, drew three drawings one of which was an unflattering picture of
the defense attorney with fangs and a bubble saying “hypothetically”—
something counsel often said. That picture was seen by the bailiff and some
of the other jurors. Some of the jurors laughed at it. Juror 11 stated he didn’t
have any negative feelings for defense counsel, but had been bored. Briefs
were filed, the court heard argument and interviewed all the jurors.
Defendant asserts that these acts by juror 11 and others comprise jury



                                        9
                            STATE v. EDWARDS
                            Decision of the Court

misconduct and demonstrate that at least one juror was antagonistic to the
defense attorney and possibly to defendant. Thus, he argues, the trial court
should have granted him a mistrial.

¶32            The state asserts that the trial court cured any conceivable
effect that the drawing had by striking juror 11, in an abundance of caution,
and by ensuring the remaining jurors were fair, objective and impartial.
The court questioned each juror separately and spoke to them about the
need for both the appearance and actuality of a fair trial. The court stated
that the jurors were sincere and were taking the case very seriously.

¶33             In State v. Payne our supreme court found a trial court did not
err in failing to strike a juror or declare a mistrial, where one juror advised
the court that juror 28 was mocking witnesses and complaining about
defense witnesses “under her breath,” but potentially loud enough to be
heard at the prosecution’s table. 233 Ariz. 484, 510–11, ¶¶ 100–104 (2013).
As the court said, “The trial court, which has the opportunity to observe the
prospective juror's demeanor and the tenor of his answers, is in a position
to determine first hand whether a juror can render a fair and impartial
verdict.” State v. Chaney, 141 Ariz. 295, 303, (1984) (internal quotation marks
and citations omitted). It further noted, if the trial court did not abuse its
discretion in failing to strike the juror, it did not err by denying a mistrial.
Payne, 233 Ariz. at 511, ¶ 104.

¶34            The drawing is in the record and we have reviewed it. For the
reasons given by the trial court, we find no abuse of discretion in the denial
of a mistrial for juror misconduct.

¶35           Defendant moved for a second mistrial in January 2016 based
on Detective Martin’s testimony. Specifically, Detective Martin voluntarily
offered that he raised his voice during the pre-arrest interview with
defendant because he was “frustrated,” because he felt he was “not getting
the truth.” Defendant immediately objected. The jury was instructed
“Detective Martin’s statements of disbelief cannot be used to prove whether
the defendant or [mother] was truthful or untruthful” and that the jury is
the sole judge of credibility.

¶36            After briefing, the court found the officer had not given “a lay
or expert opinion on whether defendant was truthful during the interview
but to explain why he raised his voice.” Defendant’s motion for mistrial
was denied. The court found no misconduct by the state or the officer and
found the probability that the statement would influence the jurors to be
slight, given the immediate curative instruction.



                                      10
                           STATE v. EDWARDS
                           Decision of the Court

¶37           Defendant on appeal asserts that the detective’s belief that he
was not telling the truth went to the heart of the defense and the denial of
a mistrial was fundamental error. The state argues it was: (1) not an
improper remark; (2) the jury was not influenced; and (3) any error was
invited because defense counsel attacked Detective Martin’s interrogation
methods and suggested the officer coerced suspects.

¶38            Testimony from an expert or a lay witness is prohibited where
it opines as to the truthfulness of a statement by another witness. State v.
Reimer, 189 Ariz. 239, 241 (App. 1997). An opinion about the truthfulness
or credibility of another witness invades the province of the jury. State v.
Moran, 151 Ariz. 378, 383 (1986). However, “[l]ay witnesses may give
opinion testimony, even as to the ultimate issue, when it is ‘rationally based
on the perception of the witness and ... helpful to a clear understanding of
the witness' testimony or the determination of a fact in issue.’” State v.
Doerr, 193 Ariz. 56, 63, ¶ 26 (1998) (quoting Ariz. R. Evid. 701) (an officer
may give his reasoning as to why he did not believe defendant’s story); State
v. Martinez, 230 Ariz. 382, 385, ¶¶ 12–13 (App. 2012) (“Officer Fortune's
testimony that he did not believe Martinez's statements was necessary to
explain why Fortune did not continue to investigate the alleged stolen
vehicle”).

¶39            “An improper remark compels a new trial only if it probably
influenced the jury in determining their verdict and thus denied the
defendant a fair trial.” Prince, 204 Ariz. at 160, ¶ 20. Here, to the extent
Detective Martinez’s comment was even improper, the court took
corrective action, both striking the comment and instructing the jury, and
we presume the jurors followed their instructions. See id. at 158, ¶ 9.
However, we agree with the trial court that the detective was describing the
interview and the statement was not intended to give an opinion. Finding
no abuse of discretion, we affirm the denial of a mistrial based on the
detective’s testimony.

