                          NOTICE: NOT FOR PUBLICATION.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.

                          RAUL VARELA, Appellant.

                             No. 1 CA-CR 12-0643
                              FILED 07-15-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2009-007018-001
                The Honorable Pamela Svoboda, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General‟s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender‟s Office, Phoenix
By Terry J. Reid
Counsel for Appellant
                            STATE v. VARELA
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Margaret H. Downie joined.


K E S S L E R, Judge:

¶1            Raul Varela appeals his convictions and sentences for two
counts of intentional or knowing child abuse. For the following reasons,
we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Varela and his wife, Tricia Varela, were tried together on
multiple charges of child abuse stemming from their physical treatment of
their recently-adopted daughter, E., when she refused to use the toilet.
Specifically, in Count 3, the State alleged Varela intentionally or
knowingly endangered E.‟s life in violation of Arizona Revised Statutes
(“A.R.S.”) section 13-3623(A) (2010)1 because he did not seek medical care
until two days after Tricia injured E. during a three-hour “power
struggle” that involved physically restraining E. on the toilet and
subsequently struggling with her in a closet and striking her with a shoe.
In Count 6, the State charged Varela with intentional or knowing child
abuse in violation of A.R.S. § 13-3623(B) based on previous instances
where he bruised E. by forcibly restraining her on the toilet.

¶3            Detectives JH and AY conducted an interview with Varela
the day after E. was taken to the hospital (“the Interview”). At the time of
the Interview, the detectives mistakenly believed E.‟s arm and leg were
fractured. Detective JH later testified at trial this belief was incorrect and
E. had no broken bones.2 Upon informing Varela of E.‟s broken limbs,
Varela made incriminating statements. Varela moved to preclude specific


1      We cite the current version of the applicable statute when no
revisions material to this decision have since occurred.
2      Detective JH explained that at the time of the Interview the hospital
staff considered it possible that E.‟s arm and leg were broken and had
ordered x-rays to confirm this suspicion. When he interviewed Varela, JH
was not aware of the x-ray results.



                                      2
                             STATE v. VARELA
                            Decision of the Court

statements made by the detectives and Varela during the Interview, some
of which regarded E.‟s purportedly fractured arm and leg. After hearing
argument from counsel, the court granted the motion in part and ordered
portions of the Interview redacted.

¶4            A jury found Varela guilty of the charged offenses. The
court sentenced Varela to a mitigated sentence of twelve years‟ flat-time
imprisonment for the conviction on Count 3, a class two felony, dangerous
crime against children, and domestic violence offense. For the conviction
on Count 6, a class four felony and domestic violence offense, the court
imposed the presumptive term of two-and-a-half years in prison and
ordered the sentences to run concurrently. Varela timely appealed, and
we have jurisdiction under Article 6, Section 9, of the Arizona
Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and -
4033(A)(1) (2010).

                               DISCUSSION

I.     Sufficiency of the Evidence

¶5            Varela argues there is insufficient evidence to support the
jury‟s conclusion that he endangered E.‟s health by failing to seek medical
care. In challenging the sufficiency of the evidence, Varela contends no
evidence was presented at trial showing he possessed the necessary mens
rea to constitute a violation of A.R.S. § 13-3623(A), and he asserts no
evidence presented indicated the delay in seeking medical care of E.
“increased the potential for death or serious physical injury.”

¶6              The sufficiency of evidence is a question of law which we
review de novo. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191
(2011). Our review is limited to whether substantial evidence exists to
support the verdict. State v. Scott, 177 Ariz. 131, 138, 865 P.2d 792, 799
(1993); see also Ariz. R. Crim. P. 20(a) (directing courts to enter judgment of
acquittal “if there is no substantial evidence to warrant a conviction.”).
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, 796 P.2d
866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53
(1980)).

¶7           Further, when addressing a sufficiency of the evidence
argument, “[w]e construe the evidence in the light most favorable to
sustaining the verdict, and resolve all reasonable inferences against the
defendant.” State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111


                                      3
                            STATE v. VARELA
                           Decision of the Court

(1998). We will reverse only if there is a complete absence of probative
facts to support the conviction. State v. Scott, 113 Ariz. 423, 424-25, 555
P.2d 1117, 1118-19 (1976). We will not weigh the evidence as that is the
function of the jury. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189
(1989). “The finder-of-fact, not the appellate court, weighs the evidence
and determines the credibility of witnesses.” State v. Cid, 181 Ariz. 496,
500, 892 P.2d 216, 220 (App. 1995). No distinction exists between
circumstantial and direct evidence. State v. Stuard, 176 Ariz. 589, 603, 863
P.2d 881, 895 (1993).

