Opinion
No. 2 CA-CR 2016-0404
08-08-2018
THE STATE OF ARIZONA, Appellee, v. KRISTEPHER STEVEN BENAVIDEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20131247001
The Honorable Paul E. Tang, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
By Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Kristepher Benavidez appeals his conviction by a jury of negligent homicide, reckless child abuse, and six counts of negligent child abuse after which the trial court sentenced him to concurrent and consecutive prison terms totaling 22.5 years. We affirm.
Issues
¶2 Benavidez contends generally that the evidence was insufficient to support his convictions. He further contends that the trial court abused its discretion by not granting his motion to dismiss due to the state's destruction of evidence. He also contends that the court improperly admitted certain expert testimony, testimony that he obtained heroin for the victims' mother, and photographs of one of the victims, and that it improperly precluded audio from an admitted videotape. Benavidez also contends that the court abused its discretion by instructing the jury on lesser-included offenses, and that his convictions violated his rights against double jeopardy. The state contends that the evidence supports the convictions and that the court's rulings and the convictions were otherwise proper. The issues are: (1) whether sufficient evidence supports the convictions, (2) whether the court should have dismissed the case because evidence was destroyed, (3) whether evidence was wrongly admitted or precluded, (4) whether it was proper to give the lesser-included offense jury instructions, and (5) whether Benavidez was subjected to double jeopardy by multiplicitous charges.
Factual and Procedural History
¶3 "We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdicts." State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999). Benavidez and Monique Gaxiola were arrested on charges related to the death of Gaxiola's twenty-month-old daughter Daria and to the injuries to her twin sister Lisa. Gaxiola pleaded guilty to manslaughter and testified at Benavidez's trial. Gaxiola testified that, in January 2013, Benavidez had moved in with her and her three daughters: M., who was seven-years old, and twins Daria and Lisa, who were then eighteen-months old. Benavidez agreed to take on a parenting role, including disciplining the children. Benavidez gave Daria and Lisa baths, changed their diapers, brushed their teeth, groomed them, gave them medicine, and sometimes fed them. M. said she had to feed herself and her sisters because her mother was too busy or was sleeping. Gaxiola testified that she and Benavidez used drugs while they lived together; she took prescription pain medicine during the day and used heroin at night.
In this decision, we adopt the pseudonyms for the child victims used in the parties' briefs. See Ariz. R. Crim. P. 31.10(f) (allowing the use of pseudonyms for victims in briefs).
¶4 Beginning in March 2013, Gaxiola noticed bruises on both girls, but more so on Daria. Gaxiola believed Benavidez's excuses that the girls fell, but in hindsight questioned his excuses and attributed her willingness to believe him to her drug use. Gaxiola recalled that he was "very controlling" and "wanted everything done his way." M. testified that the twins did not like Benavidez and would cry when he held them.
¶5 On March 13, 2013, Benavidez brought M. home from school around 1 p.m. Daria cried as soon as Benavidez came through the door. Benavidez first took Lisa, and then Daria, to brush their teeth because he said they had bad breath. Gaxiola could not see what was happening while Daria was in the bathroom with Benavidez, but heard Daria crying and screaming. Gaxiola went to smoke while Benavidez and Daria were in the bathroom for about ten minutes.
¶6 Gaxiola testified that she heard Benavidez calling her name and found him and Daria in her bedroom. Daria was pale, had dilated eyes, and was limp when Gaxiola held her. Daria was not breathing at first, but after throwing up, she made "scratchy" breathing sounds. Gaxiola called 9-1-1. Benavidez tried to revive her by putting his hands on her back, sticking his fingers down her throat, and giving her CPR. A neighbor also gave Daria CPR. Paramedics arrived and took Daria to the hospital; Benavidez and Gaxiola followed in their own car. Lisa and M. were left with a neighbor, who called 9-1-1 upon seeing injuries to Lisa.
¶7 When Daria arrived at the hospital, she initially had no pulse, but the pulse returned after doctors administered treatment intravenously. Daria had bruising all over her body, including her head, arms, neck, chest, and back. She also had abrasions consistent with bites, scalp contusions, facial abrasions and bruises, and blood in her ear.
¶8 The initial CT scan of Daria's head showed indications of subdural hematomas. A second CT scan, taken several hours later, showed "worsening" brain swelling, increasing subdural hematomas on both sides of the brain and on the entire outside of the brain, and scattered subarachnoid hemorrhages.
