State v. Wise

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

BRADLEY AARON WISE, Appellee.

No. 1 CA-CR 20-0352
FILED 4-20-2021

Appeal from the Superior Court in Maricopa County
No. CR2015-002610-001
The Honorable Susanna C. Pineda, Judge

AFFIRMED

COUNSEL

Maricopa County Public Defender’s Office, Phoenix
By Andrew Schlicksup, Kevin D. Heade
Counsel for Appellee

Maricopa County Attorney’s Office, Phoenix
By Michael Minicozzi
Counsel for Appellant

Arizona Voice for Crime Victims, Phoenix
By Colleen Clase, Thomas E. Lordan
Counsel for Amicus Curiae
 STATE v. WISE
Decision of the Court

MEMORANDUM DECISION

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

H O W E, Judge:

¶1 The State of Arizona appeals the trial court’s dismissal
without prejudice of its indictment against Bradley Allen Wise for first-
degree felony murder and child abuse. The State contends that the trial
court erred in ruling that the juvenile court’s factual finding that the
Arizona Department of Child Safety had not proved in termination
proceedings that Wise had intentionally abused his child precluded the
State from relitigating that issue in his criminal trial. The State recognizes
that the Arizona Supreme Court held in Crosby-Garbotz v. Fell that the
doctrine of issue preclusion applies in criminal proceedings when a fact
essential to a criminal verdict has been previously determined in juvenile
proceedings. 246 Ariz. 54, 55 ¶ 1 (2019). It argues, however, that this case is
distinguishable from Crosby-Garbotz, or if not, that this Court should
disregard it as wrongly decided. Because we cannot distinguish this case
from Crosby-Garbotz and have no authority to disregard binding Arizona
Supreme Court decisions, we hold that the trial did not err in dismissing
the indictment on issue preclusion grounds.

FACTS AND PROCEDURAL HISTORY

¶2 B.W. was born to Wise and Brittanee Cooper on January 28,
2013. On April 14, 2013, Cooper left two-month-old B.W. in Wise’s care
while she went to work. Wise fed the baby and put him in a rocker for a
nap. Wise soon heard B.W. gasping for air and tried to help him breathe but
was unsuccessful. Wise called 911, and paramedics quickly arrived. They
were unable to revive B.W., however, and took him to the hospital, but
doctors there were also unable to revive him.

¶3 The medical examiner conducted an autopsy, which revealed
that B.W. had an acute subdural hematoma on the back of his head, other
acute bleeding scattered across the surface of his brain, and mild brain
swelling. B.W. also had acute bleeding around his eyes and retinas. The
examiner determined that the cause of death was head trauma and believed
that the trauma had been inflicted intentionally, although he could not rule

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Decision of the Court

out accidental trauma. Wise and Cooper could not explain how B.W. could
have suffered such injuries.

¶4 Seventeen months later, Wise and Cooper had a second child.
While Cooper and her child were still in the hospital following the delivery,
the Department took temporary custody of the child and filed a
dependency petition claiming that Wise and Cooper were unable to parent
due to neglect and inability to provide a safe home, based on B.W.’s death.
During the dependency proceedings, the State indicted Wise on (1) first-
degree felony murder under A.R.S. § 13–1105(A)(2) for causing B.W.’s
death while committing intentional child abuse against him and (2)
intentional child abuse of B.W. under A.R.S. § 13–3623(A)(1). While the
criminal matter was pending, the Department moved to terminate Wise
and Cooper’s parental rights to their second child under A.R.S. § 8–533(B)
based on Wise’s alleged abuse of B.W. After hearing 22 days of evidence,
the juvenile court found that the Department had not proved by clear and
convincing evidence that Wise had abused B.W.

¶5 After the juvenile court’s ruling, Wise moved to dismiss his
criminal case under Crosby-Garbotz, arguing that because the juvenile court
had found as fact that the Department had failed to prove that Wise had
abused B.W. in the termination matter, the State was prohibited, under the
doctrine of issue preclusion, from attempting to prove Wise had abused
B.W. in the criminal matter. The State conceded that the traditional factors
of issue preclusion identified in Crosby-Garbotz had been met but argued
that the trial court must consider an additional factor of issue preclusion
not addressed in that decision: “the potential adverse impact of the
determination on the public interest or the interests of persons not
themselves parties in the initial action.” The State explained that unlike the
dependency proceeding in Crosby-Garbotz, the termination proceeding in
this case was closed to the public.

¶6 The trial court dismissed the indictment, but without
prejudice. The trial court ruled that the juvenile court found that the
Department had not proved that Wise engaged in “willful” child abuse,
which precluded the State from relitigating that he intended or knowingly
abused B.W., elements of first-degree murder and intentional child abuse.
The trial court noted that the juvenile court’s finding left open whether
Wise may have committed reckless or negligent child abuse, so the State
should have the opportunity to press those charges if it so chose. The State
timely appealed.

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Decision of the Court

DISCUSSION

¶7 The State argues that the trial court erred in dismissing the
indictment against Wise based on issue preclusion under Crosby-Garbotz
because this case is distinguishable from Crosby-Garbotz. We review the
application of issue preclusion de novo. Picaso v. Tucson Unified Sch. Dist.,
217 Ariz. 178, 180 ¶ 6 (2007).

