September 15, 2008
THE STATE OF ARIZONA, APPELLEE,
v.
GUADALUPE YOLANDA GOMEZ, APPELLANT.
¶1 Following a jury trial, appellant Guadalupe Gomez was convicted of child abuse and placed on ten years' probation. On appeal, she argues there was insufficient evidence to support her conviction, the trial court erred in instructing the jury, and the offense of which she was convicted was not a lesser included offense of the crime with which she was charged. Because we find Gomez's conviction was not supported by sufficient evidence, we reverse her conviction and sentence without addressing her additional arguments. See State v. Walden, 126 Ariz. 333, 335, 615 P.2d 11, 13 (App. 1980) (appellate court need not consider issues rendered moot).
Factual and Procedural Background
¶2 Gomez served as the foster mother to D., a boy born prematurely in July 2005 to a mother who had taken cocaine during her pregnancy. When the state placed D. with Gomez, an experienced and licensed foster parent, D. was nearly four months old and appeared to be in relatively good health. A week later, on Saturday, November 12, 2005, Gomez delivered D. to a licensed residential daycare center. From there, an agent of Child Protective Services delivered him to a supervised visit with his biological parents. After D. returned from the visit, the daycare provider noted D. did not want to eat very much, and she expressed her concern to Gomez.
¶3 Later that weekend and into Monday morning, D. vomited, ate less, and slept more frequently. Gomez also observed D.'s eyes roll back in his head. On Monday, she scheduled an appointment with D.'s doctor at the earliest available time, which was Wednesday morning, and called a nurse at the children's crisis shelter where D. previously had stayed. The nurse suggested Gomez bring D. to the shelter's medical clinic or try to schedule an earlier appointment. Gomez did neither. At daycare on Monday, D. "was always asleep" and did not want to eat. On Wednesday, Gomez took D. to the doctor's office and calmly waited to be seen. She was visibly upset in the examination room when it was discovered that D. was not breathing and had no heartbeat.
¶4 Medical testimony showed that D. had died roughly an hour earlier from "cranial cerebral injuries due to blunt force trauma of the head." An autopsy showed D. had skull fractures above his ears and bleeding inside the skull. These injuries were "more than . . . two, three days old but less than a week." There were no external signs of trauma.
¶5 A grand jury charged Gomez with first-degree murder and two counts of child abuse: one for causing D.'s injuries, the other for endangering D. "by failing to seek prompt medical attention." The state moved to dismiss the murder charge at the beginning of the trial, and the court granted the motion. And, after the close of the state's evidence, the court granted Gomez's motion for judgment of acquittal on the child abuse charge alleging that she had caused D.'s injuries.*fn1 The jury then found Gomez guilty of reckless child abuse under A.R.S. § 13-3623(B)(2) for her failure to seek timely medical treatment. This appeal followed.
snip
¶12 We, like the jury in this case, are tempted to conclude that D. would have benefitted from more immediate medical attention and that such attention had the potential to save his life. And, we suspect the state would have had little difficulty eliciting expert testimony from at least one of its witnesses that Gomez's delay increased D.'s risk of harm.*fn5 We merely hold today, as we did in George, that the state must present such evidence. Because it failed to do so, Gomez's conviction was not supported by substantial evidence.
Conclusion
¶13 We therefore reverse Gomez's conviction for child abuse.
Appeal at link:
http://az.findacase.com/research/wfrmDocViewer.aspx/xq/fac.\AZ\2008\20080915_0000524.AZ.htm/qx
Note: So it appears that no one was held responsible for the death of this baby. It seems that any number of persons had the opportunity to injure the baby, yet the foster mother was immediately held responsible in lieu of an appropriate investigation. Maybe she did it, maybe she didn't. It's clear that we will never know.