¶9 The next day, a pediatric ophthalmologist saw "massive hemorrhages" in both of Daria's eyes not associated with an injury to the eye itself. The ophthalmologist suggested that hemorrhages such as these can be caused by trauma, such as a "blow to the head." The ophthalmologist confirmed that the hemorrhage in the right eye is the type most commonly seen in trauma, and he dismissed other possible causes.
¶10 Thirty-six hours after being admitted, Daria was pronounced brain dead, and after another thirty-six hours, she was removed from life support. The forensic pathologist who examined her noted twenty-five contusions to her head, scalp, forehead, ear, jaw, and neck. He found diffuse subdural hematomas on the right side of the brain, patchy subdural hematomas on the left side, diffuse retinal hemorrhages in both eyes, and subdural hematomas along the length of the spinal cord. He also noted external bruises and abrasions all over her body, including bruises across her back, ten bruises and three abrasions on her chest and abdomen, six bruises—some consistent with bites—on her upper extremities, and eleven bruises on her lower extremities. The pathologist noted the bruising on Daria was in excess of bruises normally found on a toddler learning to walk or from a fall.
¶11 The pathologist also examined Daria for any cause of the subdural hematomas other than trauma, such as aneurysm, tumor, stroke, or clot, and found none. The pathologist noted that the blood in the subdural space was "semi-sticky," indicating that the injury was acute, and his microscopic examination was consistent with the bleeding occurring just before Daria's hospital admission. Through microscopic examination, the pathologist also found that a bruise from her body and the retinal hemorrhages were acute and consistent with injuries also happening just before her admission. The pathologist gave diagnoses that included blunt force head injuries, blunt force chest and abdomen injuries, and blunt force injuries to the extremities. The pathologist concluded that the cause of death was blunt force head injuries and the manner of death was homicide.
¶12 Lisa was also admitted to the hospital with non-accidental trauma, malnutrition and dehydration. She had multiple bruises on her arms, with possible bite marks, blood from both ears, and bleeding on her upper lip. She also had sunken eyes and a sunken anterior fontanel, which indicate malnutrition and dehydration. Lisa was thin and small for her age, and lacked the normal subcutaneous fat, leaving her with bony protuberances all over her body. She weighed 7.15 kilograms at the time she was admitted, having lost weight in the two months since her last doctor's visit when she weighed 7.5 kilograms. A week after her release from the hospital she weighed 7.825 kilograms.
¶13 Benavidez, in his statement to police, given after the girls were admitted to the hospital, said the girls' bruises came from various falls and from his squeezing their cheeks too hard when giving them medicine, and that he might have used "too much force" with them. He also admitted to biting the girls to teach them not to bite each other. As to what caused Daria's immediate injuries, Benavidez said that Daria was thrashing about in the sink and hit her head just before he brushed her teeth. He then took her to the bedroom, placed her on the bed, and went to get a towel. When he came back, Daria was on the floor crying and gasping, so he tried to get her to breathe by slapping her.
¶14 Benavidez was convicted and sentenced as described above. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A).
Analysis
Sufficiency of the Evidence
¶15 Benavidez argues that the evidence was insufficient to support each of his convictions. We review the sufficiency of the evidence de novo. State v. West, 226 Ariz. 559, ¶ 15 (2011). When reviewing claims of insufficient evidence, we "reverse only if no substantial evidence supports the conviction." State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005). "Substantial evidence is more than a mere scintilla and 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). Evidence may be direct or circumstantial. State v. Bustamante, 229 Ariz. 256, ¶ 5 (App. 2012). "To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." Id., quoting State v. Arredondo, 155 Ariz. 314, 316 (1987). We do not reweigh the evidence and resolve all reasonable inferences against the defendant. State v. Lee, 189 Ariz. 590, 603 (1997).
Count 1: Negligent Homicide
¶16 Benavidez argues that there was insufficient evidence to support his conviction for negligent homicide of Daria. Benavidez's argument primarily relies on contradictions and disagreements in various experts' testimony, which we will not reweigh. See Lee, 189 Ariz. at 603.
¶17 "A person commits negligent homicide if with criminal negligence the person causes the death of another person." A.R.S. § 13-1102. Criminal negligence means "that a person fails to perceive a substantial and unjustifiable risk" that the result described in the statute defining the offense will occur or that the circumstances described will exist. A.R.S. § 13-105(10)(d). "The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." Id. "If a statute provides that criminal negligence suffices to establish an element of an offense, that element also is established if a person acts intentionally, knowingly or recklessly. If acting recklessly suffices to establish an element, that element also is established if a person acts intentionally or knowingly." A.R.S. § 13-202(C).
