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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUSTIN MILES ALLEE, Appellant.

No. 1 CA-CR 19-0223

Appeal from the Superior Court in Maricopa County

No. CR2015-102339-001

The Honorable Erin O’Brien Otis, Judge (Retired)

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jennifer L. Holder

Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix

By Andrew Charles Marcy

Counsel for Appellant

FILED 5-21-2020
STATE v. ALLEE

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.

C R U Z, Judge:

¶1 Justin Miles Allee (“Allee”) appeals his conviction and 

sentence for intentional child abuse against his minor child, Evangeline.1

For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Evangeline was born to D.C. and Allee on December 1, 2014.

During D.C.’s pregnancy, there were no health concerns. Evangeline was 

born soon after D.C. went into labor and before hospital staff was fully 

prepared for the delivery, causing her to be delivered while D.C. was lying 

on her side. Nevertheless, a nurse was able to deliver Evangeline, postdelivery testing showed that she was healthy, and she was discharged to go 

home the following day.

¶3 Four days after Evangeline’s birth, a pediatrician conducted 

the first wellness check, analyzing Evangeline’s weight, height, and head 

circumference, which were all normal. About a month later, Evangeline 

had her second wellness check. The pediatrician changed Evangeline’s 

formula because D.C. reported that Evangeline was colicky and spitting up, 

which is common among newborns. The pediatrician again reported that 

Evangeline’s measurements were normal, and she was otherwise healthy.

¶4 A few days after her second wellness check, Evangeline spit 

up blood. Allee asserted that Evangeline was okay and objected to seeking 

medical care for her. Over Allee’s objection, D.C. took Evangeline to the 

hospital. An ultrasound revealed Evangeline had inflammation in her 

stomach as a result of acid reflux. Evangeline was prescribed an antacid 

and received samples of soy-based formula on the basis that she might have 

a lactose intolerance. The hospital pediatrician also completed a physical 

1 For ease of reference, we use the same pseudonym used by the 

parties to identify the victim, pursuant to Arizona Rule of Criminal 

Procedure 31.10(f).
STATE v. ALLEE

Decision of the Court

3

examination of her and found nothing out of the ordinary. Following the 

hospital visit, Evangeline’s condition improved, and she did not spit up 

blood again.

¶5 On January 14, 2015, D.C. noticed that Allee was agitated. 

D.C. observed in the past that Allee would regularly get irritated with

Evangeline’s crying and put his headphones on. Knowing this, D.C. would

give Allee some “alone time” on occasion and did so on that day. In the

afternoon, D.C., Allee, and Evangeline visited with Allee’s family.

Evangeline was fed and took a nap. Eventually, D.C. had to go to work and

dropped Allee and Evangeline off at their home.

¶6 About two hours later, D.C. received a phone call from Allee.

Allee told D.C. that Evangeline was having a hard time breathing and said 

that Evangeline was holding and releasing her breath, as she had done in 

the past when she was upset. D.C. advised Allee that if he thought 

something was wrong, he should call 9-1-1.

¶7 Allee eventually called 9-1-1, and paramedics arrived within 

minutes. Allee told them that Evangeline was just working herself up and 

crying to the point of not breathing. The paramedics observed that Allee 

seemed disinterested in the situation and gave them plenty of space to 

examine Evangeline. At one point, Allee even walked away when a 

paramedic was trying to get Evangeline’s medical history. Allee’s behavior 

was later described as unusual for parents in such situations. Generally, 

parents offer too much information and hover over the paramedics, 

resulting in them getting in the way. When the paramedics examined 

Evangeline, they knew she needed urgent medical care because her heart 

and breathing rate were both abnormally low. Evangeline was 

administered oxygen and, along with Allee, was transported to the 

hospital.

¶8 At the hospital, the social worker talked to Allee in the trauma 

bay, where Evangeline was being treated. She observed that Allee was very 

calm and relaxed, playing games on his cell phone, and not paying much 

attention to what the doctors were doing. When the social worker 

approached Allee to offer support and find out what happened, Allee

became very defensive towards her. Allee eventually told her that 

Evangeline woke up screaming and was having difficulty breathing, and 

that when he picked her up, she suddenly went limp and unconscious.

