IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

PENNY ANN WEST,

Appellant.

No. 2 CA-CR 2013-0562

Filed November 13, 2015

Appeal from the Superior Court in Pima County

No. CR20063310

The Honorable John S. Leonardo, Judge

The Honorable Javier Chon-Lopez, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By David A. Sullivan, Assistant Attorney General, Tucson

Counsel for Appellee

Law Offices of Thomas Jacobs, Tucson

By Thomas Jacobs

Counsel for Appellant
STATE v. WEST

Opinion of the Court

2

OPINION

Presiding Judge Vásquez authored the opinion of the Court, in 

which Judge Howard and Judge Kelly1 concurred.

V Á S Q U E Z, Presiding Judge:

¶1 After a jury trial, Penny West was convicted of 

criminally negligent child abuse under circumstances likely to 

produce death or serious physical injury. The trial court suspended 

the imposition of sentence and placed her on probation for a period 

of three years, ordering that she serve a six-month jail term as a 

condition of probation. Penny contends the court erred by denying 

her motion for a new trial on the following grounds: (1) the state 

presented four alternate theories of criminal liability that deprived 

her of a unanimous verdict; (2) the court erred in denying her 

request for a unanimous-verdict jury instruction; (3) the verdict was 

against the weight of the evidence; and (4) the prosecutor committed

misconduct during trial and closing argument. We affirm.

Factual and Procedural Background

¶2 The procedural history of this case is extensive. We 

view the underlying facts in the light most favorable to sustaining 

Penny’s conviction. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 

29, 32 (App. 2013). On August 24, 2005, sixteen-month-old Emily M.

died from severe head trauma. At the time, she was a foster child in 

the care of Penny and her husband Randall.2 We set forth only the 

relevant facts necessary to resolve this appeal.

 

1The Hon. Virginia C. Kelly, a retired judge of this court, is 

called back to active duty to serve on this case pursuant to orders of 

this court and our supreme court.

2Penny and Randall have three children—M., K., and C.—and 

were also caring for two other foster children—D. and K.M.—at the 

time. Emily and K.M. were sisters.
STATE v. WEST

Opinion of the Court

3

¶3 Penny was the only adult at home that morning when 

she claimed Emily fell over backward on the carpeted floor. Penny

took Emily to the bathroom, removed her clothing, and splashed 

water on her in an attempt to revive her. After Emily did not 

respond, Penny called Randall and then 9-1-1. That was the ninth 

telephone call exchanged between Penny and Randall in less than an 

hour.

3 Emily was unconscious when she was transported to the 

hospital. A neurosurgeon performed emergency brain surgery, but 

Emily died shortly thereafter. The county medical examiner 

concluded that Emily’s death was due to one or more “blunt impacts 

to the head with subdural hemorrhage.”

¶4 A grand jury indicted Penny and Randall for intentional 

or knowing child abuse likely to produce death or serious physical

injury in violation of A.R.S. § 13-3623(A). The amended indictment 

alleged that Penny and Randall,

having the care or custody of Emily . . . , 

committed child abuse by intentionally or 

knowingly causing physical injury to Emily 

. . . , or causing or permitting the person or 

health of Emily . . . to be injured, or causing 

or permitting Emily . . . to be placed in a 

situation where her health was 

endangered.

¶5 During trial, Penny and Randall filed a motion to 

compel the state “to elect one single act or ‘transaction’ on which it 

seeks to have the jury convict each Defendant.” Alternatively, they 

requested that the trial court give a jury instruction requiring 

unanimity as to the “same act or omission” constituting child abuse. 

In response, the state argued that § 13-3623(A) provides three ways 

 

3One call was made so Penny could settle a bet between 

Randall and M., but the content of the others was undisclosed. 

Evidence that the other calls had been placed was admitted at trial, 

but the court prohibited the state from speculating about their 

substance.
STATE v. WEST

Opinion of the Court

4

to commit child abuse, it did not have to elect one of those ways on 

which to proceed, and the court should instruct the jury that it did

not have to unanimously agree on the way the offense was 

committed so long as all the jurors found one of the ways proven. 

The court agreed with the state and denied the requests.

¶6 During closing argument, the state asserted that “all 

three ways of committing child abuse were done in this case.” The 

trial court instructed the jury: “[I]t is not necessary that all eight of 

you agree on the particular manner in which the crime was 

committed. However, it is necessary that each of you determine that 

the defendant committed child abuse in at least one of the three 

possible manners charged.” The jury found Penny guilty of 

criminally negligent child abuse under circumstances likely to 

produce death or serious injury and found Randall guilty of reckless 

child abuse under circumstances not likely to produce death or 

serious injury.

¶7 After trial, Penny and Randall separately filed motions

for judgments of acquittal, pursuant to Rule 20, Ariz. R. Crim. P., 

arguing there was insufficient evidence to support their convictions. 

They also filed a joint motion for a new trial. After hearing oral 

argument, the trial court granted their motions for judgments of 

acquittal, concluding that “a rational trier of fact could find beyond 

a reasonable doubt that [Emily’s] injury was caused by an act of 

child abuse” but there was insufficient evidence to show which of 

them had committed that act. The state appealed.

¶8 Reviewing the trial court’s Rule 20 determination for an 

abuse of discretion, this court reversed. State v. West, 224 Ariz. 575, 

¶¶ 8, 15, 233 P.3d 1154, 1156, 1158 (App. 2010) (West I). However, on 

review, our supreme court clarified that the “question of sufficiency 

of the evidence is one of law, subject to de novo review on appeal.” 

State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011) (West II). 

The court thus vacated our opinion and remanded the case to this 

court to address the merits of the state’s appeal. Id. ¶ 20.

¶9 On remand, we concluded there was sufficient evidence 

to support Penny’s conviction. State v. West, No. 2 CA-CR 2008-
STATE v. WEST

Opinion of the Court

5

0342, ¶ 14 (memorandum decision filed Mar. 5, 2012) (West III). We 

explained that the state needed to present substantial evidence 

“under any of [the] three alternate theories” of § 13-3623(A). Id.

¶ 13. Turning to the first means of violating § 13-3623(A), we 

explained that Penny “was the only adult in the house when Emily 

collapsed” and “virtually every doctor involved in Emily’s 

emergency care testified she would not have suffered her severe 

head injury from the standing-height fall Penny had described.” Id.

¶ 15. Citing testimony from the state’s experts, we pointed out that 

“Emily’s head injury had occurred ‘recently,’ ‘that morning . . . or 

maybe the evening before,’ and that she would have displayed 

symptoms immediately afterward.” Id. ¶ 17 (alteration in West III).