¶18 Substantial evidence supports Benavidez's conviction for negligent homicide. The forensic pathologist's findings and diagnoses supported that Daria's cause of death was blunt force trauma to the head. Additionally, Dr. Lowe testified that her injuries were caused by either shaking or other impacts to the head, which directly led to her "arrest and the resultant hypoxia."
¶19 Moreover, Gaxiola's testimony demonstrates that Daria had only been showing signs of bruising since Benavidez moved in, that Daria reacted negatively to Benavidez, and that Daria was last alone in Benavidez's care. Benavidez admits that he was alone with Daria when he allowed her to thrash in the sink hitting her head and that he left her unattended on the bed and she later ended up on the floor unable to breath. This evidence substantially supports that Benavidez failed to perceive a substantial and unjustifiable risk that led to Daria's death, and thus the evidence supports Benavidez's conviction for negligent homicide. See §§ 13-105(10)(d), 13-1102.
¶20 Benavidez also argues that the evidence is insufficient to show negligent homicide because the state offered no explanation for Daria's elevated D-dimer levels, which may have suggested the cause of death was due to a blood clot. However, the state was not required to rebut the defense's theory of the case, and the jurors were free to reject the defense's theory. See State v. Mahan, 92 Ariz. 271, 272 (1962) ("Where there is evidentiary basis for jury's verdict, the jury is free to discard or disbelieve facts inconsistent with its conclusion.").
Count 2: Child Abuse , Subdural Hematomas and Retinal Hemorrhaging
¶21 Benavidez argues that there was insufficient evidence to support his conviction for negligent child abuse of Daria by causing subdural hematomas and retinal hemorrhaging. A person commits child abuse when, under circumstances likely to produce death or serious physical injury: 1) he causes the child to suffer physical injury; or, 2) having the care or custody of the child, causes or permits the person or health of the child to be injured; or, 3) having the care or custody of the child, causes or permits the child to be placed in a situation where the person or health of the child is endangered. See A.R.S. § 13-3623(A).
¶22 Benavidez argues that, because there was a question of fact regarding when Daria's subdural hematomas occurred, the subdural hematomas "could not possibly have occurred as a result of anything that happened while [Benavidez] was brushing Daria's teeth on the evening of March 13, 2013." The CT scans showed that Daria's initial hematoma had grown substantially in just a few hours. The forensic pathologist findings and diagnoses support that the presence of subdural hematomas was a result of recent blunt trauma. Dr. Lowe's testimony also supports that trauma led to Daria's injuries. Again, Benavidez's argument relies on contradictions and disagreements in various experts' testimony; however, we will not reweigh the evidence. See Lee, 189 Ariz. at 603. Substantial evidence supports that Benavidez negligently caused Daria's subdural hematomas.
¶23 Benavidez also argues that the evidence is insufficient to support that he negligently caused Daria's retinal hemorrhaging. The ophthalmologist testified that retinal hemorrhages, such as the ones in Daria's eyes, could be caused by trauma, such as a "blow to the head." He further noted that the hemorrhage in the right eye is commonly attributed to trauma and dismissed other possible causes. To the extent that the ophthalmologist disagreed with the state's theory of the case or contradicted other aspects of his testimony, such matters were for the jury to resolve. See State v. Lehr, 201 Ariz. 509, ¶ 29 (2002) (credibility and weight are for the jury). Additionally, Dr. Lowe testified that the extent of the retinal hemorrhages was "beyond that which [is] typically see[n] from brain swelling alone," and "that the retinal hemorrhages were likely caused directly by the first injury, not the brain swelling itself." To the extent that, because Dr. Lowe was not an ophthalmologist, his credibility or the testimony should be weighed differently, such matters are for the jury. See id.
¶24 Benavidez's own statements also demonstrate that he was alone with Daria when he allowed her to thrash in the sink hitting her head and when he left her on the bed and she later ended up on the floor unable to breath. These facts constitute substantial evidence to support the jury's finding that Benavidez negligently caused or permitted Daria's subdural hematomas and retinal hemorrhaging while in his care. See § 13-3623(A).