¶9 The doctors eventually found that Evangeline had significant 

trauma to her head: old and new subdural bleeds, brain tissue destroyed by
STATE v. ALLEE

Decision of the Court

4

lack of blood flow, a torn frenulum, and retinal hemorrhages in each eye.

Evangeline, however, did not suffer any external injuries to her head, such 

as a fracture, bruise, or swelling. She also did not have any soft tissue 

swelling. Based on all of this information—including that Evangeline’s 

brain injuries were global and not localized in one area—the doctors 

concluded that Evangeline’s injuries were the result of rapid accelerationdeceleration, most likely from shaking. And because Evangeline acted and 

ate normally that day, the doctors opined that she had suffered the injury

sometime between her last feeding, which occurred moments before D.C. 

left for work, and Allee’s 9-1-1 call.

¶10 Officers from the Phoenix Police Department contacted Allee 

at the hospital. Allee initially stuck by what he told the social worker 

earlier, namely that he picked Evangeline up and she just went limp. 

Officers subsequently arrested Allee and transported him to the police 

station for a second interview. After police confronted Allee with the fact 

that Evangeline’s injuries were inconsistent with his version of events, Allee 

admitted that there had been an accident. He alleged that he accidently 

dropped Evangeline in the bathtub when he was trying to turn the faucet 

on to wet her feet to keep her awake so he could adjust her sleep cycle.

¶11 Based upon the injuries and doctor’s opinions that Evangeline 

had been rapidly shaken, the State charged Allee with intentional child 

abuse, a Class 2 felony and dangerous crime against a child.

¶12 Allee’s defense theory at trial was that Evangeline’s injuries 

were caused by him accidentally dropping her. Therefore, Allee asserted 

he could not be guilty of intentional child abuse. Allee’s two medical 

experts opined the injuries could have been caused as Allee described. One 

expert testified that the internal bleeding could have also been caused by 

pre-existing conditions related to Evangeline’s delivery while D.C. was

lying on her side. However, the experts also conceded the injuries could 

have been caused by rapid acceleration-deceleration movement. And the

defense experts acknowledged that no objective evidence corroborated

Allee’s version of events. Finally, Allee’s biomechanical-engineer expert 

also testified that Evangeline’s injuries could have occurred from Allee 

dropping her from a height of between thirty and thirty-one inches.

However, on cross-examination, he acknowledged that his experimental recreation of the fall did not take into account Allee’s inconsistent statements

made during the videotaped second interview with police. After viewing 

Allee’s interview and statements that Evangeline had fallen when he was 

standing back up after turning on the faucet, not as he was bending towards 
STATE v. ALLEE

Decision of the Court

5

it, this expert testified that information could have changed how he 

conducted the experiment that formed the basis of his expert opinion.

¶13 During the trial, the social worker testified she had observed 

D.C. had a bruised eye when Evangeline was brought to the hospital. Allee

moved for a mistrial, arguing the jury would infer Allee caused the bruised

eye. However, the social worker also testified that D.C. said the bruised eye

was caused by a can falling from a shelf while D.C. was at work. The court

denied the motion and struck the testimony on hearsay grounds.

¶14 Allee requested an instruction on the lesser-included offenses 

of reckless and criminally negligent child abuse. Finding that the evidence 

only supported a finding that Allee either intentionally shook Evangeline, 

or accidently dropped her, the court denied the request for lesser-included 

offense instructions. The jury convicted Allee of intentional child abuse.

Allee timely appealed, and we have jurisdiction pursuant to Arizona 

Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and 13-4033(A)(1).

DISCUSSSION

¶15 Allee challenges both the court’s denial of lesser-included 

offense instructions and the court’s denial of a mistrial based on the social 

worker’s unsolicited testimony regarding D.C.’s bruised eye. Because the 

decisions to give a jury instruction and grant a mistrial are both left to the 

sound discretion of the superior court, we review for an abuse of discretion.

