State v. Givens

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES LAYTON GIVENS, Appellant.

No. 1 CA-CR 23-0168
FILED 05-09-2024

Appeal from the Superior Court in Yuma County
No. S1400CR202000889
The Honorable Darci D. Weede, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Law Office of Elizabeth M. Hale, Lakeside
By Elizabeth M. Hale
Counsel for Appellant

Arizona Voice for Crime Victims, Inc., Phoenix
By Colleen Clase
Counsel for Victims

STATE v. GIVENS
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 James Layton Givens appeals his convictions for child abuse
and the murder of his youngest daughter, Emily, and three other
convictions for child abuse relating to his other three daughters.1 On appeal,
Givens raises several issues, consolidated as follows: 1) did the trial court
abuse its discretion by denying his original and renewed motions for
judgment of acquittal, or, in the alternative, his motion for a new trial; 2)
did the court err by admitting other bad acts evidence; 3) did the court err
in precluding examination of his co-defendant and the admission of her
statements to law enforcement; 4) did the trial court err by denying his
motion for mistrial; and 5) did prosecutorial misconduct deprive him of a
fair trial?2 For the following reasons, we affirm.

BACKGROUND

¶2 Givens and Jamie McBride lived together with their four
daughters, Edith (9 years old), Jordyn (7), Jennifer (6), and Emily (22 months
old), and their many pets. In September 2020, Givens called 911 because the
youngest child, Emily, was barely breathing. Emergency services
responded and transported her to the hospital for emergency medical care.
Shortly after her arrival, Emily was pronounced dead.

¶3 Upon arrival at the hospital, Emily appeared emaciated, her
eye sockets and cheeks were sunken, she had no fat on her extremities, her

1 We use pseudonyms to protect the identities of the victims.
2 Givens makes multiple cursory arguments, but fails to adequately
develop them or provide legal authority or record citations. In failing to
comply with Arizona Rule of Criminal Procedure 31.10(a), he has waived
appellate consideration of said arguments. See State v. Vargas, 249 Ariz. 186,
190, ¶ 13 (2020) (“[I]f a defendant simply asserts a general claim of error on
appeal and fails to develop it, a court is not obligated to consider it.”); State
v. Carver, 160 Ariz. 167, 175 (1989) (“Failure to argue a claim usually
constitutes abandonment and waiver of that claim.”).

2

STATE v. GIVENS
Decision of the Court

ribs were visible, and her skin was ashen. She had bedsores consistent with
lack of movement. Emily also had contractures—fibrous tissue growing
over the knee joints—indicating she had not moved those joints for days or
weeks, rendering them inoperable.

¶4 The Medical Examiner determined that because of chronic
stress and lack of food, Emily did not have a thymus, an organ which
typically reaches its maximum size by age two. The soft spot in Emily’s
skull had still not fused, which typically happens within a year, or 18
months at most. She had no fatty tissue between her skin and bone. Emily
weighed only seven pounds, five ounces—less than her birth weight. At the
end of the autopsy, the Medical Examiner determined Emily died from
dehydration and malnutrition.

¶5 On the day Emily died, officers entered the Givens/McBride
home and were assaulted by an overwhelming odor of urine and feces.
Several dogs were running around both inside and outside, leaving feces
on the floor and furniture. The officers saw piles of trash, soiled clothing,
cigarette butts, and dirty diapers strewn throughout the house. In the
kitchen, rotting food and trash covered all available surfaces, spilling over
onto the floor. The two bathrooms were piled high with debris, and one
bathroom had so much trash and debris it was not functional. Emily’s crib
had a plastic-covered mattress with no sheets or blankets. The crib
contained a few dirty baby items and a pair of soiled underwear crawling
with bugs.

¶6 The officers spoke with the three older children. Each of the
girls appeared pale, their hair was matted, and their clothing was filthy.
Officers released the girls to a family friend. That friend noted the girls did
not know how to bathe, brush their teeth, or even wipe themselves after
going to the bathroom. Each of the girls had inflamed gums and needed
dental care. A forensic nurse documented bruises on various parts of their
bodies.