Counts 4, 8 , 13 , 16: Child Abuse , Bites , Bruises , and Abrasions
¶25 Benavidez argues that there is insufficient evidence to support his conviction for Count Four: reckless child abuse committed by biting Daria's arm. Benavidez argues that there was no evidence that he bit Daria's arm, because he only admitted to biting her cheek. A jury is not limited, of course, to finding only what a defendant admits to, but is typically instructed, and was so instructed here, to find facts based on all of the evidence introduced in court. See Revised Arizona Jury Instruction (Criminal), No. 1 (1996). Benavidez admitted to biting one of the girls on the arm. Furthermore, an admitted photograph shows a two-inch bruise, consistent with a bite, on Daria's arm. There is substantial evidence to support the jury's conclusion that Benavidez was guilty of reckless child abuse in biting Daria's arm.
¶26 Benavidez argues that there is insufficient evidence to support his conviction for Count Eight: negligent child abuse in causing bruises to Daria's back and torso. He asserts that because a neighbor gave Daria CPR, which can cause bruising, and there is no direct evidence that Benavidez struck Daria, the evidence is insufficient. Although one doctor noted that CPR could cause "an isolated area of bruising," bruising by CPR is uncommon in children. Additionally, admitted photographs show that Daria had bruises throughout her torso and back. Benavidez's own expert testified that there were too many bruises not to constitute child abuse, and that she believed Daria was roughly handled. Although circumstantial, given that he caused Daria's injuries by abuse otherwise, there is substantial evidence to support Benavidez's conviction for causing bruises to Daria's torso and back. See Bustamante, 229 Ariz. 256, ¶ 6 (circumstantial evidence is sufficient to support conviction).
¶27 Benavidez argues that there is insufficient evidence to support his conviction for Count Thirteen: negligent child abuse causing abrasions to Lisa's right hand, and Count Sixteen: negligent child abuse causing bruises to Lisa's back and torso. Admitted photographs show the abrasions to Lisa's hand and bruising to her back. In his own statement, Benavidez said he might have caused unexplained bruises to Lisa, including to her back. Thus, there is sufficient evidence to support each conviction for negligent child abuse of Lisa. See id.
Counts 11 and 17: Child Abuse , Malnutrition
¶28 Benavidez argues there is insufficient evidence to support his convictions for Count Eleven: negligent child abuse causing malnutrition to Daria, and Count Seventeen: negligent child abuse causing malnutrition to Lisa. Both Daria's and Lisa's growth charts show their weight was significantly below the fifth percentile for their ages. In the three months in which Benavidez lived with the girls, Daria stayed around the same weight, and Lisa actually lost weight. Their mother, Gaxiola, admitted that she did not feed the girls, and, although Benavidez said he fed the girls, their seven-year-old sister testified that she had to feed the girls herself. Lisa's treating physician testified that she had sunken eyes, which could indicate malnutrition. A photograph also showed Lisa with sunken eyes. Likewise, in photographs, Daria can be seen with similarly sunken eyes, and the jury could infer that her sunken eyes were also the result of malnutrition. See State v. Willcoxson, 156 Ariz. 343, 347 (App. 1987) (The jury may apply their "ordinary experience and common sense" when determining the nature and degree of injuries from photographic evidence.). During Lisa's stay at the hospital she was able to gain a substantial amount of weight, which Dr. Lowe testified showed her low weight was less likely to have been caused by disease. Evidence was also admitted that Lisa had gained weight in her later adoptive placement as well. Substantial evidence supports Benavidez's convictions for negligent child abuse by causing malnutrition in both Daria and Lisa.
Denial of Motion to Dismiss
¶29 Benavidez argues that the trial court erred when it denied his motion to dismiss based on the destruction of brain tissue samples. In 2015, more than two years after Daria's autopsy report issued, Benavidez filed a motion to dismiss Count 1 due to that destruction. The state responded that, because more than a year had passed without Benavidez requesting preservation of any sample, the tissue samples of Daria's brain were destroyed per medical examiner's office policy. The court denied Benavidez's motion, but gave a Willits instruction, informing the jury that it could draw an adverse inference against the state if it found that evidence had been destroyed.
State v. Willits, 96 Ariz. 184 (1964).
