State v. Gorman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

APRIL DAWN GORMAN, Appellant.

No. 1 CA-CR 19-0357 and 1 CA-CR 19-0450
CONSOLIDATED
FILED 8-25-2020

Appeal from the Superior Court in Yuma County
No. S1400CR201800216
The Honorable Brandon S. Kinsey, Judge

AFFIRMED

COUNSEL

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

Yuma County Public Defender’s Office, Yuma
By Raymond A. Hanna
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.

C A T T A N I, Judge:

¶1 April Dawn Gorman appeals her conviction of one count of
reckless child abuse and the resulting imposition of probation. She argues
that the superior court erred by failing to grant her motion for judgment of
acquittal and by instructing the jury improperly. For reasons that follow,
we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 One evening in February 2018, several children from
Gorman’s neighborhood informed her neighbor that Gorman’s nine-year-
old son, Z.G., had pointed a gun at them. The neighbor went to Gorman’s
home to determine whether that report was true. Gorman was not home,
and Z.G. answered the door. After the neighbor spoke with the boy, Z.G.
brought out a revolver and gave it to him. The neighbor took the gun and
called the police.

¶3 Yuma police officers Shrewsbury and Garcia responded to the
scene. Officer Shrewsbury noticed that Z.G. looked unkempt, had dirty and
untrimmed fingernails, and had earwax sticking out of both ears. Z.G. did
not have access to a home or cell phone and did not have any way to contact
Gorman. The officers entered Gorman’s home to determine where the gun
came from and examine the condition of the home. The house was
generally dirty and smelled of urine, the smell emanating from Z.G.’s room.
Officer Shrewsbury discovered an unlocked gun cabinet containing several
guns and ammunition in the master bedroom.

¶4 Gorman arrived at the house about an hour later. The officers
explained why they were there and told Gorman that they would be
arresting Z.G. Gorman responded that although she knew the weapons
were in the house, she did not know they were unsecured and that, in any
event, Z.G. knew not to touch them. She also told the officer that Z.G. had
a .22 caliber beginner’s rifle and that he knew how to load and unload a

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gun. Gorman indicated that she typically left Z.G. at home alone while
working 40 hours a week.

¶5 The officers arrested Gorman and the State charged her with
one count of intentional or knowing child abuse under A.R.S. § 13-
3623(A)(1). After a six-day trial, the jury found Gorman guilty of the lesser-
included offense of reckless child abuse. See A.R.S. § 13-3623(A)(2). The
court suspended sentence and imposed two years of supervised probation,
followed by three years of unsupervised probation. Gorman timely
appealed, and we have jurisdiction under A.R.S. § 13-4033(A).

DISCUSSION

¶6 Gorman argues the superior court erred by denying her mid-
trial motion for judgment of acquittal under Arizona Rule of Criminal
Procedure (“Rule”) 20 and by failing to adequately instruct the jury. We
disagree.

I. Rule 20 Motion.

¶7 We review de novo the denial of a Rule 20 motion. State v.
Sanders, 245 Ariz. 113, 129, ¶ 67 (2019). A judgment of acquittal is
appropriate “if there is no substantial evidence to support a conviction.”
Ariz. R. Crim. P. 20(a)(1). Substantial evidence describes “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. Harm, 236 Ariz. 402, 406, ¶ 11 (App. 2015) (citation omitted).

¶8 As relevant here, child abuse under A.R.S. § 13-3623(A)
includes “caus[ing] or permit[ing] a child . . . to be placed in a situation
where the person or health of the child . . . is endangered” “[u]nder
circumstances likely to produce death or serious physical injury.” Relying
on State v. Greene, 168 Ariz. 104 (App. 1991), Gorman argues that the
superior court erred by denying her motion because the State did not
present evidence sufficient to support a conviction under this statute.

¶9 In Greene, the defendant was convicted of three counts of child
abuse after police discovered her children were living in “extremely dirty”
conditions. Id. at 105. Their home’s furnace was turned off, the refrigerator
contained rotting food, the cupboards contained insects, and there were
animal feces throughout the house. Id. at 105–06. The State also presented
evidence that there were three guns in the house and that one of the
children witnessed adults cooking illegal drugs. Id. Additionally, one of
the children testified that her brother had found a gun in a helmet on top of

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the fireplace mantel and had pointed it at another sister. Id. at 106. On
appeal, however, the court reversed the defendant’s convictions and three
consecutive 12-year sentences, holding that although the State presented
evidence that “a potential for harm existed,” this evidence failed to
demonstrate that such harm was likely to occur as required by A.R.S § 13-
3623(A)(1).1 See id. at 105, 107–08. The court upheld the defendant’s
conviction under A.R.S. § 13-3623(B)(1) for child abuse under circumstances
other than those likely to cause death or serious physical injury and
remanded for resentencing. Id. at 108.

