State v. Worrell

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GARY AUSTIN WORRELL, Appellant.

No. 1 CA-CR 19-0546
FILED 12-31-2020

Appeal from the Superior Court in Yavapai County
No. P1300CR201701536
The Honorable Tina R. Ainley, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Jones Skelton & Hochuli PLC, Phoenix
By Lori L. Voepel
Counsel for Appellant
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MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge David B. Gass and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 Gary Austin Worrell appeals his convictions and sentences
for two counts of child abuse, one committed “intentionally or knowingly”
and the other committed “recklessly.” For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Worrell and his wife, H.W., brought their son, C.W., who was
one week shy of five months old, to a hospital emergency room because his
upper right arm was swollen and obviously causing him pain. Hospital
personnel took four x-rays, which revealed a recent fracture of C.W.’s right
humerus, clean through the bone, and healed fractures—approximately six
to eight weeks old—of several ribs and left forearm. The x-rays revealed no
fractures in C.W.’s lower body. The emergency room doctor who examined
C.W. suspected all the fractures resulted from “child abuse” because the
injuries occurred at different times, C.W. was “nonambulatory,” and no
alternative explanation for the fractures was evident. The Department of
Child Safety (“DCS”) and law enforcement launched an investigation.

¶3 A detective questioned Worrell and H.W. separately at the
hospital. After initially denying any knowledge of how C.W. was injured,
Worrell admitted that the previous night, when C.W. kept removing his
pacifier and “just wouldn’t stop” crying, Worrell pushed his arm down and
heard a “pop.” Worrell also recalled that C.W.’s ribs and left forearm were
“tender” approximately two months earlier, and he acknowledged he
might have caused those injuries when he “pulled” C.W. down from his
changing table to the ground.

¶4 H.W. was unaware of Worrell’s actions. He previously told
her C.W. rolled off the changing table, and he hid the extent of C.W.’s
injuries at that time. Worrell pretended to discover C.W.’s upper arm injury
the morning they brought him to the hospital. Worrell suggested they go to
the hospital because he “knew” he “messed up.”

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¶5 The State charged Worrell with two counts of child abuse
committed intentionally or knowingly—Count 1 relating to the earlier rib
and forearm injuries and Count 2 pertaining to the later humerus fracture.
DCS removed C.W. from his parents’ custody at the hospital and placed
him with a foster family, where he remained for approximately ten months.
When the foster family received C.W., he was unable to crawl or fully roll
over. He suffered no additional fractures and exhibited no atypical medical
conditions while in their custody.

¶6 Approximately three weeks after the hospital visit, and after
Worrell’s indictment for the above charges, a nurse practitioner specializing
in potential child abuse cases reviewed C.W.’s hospital records. The nurse
practitioner conducted a more comprehensive medical evaluation of C.W.,
including a “skeletal survey” consisting of twenty-one x-rays. The x-rays
revealed two additional fractures—one of a metatarsal bone in C.W.’s right
foot and another of the tibia bone in his left leg. The nurse practitioner
estimated the injuries occurred “at least 10 to 14 days” before the x-rays
were taken. C.W. also underwent laboratory tests to determine whether an
underlying medical condition or deficiency rendered his bones abnormally
susceptible to fractures. C.W.’s lab results came back normal. After an
evidentiary hearing, the superior court granted the State’s motion to
present evidence of C.W.’s metatarsal and tibia fractures at trial under
Arizona Rule of Evidence 404(b).

¶7 At Worrell’s trial, the State presented three expert medical
witnesses. The jury heard testimony from the emergency room doctor and
nurse practitioner, who evaluated C.W. in person, and a pediatric child
abuse specialist, who reviewed C.W.’s records and relevant police reports.
All three expert medical witnesses agreed C.W.’s injuries were consistent
with child abuse or nonaccidental trauma; C.W. suffered multiple fractures
at different times, he was unable to roll over or crawl when he was injured,
and no alternative medical reason explained the injuries.