¶30 "A trial court's denial of a motion to dismiss an indictment is reviewed for abuse of discretion." State v. Hulsey, 243 Ariz. 367, ¶ 17 (2018). "We defer to a trial court's findings of fact when they are supported by the record and not clearly erroneous, but review legal conclusions de novo." Id. (citations omitted). The state only has a constitutional duty to preserve exculpatory evidence that the defendant could not otherwise obtain himself. Id. ¶ 18. If "the evidence is only 'potentially useful'" to him, to claim a due process violation, a defendant must show that the state destroyed the evidence in bad faith. Id., quoting Illinois v. Fisher, 540 U.S. 544, 548 (2004). Negligent conduct is insufficient to establish bad faith. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (police negligent failure to preserve evidence did not constitute a denial of due process). "'[B]ad faith' has less to do with the actor's intent than with the actor's knowledge that the evidence was 'constitutionally material.'" State v. Walker, 185 Ariz. 228, 238 (App. 1995). Moreover, destroying evidence "which could have been subjected to tests, the results of which might have exonerated the defendant, does not constitute a denial of due process of law under the Arizona Constitution." State v. Youngblood, 173 Ariz. 502, 508 (1993).
¶31 Benavidez alleges that the brain tissue may have shown signs of a fatal clot in Daria's brain, and that "[b]ecause no examination was conducted of the inside of the brain, [his experts were] deprived . . . of the opportunity to look for other clues." Benavidez seems to concede that such evidence was only potentially useful in rebutting the charges against him. Thus, the exculpatory value of the tissue samples was not "readily apparent" when they were destroyed, and Benavidez cannot establish that the state acted in bad faith or that he suffered a due process violation. Hulsey, 243 Ariz. 367, ¶ 26; Youngblood, 173 Ariz. at 508.
¶32 Benavidez additionally argues that he "made a prima facie case for bad faith through circumstantial evidence" by demonstrating the unreliability of shaken baby syndrome as a forensic science. The unreliability of shaken baby syndrome has no bearing on whether the state knew the brain tissue samples were exculpatory at the time they were destroyed. See Youngblood, 488 U.S. at 56 n.* ("bad faith . . . must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed"). The trial court did not abuse its discretion when it denied Benavidez's motion to dismiss.
In his opening brief, Benavidez also asked us to revisit Youngblood to the extent that it does not require dismissal, but withdrew that argument in his supplemental and reply briefs in light of our supreme court's decision in Hulsey. Therefore, we do not address it. --------
Evidentiary Issues
Expert Opinion Evidence
¶33 Benavidez argues that the introduction of certain opinion evidence from Dr. Lowe, to which he did not object at trial, was fundamental error. To prevail under fundamental error review, a defendant must show both fundamental error and prejudice. State v. Henderson, 210 Ariz. 561, ¶ 20 (2005). 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." Id. ¶ 19, quoting State v. Hunter, 142 Ariz. 88, 90 (1984). The admission of expert testimony may be fundamental error if it goes to the foundation of the case. Cf. State v. Thomas, 130 Ariz. 432, 437 (1981) (finding that admission of testimony improperly influenced the jury, contributing to the verdict, and thus constituted fundamental error).
¶34 A witness who is qualified as an expert may testify in the form of an opinion if he has specialized knowledge that will aid the jury, when his testimony is based on sufficient facts, and when his opinion has reliably applied reliable principles and methods to the facts of the case. Ariz. R. Evid. 702. The trial judge serves as a gatekeeper, who preliminarily assesses the relevance and reliability of the proposed testimony. See State ex rel. Montgomery v. Miller, 234 Ariz. 289, ¶ 19 (App. 2014). "For a witness to be qualified as an expert, he or she need only possess 'skill and knowledge superior to that of [people] in general.'" State v. Romero, 239 Ariz. 6, ¶ 17 (2016), quoting State v. Girdler, 138 Ariz. 482, 490 (1983). "Careful study may suffice to qualify an expert if it affords greater knowledge on a relevant issue than the jury possesses." Id. When an expert "meets the liberal minimum qualifications, her level of expertise goes to credibility and weight, not admissibility." State v. Delgado, 232 Ariz. 182, ¶ 12 (App. 2013) (internal quotation marks omitted). "'Where there is contradictory, but reliable, expert testimony, it is the province of the jury to determine the weight and credibility of the testimony' and to decide between 'competing methodologies within a field of expertise.'" Miller, 234 Ariz. 289, ¶ 20, quoting Ariz. R. Evid. 702 cmt. to 2012 amend.
¶35 Dr. Lowe testified that he believed there was a "shaking component" to Daria's death and diagnosed her with abusive head trauma. Dr. Lowe testified extensively on the concept of shaken baby syndrome, its general acceptance in the medical community, and the now-preferred terminology of abusive head trauma. He was confronted with different expert testimony and alternative explanations for Daria's injuries, which he rejected.