¶7 Givens was charged with first-degree murder and four counts
of child abuse, one count for each child. Once the State rested its case-in-
chief, Givens moved for a judgment of acquittal on all counts under Arizona
Rule of Criminal Procedure 20. After argument, the trial court denied
Givens’ motion. At the end of a three-week trial, the jury returned guilty
verdicts on all charges. Givens renewed his Rule 20 motion on counts 3
through 5 and moved for a new trial. See Ariz. R. Crim. P. 20, 24.1. The court
denied both motions. The court then imposed a life sentence for the felony

3

STATE v. GIVENS
Decision of the Court

murder conviction and consecutive 17-year prison sentences for each child
abuse conviction. Givens timely appealed.

DISCUSSION

¶8 Givens challenges the trial court’s denial of his motions for
judgment of acquittal and for a new trial, arguing there was insufficient
evidence to support the convictions. He also argues several evidentiary
rulings were in error, the prosecutor engaged in misconduct, and the denial
of his motion for mistrial based on that alleged misconduct was in error.

I. Sufficiency of the Evidence

A. Initial Rule 20 Motion for Judgment of Acquittal

¶9 “After the close of evidence . . . the court must enter a
judgment of acquittal on any offense charged in an indictment . . . if there
is no substantial evidence to support a conviction.” Ariz. R. Crim. P.
20(a)(1). Like an appellate court, the trial court must review the evidence in
a light most favorable to the prosecution when deciding whether
substantial evidence exists. State v. Fischer, 242 Ariz. 44, 49, ¶ 17 (2017).
Givens argues the State did not prove the requisite mental state for either
the felony murder or child abuse charges. He bases his argument on the
assertion that the State failed to present any evidence that he intended to
kill Emily or that he knew his actions would cause her death. Givens also
argues the State failed to present substantial evidence to support the child
abuse convictions regarding the other three children.

¶10 To begin, the State was not required to prove that Givens
intended or knew his actions would cause Emily’s death. Givens was
charged with first-degree premeditated murder or, in the alternative,
first-degree felony murder. In Arizona, first-degree murder is only one
crime regardless of whether it occurs as a premeditated murder or a felony
murder. State v. Carlson, 237 Ariz. 381, 400–01, ¶ 82 (2015). Since the jury
only returned a unanimous verdict that Givens was guilty of felony
murder, we will only address felony murder as the method of committing
first-degree murder for the sake of brevity. Felony murder occurs if a
“person or another person causes the death of any person” in the
furtherance of certain offenses, including child abuse. A.R.S.
§ 13-1105(A)(2). Felony murder does not require proof of specific intent to
kill, but it does require proof of the mental state required for commission of
the predicate felony. A.R.S. § 13–1105(B); State v. McLoughlin, 139 Ariz. 481,
485 (1984). So, the State needed to present sufficient evidence that Emily’s

4

STATE v. GIVENS
Decision of the Court

death occurred in the furtherance of one of the enumerated felonies. In this
case, the predicate felony was child abuse. See A.R.S. § 13-1105(A)(2).

¶11 Givens was charged with four counts of child abuse, one
count for each of his four daughters. Child abuse is “an alternative means
statute, which refers to an offense that may be committed in multiple
ways.” State v. Allen, 253 Ariz. 306, 313, ¶ 82 (2022). Even though child abuse
may be committed in multiple ways, like first-degree murder, it is still one
single unified offense. Id. So, a person commits child abuse if, “[u]nder
circumstances likely to produce death or serious physical injury,” he or she
(1) causes a child to suffer physical injury; (2) having care or custody of a
child, causes or permits the person or health of a child to be injured; or (3)
having care or custody of a child, causes or permits a child to be placed in
a situation where the person or health of the child is endangered. A.R.S.
§ 13-3623(A)(1). Jurors need not agree on the theory under which the child
abuse was committed; unanimity is required only regarding the fact that
the crime of child abuse was committed. State v. West, 238 Ariz. 482, 488,
490, ¶¶ 15, 21 (App. 2015).

