State v. Normann

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PETER NORMANN, Appellant.

No. 1 CA-CR 17-0416
FILED 9-20-2018

Appeal from the Superior Court in Maricopa County
No. CR2009-006785-001
The Honorable Sherry K. Stephens, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee

Law Offices of Stephen L. Duncan, PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant

STATE v. NORMANN
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Randall M. Howe joined.

J O H N S E N, Judge:

¶1 Peter Normann appeals his conviction of second-degree
murder, a Class 1 felony. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Normann, a licensed physician, opened his own medical
clinic in 2005.1 Three patients died after suffering complications with
cosmetic surgeries performed at Normann's clinic between 2016 and 2007.
See State v. Normann, 1 CA-CR 11-0696, 2013 WL 4859655, at *1, ¶¶ 2-4 (Ariz.
App. Sept. 12, 2013) (mem. decision).

¶3 In 2009, the State charged Normann with two counts of
second-degree murder, each a Class 1 felony, and one count of
manslaughter, a Class 2 felony. Counts 1 and 3 alleged Normann
committed second-degree murder when, under circumstances "manifesting
extreme indifference to human life," he recklessly engaged in conduct that
created a grave risk of death and thereby caused the death of R.G. on
December 12, 2006, and L.R. on or between July 3 and July 4, 2007. Count
2 alleged Normann committed manslaughter when he recklessly caused the
death of A.S. on April 25, 2007.

¶4 The superior court denied Normann's motion to sever the
three charges. At trial, the State presented evidence that Normann
recklessly caused each of the three deaths. See Normann, 1 CA-CR 11-0696,
2013 WL 4859655, at *1, ¶ 5. The jury found Normann guilty as charged,
and the court sentenced him to a total of 25 years' imprisonment.

¶5 On appeal, Normann argued the superior court erred in
denying his motion to sever. Id. at *1, ¶ 1. We held the court erred in
denying the motion to sever because there was no valid basis for the cross-

1 We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

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STATE v. NORMANN
Decision of the Court

admissibility of evidence on all three charges. Id. at *6, ¶ 23. We further
held the error was not harmless and vacated Normann's convictions and
sentences. Id. at *6, ¶ 25.

¶6 On remand, the State elected to try the three charges
separately and proceeded to trial first solely on Count 3 involving the third
victim, L.R. The State gave notice before trial, however, that it would offer
evidence of Normann's role in the deaths of R.G. and A.S., the first two
victims, to establish Normann's mental state in causing the death of L.R.,
the final victim, under Rule 404(b) of the Arizona Rules of Evidence. Over
Normann's objection, the superior court issued a detailed minute entry
analyzing each of the six categories of acts the State intended to offer, and
ruled it would allow evidence that, with respect to R.G. and A.S., Normann
failed to: (1) properly administer medications and/or anesthesia, (2)
properly monitor and intubate the victims, (3) properly equip and staff his
clinic and (4) promptly contact 9-1-1.

¶7 At trial thereafter, witnesses testified that L.R. went to
Normann's clinic for a liposuction procedure on July 3, 2007. Dr. Gary Page,
licensed only in homeopathic medicine, performed the procedure and
Normann assumed responsibility for L.R.'s post-operative recovery.
Normann left L.R. alone in a procedure room without suitable hydration or
monitoring and, when he returned, L.R. was no longer breathing.
Normann then improperly intubated L.R., perforating her esophagus and
forcing air into her chest and abdominal cavity. Normann delayed
contacting 9-1-1 and, when paramedics arrived, did not inform them of the
failed intubation. Medical experts testified that L.R. died of respiratory
arrest caused by a complication with anesthesia and "free air" in the chest
and abdominal cavities likely resulting from the perforation of her
esophagus.

¶8 Pursuant to the superior court's pretrial ruling under Rule
404(b), witnesses testified that R.G. and A.S. went to Normann's clinic for
cosmetic surgery in December 2006 and April 2007, respectively. During
R.G.'s liposuction procedure, Normann administered local anesthesia and
R.G. went into respiratory and cardiac shock. Normann improperly
intubated R.G., forcing air into his abdomen. Normann delayed contacting
9-1-1 and physically prevented paramedics from providing care to R.G.
When Normann attempted to intubate R.G. a second time, "blood started
pooling out" of R.G.'s mouth. Medical experts testified that R.G. died of
"drug intoxication with inappropriate intubation following [respiratory]
arrest."

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STATE v. NORMANN
Decision of the Court

¶9 With respect to A.S., witnesses testified her heart stopped
after surgery, but Normann failed to properly intubate her, delayed
contacting 9-1-1 and did not inform paramedics of the procedure he had
performed. Medical experts testified that A.S. died of a pulmonary fat
embolization caused by the procedure. As with the other two incidents,
paramedics who responded testified that Normann's clinic was not
properly equipped for operative or post-operative procedures.

¶10 The Arizona Medical Board ("Board") began investigating the
first two deaths in May 2007. Board representatives testified that
Normann's clinic was not properly equipped, medications were not stored
properly, equipment maintenance records were absent and clinic staff had
little to no medical training. Pending conclusion of the Board's
investigation, Normann agreed that he would not perform or supervise
medical procedures in his clinic. This agreement was in effect at the time
of L.R.'s death. The Board investigated L.R.'s death, made findings similar
to those it had made in connection with the two previous patient deaths
and referred the case to law enforcement.

