State of Arizona v. Penny Ann West
238 Ariz. 482
| Ariz. Ct. App. | 2015Background
- In 2005 sixteen-month-old Emily M., a foster child in Penny and Randall West’s home, died of severe head trauma; Penny was the only adult present when the injury occurred.
- A grand jury indicted both Penny and Randall under A.R.S. § 13-3623(A) (child abuse) alleging three alternative statutory means of committing the offense; Penny was ultimately convicted of criminally negligent child abuse.
- During trial the State presented multiple factual theories (e.g., Penny caused the injury, Randall caused it, delay in seeking care), and the court instructed jurors they need not unanimously agree on the particular manner of commission so long as each juror found at least one statutory means proven.
- Post-trial, the trial court initially granted Rule 20 judgments of acquittal as to both, but appellate proceedings led to reversal as to Penny and affirmance as to Randall; on remand the trial court denied Penny’s renewed motion for a new trial and sentenced her.
- Penny appealed, arguing: (1) lack of jury unanimity because the State advanced multiple factual theories; (2) erroneous denial of a unanimity jury instruction or State election; (3) verdict against the weight of the evidence; and (4) pervasive prosecutorial misconduct. The court affirmed.
Issues
| Issue | Plaintiff's Argument (Penny) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Jury unanimity under an alternative-means statute | Penny argued the State advanced multiple factual theories and substantial evidence did not support all, so jurors could have convicted on different unsupported theories, violating unanimity | §13-3623(A) is an alternative-means statute; unanimity required only as to the single offense, not the precise means; substantial evidence supports the means in the instructions | Court held §13-3623(A) is an alternative-means statute; substantial evidence supported each statutory means for the mental state convicted, so no unanimity error |
| Jury instruction / State election (Klokic) | Requested unanimity instruction or State election because multiple factual acts were introduced | Klokic’s curative measures apply to multiple-acts (not alternative-means) cases; here the statute supplies alternative means and the acts formed a single criminal transaction | Denial was proper: this was an alternative-means case (and, even if multiple-acts, the acts were part of a single transaction), so no election or unanimity instruction required |
| Verdict against the weight of the evidence | Verdict was against the weight of the evidence (new-trial ground) | Trial court discretion; issue was not properly preserved/argued below | Held waived for appellate review because Penny failed to press the ground below and did not argue fundamental error; in any event weight determinations rest with the trial court |
| Prosecutorial misconduct | Prosecutor engaged in pervasive misconduct (improper attacks on family, experts, hearsay violations, attacking defense counsel) depriving Penny of a fair trial | Any improper remarks were isolated, largely objected to, and harmless beyond a reasonable doubt; no pervasive course of misconduct | Court found either no misconduct or harmless errors; cumulative effect did not deny due process; motion for new trial on this ground properly denied |
Key Cases Cited
- State v. Forrester, 134 Ariz. 444 (App. 1982) (if statute describes a single offense committed in multiple ways, jury need not be unanimous as to the means if substantial evidence supports each)
- State v. Payne, 233 Ariz. 484 (2013) (mens rea subsections alter offense level but do not create separate unified offenses for alternative means analysis)
- State v. Klokic, 219 Ariz. 241 (App. 2008) (when the State introduces multiple distinct acts to prove a single charge, trial court generally must require election or give unanimity instruction unless acts form a single transaction)
- Schad v. Arizona, 501 U.S. 624 (1991) (jurors need not agree on preliminary factual issues; unanimity not required as to the manner of committing an offense)
- State v. Roque, 213 Ariz. 193 (2006) (prosecutorial misconduct reversible only if it so infected the trial as to deny due process; harmless-error standard applies)
- State v. Encinas, 132 Ariz. 493 (1982) (defendant entitled to unanimous verdict on whether charged criminal act occurred, not on precise manner)
- State v. Kitchen, 756 P.2d 105 (Wash. 1988) (distinguishes alternative-means from multiple-acts cases; curative measures required in multiple-acts cases)