¶8             To sustain a conviction on Count 3, the State had to prove
beyond a reasonable doubt that, “[u]nder circumstances likely to produce
death or serious physical injury,” Varela‟s intentional or knowing failure
to seek medical care for E. for two days after her power struggle with
Tricia endangered E.‟s “person or health.” See A.R.S. § 13-3623(A). Varela
argues he could not have known E.‟s symptoms were indicative of an
illness or injury that required immediate medical treatment, and none of
the State‟s witnesses stated the symptoms for which E. was admitted to
the hospital were such that a reasonable person would have immediately
sought medical help. We disagree. There is evidence in the record to
support the assertion Varela intentionally or knowingly withheld medical
care for E. for two days under circumstances likely to kill or seriously
injure her.

¶9            Tricia explained to Detective JH that E. had issues going to
the bathroom, and she and Varela would restrain E. on the toilet for up to
an hour while “pushing her mid-section into her legs.” E. would struggle
and try to get away. During his Interview, Varela admitted that prior to
E.‟s struggle with Tricia, E.‟s belly was distended and she had developed
bruises from being restrained earlier in the week. He agreed that,
generally, upon noticing a child‟s stomach is distended and hurting, a
reasonable person would take the child to the doctor. He agreed E.‟s
fever, vomiting, and withholding stool and urine were all red flags
indicating something was wrong. And he further admitted taking E. to
the doctor was going to “raise some flags” based upon the bruising to her
arms and legs, and he knew when he took E. to the hospital that CPS
would be called.

¶10           Moreover, the trial evidence revealed that when E. arrived at
the hospital she was bruised, crying, whimpering, pale, and not moving.
Because the hospital did not have the appropriate facilities, staff personnel
determined E.‟s critical condition required she be transferred to the
Maricopa Medical Center‟s pediatric intensive care unit. There, doctors


                                      4
                            STATE v. VARELA
                           Decision of the Court

determined E.‟s abdomen was bruised and distended with decreased
bowel sounds, her white cell count indicated possible infection, and there
were signs she was dehydrated. The abdominal bruising was particularly
concerning because the lack of bones in that area of the body make
accidental bruising difficult. This bruising, in addition to E.‟s other
symptoms, indicated possible trauma and child abuse. In addition,
internal bleeding was later found in the muscle layers of E.‟s abdomen,
which resulted in an internal abscess that had to be surgically drained to
resolve any infection. E.‟s treating physician agreed her condition was
life-threatening, and E. remained in the pediatric intensive care unit for
approximately one month.

¶11           Doctor Kirsch, a pediatrician who evaluates patients for
potential child abuse, opined that E.‟s abdominal injuries were caused by
trauma, specifically, “significant pressure,” “crush injury,” and
“squeezing.” She further testified E. was “extremely critical ill” and had
E. gone untreated “it is possible that she would have died.”

¶12           Based upon Varela‟s admissions during the Interview, in
addition to the foregoing trial testimony, the jury could reasonably
conclude Varela delayed seeking medical care for E. until her injuries
became life-threatening because he feared her bruising would lead to
allegations of child abuse. The evidence therefore supports the jury‟s
determination Varela intentionally or knowingly withheld medical care
for E. thereby endangering her health. Sufficient evidence supports
Varela‟s conviction on Count 3.

II.   Admission of Statements

¶13          Varela argues the trial court erred in admitting portions of
the Interview that occurred after he was accused of breaking E.‟s arm and
leg. He claims these portions of the Interview were more prejudicial than
probative and caused confusion as to the context and meaning of his
statements.