¶8 This case is factually and legally similar to Crosby-Garbotz. In
that case, the Department had initiated a dependency action against the
defendant for abusing his five-month-old baby. 246 Ariz. at 56 ¶¶ 2–3.
During the dependency proceedings, the State indicted the defendant for
child abuse. Id. at ¶ 4. After hearing multiple days of evidence, the juvenile
court found that the Department had not proved that the defendant had
abused his baby. Id. at ¶ 5. The defendant then moved in his criminal
proceedings to dismiss the indictment because the State was precluded
from relitigating the same issue. Id. at ¶ 6. The trial court denied the motion,
and the defendant unsuccessfully sought special action review in this
Court. Id. at ¶¶ 6–7.

¶9 On further review in the Arizona Supreme Court, a narrow
majority agreed that the State was precluded from relitigating whether the
defendant had abused his baby. Id. at 60 ¶ 26. The majority found that all
the elements of the doctrine of issue preclusion were present in the case:
the State had a full and fair opportunity to litigate the issue before the
juvenile court, the parties actually litigated the issue, the issue was essential
to the juvenile court’s judgment, and the juvenile court’s ruling was valid
and final. Id. at ¶ 23.

¶10 The State here concedes that the elements of issue preclusion
identified in Crosby-Garbotz are satisfied in this case, but it argues that this
case is distinguishable from Crosby-Garbotz because that case involved a
dependency action, which is presumed open to the public, while this case
involves a termination action, which is closed to the public. The State
maintains that the need to have public trials in criminal matters—which
necessarily means that all factual determinations in criminal matters must
be made in public trials—is so important that as a matter of policy, issue
preclusion should not apply when the factual determinations are from
termination proceedings in juvenile court.

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¶11 The problem with the State’s argument, however, is that the
supreme court considered this argument, and the majority rejected it.1 The
dissent in Crosby-Garbotz stated that applying issue preclusion to these
situations denies the public’s right “to observe the criminal proceedings
against” the defendant “and examine the record” because the juvenile court
can close juvenile proceedings in its discretion and its records are closed to
public inspection. 246 Ariz. at 62 ¶ 33 (Timmer, J., dissenting). This did not
trouble the majority, ruling that the differences in law and procedure
between juvenile and criminal proceedings did not—as a matter of policy—
justify refraining from applying issue preclusion “in the dependency-to-
criminal context.” Id. at 58 ¶ 17. Thus, Crosby-Garbotz cannot be
distinguished from this case.

¶12 Because Crosby-Garbotz cannot be distinguished, it controls
this case. Applying Crosby-Garbotz, the State—as it concedes—had a full
and fair opportunity to litigate before the juvenile court whether Wise
abused B.W., the parties actually litigated the issue, the issue was essential
to the juvenile court’s termination decision, and the juvenile court’s ruling
on termination was valid and final. This requires holding that the trial court
did not err in dismissing the indictment against Wise because the State is
precluded from relitigating in the criminal proceedings whether Wise
intentionally abused B.W.

¶13 The State—and Amicus Curiae Arizona Voice for Crime
Victims—nevertheless argue that if this Court cannot distinguish this case
from Crosby-Garbotz, this Court should decline to follow it because it is
wrongly decided and contravenes public policy. They argue with much
force and merit that applying the doctrine of issue preclusion to cases such
as this nullifies the public’s right to observe criminal proceedings and to
have criminal matters determined by a jury—as the Crosby-Garbotz dissent
recognized, 246 Ariz. at 62 ¶ 33 (Timmer, J., dissenting)—and diminishes
the rights the Arizona Constitution provides to crime victims, see Ariz.
Const. Art. 2, § 2.1. The State reiterates the Crosby-Garbotz dissent’s
argument that juvenile and criminal proceedings serve different purposes
and that the juvenile court has no authority to resolve criminal matters. See
Crosby-Garbotz, 246 Ariz. at 61–62 ¶¶ 30–33 (Timmer J., dissenting). The
State further notes that Crosby-Garbotz is in the minority on whether issue
preclusion flows from juvenile proceedings to criminal proceedings. See
Gregory v. Commonwealth, 610 S.W.2d 598 (Ky. 1980); People v. Roselle, 602

1 For this reason, we need not resolve the parties’ statutory
interpretation dispute whether termination proceedings and records are
open to the public.

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N.Y.S.2d 50 (N.Y. App. Div. 1993); People v. Gates, 452 N.W.2d 627 (Mich.
1990); State v. Nutbrown-Covey, 169 A.3d 216 (Vt. 2017); People v. Percifull, 9
Cal.App.4th 1457 (Cal. App. 1992); Criner v. State, 138 So. 3d 557 (Fla. Dist.
Ct. App. 2014); People v. Moreno, 744 N.E.2d 906 (Ill. App. 2001); State v.
Cleveland, 794 P.2d 546 (Wash App. 1990).

¶14 These arguments certainly raise concerns whether Crosby-
Garbotz was correctly decided and should be reconsidered. But as an
intermediate court of appeals, we have no authority to disregard decisions
of the Arizona Supreme Court. State v. McPherson, 228 Ariz. 557, ¶ 13 (App.
2012); see also State v. Eichorn, 143 Ariz. 609, 613 (App. 1984) (whether
supreme court decisions should be disaffirmed is a question for the
supreme court). Under Crosby-Garbotz as it stands today, the trial court did
not err in dismissing the indictment against Wise.

CONCLUSION

¶15 For the foregoing reasons, we affirm the trial courts dismissal
of the indictment without prejudice.

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

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