¶12 The severity of the punishment and classification of felony for
a conviction for child abuse is determined by the mental state of the
perpetrator. See A.R.S. §§ 13-3623(A)(1)–(3); -601(A). For the most severe
classification, a class two felony, the mental state of intentionally or
knowingly is coupled with the requirement that the victims are under 15.
A.R.S. § 13-3623(A)(1). So, if Givens either intentionally or knowingly
committed child abuse, he would be guilty of a class two felony. Id. If the
victim died in furtherance of committing child abuse, Givens committed
felony murder. A.R.S. § 13-1105(A)(2).

¶13 In this case, the State had to prove that Givens intentionally
or knowingly engaged in conduct that constituted child abuse. When a
statute lists two mental states, proof of the lesser mental state is all that is
required. See A.R.S. § 13-202(C). “‘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.” A.R.S. § 13-105(10)(b). Further, “[i]t does not
require any knowledge of the unlawfulness of the act or omission.” Id. The
“knowing or intentional” mental state for child abuse applies only to the
defendant’s actions, not to the “[u]nder circumstances likely to produce
death or serious physical injury” prong of the statutory inquiry. See A.R.S.
§ 13-3623(A)(1); accord State v. Millis, 242 Ariz. 33, 41, ¶ 26 n.7 (App. 2017)
(describing the required showing).

5

STATE v. GIVENS
Decision of the Court

1. Child Abuse and Felony Murder of Emily

¶14 The State introduced sufficient evidence to overcome Givens’
Rule 20 challenge to felony murder resulting from child abuse. Emily lived
“[u]nder circumstances” that ultimately caused her death by dehydration
and malnutrition. To determine whether circumstances are likely to
produce death, the State must present “objective evidence of the existence
of such circumstances.” State v. Martinson, 241 Ariz. 93, 102, ¶ 41 (App. 2016)
(citation omitted). Because Emily died of dehydration and malnutrition,
that is objective evidence that the circumstances in the Givens/McBride
house were likely to cause serious physical injury or death.

¶15 Givens argues that McBride was Emily’s primary caregiver.
He asserts that because he was not her caregiver, he was not responsible for
her death. We disagree; he too was Emily’s parent and shared parental
obligations with McBride. Givens, as Emily’s father, had custody and care
of Emily—responsibilities he shared with the children’s mother. More than
one person can share the care and custody of a child. See State v. Smith, 188
Ariz. 263, 265 (1996). The care and custody element of the child abuse
statute is an objective factual inquiry and not an element for which mental
state must be proven. State v. Payne, 233 Ariz. 484, 506, ¶ 70 (2013). While
under Givens’ and McBride’s care and custody, Emily suffered multiple
serious injuries3 culminating in her death. See A.R.S. § 13-3623(A)(1). Givens
does not challenge these facts, but argues he lacked the requisite mental
state—he did not know his actions or inaction would cause Emily’s death.
We disagree.

¶16 On the day Emily died, Givens told police that Emily had
most or all of her weight that morning. This statement is circumstantial
evidence of his knowledge that the child’s weight was an issue. Givens’
self-serving statement directly conflicts with the observations of both
medical and law enforcement personnel. One officer testified he was “in
shock” at how skinny and pale Emily appeared. Another officer described
Emily being “very pale” and having loose skin around her bones. The
responding paramedic described Emily as “appear[ing] to be extremely
malnourished . . . just by. . . looking at [her] rib cage, how it was sucked in;
you could see the bones; facial structures also very sucked in.” Based solely

3 Serious physical injury is a physical injury that “creates a reasonable
risk of death or that causes. . . serious impairment of health or loss or
protracted impairment of the function of any bodily organ or limb.” A.R.S.
§ 13-3623(F)(5).

6

STATE v. GIVENS
Decision of the Court

on Emily’s outward appearance, there were ample indicators that she was
in medical distress; specifically, that she was starving to death.