We also highlighted the inconsistencies in Penny’s account of the 

injury. Id. ¶ 16. We thus concluded that “there was ‘such proof that 

reasonable persons could accept as adequate and sufficient to 

support a conclusion [that Penny caused or permitted Emily’s 

injury,] beyond a reasonable doubt.’” Id. ¶ 19, quoting West II, 226 

Ariz. 559, ¶ 16, 250 P.3d at 1191 (alteration in West III). And, 

consequently, we did not address the other means of committing 

child abuse under § 13-3623(A). Id.

¶10 However, we did not reach the same conclusion as to 

Randall. Id. ¶ 20. We found the evidence “too speculative to 

constitute substantial evidence that Randall, either alone or in 

concert with Penny, injured Emily” under the first means in § 13-

3623(A). Id. Because the state conceded “there was insufficient 

evidence to support Randall’s conviction under the second means of 

violating” § 13-3623(A), we turned to the third. Id. ¶ 24. We 

declined to rely on the telephone calls between Penny and Randall 

as evidence that he had delayed in seeking medical care for Emily

because the content of those calls was not contained in the record. 

Id. ¶ 25. We also explained, “When the state alleges that a caretaker 

has endangered a child by failing to obtain prompt medical

treatment for the child’s injuries, the state must prove the delay 

increased the child’s risk of harm.” Id. ¶ 26. And because the state 

presented no such evidence, we concluded that “there was 

insufficient evidence to support Randall’s conviction under the third 

means of violating § 13-3623.” Id. Accordingly, we affirmed the trial 
STATE v. WEST

Opinion of the Court

6

court’s order granting Randall’s Rule 20 motion but reversed it as to 

Penny. Id. ¶ 27.

¶11 After our supreme court denied Penny’s petition for 

review, the case returned to the trial court, where Penny renewed 

and supplemented her motion for a new trial, which the court had 

originally declined to address after granting her motion for 

judgment of acquittal. After hearing oral argument, the court 

denied Penny’s motion and subsequently sentenced her as described 

above.4 This appeal followed. We have jurisdiction pursuant to 

A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Jury Unanimity

¶12 Penny contends the trial court erred by denying her 

motion for a new trial based on a lack of jury unanimity in reaching 

the verdict.

5 Specifically, she asserts the state argued alternate 

theories of criminal liability but substantial evidence did not support 

all the theories. Generally, we review the denial of a motion for a 

new trial for an abuse of discretion. State v. Hoskins, 199 Ariz. 127, 

¶ 52, 14 P.3d 997, 1012 (2000). However, we review questions of 

law, including constitutional issues, de novo. State v. Bolding, 227

Ariz. 82, ¶ 5, 253 P.3d 279, 282 (App. 2011).

 

4The trial court originally imposed a term of four years’ 

probation, including six months’ incarceration. Penny petitioned 

this court for special-action review, however, arguing that the court 

erred in requiring her to serve six months in jail “based on [her] 

failure to admit responsibility and express remorse.” We accepted 

jurisdiction and granted relief, vacating the sentencing order and 

directing the court to resentence Penny. West v. Chon-Lopez, No. 2 

CA-SA 2013-0089 (decision order filed Nov. 8, 2013).

5Although Penny argues the lack of jury unanimity “creat[ed] 

a due process violation,” she does not develop the argument in any 

meaningful way. We therefore do not address it. See Ariz. R. Crim. 

P. 31.13(c)(1)(vi); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 

(1995) (“Failure to argue a claim on appeal constitutes waiver of that 

claim.”).
STATE v. WEST

Opinion of the Court

7

¶13 A criminal defendant has the constitutional right to a 

unanimous jury verdict. Ariz. Const. art. II, § 23; see also State v. 

Payne, 233 Ariz. 484, ¶ 81, 314 P.3d 1239, 1263 (2013). The jury 

therefore must be unanimous “‘on whether the criminal act charged 

has been committed.’” State v. Herrera, 176 Ariz. 9, 16, 859 P.2d 119, 

126 (1993), quoting State v. Encinas, 132 Ariz. 493, 496-97, 647 P.2d 

624, 627-28 (1982). However, “‘the defendant is not entitled to a 

unanimous verdict on the precise manner in which the act was 

committed.’” Id., quoting Encinas, 132 Ariz. at 496-97, 647 P.2d at

627-28; see also State v. Dann, 220 Ariz. 351, ¶ 79, 207 P.3d 604, 620 

(2009) (“Jurors may . . . reach a verdict based on a combination of 

alternative findings.”).

¶14 A person commits child abuse when he or she,

[u]nder circumstances likely to produce 

death or serious physical injury, . . . 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.

§ 13-3623(A). “[T]he statute increases the offense level based on the 

actor’s intent: If the offense is ‘done intentionally or knowingly,’ it 

becomes a class 2 felony.” Payne, 233 Ariz. 484, ¶ 71, 314 P.3d at 

1261, quoting § 13-3623(A)(1). “It is a lesser offense if done 

negligently or recklessly.” Id.; see § 13-3623(A)(2), (3).

¶15 In State v. Forrester, 134 Ariz. 444, 447, 657 P.2d 432, 435 

(App. 1982), we explained, “If a statute describes a single offense 

which may be committed in more than one way, it is unnecessary 

for there to be unanimity as to the means by which the crime is 

committed provided there is substantial evidence to support each of 

the means charged.” There, the statute at issue was A.R.S. § 13-1802

governing theft. Id. at 446-47, 657 P.2d at 434-35. The defendant was 

indicted with theft by controlling the property of another with the 
STATE v. WEST

Opinion of the Court

8

intent to deprive the other of that property, see § 13-1802(A)(1), or 

converting property entrusted to him for an unauthorized term or 

use, see § 13-1802(A)(2). Forrester, 134 Ariz. at 447, 657 P.2d at 435. 

The trial court instructed the jury that it could find the defendant 

guilty by either means. Id. On appeal, the defendant argued the 

court “erred by failing to require the jury to specify under what 

theory it found him guilty.” Id. We rejected that argument after 

determining the theft statute described a single offense capable of 

being committed in various ways and did not require jury 

unanimity on the way it was committed. Id. at 447-48, 657 P.2d at 

435-36.

¶16 In her motion for a new trial, Penny relied on Forrester

and argued § 13-3623(A) is an “alternative means” statute requiring 

substantial evidence to support each of the means charged. She 

maintained, however,

substantial evidence was lacking to prove 

that [she] committed child abuse by either 

the second or third of the statutorilydescribed means, or both—that is, by 

“caus[ing] or permit[ting] the person or 

health of the person to be injured,” and/or 

by “caus[ing] or permit[ting] a child . . . to 

be placed in a situation where the person or 

health of the child . . . is endangered.”

