State v. Giebel

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        AMINDA GIEBEL, Appellant.

                             No. 1 CA-CR 19-0432
                                FILED 10-29-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-002094-002
               The Honorable Kathleen H. Mead, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
                             STATE v. GIEBEL
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Maurice Portly1 joined.


W I N T H R O P, Judge:

¶1            Aminda Giebel appeals her convictions and sentences for
first-degree murder and child abuse. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY2

¶2             Giebel was the mother of J.G., who was born in August 2013,
and is the mother of a young son. Giebel’s husband, Andrew Isaacs, was
J.G.’s stepfather. The four moved into an apartment with Giebel’s friend,
Anthony Lawrence, in the summer of 2014; they all lived together through
April 2015. During that time, Lawrence witnessed Isaacs physically abuse
both children on a daily basis and frequently in Giebel’s presence.
Lawrence eventually moved out because of the abuse he saw.

¶3           Brandy Baker also moved into the apartment in early 2015.
She too saw Isaacs abuse the children over several months, including when
she saw Isaacs pick J.G. up over his head and violently throw her into a
playpen. Baker told Giebel about these incidents, but Giebel took no action.
Baker even kept a diary of incidents she witnessed. When Giebel and Isaacs
discovered the diary, they ripped out the pages and burned them.

¶4             In June 2015, Giebel left the children alone with Isaacs at their
apartment while she visited a friend. Around 8:30 p.m., Isaacs called Giebel
to tell her that J.G. had hit her head. Concerned, Giebel returned home,
arriving around 9:30 p.m. Giebel saw J.G. was covered in bruises and cuts,



1      The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

2      We view the evidence in the light most favorable to sustaining the
verdicts and resolve reasonable inferences against Giebel. See State v.
Stroud, 209 Ariz. 410, 412, ¶ 6 (2005).


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                            STATE v. GIEBEL
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vomiting, and having trouble breathing. Giebel repeatedly asked Isaacs
what happened to J.G.

¶5             Giebel called her mother, who advised Giebel to take J.G. to
the hospital. Giebel did not take her child to the hospital, even refusing a
friend’s offer to drive them, because she was afraid the Department of Child
Services would get involved if they sought help. Over the next several
hours, Giebel exchanged numerous text messages with her mother,
expressing fear for J.G.’s health. Around 1:00 a.m., J.G. lost consciousness.
Giebel sent a text message, “Mom, please . . . I need your help. She won’t
talk, move. I’m freaking out.”

¶6           Isaacs finally called 9-1-1 at 1:34 a.m. By the time the police
and emergency medical personnel arrived, J.G. was dead. A medical
examiner determined her cause of death was “[b]lunt force torso trauma.”
She had three broken ribs and a torn duodenum.

¶7             A pediatric surgeon reviewed J.G.’s case and agreed with the
medical examiner’s determination. The pediatrician found that the torn
duodenum caused J.G.’s death and it resulted from nonaccidental trauma.
At trial, the pediatrician testified that J.G. would have looked like she was
dying, based on her reported severe pain and other visible symptoms.
Another doctor testified that J.G.’s outward signs of distress would make it
“obvious to anybody that [she was] in grave condition.” Nonetheless, the
pediatrician testified that J.G. remained treatable even within an hour
before her death.

¶8           The State charged Giebel with first-degree murder, a Class 1
felony and domestic violence offense, and child abuse, a Class 2 felony and
dangerous crime against children. After a fifteen-day trial, the jury
convicted Giebel as charged. The superior court sentenced her to life
imprisonment with the possibility of release after 35 years for the murder
conviction and a consecutive term of 15 years’ imprisonment for the child-
abuse conviction. Giebel appeals, and this court has jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031,
and 13-4033(A)(1).

                                ANALYSIS

      I.     Admission of Autopsy Photographs

¶9           Giebel first argues the superior court erred by admitting
several “gruesome” autopsy photographs of J.G.         Specifically, she
challenges Exhibits 162 through 164. Exhibits 162 and 163 showed J.G.’s


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                             STATE v. GIEBEL
                            Decision of the Court

duodenal injury, and Exhibit 164 depicted J.G.’s fractured ribs. Because
Giebel objected to the admission of Exhibits 163 and 164, we review for
abuse of discretion. See State v. Bocharski, 200 Ariz. 50, 56, ¶ 27 (2001). But
Giebel did not object to Exhibit 162, and we thus review this photo only for
fundamental error resulting in prejudice.3 See State v. Escalante, 245 Ariz.
135, 140, 142, ¶¶ 12-13, 21 (2018).

¶10            In determining whether the superior court erred in admitting
a photograph, we consider “(1) the photograph’s relevance, (2) its tendency
to inflame the jury, and (3) its probative value compared to its potential to
cause unfair prejudice.” State v. Cota, 229 Ariz. 136, 147-48, ¶ 46 (2012).
“[A]ny photograph of the deceased in any murder case [is relevant] because
the fact and cause of death are always relevant in a murder prosecution.”
State v. Spreitz, 190 Ariz. 129, 142 (1997) (quoting State v. Chapple, 135 Ariz.
281, 288 (1983), superseded by statute on other grounds). Photographs of a
deceased victim may also be relevant to show the nature and location of an
injury, illustrate or explain testimony, corroborate the evidence, determine
the degree of a crime, or support the State’s theory of the case. See State v.
Anderson, 210 Ariz. 327, 339-40, ¶ 39 (2005). Even gruesome or
inflammatory photographs are admissible, as long as they are not offered
solely for the purpose of inflaming the jury. State v. Morris, 215 Ariz. 324,
339, ¶ 70 (2007).