¶8 Worrell did not offer any competing medical evidence in his
defense, but he suggested C.W.’s injuries could have resulted from an
undiagnosed vitamin deficiency and argued his confessions were falsely
made. Worrell’s sole expert witness was a professor who studied false
confessions and who testified that the detective’s interrogation of Worrell
in this case incorporated a number of tactics associated with a higher risk
of eliciting false confessions. Worrell also argued that even if jurors believed
he caused C.W.’s fractures, the evidence did not show he did so
intentionally or knowingly.

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¶9 The jury found Worrell guilty of (1) child abuse committed
intentionally or knowingly for C.W.’s broken humerus in his upper right
arm, and (2) the lesser-included offense of child abuse committed recklessly
for the injuries to C.W.’s ribs and left forearm. After the State presented
evidence in an aggravation phase, jurors found (1) C.W. suffered physical
harm, and (2) Worrell was on probation at the time of the offenses.

¶10 Taking into account the prior convictions for which Worrell
was serving probation, the superior court sentenced him as a repetitive
offender to concurrent, somewhat aggravated prison terms of twelve and
six years for the two child abuse convictions. Worrell timely appealed.

DISCUSSION

I. Admission of Uncharged Other Acts

¶11 Worrell contends the superior court improperly admitted the
“other acts” evidence of C.W.’s broken metatarsal and tibia bones.
Although “evidence of other crimes, wrongs, or acts” is generally
inadmissible “to prove the character of a person in order to show action in
conformity therewith,” such evidence may “be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Ariz. R. Evid.
404(b). We review the superior court’s admission of other acts evidence for
an abuse of discretion. State v. Hausner, 230 Ariz. 60, 78, ¶ 68 (2012).

¶12 To admit other act evidence under Rule 404(b), the State
“must prove by clear and convincing evidence that the defendant
committed the other acts; they must be offered for a proper purpose; they
must be relevant; and, consistent with Rule 403, their probative value must
not be substantially outweighed by the danger of unfair prejudice.” Id. at
¶ 69. Here, Worrell asserts (1) the superior court prejudicially erred because
it did not specifically find he caused the other fractures by clear and
convincing evidence; (2) no clear and convincing evidence showed Worrell
caused the other fractures; and (3) the probative value of the evidence was
substantially outweighed by the risk of unfair prejudice.

¶13 Contrary to Worrell’s contention, the superior court does not
have to make an explicit finding by clear and convincing evidence that the
defendant committed a prior act when determining admissibility under
Rule 404(b). Although a specific finding is not required, the best practice for
the superior court is to make a specific finding on the record that clear and
convincing evidence exists before allowing such evidence to reach the jury.
See State v. Anthony, 218 Ariz. 439, 444, ¶ 33 (2008) (trial judges must find

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clear and convincing proof as to the commission of the other bad act and
that the defendant committed the act). The record indicates the court knew
the correct standard when it found the other act evidence admissible. We
therefore presume the court “necessarily concluded” clear and convincing
evidence showed Worrell committed the other acts. See State v. Vega, 228
Ariz. 24, 29, ¶ 19 (App. 2011).

¶14 We further conclude the record contains clear and convincing
evidence the fractures to C.W.’s metatarsal and tibia bones “were
committed and that the defendant committed [them].” See State v. Terrazas, 189 Ariz. 580, 582 (1997); see also State v. Uriarte, 194 Ariz. 275, 282, ¶ 35
(App. 1998) (permitting appellate court, on review, to determine whether
clear and convincing evidence supported admission of other-act evidence).
“Clear and convincing evidence creates a high probability that a
proposition is true but need not establish that it is certainly or
unambiguously true.” Vega, 228 Ariz. at 29, ¶ 19 n.4 (citations omitted).

¶15 Two of the State’s expert medical witnesses testified the
skeletal survey x-rays showed healing fractures of C.W.’s metatarsal and
tibia bones. Worrell did not challenge the existence of the fractures. The
evidence is clear and convincing the fractures occurred.