¶17 Givens was aware Emily was malnourished and
developmentally delayed. Indeed, he sought advice from a friend because
Emily was having trouble gaining or maintaining weight. When Givens
told the friend that Emily was not eating solid food, the friend was shocked.
Givens then backtracked, lying about Emily’s age, saying she was only one
year old. His attempt to conceal the truth is circumstantial evidence of his
knowledge of Emily’s condition. Givens’ friend then informed him that if
Emily continued to lose weight, he should take the child to the doctor.
These conversations took place over two months before Emily succumbed
to starvation. This is circumstantial evidence that Givens knew that
McBride was not feeding Emily enough, and that if she continued to lose
weight, she should be taken to the doctor. See State v. Routhier, 137 Ariz. 90,
99 (1983) (criminal intent is proven by circumstantial evidence, including
the defendant’s conduct and comments). Givens did nothing. “This court
has found knowledge or intent where the defendant knew the victim
needed medical attention, but chose not to act.” Payne, 233 Ariz. at 507,
¶ 77.

¶18 Emily suffered many physical injuries caused by Givens’
actions or inaction as a caregiver: pressure sores, failure to thrive, injuries
to her internal organs, dehydration, and malnutrition all leading to her
death. Givens’ inaction in the face of multiple indicators of physical distress
satisfies that he knowingly engaged in that behavior, thereby proving the
mental-state element of the child abuse perpetrated on Emily. Because
Emily died “in the furtherance of” Givens’ commission of child abuse, the
trial court properly found that substantial evidence to support his felony
murder conviction was presented at trial. A.R.S. § 13-1105(A)(2).

2. Child Abuse of the Surviving Children

¶19 The State also introduced sufficient evidence to overcome
Givens’ Rule 20 challenge to the remaining three counts of child abuse.
Givens points to State v. Greene, where the children were living in similar
filthy conditions, but the trial court found the condition of the home did not
alone amount to circumstances “likely” to produce death or serious
physical injury. 168 Ariz. 104, 105–08 (App. 1991). He argues that, as in
Greene, the filthy living conditions here do not amount to “circumstances
likely to cause serious physical injury or death,” and he too should only be
found guilty of the lesser-included form of child abuse. See id. at 108; A.R.S.
13-3623(B). Unlike in Greene, the circumstances in the Givens/McBride

7

STATE v. GIVENS
Decision of the Court

home led to the death of Emily. Those circumstances not only included
filthy conditions, but caregivers who failed to discharge their parental
duties to protect their children. Neither parent appeared willing to provide
the children with medical care, daily hygiene assistance, proper housing, or
proper nutrition. Unlike Greene, there was medical testimony that each of
the surviving children suffered some physical injury.

¶20 Because child abuse is an alternative means statute, once the
State had proven that the circumstances in the Givens/McBride home were
“circumstances likely to produce death or serious physical injury,” it had
two ways to prove child abuse.4 First, the State could have produced
evidence that Givens, a person with custody or care of the children, caused
or permitted the persons or health of the children to be injured. A.R.S.
§ 13-3623(A). Physical injury, under this alternative, means “the
impairment of physical condition and includes any skin bruising, pressure
sores, bleeding, failure to thrive, malnutrition, dehydration, [and] burns
. . . or any physical condition that imperils health or welfare.” A.R.S.
§ 13-3623(F)(4). All three surviving girls had inflamed gums and needed
dental care. Jennifer was in the 3% percentile in weight and 23% in height.
Edith and Jordyn had bruising or other evidence of injuries that the forensic
nurse called “red flags,” or indicators of child abuse. Based on medical
testimony, each of the children suffered some physical injury while living
under circumstances which had already caused the death of their sister. See
A.R.S. § 13-3623(A), -3623(F)(4).