¶14           Because Varela failed to present this issue below, we review
for fundamental error. See State v. Edmisten, 220 Ariz. 517, 522, ¶ 11, 207
P.3d 770, 775 (App. 2009). Fundamental error is “error going to the
foundation of the case, error that takes from the defendant a right
essential to his defense, and error of such magnitude that the defendant
could not possibly have received a fair trial.” State v. Henderson, 210 Ariz.
561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz.
88, 90, 688 P.2d 980, 982 (1984)). To obtain a reversal, Varela must also



                                     5
                             STATE v. VARELA
                            Decision of the Court

demonstrate the error caused prejudice. Id. at ¶ 20. Prejudice must be
shown in the record and may not be based solely on speculation. See State
v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006).
“Before we may engage in a fundamental error analysis, however, we
must first find that the trial court committed some error.” State v. Lavers,
168 Ariz. 376, 385, 814 P.2d 333, 342 (1991). Varela, however, fails to
persuade us the trial court erred, much less fundamentally erred to
Varela‟s prejudice, in failing to sua sponte redact certain comments made
by Varela and the detectives after they misinformed him of E.‟s broken
arm and leg.

¶15           Varela primarily argues the jury was confused and misled
by the challenged statements because the comments were based on a
combination of both true and false facts. We note that this apparent
prejudice to Varela, however, is purely speculative and not sufficient for
reversal under fundamental error review. Further, Varela‟s assertion the
jury was confused by his admission in the Interview that the purportedly
broken bones constituted abuse is not supported by the record. Varela
admitted in the Interview the bruising alone was abuse, there is “no
human being that deserves the bruising and pain she‟s going through”
and the bruising would “raise flags.”

¶16            Given that Arizona law permits intentional lying by law
enforcement during interrogations “so long as the suspect‟s will is not
overborne”—and Varela does not argue his will was overcome during the
Interview—we cannot conclude the detectives‟ innocent statements
regarding E.‟s broken arm and leg required the trial court to sua sponte
redact the comments that Varela now challenges. See State v. Huerstel, 206
Ariz. 93, 106, ¶ 54, 75 P.3d 698, 711 (2003) (stating that tactics such as lying
about the strength of the evidence is “permissible so long as the suspect‟s
will is not overborne.”).

¶17            Varela refers to his answer “Monsters, monsters” in
response to Detective JH‟s question, “What do you think of the parents of
this child?” as confusing the jury as to whether the broken bones or the
bruising constituted abuse. We disagree. The record clearly reflects that
when JH posed the question to Varela, JH was showing him pictures of
E.‟s injuries, which as detective JH explicitly testified, did not consist of
broken bones.

¶18           Varela also challenges the admission of the following
dialogue at the conclusion of the Interview:




                                       6
                       STATE v. VARELA
                      Decision of the Court

Detective [JH]: What if you were to leave your son, and one
of your sons let‟s say with a neighbor kid for a day, um the
neighbor, for a day, because you and your wife want to go
out. And you get a call um from the Goodyear Police
Department to tell you that we‟ve arrested the neighbor
because he‟s um abused our child for whatever reason. And
when we get you to the PD we just say, well we‟re going to
hate to do this but we‟re going to have to show you these
photos of your son. And these are the photos that we show
you of your son. What . . . would your response be?

Mr. Varela: It would be devastating.

Detective [JH]: What would you want to have happen to
your neighbor?

Mr. Varela: Okay here‟s where we get kinda weird . . .

Detective [JH]: No be honest, I want to know the honest
truth. What would you want to do to . . . that neighbor?

Mr. Varela: I would want to hurt them.

Detective [JH]: You‟d probably want to kill „em right?

Mr. Varela: Short of killing them, hurt them.

Detective [JH]: And what would you want law enforcement
to do to him?

Mr. Varela: You know what? I‟m . . . about second chances.
And I‟m not just saying because of this.

Detective [JH]: Okay, wait a minute. Now see you‟re being
contradictory. You want to kill „em, but then you wanna
give „em a second chance.

Mr. Varela: Well [if] you‟re asking me what my first reaction
. . . My first reaction is to kill, is to just . . . get my hands, get
my hands . . . around him. But in reality, what would I
wanna do, what would I do? I mean I would wanna see . . .
why he did that. Why and see if I can help.

Detective [JH]: Because your son didn‟t listen. Because your
son took uh some cookies from the cookie jar and he said no


                                  7
                               STATE v. VARELA
                              Decision of the Court

       don‟t because you need to eat dinner first. And so because of
       that he got enraged and that‟s what happened to your son. If
       that was his reason, what would you do?