¶16 The nurse practitioner testified the fractures could have
occurred up to ten days before the x-rays were taken or months prior.
Although C.W. remained in his foster parents’ care ten days before the
skeletal survey, no evidence suggested his injuries occurred while in their
care. Worrell rejected the notion H.W. could have caused C.W. harm, and
no evidence pointed to other caretakers bearing responsibility for C.W.’s
injuries. Worrell also admitted to causing C.W.’s rib and arm fractures. His
custody of C.W. during much of the relevant time period and his failure to
provide an alternative medical explanation make him the most likely
culprit of C.W.’s additional fractures. Although the evidence was
circumstantial, it established a high probability that Worrell caused C.W.’s
additional injuries.

¶17 We are unpersuaded by Worrell’s argument that the risk of
unfair prejudice substantially outweighed the probative value of the other
act evidence. Evidence of the metatarsal and tibia fractures was relevant
because it tended to show the injuries underlying the charged counts were
not accidental. See, e.g., State v. Hernandez, 167 Ariz. 236, 239 (App. 1990)
(doctors’ testimony that victim suffered from battered child syndrome prior
to charged injuries admissible as other act evidence to show “absence of
accident”). Worrell argues the other act evidence was prejudicial because it

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was weak. But that argument goes to the weight of the evidence, not to the
risk the evidence would be unfairly prejudicial, as Rule 403 demands. See
State v. Schurz, 176 Ariz. 46, 52 (1993) (unfair prejudice means an undue
tendency to suggest decision on an improper basis such as emotion,
sympathy, or horror).

¶18 The State did not introduce evidence of the metatarsal and
tibia fractures on an improper basis, the evidence was “adversely probative
in the sense that all good relevant evidence is.” Id. To the extent the
evidence showing Worrell caused the fractures was weak, we presume
jurors followed the superior court’s instructions (1) to consider the other-
act evidence only if the State proved by clear and convincing evidence the
fractures occurred and Worrell caused them, and (2) to evaluate expert
testimony as any other testimony, meaning they could accept or reject it, in
whole or in part, and could decide how much weight, if any, to give it. See
Rev. Ariz. Jury Instr. Stand. Crim. 17 (expert witness), 24 (other acts) (4th
ed. 2016).

II. Expert Testimony on Ultimate Issue

¶19 Worrell also argues the superior court erroneously permitted
the State’s expert medical witnesses to testify on the ultimate issue of his
guilt. In particular, Worrell challenges the experts’ testimonies that C.W.’s
injuries resulted from “child abuse” or “nonaccidental” trauma. Worrell
also complains the court should have precluded the experts from
speculating about what specific acts might have caused C.W.’s injuries.

¶20 We review the admission of expert testimony for an abuse of
discretion. State v. Conner, 249 Ariz. 121, 126, ¶ 25 (App. 2020). Because
Worrell did not object to the experts’ testimony at trial, he must not only
show the court abused its discretion by not striking the testimony sua sponte;
he must also demonstrate the error “was both fundamental and
prejudicial.” State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018).

¶21 A qualified expert may provide testimony, including opinion
testimony, that “will help the trier of fact to understand the evidence or to
determine a fact in issue.” Ariz. R. Evid. 702(a). In doing so, the expert may
provide an “opinion upon a subject even though it may involve an opinion
on an ultimate fact to be determined by the trier of fact.” State v. Owens, 112
Ariz. 223, 227 (1975); see also Ariz. R. Evid. 704(a) (“An opinion is not
objectionable just because it embraces an ultimate issue.”). An expert may
not, however, “state an opinion about whether the defendant did or did not
have a mental state or condition that constitutes an element of the crime

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charged or of a defense.” Ariz. R. Evid. 704(b); see also State v. Sosnowicz, 229
Ariz. 90, 97, ¶ 25 (App. 2012) (“Although an expert’s opinion may ‘embrace’
an ultimate issue under Rule 704, an expert is not permitted to tell a jury
how to decide a case.”).