State v. Wall, 212 Ariz. 1, 3, ¶ 12 (2006); State v. Welch, 236 Ariz. 308, 314, 

¶ 20 (App. 2014).

I. Lesser-Included Offense Instructions

¶16 Although Allee maintained the defense was “not arguing that 

he was careless or negligent or reckless,” but that the alleged drop was 

inadvertent, Allee argues the court erred when it declined to instruct the 

jury on reckless or criminally negligent child abuse, lesser-included 

offenses of intentional child abuse.

¶17 Evidence to support a lesser-included offense instruction 

must meet two conditions. Wall, 212 Ariz. at 4, ¶ 18. “The jury must be able 

to find (a) that the State failed to prove an element of the greater offense 

and (b) that the evidence is sufficient to support a conviction on the lesser 

offense.” Id. However, “[t]he law does not require or even permit” 

instructions on lesser-included offenses based on the possibility “that the 

jury might simply disbelieve the state’s evidence on one element of the 

crime.” State v. Schroeder, 95 Ariz. 255, 258 (1964). “Instead, the evidence 
STATE v. ALLEE

Decision of the Court

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must be such that a rational juror could conclude that the defendant 

committed only the lesser offense.” Wall, 212 Ariz. at 4, ¶ 18.

¶18 Recklessness is the conscious disregard of a substantial and 

unjustifiable risk; and negligence is the failure to perceive such a risk. See

A.R.S. § 13-105(10)(c)-(d). In this case, Allee asserted an “all-or-nothing” 

defense; he claimed that he accidently dropped Evangeline and otherwise 

implied that her injuries were part of a pre-existing condition due to the 

circumstances of her birth. “We recognize that a trial court is not 

automatically precluded from instructing on a lesser-included offense 

because a defendant elects to present an all-or-nothing defense.” State v. 

Bearup, 221 Ariz. 163, 169, ¶ 26 (2009). However, “[a]s a practical matter,

when a defendant asserts an all-or-nothing defense . . . there will ‘usually 

[be] little evidence on the record to support an instruction on the [lesserincluded] offenses.’” Wall, 212 Ariz. at 6, ¶ 29 (quoting State v. Caldera, 141 

Ariz. 634, 637 (1984)). The same is true in this case.

¶19 Allee argues the jury could have concluded he was reckless 

or criminally negligent when he allegedly held Evangeline over the 

bathtub, while wearing headphones and under the influence of prescription 

medicine, and without taking precautionary measures to protect her from 

a fall. Allee also asserts that the jury could have conceivably found that the 

State failed to prove he intentionally abused Evangeline.

¶20 Evidence was presented that Allee had his headphones on 

when he allegedly dropped her; however, the evidence also showed that 

the music made him patient and calm when he handled Evangeline. No 

evidence was presented that the headphones or music negatively interfered

with his ability to care for Evangeline in any way. In fact, Allee showed 

police that he was holding Evangeline with both hands when he allegedly 

dropped her. There was also no evidence presented that Allee took his 

medication that day, that he was under the influence, or that his medication

ever interfered with his ability to handle Evangeline.

¶21 Based on the extensive medical testimony, a rational juror 

could not conclude that Allee either recklessly or in a criminally negligent 

manner dropped Evangeline. And it is not enough to simply assert that a 

juror may disbelieve the State’s evidence on one element of the offense. See

Schroeder, 95 Ariz. at 258. The court did not abuse its discretion when it 

found the evidence did not support that Allee consciously disregarded or 

failed to perceive a substantial and unjustifiable risk.
STATE v. ALLEE

Decision of the Court

7

II. Unsolicited Witness Statement

¶22 During the investigation of Evangeline’s injuries, the social 

worker and police observed that D.C. had bruising around one eye. D.C. 

initially told the social worker that it was caused by a can falling from a 

shelf. Later, D.C. told police that Allee hit her. The prosecutor and Allee’s 

counsel agreed evidence related to the bruised eye would not come into 

trial. The prosecutor then admonished all of its witnesses to not discuss 

D.C.’s bruised eye.