¶36 Benavidez argues that Dr. Lowe did not sufficiently understand shaken baby syndrome to apply it reliably to the facts under Rule 702(d), Ariz. R. Evid. Under Rule 702(d), courts consider the following factors in assessing the reliability of an expert's conclusions and opinions: (1) whether the expert employs the same care in testifying as he would in his regular professional work, (2) whether the expert has accounted for obvious alternative explanations, and (3) whether the expert's opinion accounts for the available data and unknown variables. Miller, 234 Ariz. 289, ¶ 27. "The mere existence or possibility of an alternative explanation does not render an opinion or theory inadmissible; rather, it is sufficient if the expert has at least considered the alternative explanation, and has ruled it out in reaching his opinion." Id. ¶ 55.
¶37 Dr. Lowe is a pediatrician, with a medical degree from the University of Arizona, where he completed his residency training in pediatrics and where he has been a member of the faculty since 2006. He personally examined both girls and was involved as a child abuse consultant. Dr. Lowe competently explained both shaken baby syndrome and abusive head trauma and addressed the alternative explanations offered by differing experts. As such, there was no error, much less fundamental error.
¶38 Benavidez argues that Dr. Lowe's testimony did not assist the jury with determining the source of the bruises on both girls because the testimony was cumulative to testimony already offered. If such testimony, as Benavidez contends, was merely cumulative, he cannot show how he was prejudiced. See State v. Williams, 133 Ariz. 220, 226 (1982) (erroneous admission of cumulative evidence is harmless error). As such, there was no fundamental error.
¶39 Benavidez argues that Dr. Lowe's testimony about Lisa's malnutrition fails under Rules 702(b) and (d), because it was not based on sufficient facts or data. Under Rule 702(b), "[t]he assessment of the sufficiency of the facts and data is a quantitative, not qualitative analysis." Miller, 234 Ariz. 289, ¶ 22. "[T]he facts or data underlying an expert's testimony may include inadmissible evidence, hypothetical facts, and other experts' opinions." Id. Here, Dr. Lowe physically examined Lisa and reviewed her medical files, explained her growth curve, and explained that her weight gain while admitted was indicative that malnutrition rather than disease was likely the cause of her weight loss. As such, Dr. Lowe based his opinion on sufficient facts, complying with Rule 702(b), adequately applied the principles and methods he discussed, and considered alternative explanations under Rule 702(d). There was no error, much less fundamental error.
¶40 Benavidez additionally argues that Dr. Lowe should have been prevented from testifying about Lisa suffering from Orphan's Syndrome and a torn frenulum. However, he makes no argument about how he was prejudiced by such testimony, and therefore, he cannot meet his burden on fundamental error review. See Henderson, 210 Ariz. 561, ¶ 20.
¶41 Benavidez argues that the alleged errors above collectively constitute fundamental error, because Dr. Lowe's testimony goes to the foundation of the case. However, Arizona rejects the "cumulative error doctrine," because "something that is not prejudicial error in and of itself does not become such error when coupled with something else that is not prejudicial error." State v. Hughes, 193 Ariz. 72, ¶ 25 (1998), quoting State v. Roscoe, 184 Ariz. 484, 497 (1996). Thus, Benavidez cannot add the non-prejudicial errors to reach the sum of fundamental, prejudicial error.
¶42 Benavidez further argues that the error in admitting Dr. Lowe's testimony went to the foundation of the case because he told the jury how to decide the case by testifying that the girls' injuries were the result of abuse. However, an expert witness is permitted to testify that a child's injuries were the result of abuse. See State v. Poehnelt, 150 Ariz. 136, 150 (App. 1985) ("Expert testimony to establish that injuries were intentional and not accidental [is] admissible."). As such, there was no fundamental error.
Admission of Heroin Evidence
¶43 Benavidez argues that the introduction of Gaxiola's testimony that he supplied her with heroin was fundamental error. Because he did not object below, we review only for fundamental error. Henderson, 210 Ariz. 561, ¶ 19. Benavidez argues that Gaxiola's testimony was inadmissible prior acts evidence under Rule 404, Ariz. R. Evid.