¶22 The average juror lacks the expertise to determine the cause
of bone fractures in a child, including whether they were accidentally or
intentionally inflicted. Jurors may be at a particular loss where the child is
unable, because of age or circumstance, to testify how the injuries occurred.
See, e.g., State v. Moyer, 151 Ariz. 253, 255 (App. 1986). In cases alleging
injuries to infants, a medical expert may offer a diagnostic opinion that
“assist[s] the jury in evaluating how the injuries occurred, whether
accidentally or intentionally inflicted.” Hernandez, 167 Ariz. at 237-39
(doctor’s testimony that child’s injuries were most likely caused by violent
shaking and were consistent with battered child syndrome was admissible);
see also Owens, 112 Ariz. at 226-27 (doctor’s testimony that baby’s throat
laceration was not an accidental injury was admissible).

¶23 The superior court did not abuse its discretion by allowing the
experts’ testimony that C.W.’s injuries resulted from “child abuse” or
“nonaccidental” trauma. The expert medical testimony offered in this case
was relevant and helpful to the jury, without being impermissibly intrusive.
The experts couched their opinions on the likely cause of C.W.’s injuries in
language emphasizing its medical character. The emergency room doctor
testified that though he “suspected” C.W.’s injuries resulted from “child
abuse,” he could not “say for sure” because he did not “know what
happened” and his opinion was limited to a “medical,” not a “legal,”
determination. Although one of the State’s designated experts opined
C.W.’s injuries were caused by “nonaccidental trauma or child abuse,” that
expert made clear her conclusion was based on her “professional opinion”
and agreed, on cross-examination, her conclusion was a “medical
diagnosis.” Similarly, although the nurse practitioner testified C.W.’s
injuries were “inflicted” by another person and “not accidental,” she also
testified her conclusion was her “professional opinion” and that C.W.’s
injuries were “consistent” with child abuse, suggesting she could not
confirm child abuse as the cause.

¶24 Nor did the superior court abuse its discretion by allowing
the nurse practitioner to testify, without objection by Worrell, about “a
possible mechanism” for C.W.’s injuries. The nurse practitioner suggested
C.W.’s right upper arm could have been broken by “direct force,” “hitting
the surface of the arm,” or by “being manipulated by indirect force and . . .
snapping.” She opined the rib fractures could have been caused by someone

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“stepping on [C.W.], kicking him or just squeezing tightly.” And she
hypothesized the left forearm fracture could have resulted from a
“grabbing/twisting” motion. Although her testimony was conjectural to
some degree, the nurse practitioner based her opinion on her own
experience and specialized knowledge. Jurors could have found this
testimony useful in evaluating the circumstances underlying C.W.’s
fractures—including whether they could have been accidental and to what
extent a person causing those injuries might have been aware of the risk of
harm.

¶25 The nurse practitioner acknowledged, on cross-examination,
that she could not say “specifically . . . how each injury occurred” and that
she never reviewed any police reports or statements by C.W.’s parents.
Although the evidence was prejudicial in that it placed Worrell—as the
suspected culprit—in a negative light, we cannot say the risk of “unfair”
prejudice substantially outweighed the testimony’s probative value.

¶26 In sum, the expert testimony did not overstep the bounds of
permissible opinion testimony. Each expert’s testimony assisted the jury “in
interpreting and/or understanding the circumstances of the victim’s
[injuries].” See Sosnowicz, 229 Ariz. at 97. In no case did a State expert opine
that the person inflicting C.W.’s injuries did so with criminal negligence,
recklessly, knowingly, or intentionally. And the experts’ testimony did not
prevent jurors from concluding Worrell caused C.W.’s injuries without
culpable criminal intent.

III. Sufficiency of the Evidence

¶27 Worrell contends the jurors convicted him on insufficient
evidence. He argues his purported confession does not support the verdicts
because the interrogating detective used tactics associated with a risk of
obtaining false confessions. Worrell denied any wrongdoing dozens of
times before finally succumbing to the detective’s tactics and the acts
Worrell confessed to were incompatible with expert testimony about how
C.W.’s injuries likely occurred. Worrell also contends that even if sufficient
evidence showed he fractured C.W.’s right humerus (Count 2), that
evidence did not show he did so knowingly or intentionally.