¶11 The superior court provided a limiting instruction, directing
the jury that it could consider evidence concerning the other two deaths
only to establish Normann's intent, knowledge or absence of mistake in
connection with L.R.'s death. The jury found Normann guilty; later,
Normann pled guilty to the other two charges and agreed that the second
offense constituted a repetitive offense for sentencing purposes. The court
imposed concurrent sentences, the longest of which was 14 years'
imprisonment.

¶12 We have jurisdiction of Normann's timely appeal pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018), and
-4033(A)(1) (2018).2

DISCUSSION

¶13 Normann argues the superior court erred under Arizona Rule
of Evidence 403 in allowing the State to present other-acts evidence under
Rule 404(b). Normann argues admission of the other-acts evidence
prevented him from receiving a fair trial. We review the admission of

2 Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.

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STATE v. NORMANN
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other-acts evidence for an abuse of discretion. State v. VanWinkle, 230 Ariz.
387, 392, ¶ 18 (2012).

¶14 Evidence of other acts generally is inadmissible to prove a
person acted in conformance with a character trait. Ariz. R. Evid. 404(b);
State v. Roscoe, 145 Ariz. 212, 216 (1984). However, other-acts evidence may
be admissible to prove intent, knowledge, or absence of mistake or accident,
if the evidence is relevant and the risk of prejudice does not substantially
outweigh the evidence's probative value. Ariz. R. Evid. 404(b); Ariz. R.
Evid. 403; State v. Goudeau, 239 Ariz. 421, 444, ¶ 58 (2016). Evidence is
unfairly prejudicial if it "has an undue tendency to suggest decision on an
improper basis, such as emotion, sympathy or horror." State v. Mott, 187
Ariz. 536, 545 (1997). If requested, the superior court also must provide an
appropriate limiting instruction. Ariz. R. Evid. 105; State v. Lee, 189 Ariz.
590, 600 (1997).

¶15 To convict Normann of the charged offense, the State had to
prove, among other things, that he was aware of and consciously
disregarded a substantial and unjustifiable risk and his conduct created a
grave risk of death to L.R. See A.R.S. §§ 13-105(10)(c) (2018), -1104(A)(3)
(2018). As to use of evidence concerning any two of the deaths to prove
Normann's guilt in a third, we noted in the first appeal that:

the probative value of the evidence of the three offenses
would flow solely in one direction – from the earlier to the later.
For example, while the circumstances of the death of the first
patient in December 2006 would inform Normann as he
treated the second and third patients in subsequent months,
the circumstances of the deaths of the second and third
patients could not have informed Normann as he treated the
first.

Normann, 1 CA-CR 11-0696, 2013 WL 4859655, at *3, ¶ 14 (emphasis added).
We reasoned that "the knowledge Normann gained by his alleged failure in
[the earlier] case might be relevant to actions he took with respect to a later
patient who required emergency care." Id. at *4, ¶ 17.

¶16 The State's approach in the retrial on remand was consistent
with this reasoning: It properly presented other-acts evidence related to
R.G. and A.S. to establish that Normann knew of the risks involved in
performing or supervising procedures at his clinic and consciously
disregarded them. See State v. Buot, 232 Ariz. 432, 433, ¶ 6 (App. 2013) (prior
threats admissible to establish intent or absence of accident in second-

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STATE v. NORMANN
Decision of the Court

degree murder prosecution); State v. Woody, 173 Ariz. 561, 563 (App. 1992)
(prior conviction admissible to establish reckless mental state); State v.
Smith, 130 Ariz. 74, 76 (App. 1981) (prior abuse admissible to establish
reckless mental state). The superior court properly found the other-acts
evidence was admissible for a proper purpose under Rule 404(b).

¶17 Without citing any specific evidence, Normann broadly
argues evidence of the first two deaths was inadmissible under Rule 403. A
superior court's balancing of the prejudice and probative value of evidence
under Rule 403 is a matter within the sound discretion of the court. State v.
Taylor, 169 Ariz. 121, 126 (1991). Here, the three deaths all occurred within
a seven-month period at the same location under similar circumstances,
and the first two triggered an investigation by the Board that remained
pending at the time of the third death. Although the other-act evidence was
tragic, the record does not show that use of the evidence suggested a verdict
on an improper basis or prevented Normann from receiving a fair trial.
Although Normann broadly argues the evidence was unfairly cumulative,
the superior court ruled before trial that he could object to specific evidence
on that ground, and he cites no occasion on which he made such objection.
The other-acts evidence was relevant to the issue of Normann's mental
state, its probative value was not substantially outweighed by unfair
prejudice, and the superior court provided an appropriate limiting
instruction.3

3 Without supporting citations or argument, Normann argues
admission of the evidence violated his rights to "due process, an impartial
jury, [and] equal protection." We will not address an issue for which a party
provides no supporting argument or legal authorities. See State v. Carver, 160 Ariz. 167, 175 (1989).

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STATE v. NORMANN
Decision of the Court

CONCLUSION

¶18 For the foregoing reasons, we affirm the conviction and the
resulting sentence.

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

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