              D. The Rule 20 Motion and the Verdicts

¶40            Defendant claims substantial evidence does not support the
verdicts and that the trial court erred in denying his Rule 20 motion at the
close of the state’s evidence. He argues that there is no evidence defendant
caused the injuries to Tessa and “nothing here to indicate[] that Mr.
Edwards knew or should have known that Minor Victim was in need of
medical assistance” to support the child abuse convictions or felony-
murder. He asserts that there was no evidence to support the counts related
to the burns, other than the bathtub incident which he admitted to police.


                                     11
                           STATE v. EDWARDS
                           Decision of the Court

¶41           The state correctly points out that both of these claims concern
whether substantial evidence existed at certain points of the trial. When a
defendant claims that evidence is insufficient to support the verdicts, we
will not reweigh the evidence. State v. Guerra, 161 Ariz. 289, 293 (1989).
Rather, we view the evidence in the light most favorable to upholding the
verdicts and then ascertain whether substantial evidence exists to sustain
the verdicts. State v. Barger, 167 Ariz. 563, 568 (App. 1990). Likewise, a
judgment of acquittal is only appropriate when “there is no substantial
evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a). We review the
denial of a Rule 20 motion de novo. State v. Parker, 231 Ariz. 391, 407, ¶ 69
(2013). 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.’” State v. Mathers, 165 Ariz. 64, 67 (1990)
(quoting State v. Jones, 125 Ariz. 417, 419 (1980)).

¶42           First degree murder, A.R.S. § 13-1105(A)(2) (2012), includes:

       Acting either alone or with one or more other persons the
       person commits or attempts to commit … child abuse under
       § 13-3623, subsection A, paragraph 1 … and, in the course of
       and in furtherance of the offense or immediate flight from the
       offense, the person or another person causes the death of any
       person.

Child abuse, pursuant to A.R.S. § 13-3623 (2012), means:

       A. Under circumstances likely to produce death or serious
       physical injury, any person who causes a child … to suffer
       physical injury or, having the care or custody of a child … who
       causes or permits the person or health of the child … to be
       injured or who causes or permits a child … to be placed in a
       situation where the person or health of the child …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 § 13-705.

       ….

       3. If done with criminal negligence, the offense is a class 4
       felony.

       …


                                     12
                            STATE v. EDWARDS
                            Decision of the Court

       F. For the purposes of this section:

       1. “Abuse”, when used in reference to a child, means abuse as
       defined in § 8-201 …

       2. “Child” means an individual who is under eighteen years
       of age.

       …

       4. “Physical injury” means the impairment of physical
       condition and includes any skin bruising, pressure sores,
       bleeding, failure to thrive, malnutrition, dehydration, burns,
       fracture of any bone, subdural hematoma, soft tissue
       swelling, injury to any internal organ or any physical
       condition that imperils health or welfare.

       5. “Serious physical injury” means physical injury that creates
       a reasonable risk of death or that causes serious or permanent
       disfigurement, serious impairment of health or loss or
       protracted impairment of the function of any bodily organ or
       limb. [Emphasis added.]

Abuse of a child under A.R.S. § 8-201(2) (2012) is defined, in pertinent part,
as:

       the infliction or allowing of physical injury, impairment of
       bodily function or disfigurement …and is caused by the acts
       or omissions of an individual having care, custody and
       control of a child.

¶43             To begin with, there is substantial evidence throughout the
record that defendant had “care and custody” of Tessa. They lived in the
same home, he watched her while her mother worked, when he worked the
income he earned supported the family, he bathed Tessa, he fed her, and he
disciplined her. He stated he put salve on the injuries to her buttocks. He
discussed Tessa’s injuries and discipline with mother. In his police
interview, defendant referred to Tessa as his daughter and she was known
to refer to him as dad. This is sufficient evidence of defendant’s care and
custody of the victim. See State v. Jones, 188 Ariz. 388, 392, 394 (1997); see
also State v. Smith, 188 Ariz. 263, 264-65 (App. 1996) (evidence that defendant
called the victim his daughter, bathed her and fed her sufficient to support
a felony-murder conviction predicated on child abuse).



                                      13
                           STATE v. EDWARDS
                           Decision of the Court

¶44            Counts 3 and 5 concerned child abuse likely to lead to death
or serious physical injury. Count 3 covered the 72 hours prior to Tessa’s
hospitalization. There was evidence that Tessa received a spiral fracture to
her tibia, a brain injury, a scalp laceration that would have bled heavily, a
severe injury to her back, and a fractured rib during that time. Count 5
covered the approximately five months prior to her death. The injuries to
Tessa which were incurred during this time are numerous and evidence
presented aligned the dates of the injuries with the dates in count 5. Those
injuries include, but are not limited to, multiple brain injuries, signs that
over time Tessa had been beaten with a hanger and some sort of cord that
left patterned scars on nearly all parts of her body including her face, a
broken finger, a broken toe, two broken ribs, something that removed her
nipples, a bite mark on her arm, and “bruises of various ages over most
every aspect of the child’s body.”