       Mr. Varela: Um . . .

       Detective [JH]: Are you okay with giving him a second
       chance?

       Mr. Varela: Probably would give him a second chance.

Varela argues the above statements should have been precluded because
they were not probative based upon the lack of trial evidence that Varela
injured E. out of rage, improperly insinuated he valued his biological
children more than E., and “only served to highlight the detectives oft
stated belief that . . . Varela was minimizing his conduct.”

¶19           Detective JH testified he believed Varela was minimizing his
conduct by taking measures before E. was hospitalized. This conduct
included applying lotion to E., giving her Epsom salt baths and applying
ice to hide her bruises and cuts, and giving her suppositories to reduce her
fever. Therefore, the quoted portion of the Interview was probative as to
Varela‟s minimizing of his actions. Varela‟s remaining examples of error
in the admission of the quoted portion of the Interview do not go to the
foundation of the case, take away a right essential to his defense, or rise to
a level that he could not possibly have received a fair trial. See Henderson,
210 Ariz. at 567, ¶ 19, 115 P.3d at 607 (quoting Hunter, 142 Ariz. at 90, 688
P.2d at 982).

¶20           Based on the foregoing, we cannot conclude the court
fundamentally erred in failing to sua sponte preclude portions of the
Interview after Varela was mistakenly informed of E.‟s broken bones on
the basis the evidence was unduly prejudicial. See Ariz. R. Evid. 403
(stating relevant evidence is subject to exclusion “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice [or]
confusing the issues . . . .”). In any event, Varela fails to sufficiently
establish any resulting prejudice.

III.   Prosecutorial Misconduct

¶21          Varela argues the prosecutor‟s comments during opening
and closing arguments amounted to misconduct that infected the entire
proceedings and denied him a fair trial. As Varela concedes, he did not



                                       8
                             STATE v. VARELA
                            Decision of the Court

object at trial to the comments. As a result, our review is limited to
determining whether fundamental error occurred.

¶22           To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate “(1) misconduct is indeed present; and (2) a
reasonable likelihood exists that the misconduct could have affected the
jury‟s verdict, thereby denying defendant a fair trial.” State v. Moody, 208
Ariz. 424, 459, ¶ 145, 94 P.3d 1119, 1154 (2004) (citation omitted). That is, a
defendant must demonstrate the prosecutor‟s misconduct “so infected the
trial with unfairness as to make the resulting conviction a denial of due
process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). “Reversal on
the basis of prosecutorial misconduct requires that the conduct be „so
pronounced and persistent that it permeates the entire atmosphere of the
trial.‟” State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184 (1998)
(citations omitted).

¶23         Varela first points to the following remark the prosecutor
made in opening statements:

       You will hear the Varelas presented to them the image of a
       perfect family. They had two biological sons. They made a
       very big deal about their church attendance.        Their
       willingness to take on four girls in need seemed only to
       enhance their image as a solid, caring family that had
       everything going for them.

Varela contends the comment was improper because no evidence at trial
was presented that they attended church or adopted E. and her three
sisters for the purpose of enhancing their image. We reject this argument.

¶24          First, Tricia‟s counsel commented during opening
statements that the Varelas were “active in the church” and “this was a
perfect family.” Varela‟s counsel also stated the couple was “active in
church.” Furthermore, the prosecutor‟s comment that the Varelas‟
adoption “seemed” to enhance their image was a reference the jury could




                                      9
                             STATE v. VARELA
                            Decision of the Court

reasonably make based upon the trial evidence,3 and the statements were
not a comment on Varela‟s guilt. Based on the foregoing, we do not find
any impropriety in the prosecutor‟s challenged remarks.

¶25           Varela next contends the prosecutor attempted to mislead
the jury by remarking in opening statements that E.‟s injuries were so bad
that the hospital they took her to was unable to adequately handle her
level of trauma:

       But it was actually her internal injuries that were of real
       concern to the doctors. They were so bad, that . . . although
       the Varelas initially went to West Valley hospital, the
       doctors at West Valley decided that [E.] needed to be moved
       so she was taken to Maricopa [M]edical [C]enter, which is a
       level one trauma center. This was something that was bad
       enough that West Valley didn‟t feel they [could] deal with it.

