                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   KIMBERLY ANN KNIGHT, Appellant.

                             No. 1 CA-CR 13-0297
                              FILED 4-29-2014


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201200058
                The Honorable John Neff Nelson, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Edward F. McGee
Counsel for Appellant
                             STATE v. KNIGHT
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Kenton D. Jones joined.


S W A N N, Judge:

¶1            Defendant Kimberly Ann Knight appeals from her
convictions and sentences for child abuse and aggravated assault, both
domestic violence offenses. This case comes to us as an appeal under
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451
P.2d 878 (1969). Defendant’s appellate counsel has searched the record on
appeal and found no arguable, nonfrivolous question of law, and asks us
to review the record for fundamental error. See Anders, 386 U.S. 738; Smith
v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App.
1999). Defendant was given the opportunity to file a supplemental brief in
propria persona but did not do so.

¶2          We have searched the record for fundamental error and find
none. Accordingly, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶3             In the afternoon of December 25, 2011, Defendant’s husband
called 911 and reported that his and Defendant’s six-month-old son J.S.
(“Son”) had stopped breathing. Paramedics arrived at Defendant’s home
and transported Son to Yuma Regional Medical Center where emergency
room staff stabilized his condition. Son was thereafter airlifted to Phoenix
Children’s Hospital (“PCH”) to receive specialized treatment for acute
head injuries. A police investigation into the causes of Son’s injuries led
the state to indict Defendant on one count of child abuse and one count of
aggravated assault, both charged as class 2 felonies involving domestic
violence against an infant child in her care.

¶4            At trial, the state presented evidence of the following
relevant facts. Dr. Pottker, a specialist in pediatric emergency medicine
who evaluated Son at PCH, testified that Son had suffered hypoxic
ischemic injury caused by deprivation of oxygen and adequate blood
perfusion to his brain for a significant period of time. Dr. Pottker
explained that Son presented with brain swelling and a subdural
hematoma commonly resulting from abusive head trauma. According to


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                            STATE v. KNIGHT
                           Decision of the Court
Dr. Pottker, an infant could theoretically suffer hypoxic ischemic injury as
a consequence of falling from a height. But given the combination and
global nature of Son’s severe symptoms, and the absence of any indication
that an impact injury had caused them, Dr. Pottker concluded to a
reasonable degree of medical certainty that Son had endured
nonaccidental trauma.

¶5            Dr. Condie, a pediatric neuro-intensivist who treated Son at
PCH, testified that Son had suffered a diffuse brain injury and similarly
ruled out an impact injury as the cause. Based on MRI examination
results, Dr. Condie opined that Son sustained his injuries at most three
days before his hospitalization. A later MRI examination revealed
swelling and fluid collection in the soft tissue at two points behind the
spinal cord, which Dr. Condie opined were consistent with the kind of
trauma caused by someone grabbing Son. Dr. Condie concluded to a
reasonable degree of medical certainty that Son’s injuries were caused by
inflicted head trauma, which he explained used to be referred to as
“shaken baby syndrome” before that became considered a misnomer.

¶6           Sergeant Rodriguez, who supervised the police investigation
into Son’s injuries, testified about his interactions with Defendant.
Defendant told Rodriguez during an initial interview that Son had been a
healthy baby and that on the day of the incident he suddenly began to act
differently. Defendant stated that on that day she had given Son a bath
and placed him on her bed, turned around to get baby powder off a
dresser and observed him acting strange in the dresser mirror, and then as
she turned back around he screamed and stopped breathing. Defendant
repeatedly denied that she had dropped Son or that he had otherwise
fallen. Upon returning from a break in the interview, Rodriguez
overheard Defendant tell her husband in a cell phone conversation that
Son had fallen off the bed a week earlier. When Rodriguez confronted
Defendant about that incident she explained that Son had rolled off the
bed and hit his head but had not exhibited any harm from it in the past
week. Defendant eventually told Rodriguez that before putting Son on
the bed on December 25, she had placed him on a towel on the bathroom
floor where he had rolled over and hit his head on the tile. Rodriguez
escorted Defendant back to her home so that she could show him how Son
had sustained his injuries. Defendant demonstrated how Son had rolled
over on the bathroom floor and how afterwards she had laid him down on
her bed and turned away to grab baby powder. Defendant first
demonstrated how she had turned around in one direction but then
immediately claimed that she had turned around in the opposite
direction. Rodriguez testified that he believed Defendant changed her



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                           STATE v. KNIGHT
                          Decision of the Court
demonstration because she realized that Son would not have been visible
in the dresser mirror if she had turned around the first way. Rodriguez
explained, however, that Defendant’s body would have blocked her view
of Son in the mirror regardless of which direction she may have turned.
Recorded interviews with Defendant were admitted into evidence and
played for the jury.