In her supplemental brief on her motion, Penny relied on this court’s 

determination that substantial evidence did not support Randall’s 

conviction under the third means of the statute and maintained that 

the same reasoning applied to her. See West III, No. 2 CA-CR 2008-

0342, ¶ 26. At oral argument on her motion for a new trial, Penny

further asserted the state presented a “buffet of factual options” for 

the jury to choose from, suggesting that there needed to be 

substantial evidence for each of the state’s factual theories.

¶17 The trial court rejected Penny’s argument. It noted that 

it was bound by this court’s determination that substantial evidence 

supported Penny’s conviction under the first means of committing 
STATE v. WEST

Opinion of the Court

9

child abuse in § 13-3623(A)—that Penny had caused Emily’s injury. 

See West III, No. 2 CA-CR 2008-0342, ¶¶ 14, 19. And, it reasoned,

because substantial evidence existed to find 

[Penny] personally injured Emily in the 

morning while she was in [Penny’s] care, 

the jury also necessarily had substantial 

evidence before it to find that [Penny] 

caused or permitted Emily’s person or 

health to be injured and that [Penny] 

permitted Emily to be placed in a situation 

where her person or health was 

endangered.

The court also concluded that its analysis focused on the substantial 

evidence to support “each alternative means,” not the state’s factual 

theories.

¶18 On appeal, Penny repeats her argument but seems to 

focus on the state’s specific factual theories to prove the means 

charged rather than the statutory means charged. She contends “the 

state argued four alternate theories of criminal liability”: (1) “Penny

personally caused Emily’s head injury”; (2) “Randall personally 

caused Emily’s injury, but Penny culpably left Emily alone with 

him”; (3) “regardless of the genesis of Emily’s injury,” Penny

delayed calling 9-1-1 “in a joint criminal act with Randall . . . while 

the two exchanged phone calls”; or (4) “regardless of the genesis of 

Emily’s injury,” Penny personally delayed calling 9-1-1 “while she 

stripped and splashed Emily, and then called Randall.” And, she 

maintains “there was no substantial evidence to support three of the 

four theories.”

¶19 Penny and the state apparently agree that § 13-3623(A)

is an alternative-means statute. “Alternative means statutes identify 

a single crime and provide more than one means of committing the 

crime.” In re Det. of Halgren, 132 P.3d 714, 720 (Wash. 2006); see also 

State v. Brown, 284 P.3d 977, 985 (Kan. 2012). In Arizona, we use the 

term “single unified offense” to describe a crime proscribed by an 

alternative-means statute. State v. Garcia, 235 Ariz. 627, ¶ 8, 334 P.3d 
STATE v. WEST

Opinion of the Court

10

1286, 1289 (App. 2014). We agree that § 13-3623(A) is an alternativemeans statute and that child abuse under the statute is a single 

unified offense.

¶20 In determining whether a statute provides alternative 

means of committing the same offense, we must “ascertain and give 

effect to the intent of our legislature.” State v. Garcia, 219 Ariz. 104, 

¶ 6, 193 P.3d 798, 800 (App. 2008); see also State v. Manzanedo, 210 

Ariz. 292, ¶ 8, 110 P.3d 1026, 1028 (App. 2005). In conducting this 

analysis, we may consider: “(1) the title of the statute, (2) whether 

there was ‘a readily perceivable connection between the various 

acts’ listed in the statute, (3) whether those acts were ‘consistent with 

and not repugnant to each other,’ and (4) whether those acts might 

‘inhere in the same transaction.’” Manzanedo, 210 Ariz. 292, ¶ 8, 110 

P.3d at 1028, quoting State v. Dixon, 127 Ariz. 554, 561, 622 P.2d 501, 

508 (App. 1980). The plain language of a statute is the best and most 

reliable indicator of the legislature’s intent. State v. Christian, 202 

Ariz. 462, ¶ 5, 47 P.3d 666, 667-68 (App. 2002). “‘When a statute is 

clear and unambiguous, we apply its plain language and need not 

engage in any other means of statutory interpretation.’” State v. 

Gongora, 235 Ariz. 178, ¶ 5, 330 P.3d 368, 369 (App. 2014), quoting 

State v. Arellano, 213 Ariz. 474, ¶ 9, 143 P.3d 1015, 1018 (2006).

¶21 The language of § 13-3623(A) is clear and unambiguous. 

The title, child abuse, “summarizes the statute as dealing with a 

single offense.” Forrester, 134 Ariz. at 448, 657 P.2d at 436. Within 

the first paragraph, the statute plainly provides three ways—or 

means—of committing child abuse. They include: (1) causing a 

child to suffer a physical injury; (2) having the care or custody of a 

child, causing or permitting the person or health of the child to be 

injured; and (3) having the care or custody of a child, causing or 

permitting the child to be placed in a situation where the person or 

health of the child is endangered. § 13-3623(A). The three means are 

not repugnant to each other because proof of one “does not disprove 

the other.” Manzanedo, 210 Ariz. 292, ¶ 9, 110 P.3d at 1028. 

Moreover, § 13-3623(A) “focuses on a single harm to the victim,”

and the three means “merely provide different ways of causing that 

single harm.” State v. Paredes-Solano, 223 Ariz. 284, ¶ 14, 222 P.3d 

900, 906 (App. 2009); see also In re Jeremiah T., 212 Ariz. 30, ¶ 12, 126 
STATE v. WEST

Opinion of the Court

11

P.3d 177, 181 (App. 2006). The child-abuse statute is therefore 

similar to the theft statute addressed in Forrester. See Paredes-Solano, 

223 Ariz. 284, ¶ 14, 222 P.3d at 906 (theft statute focuses on single 

harm: “deprivation of control over one’s property”).

¶22 We recognize that, in addition to providing the three 

means of committing child abuse, § 13-3623(A) also contains three 

subsections that classify the offense based on the defendant’s mental 

state: intentional or knowing child abuse, reckless child abuse, and 

criminally negligent child abuse. See State v. Freeney, 223 Ariz. 110, 

¶ 16, 219 P.3d 1039, 1042 (2009) (if elements of one offense differ 

from those of another, they are distinct and separate crimes); Black’s 

Law Dictionary 634 (10th ed. 2014) (defining “elements of crime” as 

“constituent parts,” usually including mens rea); see also Brown, 284 

P.3d at 988 (in considering whether statute provides alternative 

means, court must ask if it lists “distinct, material elements of a 

crime—that is, the necessary mens rea, actus reas, and, in some 

statutes, a causation element”). But regardless of which mental state 

is implicated, child abuse is still one offense that can be committed 

the same three ways. Cf. State v. Valentini, 231 Ariz. 579, ¶ 9, 299 

P.3d 751, 754 (App. 2013) (“[S]econd-degree murder is one offense 

regardless of the culpable mental state with which it is committed.”). 