¶23 At trial, the following transpired between the prosecutor and 

social worker:

Q. What was your first impression of mom?

A. She was obviously, you know, really concerned and didn’t

know what was going on, and we also noted she had a black

eye. So I just asked her, you know, are you okay? Did anyone

hurt you and she denied any of that. She said a can had fallen

on her face.

¶24 Allee’s counsel immediately asked to approach and, outside 

the hearing of the jury, moved for a mistrial. The court denied the motion, 

noting that the information was unsolicited and Allee was not implicated, 

causing no prejudice to him. In order to not bring unwanted attention to 

the issue and cure the problem, the court sustained a hearsay objection 

regarding the answer and admonished the witness to not discuss hearsay 

statements. The prosecutor then continued questioning the witness on 

another subject. D.C.’s bruised eye was not raised again during the 

nineteen-day trial and Allee’s counsel never requested a curative 

instruction.

¶25 Allee asserts that the superior court erred when it denied his 

motion for a mistrial because the jury could have inferred that Allee caused 

D.C.’s bruised eye, and therefore acted in conformity with such violent

tendencies when he abused Evangeline.

¶26 “A declaration of a mistrial is the most dramatic remedy for 

trial error and should be granted only when it appears that justice will be 

thwarted unless the jury is discharged and a new trial granted.” State v. 

Adamson, 136 Ariz. 250, 262 (1983). Therefore, the superior court “must 

evaluate the situation and decide if some remedy short of mistrial will cure 

the error.” Id. We also recognize the superior court is in the best position 

to determine whether a mistrial is warranted because it “is aware of the 
STATE v. ALLEE

Decision of the Court

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atmosphere of the trial, the circumstances surrounding the incident, the 

manner in which any objectionable statement was made, and the possible 

effect on the jury and the trial.” State v. Williams, 209 Ariz. 228, 239 ¶ 47 

(App. 2004).

¶27 The superior court must consider two factors when ruling on 

a motion for a mistrial based on a witness’ testimony: “(1) whether the 

testimony called to the jurors’ attention matters that they would not be 

justified in considering in reaching their verdict and (2) the probability 

under the circumstances of the case that the testimony influenced the 

jurors.” State v. Lamar, 205 Ariz. 431, 439, ¶ 40 (2003).

¶28 The prosecutor and Allee’s counsel agreed the evidence about 

D.C.’s bruised eye should not be solicited or admitted because the jury

could not consider whether Allee caused D.C.’s bruised eye. However,

nothing in the unsolicited statement reasonably implied that Allee caused

the bruised eye. See id. at ¶ 42 (finding no prejudice when defendant was

not implicated in statement); see also Ariz. R. Evid. 404(b) (other crimes,

wrongs, or acts not admissible to prove character and action in conformity).

Accordingly, the court did not err when it found the unsolicited testimony

did not prejudice Allee.

¶29 Even assuming arguendo that the testimony was 

inappropriate, we cannot say that it influenced the jurors. The unsolicited 

testimony came on the sixth day of a nineteen-day trial, which mostly 

consisted of dense and complex medical testimony. See, e.g., State v. Laird, 

186 Ariz. 203, 207 (1996) (noting improper testimony was a “brief and tiny 

part of extensive trial testimony”). Additionally, as stated above, Allee was 

not implicated. The court’s decision to sustain the objection on hearsay 

grounds to avoid unwanted attention was adequate. No curative 

instruction was requested or necessary, particularly in light of the court’s 

instructions that the jury must disregard any answer when an objection is 

sustained; “[w]e presume that the jurors followed the court’s instructions.” 

State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006).
STATE v. ALLEE

Decision of the Court

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CONCLUSION

¶30 For the foregoing reasons, we affirm Allee’s conviction and 

sentence.