¶7              Defendant in turn took the stand and confirmed that she had
given birth to Son on June 10, 2011. She testified that Son had fallen off
the bed a second time on December 25, 2011, but she had not seen him fall
because she was turned away and her husband had not seen the fall either
because he was in a different room. Defendant confirmed that Son’s first
fall off the bed a week earlier had not caused her any serious concerns
because he appeared unharmed. Defendant conceded, however, that she
had lied to Rodriguez about Son hitting his head on the bathroom floor.
She explained that she had lied because she was afraid of her husband
hurting her if he discovered that she had not paid close enough attention
to Son. Defendant described her husband as physically abusive and
suffering from mental health problems. Defendant testified that she had
not been truthful with Rodriguez because she was afraid of her husband.
Defendant denied having knowingly or intentionally harmed Son and
maintained that her only mistake was being inattentive and allowing him
to roll off the bed.

¶8            In closing argument the prosecutor emphasized that
Defendant had offered six different explanations for how Son had
sustained his injuries, and asserted that only Defendant’s own testimony
contradicted the expert medical testimony of Drs. Pottker and Condie that
Son had suffered intentionally inflicted trauma.

¶9          The jury found Defendant guilty as charged. The sentencing
judge remarked:

      [F]rom the standpoint of the evidence in this case there isn’t
      any question that you were the one that permanently
      damaged your child. There’s no evidence that your husband
      did it. There’s no evidence it was an accident. The evidence
      was overwhelming that you damaged that child. . . . [T]his
      is the first case I think I’ve ever experienced where the
      evidence from the experts, from the doctors was so absolute.
      There was no hesitation, absolutely no doubt in their
      mind[s] that this was an inflicted injury on this child. It
      wasn’t an accident.



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                            STATE v. KNIGHT
                           Decision of the Court
The court imposed presumptive, concurrent prison sentences of 17 years
on each count and granted Defendant 449 days of presentence
incarceration credit. Defendant timely appeals.

                              DISCUSSION

¶10           The record reveals no fundamental error. Defendant was
present and represented at all critical stages. The record shows no
evidence of jury misconduct and the jury was properly comprised of 12
jurors. See A.R.S. § 21-102(A); Ariz. R. Crim. P. 18.1(a).

¶11           The evidence that the state presented at trial was properly
admissible and was sufficient to support Defendant’s convictions. A
person is guilty of class 2 felony child abuse if she, under circumstances
likely to produce death or serious physical injury, intentionally or
knowingly causes a child under the age of 15 to suffer physical injury or
permits the person or health of that child to be injured while in her care or
custody. A.R.S. § 13-3623(A)(1). A person is guilty of class 2 felony
aggravated assault if she intentionally, knowingly or recklessly causes
serious physical injury to a victim under the age of 15. A.R.S. §§ 13-
1203(A)(1), -1204(A)(1), (D). Child abuse and aggravated assault may be
properly charged as domestic violence offenses when the victim is the
defendant’s minor child. A.R.S. § 13-3601(A)(4). Child abuse under A.R.S.
§ 13-3623(A)(1) and aggravated assault under A.R.S. § 13-1204(A)(1)
committed against a victim under the age of 15 are properly classified as
dangerous crimes against children for sentencing purposes. A.R.S. § 13-
705(P). Here, the state presented ample circumstantial evidence that
Defendant’s six-month-old son suffered severe physical injuries while in
her care, and that those injuries were consistent with intentionally
inflicted trauma for which Defendant failed to offer any credible
explanation.

¶12           At sentencing, Defendant was given an opportunity to speak
and the court stated on the record the evidence and materials it
considered and the factors it found in imposing sentence. The court
imposed legal sentences for the offenses, see A.R.S. §§ 13-705(D), -1204(D),
-3623(A)(1), and correctly calculated Defendant’s presentence
incarceration credit under A.R.S. § 13-712(B).

¶13          Defendant has asked her appellate counsel to argue “[t]hat
she is not guilty because she did nothing to injure her child.” Appellate
counsel appropriately declined to develop Defendant’s argument. This
court does not reweigh the evidence, but rather views it in the light most
favorable to sustaining the conviction and resolves all reasonable


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                             STATE v. KNIGHT
                            Decision of the Court
inferences against Defendant. See State v. Kreps, 146 Ariz. 446, 449, 706
P.2d 1213, 1216 (1985). The test is whether there is substantial evidence to
support a guilty verdict, which means evidence sufficient to allow a
rational trier of fact to find guilt beyond a reasonable doubt. Id. In this
case, there was substantial evidence to support the jury’s verdicts.

¶14           Defendant has also asked her appellate counsel to argue
“[t]hat her trial lawyer was ineffective for having failed to retain an[ ]
independent medical expert.” We likewise agree with appellate counsel’s
assessment of this argument; regardless of merit, ineffective assistance of
counsel claims cannot be raised on direct appeal and must instead be
presented to the trial court in a petition for post-conviction relief under
Ariz. R. Crim. P. 32. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527
(2002).

                               CONCLUSION

¶15          We have reviewed the record for fundamental error and find
none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We therefore affirm
Defendant’s convictions and sentences.

¶16            Defense counsel’s obligations pertaining to this appeal have
come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154,
156-57 (1984).       Unless, upon review, counsel discovers an issue
appropriate for petition for review to the Arizona Supreme Court, counsel
must only inform Defendant of the status of this appeal and Defendant’s
future options. Id. Defendant has 30 days from the date of this decision to
file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a).
Upon the court’s own motion, Defendant has 30 days from the date of this
decision in which to file a motion for reconsideration.




                                    :MJT



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