State v. Landers

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SIDNEY MICHAEL LANDERS, Appellant.

No. 1 CA-CR 23-0283
FILED 06-27-2024

Appeal from the Superior Court in Maricopa County
No. CR2017-156986-001
The Honorable David J. Palmer, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding
Judge Anni Hill Foster and Vice Chief Judge Randall M. Howe joined.

F U R U Y A, Judge:

¶1 Sidney Michael Landers appeals from his convictions and
sentences for two counts of child abuse under Arizona Revised Statute
(“A.R.S.”) § 13–3623(B). Landers contends his convictions and sentences
constitute double jeopardy. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Landers was living with his girlfriend, Brianna W., and her
three-year-old daughter, M.K. On December 10, 2017, Landers was out with
M.K. from morning to evening. After he brought her back home, Brianna
noticed M.K.’s cheeks were swollen and her body was bruised. Soon after,
M.K. did not feel well and started vomiting. Brianna took M.K. to Phoenix
Children’s Hospital where she was admitted to the pediatric intensive care
unit.

¶3 After an initial examination, an emergency doctor observed
M.K. had bruises on her face, head, abdomen, back, right shoulder, and
right arm. Upon further imaging, a radiology doctor noticed five of M.K.’s
ribs were fractured. Two days after being admitted to the hospital, M.K.
died due to infection with necrotizing fasciitis.

¶4 Landers was charged with one count of first-degree felony
murder (Count 1) and three counts of child abuse (Counts 2, 3, and 4). A
jury found Landers guilty of Count 3 for causing M.K.’s rib fractures and
Count 4 for causing trauma to her body. The trial court imposed
consecutive sentences of three and a half years and three years respectively.
Landers timely appealed, and we have jurisdiction under Article 6, Section
9, of the Arizona Constitution, A.R.S. §§ 13-4031, and -4033(A).

DISCUSSION

¶5 We review de novo whether a double jeopardy violation has
occurred. See State v. Cooney, 233 Ariz. 335, 339 ¶ 11 (App. 2013). Because,

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as Landers concedes, he did not raise this argument before the trial court,
we review only for fundamental, prejudicial error. See id.

I. Landers’ Convictions Do Not Violate the Double Jeopardy Clause.

¶6 Landers was convicted of two counts of child abuse pursuant
to A.R.S. § 13-3623(B) and claims this violated the prohibition against
double jeopardy because “the charges are identical and have precisely the
same elements.” We disagree.

¶7 “The Double Jeopardy Clause protects against multiple
punishments for the same offense.” State v. Jurden, 239 Ariz. 526, 529 ¶ 10
(2016); see also U.S. Const. amend. V; Ariz. Const. art. 2, § 10. As relevant to
this case, the protection applies “if multiple violations of the same statute
are based on the same conduct,” a circumstance described as multiplicity,
id. at 529 ¶ 11, or sometimes duplicity, State v. Allen, 253 Ariz. 306, 336–37
¶¶ 79–85 (2022). Multiplicitous charges violate the Double Jeopardy Clause
because “there can only be one conviction if there is a single offense.”
Jurden, 239 Ariz. at 529 ¶ 11. To resolve a double jeopardy claim based on
multiplicity, we “must first determine whether the statutes in question
reflect separate offenses or alternative means of committing a single
offense.” State v. Kelly, 116 Ariz. Cases Dig. 14, 16 ¶ 9 (App. Feb. 22, 2024).
“Alternative means statutes identify a single crime and provide more than
one means of committing the crime.” State v. West, 238 Ariz. 482, 489 ¶ 19
(App. 2015). Our supreme court has previously determined that “Section
13-3623(A) is an alternative-means statute.” Allen, 253 Ariz. at 337 ¶ 82.
Relying on Allen, Landers argues he can only be convicted of a single
offense because A.R.S. § 13-3623 is an alternative-means statute.
Specifically, he contends the State only alleged the first means from the
statute—to suffer physical injury—and the rib fractures in Count 3 and
trauma to the body in Count 4 are merely two means by which the requisite
physical injury under A.R.S. § 13-3623(F) may be charged. Thus, he
maintains “[t]here was one harm to the victim—child abuse.”