¶11           At trial, Giebel argued the photographs were (1) unduly
inflammatory and (2) irrelevant because she did not contest the cause of
death.4 The State responded that the photographs would help its medical
experts explain the cause, mechanism, and timing of J.G.’s death and
describe her symptoms from the injuries. The superior court admitted the
exhibits, explicitly finding that their probative value outweighed the
danger of unfair prejudice.


3      The State argues Giebel invited any purported error in admitting
Exhibit 162, citing defense counsel’s statement to “ask that [Exhibit 162] be
the one to be admitted.” But when taken in context, it appears Giebel
merely acquiesced to the exhibit’s admission, while arguing to exclude
numerous exhibits. See State v. Robertson, 249 Ariz. 256, 260, ¶ 15 (2020)
(explaining invited error). On this record, we cannot find she is barred from
appellate relief based on invited error. Id. (directing appellate courts to use
caution in finding invited error).

4      As discussed supra n.3, Giebel later withdrew her objection to Exhibit
162.


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                              STATE v. GIEBEL
                             Decision of the Court

¶12            The State then used Exhibits 162 and 163 to explain the
doctor’s testimony that J.G.’s duodenal tear caused her death and the injury
was rare, significant, unnatural, and nonaccidental. Based on the injury’s
severity, the prosecutor also elicited testimony from the doctor that on a
“scale of 1 to 10,” J.G.’s pain would have been a “10.”

¶13          With respect to Exhibit 164, the State elicited testimony from
two doctors that J.G.’s rib fractures were new and acute, resulting in severe
and symptomatic pain. And one of the doctors used the exhibit to explain
why the fractures did not occur during attempts to resuscitate J.G.,
rebutting Giebel’s contention the fractures were caused by chest
compressions during CPR.

¶14            On this record, the superior court committed no error,
fundamental or otherwise. The State had to prove Giebel intentionally or
knowingly failed to seek medical care for J.G. under life-threatening
circumstances, causing her death. See A.R.S. §§ 13-1105(A)(2), -3623(A)(1).
To that end, the prosecutor told the jurors in closing argument, “Had
[Giebel] gotten the medical care that her daughter so desperately needed,
[J.G.] would be alive today,” but Giebel “didn’t lift a finger to help.” The
exhibits illustrated the nature, extent, and location of J.G.’s injuries, and
they aided the medical doctors in explaining J.G.’s cause of death and why
her life-threatening symptoms would have been obvious to Giebel. Thus,
the exhibits were relevant and helped the jury resolve factual disputes and
reach its verdict.

¶15            Although the court acknowledged the exhibits were
“disturbing” and “sad,” the judge also noted that “the jury knows [the State
is] talking about the death of a child.” And as the court reasoned,
photographs cannot be deemed sufficiently gruesome to inflame the jurors
when, as here, “the crime committed was so atrocious that photographs
could add little to the repugnance felt by anyone who heard the testimony.”
State v. Roscoe, 145 Ariz. 212, 223 (1984).

¶16            Giebel also complains that because she did not contest the
cause of death, the photographs were irrelevant. But “[e]ven if a defendant
does not contest certain issues, photographs are still admissible if relevant
because the ‘burden to prove every element of a crime is not relieved by a
defendant’s tactical decision not to contest an essential element of the
offense.’” State v. Dickens, 187 Ariz. 1, 18 (1996) (quoting Estelle v. McGuire,
502 U.S. 62, 69 (1991)), abrogated on other grounds by State v. Ferrero, 229 Ariz.
239 (2012); see also State v. Castaneda, 150 Ariz. 382, 391 (1986) (“While it may
be true that the subject-matter of a photograph can be described adequately


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                             STATE v. GIEBEL
                            Decision of the Court

with words, that is not the test of admissibility.”). Accordingly, the court
did not err in admitting the photographs.

       II.    Jury Instructions

¶17           Giebel next contends the superior court committed reversible
error by denying her motion to instruct the jurors on the lesser-included
offense of negligent child abuse. We review a superior court’s denial of a
requested jury instruction for abuse of discretion. State v. Johnson, 212 Ariz.
425, 431, ¶ 15 (2006).

¶18           “A party is entitled to an instruction on any theory reasonably
supported by the evidence.” State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16 (1998).
A defendant is entitled to a lesser-included-offense instruction if two
conditions are met: “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.” State v. Wall, 212 Ariz. 1, 4,
¶ 18 (2006). “It is not enough that, as a theoretical matter, ‘the jury might
simply disbelieve the state’s evidence on one element of the crime’ because
this ‘would require instructions on all offenses theoretically included’ in
every charged offense.” Id. (quoting State v. Caldera, 141 Ariz. 634, 637
(1984)). To avoid such an untenable result, “the evidence must be such that
a rational juror could conclude that defendant committed only the lesser
offense.” Id. In any event, we will not reverse a court’s “refusal unless the
defendant suffered prejudice as a result.” State v. Garfield, 208 Ariz. 275,
278, ¶ 11 (App. 2004).