The mental states are separate from the means, and the subsections

merely “increase[] the offense level based on the actor’s intent.” 

Payne, 233 Ariz. 484, ¶ 71, 314 P.3d at 1261 (mens rea applies to act 

that defendant commits). We therefore conclude that § 13-3623(A) is 

an alternative-means statute, and child abuse is a single unified 

offense, the classification of which changes depending on the 

defendant’s mental state.

¶23 For the first time on appeal, Penny argues “there are 

fully eight different ways for a person to commit child abuse” under 

§ 13-3623(A). She separates the three means in the statute by 

distinguishing between active and passive conduct and mental and 

physical injury. She claims that “causing” is active while 

“permitting” is passive, and “person” refers to a physical injury 

while “health” connotes a mental harm. But we are aware of no case 

law supporting this approach. See Brown, 284 P.3d at 992 (“[I]t is 

unlikely that the legislature intended for options within a means to 
STATE v. WEST

Opinion of the Court

12

constitute alternative means . . . .”); cf. Payne, 233 Ariz. 484, ¶ 86, 314 

P.3d at 1263 (describing “causing or permitting” injury as “discrete 

method of committing child abuse under § 13-3623(A)”). We thus 

treat the statute as providing three alternative means, as the parties 

and the trial court did below, and as we did in our memorandum 

decision in the prior appeal. See West III, No. 2 CA-CR 2008-0342, 

¶¶ 13-14.

¶24 Having determined that child abuse under § 13-3623(A)

is a single offense that may be committed in three ways, we turn to 

Penny’s Forrester argument.6 As an initial matter, Forrester generally

requires substantial evidence supporting “each of the means 

charged,” not the state’s factual theories of the case, as Penny seems 

to suggest. 134 Ariz. at 447, 657 P.2d at 435; see also Dixon, 127 Ariz. 

at 561, 622 P.2d at 508. This is consistent with due process, which 

“requires that a defendant be given ‘notice of the specific charge’”

but not the state’s theory of the charge. State v. Rivera, 207 Ariz. 69, 

¶ 12, 83 P.3d 69, 73 (App. 2004), quoting State v. Blakley, 204 Ariz. 429, 

¶ 47, 65 P.3d 77, 87 (2003). However, with an alternative-means

statute like § 13-3623(A), where the offense level is based on the 

defendant’s mental state, and the jury is provided instructions on 

the lesser mental states, we must determine whether substantial 

evidence supports all three means involving the mental state for

which the defendant was convicted. See Brown, 284 P.3d at 983

(requiring substantial evidence to support means “set out in the jury 

instructions”); State v. Smith, 154 P.3d 873, 875 (Wash. 2007)

(requiring substantial evidence “of each of the relied-on alternative 

means”).

 

6At oral argument, the state asserted for the first time that 

Forrester may no longer apply in light of Griffin v. United States, 502 

U.S. 46, 47, 59-60 (1991), where the Supreme Court concluded that “a 

general guilty verdict on a multiple-object conspiracy [need not] be 

set aside if the evidence is inadequate to support conviction as to 

one of the objects.” However, the parties did not brief this issue. 

We therefore do not address it. See State v. Edmisten, 220 Ariz. 517, 

¶ 19, 207 P.3d 770, 776-77 (App. 2009) (“[A]rguments raised for the 

first time at oral argument are generally waived.”).
STATE v. WEST

Opinion of the Court

13

¶25 Here, the indictment essentially mirrored the language 

of § 13-3623(A)(1), alleging that Penny had committed child abuse 

by “intentionally or knowingly causing physical injury to Emily . . . ,

or causing or permitting the person or health of Emily . . . to be 

injured, or causing or permitting Emily . . . to be placed in a situation 

where her health was endangered.” Penny, however, was convicted 

of the lesser offense of criminally negligent child abuse under § 13-

3623(A)(3). Substantial evidence supports each of the three means of 

that offense.

¶26 Our memorandum decision in West III is now law of the 

case. See State v. Whelan, 208 Ariz. 168, ¶ 8, 91 P.3d 1011, 1014 (App. 

2004) (“‘Law of the case concerns the practice of refusing to reopen 

questions previously decided in the same case by the same court or a 

higher appellate court.’”), quoting Davis v. Davis, 195 Ariz. 158, ¶ 13, 

985 P.2d 643, 647 (App. 1999). We determined there was substantial 

evidence that Penny had caused Emily’s injury under the first means 

of committing child abuse under § 13-3623(A). West III, No. 2 CACR 2008-0342, ¶¶ 14, 19. And we also noted that Emily was in 

Penny’s care. Id. ¶¶ 15, 18. We agree with the trial court’s 

determination that these two findings compel the conclusion that 

substantial evidence supports the other two means under § 13-

3623(A). Because substantial evidence supports a finding that Penny

“cause[d Emily] to suffer physical injury,” there is also sufficient 

evidence that Penny “cause[d] or permit[ted] the person or health of 

[Emily] to be injured” and that Penny “cause[d] or permit[ted 

Emily] to be placed in a situation where [her] person or health . . .

[wa]s endangered.” 7 § 13-3623(A). Indeed, Penny admits that 

 

7At oral argument, Penny insisted that there was insufficient 

evidence to support the third means because the content of the 

telephone calls exchanged between Penny and Randall was 

unknown and the medical experts testified that the delay 

encompassed by those calls did not contribute to Emily’s injury. 

However, Penny is conflating the means charged and the state’s 

factual theories to prove those means. The issue is whether Penny

“cause[d] or permit[ted Emily] to be placed in a situation where 

[her] person or health . . . [wa]s endangered.” § 13-3623(A). 
STATE v. WEST

Opinion of the Court

14

causing a child to suffer physical injury under the first means “is 

equivalent” to causing the person of the child to be injured under 

the second.

¶27 Penny nevertheless argues that we must “disaggregate 

the different means of commission argued, and then once 

disaggregated, . . . decide if sufficient evidence was presented to 

prove each disaggregated, alternative means.” As we understand 

her argument, she seems to suggest we must be able to identify

distinct evidence that separately establishes each of the three means. 