¶44 Relevant evidence is admissible under Rule 402, Ariz. R. Evid., subject to balancing its probative value against its prejudice under Rule 403, Ariz. R. Evid. State v. Oliver, 158 Ariz. 22, 27 (1988). "[E]vidence is relevant if it has any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence." Id. at 28. Gaxiola testified that she did not feed either Daria or Lisa while Benavidez was living in the house, she and Benavidez used painkillers during the day and heroin at night, and she had pleaded guilty to the manslaughter of Daria. M. testified that she had to feed her sisters because Gaxiola slept all day. In addition, the jury was instructed on accomplice liability. Thus, Gaxiola's testimony that Benavidez supplied her with heroin tended to make more probable that he was Gaxiola's accomplice in the neglect that resulted in the girls' malnutrition or in Daria's death. See State v. Richmond, 114 Ariz. 186, 194 (1976) (no error in admission of evidence where "[t]he incidents described in the contested testimony are so blended with the commission of the instant offense that they explain the circumstances of the crime"), abrogated on other grounds by State v. Salazar, 173 Ariz. 399, 411 (1992). Indeed, Benavidez's buying Gaxiola heroin may be characterized not as Rule 404(b) other-act evidence but as evidence of his participation in the charged act itself. Therefore, there was no error, much less fundamental error.
Preclusion of Audio from Video Recording
¶45 During his cross-examination of Gaxiola, Benavidez introduced video evidence, without audio, of his positive interaction with the girls. The evidence was admitted without objections from the state. After the close of the state's case-in-chief, Benavidez sought to admit the audio to the videos into evidence. The trial court precluded the evidence noting "[t]he issue of which you are attempting to rebut concerning the reaction of the twins was established then based on that [video] evidence that was presented." The court left open the possibility that the audio may be admissible for other purposes. Benavidez did not attempt to admit the audio at any later point, for any other purpose.
¶46 Benavidez argues that the trial court abused its discretion by precluding the admission of the sound to admitted video evidence, seemingly on grounds of cumulativeness. A trial court's evidentiary rulings are reviewed for an abuse of discretion. See State v. Villalobos, 225 Ariz. 74, ¶ 21 (2010). "The trial judge is in the best position to determine the relevancy of evidence because he has seen the entire presentation of the case." State v. Jensen, 153 Ariz. 171, 181 (1987). The rejection of relevant evidence on the basis of cumulativeness is within the discretion of the court. See State v. Verive, 128 Ariz. 570, 576 (App. 1981).
¶47 "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . needlessly presenting cumulative evidence." Ariz. R. Evid. 403. Here, Gaxiola testified that the video showed Benavidez filming and interacting with the girls in various settings, including Halloween, where the girls can be seen giggling, smiling, and otherwise approving of his presence. The audio to the videos consists of Benavidez's baby talk to the girls about their Halloween costumes and his tickling them. For the purpose of rebutting the state's assertion that the girls reacted negatively to Benavidez, the trial court reasonably concluded that the audio to the videos provided nothing additionally probative. Cf. State v. Abdi, 226 Ariz. 361, ¶ 30 (App. 2001) (upholding trial court's preclusion of additional testimony on defendant's fear of police because it was cumulative to previous testimony on the same subject). As such, the court did not abuse its discretion in precluding the audio evidence due to cumulativeness.
Admission of Photographs
¶48 Benavidez argues that the trial court abused its discretion by admitting photographs of Lisa prior to her admission and after her release from the hospital because the photographs were unfairly prejudicial. However, in the trial court, Benavidez objected to the photographs on the basis of relevance, and an objection to relevance does not preserve arguments of unfair prejudice under Rule 403, Ariz. R. Evid., on appeal. See State v. Montano, 204 Ariz. 413, ¶ 63 (2003). Because Benavidez does not argue that admission of the photographs was fundamental error on appeal, his argument is waived. See Moreno-Medrano, 218 Ariz. 349, ¶ 17 (2008).
Lesser-included Offenses
¶49 Benavidez argues that the trial court erred in giving the lesser-included offense instructions for Count 1 and 2. We review a trial court's decision whether to give or refuse a jury instruction for an abuse of discretion. State v. Dann, 220 Ariz. 351, ¶ 51 (2009). Lesser-included offense instructions are required if they are supported by the evidence. State v. Wall, 212 Ariz. 1, ¶ 17 (2006). "The jury must be able to find (a) that the State failed to prove an element of the greater offense and (b) that the evidence is sufficient to support a conviction on the lesser offense." Id. ¶ 18. In other words, "the evidence must be such that a rational juror could conclude that the defendant committed only the lesser offense." Id.
¶50 The evidence detailed above was sufficient to support negligent homicide and negligent child abuse as lesser-included offenses to Counts 1 and 2, respectively. Benavidez's own statements that Daria was thrashing in the sink and fell off the bed while she was in his care demonstrate that she could have accidently sustained such injuries under his negligent care.