¶10 Although the facts of Greene are similar to those in the instant
case, they differ in at least one critical respect. In Greene, although there
were three guns present in the house, only one was loaded and it was
jammed, leaving it effectively inoperable. Id. at 106. There was no evidence
that the other guns were loaded or that there was additional ammunition
in the house. Id. Here, however, Z.G. had access not only to weapons, but
also to ammunition, and the jury heard testimony that Z.G. knew how to
load a gun. From those facts, along with the evidence that Z.G. was
regularly left at home for hours at a time while Gorman was at work and
that he pointed the gun at children in the neighborhood, the jury could
determine that Gorman placed Z.G. in circumstances likely to result in
death or serious injury.

¶11 Although Gorman argues that “the State never introduced
admissible evidence from any witness that Z.G. in fact did point the gun at
anyone,” both the neighbor and Officer Shrewsbury testified that they were
told Z.G. pointed a gun at the neighborhood children. Although Gorman
objected to this portion of the neighbor’s testimony as hearsay, the court
permitted the testimony as evidence of the neighbor’s mental state, and
Gorman did not request a limiting instruction. See Ariz. R. Evid. 105; State
v. Williams, 236 Ariz. 600, 604, ¶ 21 (App. 2015) (“[I]f a party wishes to clarify
how the jury may use evidence, it is the party’s responsibility to request a
limiting instruction . . . .”). Moreover, Gorman did not object to Officer
Shrewsbury’s testimony recalling the same statement.

¶12 Gorman further asserts that the State “never presented
testimony or evidence that the gun [Z.G. gave the neighbor] was loaded or
what the caliber of the gun was.” But the jury was not limited to
considering only the dangerousness of the revolver that Z.G. handed to the
neighbor. The jury was presented with photos showing multiple weapons

1 Although Greene cited a former version of applicable statutes, we cite to
the current version because no material revisions have since been made.

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in Gorman’s unsecured gun cabinet, and in her interview with officers,
Gorman admitted that there was a shotgun and .22 caliber rifles in the
house. The jury was also presented with photographs from the house
showing boxes of shotgun and .22 caliber ammunition along with other
loose ammunition lying inside the gun cabinet.

¶13 Viewing the evidence in the light most favorable to upholding
the verdict, State v. Smith, 242 Ariz. 98, 100, ¶ 2 (App. 2017), we conclude
that the State presented sufficient evidence to support Gorman’s conviction.

II. Jury Instructions.

¶14 Gorman next argues that the superior court erred by denying
her request for non-standard jury instructions. “We review the denial of a
requested jury instruction for an abuse of discretion.” State v. Fuentes, 247
Ariz. 516, 527, ¶ 40 (App. 2019). “We will not reverse a conviction [on this
basis] unless the instructions, taken as a whole, misled the jurors.” Id.
(citation omitted). “[I]n some trials, the arguments of counsel can cure or
obviate instructional ambiguity or error.” State v. Felix, 237 Ariz. 280, 285,
¶ 18 (App. 2015).

¶15 Gorman requested that the superior court instruct the jury
that the term “under circumstances likely to cause death or serious physical
injury” “requires more than the possibility of death or serious physical
injury” and that the word “likely” “means probable as opposed to
possible.” Both of these requested instructions sought to clarify the
meaning of “likely.” Gorman argues these instructions would have helped
the jury “distinguish between a potential to cause death or serious physical
injury versus a likelihood of causing death or serious physical injury.”

¶16 However, “[w]here terms used in an instruction have no
technical meaning peculiar to the law in the case but are used in their
ordinary sense and commonly understood by those familiar with the
English language, the court need not define these terms.” State v. Barnett, 142 Ariz. 592, 594 (1984). Here, the word “likely” did not bear any meaning
different from that of its normal use in the English language, so the court
did not err by declining to define it. Further, to the extent “likely” may have
been unclear or ambiguous, both the State’s and Gorman’s closing
arguments helped clarify its meaning. The State specifically stated that
“likely means probable” and Gorman’s counsel stated that “likely” “calls
for the probability” of serious physical injury.

¶17 Accordingly, the court did not err by declining to include
Gorman’s requested jury instructions.

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CONCLUSION

¶18 For the foregoing reasons, we affirm Gorman’s conviction of
reckless child abuse and the resulting imposition of probation.

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

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