¶21 The State could also pursue the second alternative, that
“having the care or custody of a child,” Givens “caus[ed] or permit[ted] a
child . . . to be placed in a situation where the person or health of the child
. . . is endangered.” A.R.S. § 13-3623(A); see West, 238 Ariz. at 492, ¶ 28 (the
same evidence can be used to prove all three means of child abuse). In the
context of the crime of child abuse, “‘[e]ndanger’ means to subject a child
to potential harm that is more than the ordinary danger to which children
are exposed daily.” Allen, 253 Ariz. at 312, ¶ 78. Givens again argues he did
not intentionally harm his children. “There is no explicit requirement that
the defendant have a specific intent to harm the victim.” Id. at 314, ¶ 89. But
he knowingly allowed them to live in a filthy environment with parents
who could not provide adequate care and supervision. Based on the
evidence presented, reasonable persons could conclude that Givens

4 There was no evidence that Givens caused physical injury to any of
the surviving children directly. As a result, the first means of committing
child abuse is not at issue. See A.R.S. § 13-3623(A).

8

STATE v. GIVENS
Decision of the Court

permitted all four children to be placed in a situation where their health
was endangered. See A.R.S. § 13-3623(A).

¶22 The State presented substantial evidence to support the
charges of child abuse relating to the surviving children. “[S]ubstantial
evidence is more than a mere scintilla and is such proof that reasonable
persons could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” Allen, 253 Ariz. at 311, ¶ 70
(citation omitted). The trial court properly denied Givens’ Rule 20 motion
for judgment of acquittal.

B. Renewed Rule 20(b) Motion for Judgment of Acquittal

¶23 In Givens’ post-verdict motion under Rule 20(b), he argued
the State only met its burden of proof for the lesser-included child abuse
offenses regarding the surviving children. For the first time on appeal, he
also argues the verdict was contrary to the weight of the evidence, justifying
the granting of a new trial. Generally, arguments raised for the first time on
appeal are waived. Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535,
¶ 18 (App. 2007).

¶24 While our court has discretion to review issues not properly
raised in the trial court, if the issue is merely presented and not fully argued,
it is considered abandoned. See State v. Carver, 160 Ariz. 167, 175 (1989)
(citing cases); State v. Kinney, 225 Ariz. 550, 554, ¶ 7 n.2 (App. 2010). Givens
did not develop this new argument—that the verdicts are contrary to the
evidence. For this reason, we decline to address the issue. And to the extent
he argues there was insufficient evidence to support his child abuse
convictions regarding his surviving children or his assertion that the State
only proved the lesser offense, we disagree as addressed above.

II. Rule 24.1 Motion for New Trial

¶25 Givens also filed a motion for new trial after the jury returned
guilty verdicts. See Ariz. R. Crim. P. 24.1(c). In that motion, he argued the
trial court made erroneous evidentiary rulings and the State engaged in
prosecutorial misconduct. He also challenged the court’s denial of his
motion for mistrial based on alleged prosecutorial misconduct. A motion
for a new trial may be granted upon a defendant’s request if “the verdict is
contrary to the law or the weight of the evidence,” if the State commits
misconduct, or if the court “erred in deciding a matter of law.” Ariz. R.
Crim. P. 24.1(c). A court’s denial of a motion for a new trial is reviewed for
an abuse of discretion. See Fischer, 242 Ariz. at 48, ¶ 10. We address each
argument in turn.

9

STATE v. GIVENS
Decision of the Court

A. Evidentiary Rulings

¶26 Givens asserts that the trial court erred by admitting and
precluding certain pieces of evidence, depriving him of a fair trial. Because
Givens has shown no abuse of discretion, we reject his arguments.

1. Admission of “Other Acts” Evidence

¶27 Givens argues that the trial court should have precluded
testimony about cigarette burns and bruising found on the children. Givens
believes such evidence constituted “other acts” propensity evidence
generally prohibited by Arizona Rule of Evidence 404(b)(1): “evidence of
other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.” Givens
misconstrues the nature of the evidence presented.