But she does not appear to have raised this argument below, and she 

does not cite authority to support her argument on appeal; we 

therefore could deem the argument waived. See State v. Bolton, 182 

Ariz. 290, 297-98, 896 P.2d 830, 837-38 (1995) (argument not raised 

below generally waived for all but fundamental error on appeal; 

failure to sufficiently argue claim on appeal constitutes waiver). In 

any event, we disagree.

¶28 Because child abuse under § 13-3623(A) is a single 

unified offense, the same evidence can be used to prove all three 

means. Cf. State v. Sustaita, 119 Ariz. 583, 591, 583 P.2d 239, 247 

(1978) (“We have stated that ‘. . . [a]n offense which requires 

different evidence or elements than the principal charge is a separate 

offense . . . .’”), quoting State v. Woody, 108 Ariz. 284, 287, 496 P.2d 

584, 587 (1972) (first alteration in Sustaita). Indeed, the connection

between the means is a unique feature of alternative-means statutes. 

See Manzanedo, 210 Ariz. 292, ¶ 8, 110 P.3d at 1028 (considering 

“‘readily perceivable connection’” between means and whether 

means “‘inhere in the same transaction’”), quoting Dixon, 127 Ariz. at

561, 622 P.2d at 508. For example, in Forrester, we recognized that 

the jury could not find the elements of § 13-1802(A)(2) “without 

necessarily finding . . . the elements” of § 13-1802(A)(1). 134 Ariz. at 

448, 657 P.2d at 436.

 

Resolution of that issue is not solely dependent upon whether 

Penny’s delay in calling 9-1-1 caused further injury.
STATE v. WEST

Opinion of the Court

15

¶29 Our supreme court’s decision in Payne supports our 

conclusion. In that case, the defendant was charged with several

offenses, including two counts of child abuse—one for each of his 

children—alleging he had “caused or permitted [their] health to be 

endangered by failing to seek medical attention for them or allowing 

them to starve to death.” Payne, 233 Ariz. 484, ¶ 88, 314 P.3d at 1263. 

The defendant argued that the “counts were duplicitous because he 

could be found guilty based on two separate acts: failing to seek 

medical attention ‘and/or’ starving the children to death.” Id. The 

court disagreed, however, because “each count of the indictment 

charge[d] only one crime of child abuse, essentially by neglect.” 

Id. ¶ 90. It further reasoned that the counts were not duplicitous 

because the defendant “was not entitled to a unanimous verdict on 

the manner in which the act was performed.” Id. And, the court 

concluded that, even assuming error had occurred, the defendant 

was not prejudiced because no reasonable jury could have found 

him not guilty of child abuse based on his failure to seek medical 

care. Id.

¶30 Similarly, although Penny was entitled to a unanimous 

jury verdict on whether she committed child abuse, she was not 

entitled to a unanimous jury verdict “‘on the precise manner in 

which the act was committed.’” Herrera, 176 Ariz. at 16, 859 P.2d at 

126, quoting Encinas, 132 Ariz. at 496, 647 P.2d at 627. And, 

consistent with Forrester, substantial evidence supports Penny’s 

conviction based on all three means of § 13-3623(A). See Forrester, 

134 Ariz. at 447, 657 P.2d at 435. The trial court therefore did not err

by denying Penny’s motion for a new trial based on a lack of jury 

unanimity. See Hoskins, 199 Ariz. 127, ¶ 52, 14 P.3d at 1012; Bolding, 

227 Ariz. 82, ¶ 5, 253 P.3d at 282.

Jury Instructions

¶31 Penny also contends the trial court erred by denying her 

motion for a new trial based on State v. Klokic, 219 Ariz. 241, 196 P.3d 

844 (App. 2008). Relying on Klokic, she argues the court should have 

provided a unanimity instruction to the jury or, alternatively, 

required the state to elect one theory of criminal liability on which to 

proceed. Again, we review the denial of a motion for a new trial for 
STATE v. WEST

Opinion of the Court

16

an abuse of discretion, Hoskins, 199 Ariz. 127, ¶ 52, 14 P.3d at 1012,

but we review questions of law de novo, Bolding, 227 Ariz. 82, ¶ 5, 

253 P.3d at 282.

¶32 In Klokic, the defendant was convicted of one count of 

aggravated assault stemming from a road-rage incident. 219 Ariz. 

241, ¶¶ 1-2, 196 P.3d at 845. To prove that count, the state 

introduced evidence at trial that the defendant had pointed a gun at 

the victim on two separate occasions. Id. ¶ 6. The defendant asked 

the trial court to require the state “either to elect which particular act 

it was charging as the assault or to instruct the jurors that they must 

unanimously agree [on the] particular act that constituted the crime 

of assault.” Id. ¶ 7. The court, however, refused. Id.

¶33 On appeal, this court explained, “[I]f the State 

introduces evidence of multiple criminal acts to prove a single 

charge, the trial court is normally obliged to take one of two 

remedial measures to insure that the defendant receives a 

unanimous jury verdict”: (1) require the state to elect which of the 

alleged acts constitutes the crime or (2) instruct the jury that they 

must unanimously agree on the act that constitutes the crime. 

Id. ¶ 14. However, we also pointed out that “it is not error for the 

trial court to fail to require such curative measures in those instances 

in which all the separate acts that the State intends to introduce into 

evidence are part of a single criminal transaction.” Id. ¶ 15. We 

explained that “multiple acts may be considered part of the same 

criminal transaction ‘when the defendant offers essentially the same 

defense to each of the acts and there is no reasonable basis for the 

jury to distinguish between them.’” Id. ¶ 18, quoting People v. 

Stankewitz, 793 P.2d 23, 41 (Cal. 1990). Under the facts of that case, 

we concluded the separate acts were not part of the same criminal 

transaction and, consequently, the trial court erred in refusing to 

provide one of the curative measures. Id. ¶ 38.

¶34 In her motion for a new trial, Penny cited Klokic, 

asserting that the state had argued she committed child abuse by 

“any one o[f] several different acts.” She thus maintained the trial 

court should have taken one of the two curative measures outlined 
STATE v. WEST

Opinion of the Court

17

in Klokic but failed to do so. She further asserted that this case did 

not involve a single criminal transaction.

¶35 The trial court rejected Penny’s Klokic argument, finding 

that “the acts in this case [were a] single criminal transaction” and, 

consequently, “neither election nor a unanimity instruction was 

required.” The court reasoned that Penny and Randall had “offered 

one unified defense to the child abuse charge”—they “both asserted 

that they did not injure Emily while she was in their care, either the 

night before or the morning of Emily’s tragic injury.” Thus, 

according to the court, “the jury was left with only one issue: was 

[Penny] responsible for Emily’s injury as the State charged or was 

someone else responsible for her injury as [Penny] asserted.” Based 

on the verdict, the court concluded that the jury did not believe 

Penny’s defense. The court further noted that, “in child abuse cases 

in California, a unanimity instruction is not required where . . . the 

offense itself consists of a continuous course of conduct.” See People 

v. Diedrich, 643 P.2d 971, 980-81 (Cal. 1982). It then concluded, 

“Even if this case were not a single transaction case, it is without 

question a continuous course of conduct child abuse case and no 

unanimity instruction was required.”