During the trial, a nurse testified E. was transferred to Maricopa Medical
Center because the hospital “does not offer child care for hospitalization.
And in this condition, the child had to go to a higher [level] of care, which
was another facility, for her length of stay.” Because E. needed to be
hospitalized, and because the hospital lacked the facilities to treat this
level of child trauma, the State‟s characterization of the hospital as unable
to provide her with proper care was not misleading. Even if the
statements were improper, Varela would need to establish “a reasonable
likelihood exists that the misconduct could have affected the jury‟s
verdict, thereby denying [Varela] a fair trial.” Moody, 208 Ariz. at 459, ¶
145, 94 P.3d at 1154. No such prejudice exists given the nature of E.‟s
injuries.

¶26          Varela also argues the following opening statement by the
prosecutor amounted to misconduct:




3       There was significant testimony at trial that a number of the
Varelas‟ church friends had adopted children. Tricia also testified she and
her husband, “[a]fter speaking with several of our friends . . . [and] our
pastor . . . and praying about it . . . we really felt that we [would] be able to
fill that need for the kids.” Also, the Varelas‟ pastor testified that he
attended a party celebrating the Varelas‟ adoption, and there was “a lot of
happiness, a lot of joy.”



                                       10
                            STATE v. VARELA
                           Decision of the Court

      And you will hear from those medical personnel who
      treated [E.] during that month. [E.] was in the hospital due
      solely to injuries inflicted by Tricia Varela. And due to her
      lack of medical care.

Even assuming Varela is correct that the comments were improper
because there was no medical evidence E. was hospitalized due to the
Varelas‟ delay in seeking treatment, the trial evidence presented allowed
the jury to reasonably infer that the delay in seeking medical care for E.
was at least a contributing factor to her prolonged hospitalization. See
supra ¶¶ 9-11. Therefore, the prosecutor‟s remark was not improper.

¶27           Varela further asserts the prosecutor appealed to the jury‟s
biases by sneering at Varela‟s religious involvement and saying: “Their
pastor, freakishly tanned pastor who was so dazzled by them taking in
these four unfortunate children.” Although we can find no appropriate
purpose for commenting on the pastor‟s physical appearance, it was not
significant enough to constitute misconduct. See Pool v. Superior Court, 139
Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984) (noting prosecutorial
misconduct is not merely “legal error, negligence, mistake, or insignificant
impropriety, but, taken as a whole, amounts to intentional conduct which
the prosecutor knows to be improper and prejudicial . . . .” (emphasis
added)).

¶28            Finally, Varela contends the prosecutor‟s reference during
closing arguments to Varela‟s statement during the Interview that he was
a “monster” was improper because the statement was made in response to
the detectives‟ false information regarding E.‟s broken bones. As we have
already determined, see supra ¶ 17, the “monster” comment was not made
regarding Varela‟s belief that E.‟s bones were broken. We thus summarily
reject this argument.

¶29            In sum, we find none of the challenged statements by the
prosecutor amounted to misconduct, let alone to the extent that it denied
Varela a fair trial and required the trial court to sua sponte declare a
mistrial or take other corrective action. Therefore, we will not reverse on
that basis. Furthermore, the court instructed the jury that the attorneys‟
statements were not evidence. We presume the jurors followed that
instruction. See State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847
(2006); State v. Bowie, 119 Ariz. 336, 340, 580 P.2d 1190, 1194 (1978) (“Any
possible prejudice from the opening statement was overcome by the
court‟s cautionary instructions that evidence did not come from the
attorneys and that the verdict must be determined only by reference to the


                                     11
                            STATE v. VARELA
                           Decision of the Court

evidence . . . .”); State v. Ramirez, 178 Ariz. 116, 127, 871 P.2d 237, 248
(1994) (“[T]here is no presumption that jurors will disobey instructions
given them by the court.” (citation omitted)).

                             CONCLUSION

¶30           Varela‟s convictions and sentences are affirmed. Varela‟s
motion to vacate the court‟s order requiring Varela to pay for the costs of
DNA testing pursuant to A.R.S. § 13-610 (Supp. 2013), see State v. Reyes,
232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013), is moot. The superior
court entered a minute entry dated December 17, 2003 correcting its
previous order regarding payment of DNA testing.




                                   :gsh




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