¶28 The State did not try to prove that Givens burned or bruised
his children; that would be “other acts” evidence subject to a Rule 404(b)
analysis. Rather, the evidence was introduced to demonstrate that Givens,
a person “having the care or custody of [the] child[ren] . . . permit[ted] the
person or health of the child[ren] . . . to be injured . . . or placed [the
children] in a situation where [their] person[s] or health . . . [were]
endangered.” A.R.S. § 13-3623(A)(1). Evidence of the burns and bruises
were relevant evidence whether or not Givens was the one who caused the
injuries. The evidence was offered to prove an element of the child abuse
charges. See A.R.S. § 13-3623(A)(1). Because that evidence is “not evidence
of other acts attributable to [the defendant], its admissibility . . . is analyzed
. . . for its relevancy under Rule 401,” not as “other acts” evidence under
Rule 404(b). State v. Togar, 248 Ariz. 567, 573, ¶ 19 (App. 2020). So, the court
did not err in admitting the evidence after finding it to be intrinsic to the
charges and relevant to the inquiry before the jury.

2. Nurse’s Testimony re: “Red Flag” Injuries

¶29 Givens next posits that even if the evidence of the children’s
bruising and burns was not “other acts” evidence, the forensic nurse’s
testimony was inadmissible profile evidence. It is well established that
expert witnesses are allowed to testify that injuries suffered by a child were
not accidental. State v. Moyer, 151 Ariz. 253, 255 (App. 1986) (“[E]xpert
testimony coupled with additional proof that the injuries occurred while
the child was entrusted to the care of the defendant is sufficient for a verdict
of guilt.”) (citations omitted). The forensic nurse testified that the two
surviving older children had bruises or other scars that were cause for
concern, or “red flags.” The nurse testified only about injuries she observed

10

STATE v. GIVENS
Decision of the Court

on the children and whether they were injuries inconsistent with childhood
bumps and bruises. She did not opine about how the girls got the injuries.
This information goes directly to the charged offenses as more fully set forth
above.

¶30 The “pattern injuries” or cigarette-burn evidence on the
oldest child was observable and noted in the nurse’s evaluation. The nurse
testified that she observed healed burn scars only. She did not ascribe fault
nor try to determine how old the injuries were or how they had come to be
on the child’s arms. The fact that the “pattern injuries” were present goes to
the child living in a situation where her health and safety were endangered
while in her parents’ custody or care. A.R.S. § 13-3623(A)(1). Being burned
by a cigarette is “more than the ordinary danger to which children are
exposed daily.” Allen, 253 Ariz. at 312, ¶ 78. The admission of this evidence
was therefore not error.

3. Preclusion of Co-Defendant Evidence

¶31 Givens argues the trial court committed error by allowing
McBride to assert a blanket Fifth Amendment invocation. He also
challenges the court’s decision that McBride’s prior statements were
inadmissible hearsay. Givens has shown no error.

a. Fifth Amendment Invocation

¶32 We review a court’s decision to preclude a defendant from
calling a witness who will assert her Fifth Amendment privilege before the
jury for an abuse of discretion. State v. Harrod, 218 Ariz. 268, 275–76, ¶ 19
(2008). Both the U.S. Constitution and the Arizona Constitution afford
witnesses a right against self-incrimination. U.S. Const. amend. V; Ariz.
Const. art. 2 § 10. Similarly, both constitutions secure a defendant’s right to
a fair trial, including the right to compel witnesses. U.S. Const. amend. VI;
Ariz. Const. art. 2 § 24. A conflict of rights arises when a defendant seeks to
compel testimony from a co-defendant and the co-defendant invokes the
protection from compelling self-incriminating testimony. Neither right is
absolute. See State v. Cornejo, 139 Ariz. 204, 207 (App. 1983); State v.
McDaniel, 136 Ariz. 188, 193–94 (1983).