¶36 Penny repeats her Klokic argument on appeal. In 

particular, she disputes the trial court’s conclusion that this was a 

single criminal transaction. She maintains the court failed to 

“substantiate” its conclusion that Penny presented one unified 

defense to the multiple acts because she had separate defenses to the 

state’s theories that she had delayed in calling 9-1-1. She also 

contends the court omitted any consideration of whether there was a 

reasonable basis for the jury to distinguish between the acts.

¶37 However, Klokic does not apply here. Klokic involved 

aggravated assault under A.R.S. § 13-1203(A), which is not a single 

unified offense or an alternative-means statute. 219 Ariz. 241, ¶¶ 1, 

22, 196 P.3d at 845, 849; see Jeremiah T., 212 Ariz. 30, ¶ 12, 126 P.3d at 

181 (describing three subsections of § 13-1203(A) as “different 

crimes”). Klokic addressed those situations where the state charges 

“as one count separate criminal acts that occurred during the course 

of a single criminal undertaking even if those acts might otherwise 
STATE v. WEST

Opinion of the Court

18

provide a basis for charging multiple criminal violations” and then 

“introduces evidence of multiple criminal acts to prove [that] single 

charge.” Klokic, 219 Ariz. 241, ¶ 14, 196 P.3d at 847. In other words, 

the curative measures in Klokic are required in cases involving 

multiple acts. See id. ¶ 15.

¶38 But multiple-acts cases are distinct from alternativemeans cases. As the Washington Supreme Court has explained:

In an alternative means case, where a 

single offense may be committed in more 

than one way, there must be jury 

unanimity as to guilt for the single crime 

charged. Unanimity is not required, 

however, as to the means by which the 

crime was committed so long as substantial 

evidence supports each alternative means. 

In reviewing an alternative means case, the 

court must determine whether a rational 

trier of fact could have found each means 

of committing the crime proved beyond a 

reasonable doubt.

In multiple acts cases, on the other 

hand, several acts are alleged and any one 

of them could constitute the crime charged. 

In these cases, the jury must be unanimous 

as to which act or incident constitutes the 

crime. To ensure jury unanimity in 

multiple acts cases, we require that either 

the state elect the particular criminal act 

upon which it will rely for conviction, or 

that the trial court instruct the jury that all 

of them must agree that the same 

underlying criminal act has been proved 

beyond a reasonable doubt.

State v. Kitchen, 756 P.2d 105, 109 (Wash. 1988) (citations omitted),

abrogated on other grounds by In re Stockwell, 316 P.3d 1007 (Wash. 
STATE v. WEST

Opinion of the Court

19

2014); see also State v. Timley, 875 P.2d 242, 246 (Kan. 1994), 

disapproved on other grounds by State v. Brooks, 317 P.3d 54 (Kan. 2014). 

Generally, a case will fall into one of the two categories. See State v. 

Hooker, 21 P.3d 964, 968 (Kan. 2001) (“Our analysis of the 

instructions and charges leads to the conclusion that this was an 

alternative means case, not a multiple acts case, and, thus, no 

unanimity instruction was required.”); State v. Gardner, 889 N.E.2d 

995, 1005 (Ohio 2008) (“[T]he critical inquiry is whether the case 

involves ‘alternative means’ or ‘multiple acts.’”); State v. Bobenhouse, 

214 P.3d 907, 911 (Wash. 2009) (“The review standard for whether 

the failure to provide a unanimity instruction was error hinges on 

whether we are dealing with an alternative means case or a multiple 

acts case.”) (emphasis omitted).

¶39 As explained above, this is an alternative-means case. 

Thus, Penny’s reliance on Klokic’s multiple-acts analysis is 

misplaced. Simply put, unanimity instructions were not required. 

See Hooker, 21 P.3d at 968; see also Schad v. Arizona, 501 U.S. 624, 631-

32 (1991) (“‘[D]ifferent jurors may be persuaded by different pieces 

of evidence, even when they agree upon the bottom line. Plainly,

there is no general requirement that the jury reach agreement on the 

preliminary factual issues which underlie the verdict.’”), quoting 

McKoy v. North Carolina, 494 U.S. 433, 449 (1990). In similar contexts,

we have concluded that instructions indicating the jury need not 

unanimously agree on the manner in which an offense was 

committed were proper. See State v. Cotten, 228 Ariz. 105, ¶ 5, 263 

P.3d 654, 657 (App. 2011); State v. Pena, 209 Ariz. 503, ¶¶ 11-12, 104 

P.3d 873, 876 (App. 2005).

¶40 Penny nevertheless appears to suggest that this case 

involves both alternative means and multiple acts based on the 

state’s various theories of criminal liability. The two concepts may 

overlap where the state charges the defendant with one offense 

under an alternative-means statute and then alleges multiple, 

distinct acts as to the separate means. See Payne, 233 Ariz. 484, 

¶¶ 85-86, 314 P.3d at 1263 (discussing Klokic under § 13-3623(A)). 

However, even assuming this were a multiple-acts case, “‘there is no 

reasonable basis’ for distinguishing” between the acts. Id., quoting 

Klokic, 219 Ariz. 241, ¶ 25, 196 P.3d at 849. Rather, we agree with the 
STATE v. WEST

Opinion of the Court

20

trial court that the multiple acts alleged by the state constitute a 

single criminal transaction. In turn, we explain our conclusions that

Penny offered “‘essentially the same defense to each of the acts’” 

and that there was no “‘reasonable basis for the jury to distinguish’” 

among the acts. Klokic, 219 Ariz. 241, ¶ 18, 196 P.3d at 848, quoting

Stankewitz, 793 P.2d at 41.

¶41 In considering whether Penny presented the same 

defense to the multiple acts alleged by the state, we find Klokic

instructive. There, the defendant presented two materially different 

defenses. The defendant “both denied drawing the handgun on 

either occasion and also, in the alternative, asserted different 

justifications for each time he drew the handgun.” Id. ¶ 37. We 

concluded that the jury possibly could have disagreed as to which of 

the acts gave rise to the defendant’s criminal liability, “a possibility 

raised by these different defenses,” and the defendant was, 

therefore, entitled to one of the curative measures. Id. ¶¶ 37-38.