¶19            Before trial, Giebel requested the superior court to instruct the
jurors on the lesser-included offenses of reckless and negligent child abuse.
See A.R.S. § 13-3623(A)(2), (3). After the State rested, the court denied her
request for a negligent-child-abuse instruction at that point, determining it
saw insufficient evidence to support a theory that Giebel’s conduct was
only negligent. See Wall, 212 Ariz. at 4, ¶ 18. But the court granted her
request to instruct the jurors on reckless child abuse. See In re William G.,
192 Ariz. 208, 213 n.1 (App. 1997) (explaining criminal negligence differs
from recklessness because negligence “requires only a failure to perceive a
risk, as compared to the recklessness requirement of an awareness and
conscious disregard of the risk”) (emphasis added).

¶20          After Giebel testified, she renewed her request for a negligent-
child-abuse instruction, citing her testimony that she was not aware J.G.
was in a dangerous condition. The superior court again denied her request.
The judge identified numerous statements from Giebel’s testimony that



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                            STATE v. GIEBEL
                           Decision of the Court

refuted her contention that she failed to perceive J.G.’s condition. The court
concluded the evidence still did not support the instruction, even after
hearing Giebel’s testimony.

¶21            The record demonstrates the superior court properly
considered the evidence in determining whether to instruct the jurors on
lesser-included offenses. Given the extensive and symptomatic nature of
J.G.’s injuries, there was no evidence from which a reasonable juror could
conclude Giebel only failed to perceive J.G.’s condition. See Wall, 212 Ariz.
at 4, ¶ 18. As the court reasoned, Giebel’s own text messages, prior
statements, and testimony revealed her awareness that J.G. needed urgent
medical care. We further note that, on appeal, Giebel fails to identify a
single item of evidence to support her theory that she merely “failed to
perceive” J.G.’s condition and the risks associated with denying or delaying
medical intervention.

¶22            The superior court did not abuse its discretion in denying
Giebel’s request for a negligent-child-abuse instruction. Moreover, given
that the jury convicted Giebel of intentional or knowing child abuse rather
than the lesser charge of reckless child abuse, any purported error by the
court’s refusal to instruct on additional lesser-included offenses is
necessarily harmless. See State v. White, 144 Ariz. 245, 247 (1985) (“[B]y
finding defendant guilty of the highest offense, to the exclusion of the
immediately lesser-included offense . . . the jury necessarily rejected all
other lesser-included offenses.”).

       III.   Aggravating Factor

¶23           Citing Blakely v. Washington, 542 U.S. 296 (2004), and Boykin v.
Alabama, 395 U.S. 238 (1969), Giebel asserts the superior court erred by
conducting an incomplete colloquy before accepting her admission to an
aggravating factor. Because Giebel did not object at trial, we review only
for fundamental, prejudicial error. See Escalante, 245 Ariz. at 140, 142,
¶¶ 12-13, 21.

¶24           While the jurors were deliberating, the parties notified the
superior court they had reached a stipulation on aggravating factors, in the
event Giebel was convicted. In return for Giebel’s admission that the
offenses were committed in the presence of a child (her then-four-year-old
son), the State would not seek to prove other aggravators to the jury.
Although the court engaged Giebel in a brief colloquy, she contends the
court violated due process by not more fully informing her of her
constitutional rights. See Ariz. R. Crim. P. 17.1-17.4.



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                            STATE v. GIEBEL
                           Decision of the Court

¶25           Notwithstanding Giebel’s assertion, the superior court
ultimately imposed the minimum term permitted by law on the murder
conviction, see A.R.S. § 13-751(A)(3), and a partially mitigated term on the
child-abuse conviction, see A.R.S. § 13-705(D). The superior court does not
err by considering an aggravating factor not found by the jury when it does
rely on that factor to “exceed the statutory maximum allowed by the jury
verdicts alone,” which is the presumptive term. State v. Johnson, 210 Ariz.
438, 441, ¶¶ 10, 13 (App. 2005). Accordingly, Giebel’s argument is moot, as
the court did not aggravate her sentences. See id.

¶26            Moreover, “Blakely error . . . can be harmless if no reasonable
jury, on the basis of the evidence before it, could have failed to find [the
factors] necessary to expose the defendant to the sentence imposed.” State
v. Hampton, 213 Ariz. 167, 183, ¶ 72 (2006). No reasonable juror in this case
could fail to find that Giebel’s offenses occurred in the presence of her son,
especially given that Giebel repeatedly testified that her son was with her
on the night in question. Accordingly, Giebel has not satisfied her burden
to show that any claimed error resulted in prejudice. See Escalante, 245 Ariz.
at 140, 142, ¶¶ 12-13, 21.

                              CONCLUSION

¶27           For the foregoing reasons, we affirm Giebel’s convictions and
sentences.




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




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