¶33 The Sixth Amendment right to compel a witness to testify
may be restricted. See McDaniel, 136 Ariz. at 194. Similarly, a witness may
only assert a blanket Fifth Amendment invocation if the court finds the
witness has “a reasonable ground to apprehend danger . . . from his being
compelled to answer.” Cornejo, 139 Ariz. at 207. If the court has “extensive
knowledge of the case,” it may allow a witness to summarily invoke her

11

STATE v. GIVENS
Decision of the Court

Fifth Amendment privilege without questioning the witness, allowing
counsel to call the witness to the stand, or conducting a hearing. State v.
Maldonado, 181 Ariz. 208, 210–11 (App. 1994); see also State v. Corrales, 138
Ariz. 583, 588 (1983) (decision to allow counsel to call a witness “who has
indicated he or she will refuse to testify” is within the court’s discretion).

¶34 Givens argues the trial court failed to engage in the required
inquiry before allowing McBride to assert a blanket privilege. However, he
concedes that a court may “forgo [a] hearing if it ‘can obtain by other
methods the extensive knowledge of the case.’” Here, the court was aware
that McBride was facing a trial on similar charges. The court was also aware
she was advised by counsel not to testify in Givens’ trial. When the court
allowed McBride to invoke her privilege, the State had presented its case-
in-chief, and defense counsel was presenting Givens’ defense. The court
had extensive knowledge of the case and did not abuse its discretion in
finding that McBride had “a reasonable ground to apprehend danger” if
she testified. See Cornejo, 139 Ariz. at 207. We affirm this ruling accordingly.5

b. Prior Statements

¶35 We review rulings on the admissibility of evidence for an
abuse of discretion and only reverse such rulings if we find clear prejudice.
Fischer, 219 Ariz. at 416, ¶ 24. At trial, Givens sought to introduce statements
McBride made to law enforcement, including statements that she was
responsible for feeding Emily and that she was the primary care provider.
McBride told the police she was aware of Emily’s bedsores and vomiting
but that she did not seek medical attention. McBride also told detectives
that “it” was her fault.

¶36 The rule against hearsay precludes introduction of hearsay
statements made by unavailable witnesses unless an exception applies.
Ariz. R. Evid. 802, 804(b). A declarant is considered unavailable if he or she
is exempted from testifying pursuant to a privilege. Ariz. R. Evid. 804(a)(1);
see also State v. Lopez, 159 Ariz. 52, 54 (1988) (witness who asserted Fifth
Amendment privilege not to testify “appropriately determined to be
unavailable”). One exception to the preclusion of hearsay is a “statement

5 Givens mentions that the State should have granted McBride immunity.
However, he abandoned this claim by failing to argue it, and it fails on the
merits: “[i]t is a matter of prosecutorial discretion to decide when the public
interest would be best served by a grant of immunity.” State v. Verdugo, 124
Ariz. 91, 94 (1979); see also Carver, 160 Ariz. at 175 (waiver).

12

STATE v. GIVENS
Decision of the Court

against interest.” Ariz. R. Evid. 804(b)(3). A statement against interest is a
statement that “a reasonable person in the declarant’s position would have
made only if the person believed it to be true because, when made,” it had
the tendency to “expose the declarant to . . . criminal liability” and, if offered
in a criminal case as a statement tending to expose the declarant to criminal
liability, “is supported by corroborating circumstances that clearly indicate
its trustworthiness.” Id. Arguably, each of the statements made by McBride
were statements against her penal interest.

¶37 After voir dire examination, the trial court precluded
admission of McBride’s statements to law enforcement. The court found
them not to be statements against interest. In its ruling, the court stated
there was no evidence of the actual statements McBride made to law
enforcement during her interview. That was error. The testimony of the
officers provided adequate evidence of the actual statements made to them
by McBride such that the court could have analyzed each statement
independently. Though we find the preclusion of the interview statements
to be in error, we find that error to be harmless.

¶38 “Error is harmless if we can declare, beyond a reasonable
doubt, that the error did not contribute to or affect the verdict.” State v.
Medina, 178 Ariz. 570, 577 (1994). One parent stating that the death of a child
was “my fault” does not mean the other parent was not also responsible.
Given the quantum of the evidence presented to the jury, whether McBride
believed Emily’s death was her fault was irrelevant to the determination of
Givens’ responsibility for Emily’s death. Because each parent owed the
child a duty of care independent of the other, the preclusion of McBride’s
statements, while in error, was harmless because the State met its burden
of showing that the error did not contribute to or affect the verdicts reached.