¶51 Benavidez maintains the lesser-included offense instructions should not be given because he relied on an all or nothing defense as the defendant did in State v. Sprang, 227 Ariz. 10 (App. 2011), where we vacated the defendant's conviction because of an erroneous lesser-included instruction. However, dispositive in Sprang, and distinguished from the present case, the evidence showed only support for the greater offense. Id. ¶ 11 (evidence "show[ed] only premeditation"). Here, the evidence would support a reasonable jury's finding that Benavidez acted either negligently or intentionally. Even when the defense employs an all or nothing defense, the record can be sufficient to require a lesser-included offense instruction. Wall, 212 Ariz. 1, ¶ 30.
¶52 Benavidez also argues that the crimes of child abuse and homicide by abusive head trauma must be committed knowingly or intentionally, and thus the lesser-included instructions based on negligence were improper. However, as stated above, the record supports the jury's finding that Benavidez committed negligent homicide and negligent child abuse, notwithstanding the prosecution's theory of the case. Cf. State v. Forrester, 134 Ariz. 444, 447 (App. 1982) ("If a statute describes a single offense which may be committed in more than one way, it is unnecessary for there to be unanimity as to the means by which the crime is committed provided there is substantial evidence to support each of the means charged."). Given the numerous external and internal injuries to Daria, we find that the giving of the lesser-included offense instructions was not an abuse of discretion.
Multiplicity
¶53 Benavidez argues that his child abuse convictions must be vacated because he was convicted of multiple counts of child abuse for the same offense in violation of constitutional double jeopardy. Because Benavidez did not make this argument below, we review for fundamental error. Henderson, 210 Ariz. 561, ¶ 19. Double jeopardy violations constitute fundamental, prejudicial error. State v. Ortega, 220 Ariz. 320, ¶ 7 (App. 2008).
¶54 "Multiplicity occurs when an indictment charges a single offense in multiple counts . . . [and] raises the potential for multiple punishments, which implicates double jeopardy." State v. Powers, 200 Ariz. 123, ¶ 5 (App. 2001). When convictions are based on multiple violations of the same statute, we must determine whether the convictions are based on separate and distinct acts; if so, such separate acts may be punished separately. See Blockburger v. United States, 284 U.S. 299, 301-03 (1932) (separate drug sales made to the same person but at different times could be punished separately); see also State v. Via, 146 Ariz. 108, 116 (1985) (separate transactions with stolen credit card can be punished separately).
¶55 As to Daria, Benavidez was convicted of Count 2: child abuse causing subdural hematomas and retinal hemorrhages, Count 4: child abuse causing bites to her arm, Count 8: child abuse causing bruises to her back and torso, and Count 11: child abuse causing malnutrition. As to Lisa, Benavidez was convicted of Count 13: child abuse causing abrasions to her right hand, Count 16: child abuse causing bruises to her back and torso, and Count 17: child abuse causing malnutrition. Here, there is a reasonable basis for the jury to find that each count was a separate and distinct act.
¶56 First, the malnutrition counts, Count 11 and Count 17, are clearly distinct from the other acts. As to Daria's remaining injuries, there is evidence that they occurred separately. Testimony supported that the injuries in Count 2, the subdural hematomas and retinal hemorrhages, occurred immediately before she was admitted to the hospital. Gaxiola testified that, before going into the bathroom with Benavidez to brush her teeth, Daria had a visible "red" and "lumpy" mark on her back, consistent with Count 8. As to Count 4, the bite marks on Daria's arm are greenish yellow, consistent with older bruising, and Benavidez admitted to biting one of the girls' arms at some point before the day Daria was admitted to the hospital. The Counts involving Daria are not multiplicitous.
¶57 As to Lisa's remaining injuries, there is evidence of separate conduct. Benavidez admitted that the bruises on her back might have occurred during a bath he gave her a couple days earlier, consistent with Count 16. Benavidez made no suggestion that injuries to Lisa's hand occurred during that incident, and he indicated that he may have "us[ed] too much force on them" at other times. Gaxiola also admitted seeing the bruising on Lisa's back, but did not recall any abrasions on Lisa's hand. Additionally, the injuries in Count 13, abrasions to the hand, are of a different type on a different part of the body than the injuries in Count 16, bruises to the back and torso. The Counts involving Lisa are not multiplicitous. Thus, Benavidez has not been punished in violation of constitutional double jeopardy.
Disposition
¶58 For the foregoing reasons, Benavidez's convictions and sentences are affirmed.