¶45          Many of these injuries were clearly visible to anyone who
looked. Four of mother’s relatives testified to visible injuries. The
responding paramedic stated she had injuries “from head to toe,” including
extensive damage to her mouth. Evidence showed that those mouth injuries
would have bled considerably. She had extensive scarring and bruising
that someone who bathed her would have seen. Tessa had a fresh leg
fracture which would have been extremely painful and she would probably
have been unable to walk. Defendant admitted to seeing the “lump” on
Tessa’s back a couple of days before paramedics were called.            No
reasonable juror could believe that defendant did not see the injuries.

¶46           Whether defendant, himself, or mother caused these injuries
the jury was ultimately unable to tell. What is undisputed is that through
all of this defendant failed take her to a medical professional for care.
Failure to seek medical attention is child abuse under A.R.S. § 13-3623.
Payne, 233 Ariz. at 508–09, ¶¶ 88–90. As far back as New Year’s Eve 2011,
after the fat lip incident, mother’s brother told him if you see mother
injuring Tessa you have to act. There is substantial evidence to support the
convictions for counts 3 and 5 which make up the predicate offenses for
count 1.

¶47            As the state points out, there is no dispute that Tessa was
abused, with multiple serious injuries from child abuse over a period of
time, died as a result of those injuries, and was under age 15 at death. There
is evidence that she died from blunt force trauma, with all of her various
injuries contributing to her death. This evidence, along with defendant’s
having care and custody l of the child, supports the conviction for count 1
murder.


                                     14
                            STATE v. EDWARDS
                            Decision of the Court

¶48           Defendant admitted during his police interview to a modest
injury to Tessa arising from a too hot bath. His text messages to mother
include reference to the burns Tessa suffered while he was [presumably]
bathing her, that the burn resulted in two occurrences of blisters, and that
he failed to get her medical help for those burns which left permanent
scarring. This is evidence supporting counts 6 and 7.

¶49            Having found that substantial evidence supports the verdicts,
and all of that evidence having been introduced prior to defendant’s motion
for acquittal, we find no error in the denial of the motion to dismiss.

           E. Motion for New Trial

¶50           Finally, defendant argues that the trial court erroneously
denied his motion for a new trial. Generally, a trial court’s denial of a
motion for new trial is reviewed for an abuse of discretion. State v. Hoskins,
199 Ariz. 127, 142, ¶ 52 (2000).

¶51            Rule 24.1 controls a motion for new trial. It reads, in pertinent
part,

        (a) Power of the Court. When the defendant has been found
        guilty or sentenced to death by a jury or by the court, the court
        on motion of the defendant, or on its own initiative with the
        consent of the defendant, may order a new trial or, in a capital
        case, an aggravation or penalty hearing.

        (b) Timeliness. A motion for a new trial shall be made no later
        than 10 days after the verdict has been rendered.

        (c) Grounds. The court may grant a new trial or aggravation
        or penalty hearing for any of the following reasons:

        (1) The verdict is contrary to law or the weight of the evidence;

        (2) The prosecutor has been guilty of misconduct;

        (3) A juror or jurors have been guilty of misconduct …

        (4) The court has erred in the decision of a matter of law, or in
        the instruction of the jury on a matter of law to the substantial
        prejudice of a party;




                                       15
                            STATE v. EDWARDS
                            Decision of the Court

       (5) For any other reason not due to the defendant's own fault
       the defendant has not received a fair and impartial trial or
       capital sentencing. [Emphasis added.]

¶52           On appeal the state argues many alternative reasons as to why
denial of the motion was proper, we focus on one—timeliness. Rule 24.1(b)
provides a party seeking a new trial must file their motion within ten days.
Defendant did not do so. The jury rendered their verdict on February 18,
2016. Following the verdict, when defendant orally asked the court to
extend the deadline, the trial judge even raised the issue of timeliness
possibly being jurisdictional, at which point both parties indicated they
would “look[] it up.” Nevertheless, defendant filed his motion for a new
trial on February 29, 2016.

¶53            Rule 24.1 requires the filing of a motion for new trial within
ten days of the guilty verdict. State v. Fitzgerald, 232 Ariz. 208, 213, ¶ 22
(2013). Pursuant to Ariz. R. Crim. P. 1.3(A)(3) the ten days are calendar
days and, excluding the 18th, defendant’s motion was late by three days.
Timeliness is jurisdictional. See Maule v. Arizona Superior Court, 142 Ariz.
512, 515 (App. 1984). A trial court has no jurisdiction to grant a new trial if
the motion is not filed within ten days of the verdict. State v. Villarreal, 136
Ariz. 485, 487 (App. 1983). For this reason, we need not examine
defendant’s other claims under the abuse of discretion standard. The trial
court is affirmed.

                                CONCLUSION

¶54            For the foregoing reasons, the convictions and sentences are
affirmed.




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




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