¶8 But Landers’ argument conflates two distinct concepts: (1) the
various means under a statute by which conduct may qualify as a criminal
act under the same statutory definition—the “alternative means”—and (2)
the minimum unit of conduct by which a charge may be prosecuted—the
“unit of prosecution.” Though A.R.S. § 13-3623 is an alternative-means
statute, charges will not be multiplicitous when each charge is based upon
a separate corresponding criminal act. See Allen, 253 Ariz. at 337 ¶ 85. Thus,
we further examine the statutory definition of the pertinent crime to
determine the “allowable unit of prosecution or, in other words, the scope

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of the conduct for which a discrete charge can be brought.” State v.
Rodriguez, 251 Ariz. 90, 94 ¶ 7 (App. 2021) (citation omitted).

¶9 A person is guilty of child abuse if he or she

causes a child . . . to suffer physical injury or, having the care
or custody of a child . . . causes or permits the person or health
of the child . . . to be injured or . . . 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(B). Under the statute, physical injury “means the
impairment of physical condition and includes any skin bruising, pressure
sores, bleeding, failure to thrive, malnutrition, dehydration, burns, fracture
of any bone, subdural hematoma, soft tissue swelling, injury to any internal
organ or any physical condition that imperils health or welfare.” A.R.S. §
13-3623(F)(4).

¶10 In Allen, our supreme court determined that the unit of
prosecution under the A.R.S. 13-3623 is based on each act. 253 Ariz. at 337
¶ 85. Therefore, each separate act that causes at least one qualifying injury
constitutes child abuse and may be separately charged. Id. This remains true
where, as here, the evidence demonstrates the harms inflicted on the victim
resulted from separate and distinct mechanisms that indicate different acts
caused the separate injuries. Id.; see also Rodriguez, 251 Ariz. at 95 ¶ 11
(explaining each harm inflicted can be separately charged when multiple
harms are serially caused as a result of the course of a single event).

¶11 Here, the evidence establishes that M.K.’s rib fractures
associated with Count 3 were distinct harms from the other injuries to the
rest of her body that form the basis for Count 4. Regarding the rib fractures,
a pediatric radiologist testified these were “buckle fractures” that resulted
from “compression of the chest.” A forensic expert testified those fractures
were a result of trauma and M.K. had bruising inside of her body
surrounding the rib fractures which were most likely caused by the same
force.

¶12 As for the other injuries related to Count 4, the treating
emergency doctor observed M.K. had bruises on her face, head, abdomen,
back, right shoulder, and right arm. At trial, the forensic expert testified the
cause of M.K.’s death was “necrotizing fasciitis and sepsis due to multiple
blunt force injuries.” The expert also testified physical trauma was a
“significant factor” on M.K.’s bruises all around her body. A pediatric-
infectious-diseases doctor testified that M.K.’s injuries were more like

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bruises than signs of infection. Thus, the record supports a finding that
multiple, discreet mechanisms caused M.K. distinct injuries that implicate
different acts.

¶13 Moreover, the indictment expressly distinguished between
the injuries underlying Counts 3 and 4. And at trial, the jury was instructed
on the counts with the same distinguishing information. Further, the State
differentiated between each count’s underlying physical injuries in its
closing argument, explaining that “Count 3 specifically . . . is the rib
fractures,” and discussed Count 4 as the “injuries” to M.K.’s shoulder, back,
and arms.

¶14 Therefore, Landers’ convictions do not violate the Double
Jeopardy Clause because they are predicated upon two distinct offenses,
stemming from separate physical injuries, caused by separate criminal acts.

II. Landers’ Consecutive Sentences Do Not Constitute Double
Punishment.

¶15 Landers also argues A.R.S. § 13-116 prohibits his consecutive
sentences because Counts 3 and 4 are multiple offenses that constitute a
single act. Section 13-116 prohibits consecutive sentences for multiple
counts punishable under the different sections of the law. A.R.S. § 13-116.
Here, the statute is inapplicable because, as explained above, Landers
committed multiple violations of the same statute. See State v. McPherson, 228 Ariz. 557, 562 ¶ 12 (App. 2012) (finding § 13-116 inapplicable where
defendant committed multiple violations of the same law); State v. Henley, 141 Ariz. 465, 467 (1984) (“Because both counts are punishable under the
same sections of the law, consecutive sentences would not have constituted
double punishment in violation of our double punishment statute, A.R.S. §
13–116.”). Thus, the court did not err in imposing consecutive sentences.

CONCLUSION

¶16 We affirm.

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

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