¶28 We review whether sufficient evidence supports a conviction
de novo, “resolv[ing] any conflicts in the evidence against the defendant and
view[ing] all facts in the light most favorable to supporting the verdict.”
State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014). A defendant’s claim of
insufficient evidence fails if the record contains “substantial evidence” to

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support the conviction, which is “evidence that reasonable persons could
accept as sufficient to support a guilty verdict beyond a reasonable doubt.”
Id. (citation omitted). Reversible error based on insufficiency of the
evidence occurs only when there is a complete absence of probative facts to
support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200 (1996).

¶29 Substantial evidence supports each of Worrell’s convictions.
The State tried Worrell on two counts under A.R.S. § 13-3623(B)(1), which
required it to prove that “[u]nder circumstances other than those likely to
produce death or serious physical injury to a child,” Worrell “intentionally
or knowingly” caused C.W. “to suffer physical injury or abuse.” The trial
judge instructed the jurors that if they did not find Worrell acted
intentionally or knowingly, they could alternatively consider whether he
committed child abuse recklessly or with criminal intent. See A.R.S. § 13-
3623(B)(2), (3).

¶30 Worrell admitted he pushed C.W.’s right arm down until he
heard a “pop” and that he earlier noticed injuries to C.W.’s ribs and left
forearm after pulling him from the changing table to the ground. The State’s
designated expert testified those acts were consistent with C.W.’s fractures
of his right humerus, ribs, and left forearm. It is the role of the jury to decide
whether Worrell’s confession was false or truthful, and we do not reweigh
their resolution of inconsistencies in the evidence. See State v. Parker, 113
Ariz. 560, 561–62 (1976).

¶31 Substantial evidence also supports the finding that Worrell
broke C.W.’s right humerus intentionally or knowingly. Intentionally
means “with respect to a result or to conduct described by a statute defining
an offense, that a person’s objective is to cause that result or to engage in
that conduct.” A.R.S. § 13-105(10)(a). Knowingly means “with respect to
conduct or to a circumstance described by a statute defining an offense, that
a person is aware or believes that the person’s conduct is of that nature or
that the circumstance exists. It does not require any knowledge of the
unlawfulness of the act or omission.” A.R.S. § 13-105(10)(b).

¶32 When Worrell broke C.W.’s right humerus, he knew he had
previously injured C.W.’s ribs and left forearm. Furthermore, when
speaking to the detective about C.W.’s humerus injury—before admitting
he caused it—Worrell asserted the broken humerus could not have been
accidentally inflicted given the amount of force it would have taken to cause
the break. Jurors could reasonably conclude Worrell intentionally or
knowingly broke C.W.’s right arm.

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IV. Juror Misconduct

¶33 Finally, Worrell argues the superior court should have
conducted an inquiry into Juror Number 7’s ability to judge the case fairly
because that juror’s repeated tardiness suggested she lacked interest in the
trial. We review a trial court’s decision whether to investigate alleged juror
misconduct for an abuse of discretion. State v. Davolt, 207 Ariz. 191, 207,
¶ 56 (2004). Because Worrell did not raise any concern about Juror Number
7 until moving for a new trial, he must establish both fundamental error
and prejudice. See State v. Burns, 237 Ariz. 1, 26, ¶ 112 (2015).

¶34 In its response to Worrell’s motion for a new trial, the State
acknowledged Juror Number 7 arrived late on two of the six trial days but
argued juror tardiness or inattentiveness was not recognized as a ground
for a new trial. See Ariz. R. Crim. P. 24.1(c)(3). The superior court denied
Worrell’s motion, and Worrell does not challenge that decision on appeal.

¶35 Worrell cites no trial transcripts in the appellate record—nor
have we independently discovered any—that document Juror Number 7’s
tardiness or confirm Worrell’s assertion that the superior court expressed
concern about that juror. This absence in the record is particularly telling
because of other, well-documented measures the court took to address
other instances of juror misconduct. The court excused one juror for falling
asleep and excused another for conducting independent research. On the
record presented, Worrell fails to show the court abused its discretion by
not conducting an inquiry into Juror Number 7’s fitness to decide the case.

CONCLUSION

¶36 We affirm.

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

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