B. Prosecutorial Misconduct

¶39 Finally, Givens argues that the State committed prosecutorial
misconduct when it “misstated” and “misconstrued” the evidence and
harassed him on the stand, thereby denying him his right to a fair trial. He
also argues that the State’s choice not to introduce interviews of the child
victims was misconduct. Again, we disagree.

¶40 Givens asserts that the State misstated the evidence in its
opening statement by saying there was “no food in the house for [Emily].”
This was a misstatement of what the trial evidence later showed. But Givens
failed to object at trial. Therefore, we review the alleged misconduct for
fundamental error. State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018). To

13

STATE v. GIVENS
Decision of the Court

succeed on a claim of cumulative prosecutorial misconduct, Givens must
first show that misconduct occurred. State v. Anderson, 210 Ariz. 327, 340,
¶ 45 (2005). He must then show that such misconduct “could have affected
the jury’s verdict, thereby denying [him] a fair trial.” Id.

¶41 The trial court instructed the jury that the lawyers’ opening
statements are not evidence, and the jury had the benefit of receiving the
actual evidence following this statement. See State v. Newell, 212 Ariz. 389,
403, ¶ 68 (2006) (“We presume that the jurors followed the court’s
instructions.”). We find the misstatement was just that—a misstatement.
Even had it been intentional, it did not create prejudice here because the
jury received actual evidence of the food available in the Givens/McBride
home.

¶42 Givens then claims the State committed prosecutorial
misconduct when it decided not to introduce interview footage of Givens’
surviving daughters. “A trial court . . . has no general duty or authority to
second-guess the strategic decisions by trial counsel.” State v. Medina, 232
Ariz. 391, 403, ¶ 35 (2013). Here, Givens sought to introduce the evidence
himself and was ultimately successful. The jury heard the evidence; which
party introduced that evidence is of no consequence and cannot constitute
prosecutorial misconduct.

III. Givens’ Cross-Examination and Denial of Motion for Mistrial

¶43 Givens next argues that the State’s cross-examination about
whether he believed Emily could have lost all her weight in a day and
whether he believed his daughters could have caused Emily’s death by
leaving her outside was argumentative and improper. Defense counsel
objected to this line of questioning, but the objection was overruled.
Defense counsel then moved for a mistrial on that basis. The trial court
denied the motion. Givens now challenges that ruling, claiming that he was
denied a fair trial.

¶44 We review the denial of a mistrial motion for an abuse of
discretion. State v. Marshall, 197 Ariz. 496, 500, ¶ 10 (App. 2000). Here, we
must first determine whether the questioning was improper. See Anderson,
210 Ariz. at 340, ¶ 45. The State may not question witnesses in an “abusive,
argumentative, [or] harassing” manner. Pool v. Superior Court (State), 139
Ariz. 98, 103 (1984). Questioning a defendant in a way that is “extremely
combative and badgering” is considered misconduct. See State v. Arias, 248
Ariz. 546, 557, ¶ 37 (App. 2020).

14

STATE v. GIVENS
Decision of the Court

¶45 Givens elected to testify in his own defense. The prosecutor
asked Givens to explain his beliefs about how his daughter could have died.
This line of questioning goes directly to challenging his defense that he was
unaware of Emily’s condition or, in the alternative, that the other children
taking Emily outside caused her death. We therefore affirm the trial court’s
denial of the mistrial motion finding no prosecutorial misconduct.

¶46 To the extent that Givens raised a cumulative prosecutorial
misconduct claim, we find no misconduct, let alone misconduct that could
have affected the jury’s verdict. See Anderson, 210 Ariz. at 340, ¶ 45.

CONCLUSION

¶47 We affirm Givens’ convictions and resulting sentences.

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

15