¶42 Here, Penny’s defenses were inextricably intertwined. 

As the trial court noted, her defenses to the multiple acts can be 

distilled to a denial of liability or a claim of actual innocence. Penny 

maintained she did not injure Emily and offered other possibilities 

as to what ultimately caused her death. See State v. Schroeder, 167 

Ariz. 47, 53, 804 P.2d 776, 782 (App. 1990) (where defense was acts of 

fondling did not occur, jury left with weighing credibility of

defendant, and verdict implied jury rejected defense; thus, 

defendant not prejudiced by trial court’s failure to provide 

unanimity instruction or require election by state). Penny’s counsel 

argued in closing that “none of [the acts alleged by the state] 

happened” and that Penny “did everything [she] could to help 

[Emily].”

¶43 As for Penny’s assertion that she presented separate 

defenses concerning the state’s theories of delay, we disagree. 

Penny characterizes those separate defenses as follows: 

(1) “Randall’s failure to volunteer information about phone calls he 

traded with Penny . . . cannot circumstantially imply that either 

defendant delayed a 911 call,” (2) evidence that one of the calls was 

made to settle a bet shows that the calls were “of benign content,” 
STATE v. WEST

Opinion of the Court

21

and (3) “absent testimony, no content whatsoever could be imputed 

to any call, making speculative the State’s claim that Emily’s 

distressed condition was the subject of any call except the one made 

right before the 911 call.” But these “defenses” all are directed at 

showing that Penny did not delay in calling 9-1-1, which relates back 

to her overarching claim that she did not injure Emily.8 It is only 

how that injury occurred—by a physical act, delay, or otherwise—

that changed based on the state’s allegations. These defenses were 

not separate, alternative theories. See Klokic, 219 Ariz. 241, ¶ 19, 196 

P.3d at 848 (suggesting that defenses were same where “defendant 

did not offer different justifications that could have been separately 

believed or disbelieved”). Thus, Penny presented “essentially” the 

same defense to the multiple acts alleged by the state. Id. ¶ 18.

¶44 Turning to the next factor in the single criminaltransaction analysis, the defendant must demonstrate some 

reasonable basis for the jury to distinguish among the multiple acts 

alleged by the state. See id. ¶¶ 32-34, 36. On appeal, Penny contends 

that her role in the multiple acts alleged by the state provides a 

distinguishing feature: she either “personally caus[ed]” Emily’s 

injury, “passively permitt[ed]” Emily’s injury, or had “no 

knowledge . . . about what caused Emily’s distress.” But she did not 

present this argument below, perhaps explaining why the trial court 

did not explicitly address it in its ruling, as Penny complains. 

Indeed, the court identified the reasonable-basis factor in its ruling, 

suggesting that it did not entirely omit consideration of it. In any 

event, we decline to adopt Penny’s argument on appeal. Penny has 

pointed us to no authority, and we are aware of none, indicating that 

the nature of her conduct in relation to Emily’s injury is a sufficient 

distinguishing feature.

 

8In her opening brief, Penny admits she delayed calling 9-1-1 

to the extent she took Emily to the bathroom and splashed her with 

water. She offers this as a further example of how the defenses 

differed. But, for the reasons stated above, the overarching defense 

of innocence is still the same.
STATE v. WEST

Opinion of the Court

22

¶45 The multiple acts alleged by the state in this case “only 

caused a single result”—Emily’s death—and were part of a “single 

criminal undertaking.” Id. ¶ 28. Notably, the state had to allege the 

multiple acts in this case because it did not know the precise timing 

and nature of the injury leading to Emily’s death. In addition, the 

multiple acts “occurred over a relatively short period of time,” the 

evening before or morning of the incident. Schroeder, 167 Ariz. at 53, 

804 P.2d at 782. Thus, Penny failed to demonstrate a reasonable 

basis for distinguishing among the multiple acts.

¶46 In sum, because this is an alternative-means case, the 

trial court did not need to instruct the jury on unanimity or 

otherwise compel the state to elect the theory on which it wished to 

proceed. See Klokic, 219 Ariz. 241, ¶ 14, 196 P.3d at 847. Even if this 

were a multiple-acts case, no curative measures were necessary 

because the acts amounted to a single criminal transaction. See id. 

¶ 15. Thus, it was sufficient that, in returning a guilty verdict, the 

jurors unanimously agreed Penny committed child abuse; they were 

not required to unanimously agree on how the offense was 

committed. See Herrera, 176 Ariz. at 16, 859 P.2d at 126; Encinas, 132 

Ariz. at 496-97, 647 P.2d at 627-28. Consequently, the court did not 

err in denying Penny’s motion for a new trial on this basis. See

Hoskins, 199 Ariz. 127, ¶ 52, 14 P.3d at 1012; Bolding, 227 Ariz. 82, ¶ 5, 

253 P.3d at 282; see also State v. Perez, 141 Ariz. 459, 464, 687 P.2d 

1214, 1219 (1984) (“We are obliged to affirm the trial court’s ruling if 

the result was legally correct for any reason.”).

Weight of the Evidence

¶47 Penny also contends the trial court erred by denying her 

motion for a new trial because the verdict was against the weight of 

the evidence. Generally, we review a court’s decision on a motion 

for a new trial based on the weight of the evidence for an abuse of 

discretion. State v. Davis, 226 Ariz. 97, ¶ 5, 244 P.3d 101, 103 (App. 

2010). The state maintains, however, that this argument is waived 

because Penny did not raise the issue below and failed to argue on 

appeal that the error was fundamental. See State v. Moreno-Medrano, 

218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008).
STATE v. WEST

Opinion of the Court

23

¶48 In the introductory paragraph of her motion for a new 

trial, Penny listed the reasons requiring a new trial. Those reasons 

largely coincided with the language of Rule 24.1(c), Ariz. R. Crim. P., 

which provides the grounds upon which a new trial may be granted. 

The first reason listed in the motion was: “[T]he verdicts were 

contrary to law and the weight of the evidence.” See Ariz. R. 

Crim. P. 24.1(c)(1). However, the remainder of Penny’s motion did

not mention the weight of the evidence. And, in her supplemental 

brief on the motion, that ground likewise was not discussed. It also 

does not appear to have been raised at oral argument on the motion.

¶49 A passing reference to the verdict being contrary to the 

weight of the evidence is not sufficient to raise this argument below. 

Cf. State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008)

(general objection insufficient to preserve issue for appeal; objection 

on one ground does not preserve issue on another ground). Indeed, 

as Penny points out, the trial court did not address this ground in its 

ruling on the motion for a new trial, presumably because it did not 

realize it was an issue. And, because Penny does not argue that the 

alleged error is fundamental—and we can find none that can be so 

characterized—we agree with the state that the argument is waived. 

See Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140. We find 

waiver particularly appropriate here where the Rule 24.1(c)(1)

determination falls within the trial court’s purview and discretion. 

See State v. Clifton, 134 Ariz. 345, 348-49, 656 P.2d 634, 637-38 (App. 

1982).

Prosecutorial Misconduct

¶50 Last, Penny argues the trial court erred in denying her

motion for a new trial based on prosecutorial misconduct. She 

points to four incidents that she contends demonstrate a “pervasive 

and persistent course of misconduct[,] which deprived [her] of a fair 

trial.” She maintains the prosecutor: (1) attacked the credibility of 

the West family by claiming they conspired to lie; (2) attacked the 

credibility of defense expert witnesses; (3) violated Rule 803(18), 

Ariz. R. Evid., by referring to irrelevant and prejudicial evidence; 

and (4) attacked defense counsel by suggesting they attempted to 
STATE v. WEST

Opinion of the Court

24

mislead the medical examiner.9 We review the denial of a motion 

for a new trial based upon prosecutorial misconduct for an abuse of 

discretion. State v. Anaya, 170 Ariz. 436, 441, 825 P.2d 961, 966 (App. 

1991).

¶51 “To prevail on a claim of prosecutorial misconduct, a 

defendant must demonstrate that the prosecutor’s misconduct ‘so 

infected the trial with unfairness as to make the resulting conviction 

a denial of due process.’” State v. Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d 

1184, 1191 (1998), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 

(1974). “‘Reversal on the basis of prosecutorial misconduct requires 

that the conduct be so pronounced and persistent that it permeates 

the entire atmosphere of the trial.’” Id., quoting State v. Atwood, 171 

Ariz. 576, 611, 832 P.2d 593, 628 (1992), overruled on other grounds by 

State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001). However, 

prosecutorial misconduct is harmless if we are satisfied “beyond a 

reasonable doubt that it did not contribute to or affect the verdict.” 

State v. Roque, 213 Ariz. 193, ¶ 152, 141 P.3d 368, 403 (2006).

¶52 Even if an error is harmless and does not warrant 

reversal by itself, “an incident may nonetheless contribute to a 

finding of persistent and pervasive misconduct if the cumulative

effect of the incidents shows that the prosecutor intentionally 

engaged in improper conduct and ‘did so with indifference, if not a 

specific intent, to prejudice the defendant.’” Id. ¶ 155 (internal 

citation omitted), quoting Hughes, 193 Ariz. 72, ¶ 31, 969 P.2d at 1192. 

Thus, after reviewing each individual incident, we must identify 

those constituting misconduct and evaluate their cumulative effect 

on the trial. Id.

 

9 Penny also summarily claims the prosecutor committed 

misconduct by presenting “false evidence in rebuttal regarding 

scientific findings made by the defense pathologists.” However, she 

failed to develop this argument as required by Rule 31.13(c)(1)(vi), 

Ariz. R. Crim. P. It is therefore waived. See State v. Sanchez, 200 

Ariz. 163, ¶ 8, 24 P.3d 610, 613 (App. 2001).
STATE v. WEST

Opinion of the Court

25

¶53 In its ruling on Penny’s motion for a new trial, the trial 

court found “no prosecutorial misconduct occurred in any of these 

incidents alone or in combination.” The court noted that “the 

prosecution may have struck hard blows in this case,” but “it did not 

strike any foul ones in either its cross-examination of defense expert 

witnesses or in its summations to the jury.” And, quoting Pool v. 

Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984), the 

court further determined that, even if any of the incidents

constituted misconduct, it “was not ‘intentional conduct that the 

prosecutor knew was improper and prejudicial.’” We agree.

Attack on the West Family’s Credibility

¶54 Penny first contends the prosecutor “adopted a strategy 

to attempt to prove that Penny and Rand[all] . . . had coached their 

children to lie” by keeping K. and C. home from school on the 

morning of the incident so Randall could help them “fabricate a lie 

to cover up a crime.” She claims the prosecutor knew the girls had 

been at school that morning based on attendance and telephone 

records and statements from Randall and the girls. She thus 

maintains the prosecutor “chose a strategy of subterfuge to unfairly 

attack the credibility of the entire West family.”

¶55 Penny’s argument on this point, however, contains 

absolutely no citations to the record. 10 See Ariz. R. 

Crim. P. 31.13(c)(1)(vi). We therefore cannot confirm that the 

prosecutor knew Randall had taken K. and C. to school that

morning, as Penny alleges. She also fails to point us to the 

prosecutor’s alleged “subterfuge, innuendo and insinuation.” We 

 

10Penny’s attempt to incorporate by reference the arguments

she made below is improper. An opening brief may not incorporate 

by reference any issue or argument but, rather, must set forth 

specific claims, present sufficient argument supported by legal 

authority, and include citations to the record. See Ariz. R. 

Crim. P. 31.13(c)(1)(vi); State v. Dominguez, 236 Ariz. 226, ¶ 8, 338 

P.3d 966, 970 (App. 2014) (“[I]ncorporation by reference is 

forbidden.”).
STATE v. WEST

Opinion of the Court

26

thus have no conduct to review and deem the argument waived. See

Bolton, 182 Ariz. at 298, 896 P.2d at 838 (failure to sufficiently argue 

claim constitutes waiver and abandonment).

¶56 In her reply brief, Penny nevertheless directs us to the 

following portion of the prosecutor’s closing argument:

Now, on the same hand, when 

[defense counsel] suggested to you . . . how

. . . in control and what a caring, concerned, 

and whatever father [Randall] was, you 

heard [what counsel] said in his opening, in 

his closing statement, and you heard 

testimony not only at trial, but in the 

defendant’s own statements that school 

gets out at 1:15 on Wednesday. I would 

submit, why did he even take the girls to 

school at 11:00 that morning after such a 

traumatic morning? And by now, he 

clearly knows, because he’s been talking to 

Penny, that this is not a minor injury.

. . . . 

Rand[all] said—as far as whether he 

was concerned and caring about what had 

happened that morning, he admits in his 

own statement, when he got home, the 

paramedics are there, and that he didn’t 

ask them anything. He didn’t ask them 

what had happened. He didn’t ask them

how Emily was. He didn’t ask them 

anything. That’s his words in his statement 

to the detectives that day. He said he 

didn’t recall whether he asked the kids 

anything about what had happened. Folks, 

I would submit to you that that’s got to 

strike you as a little bit odd. His wife 

call[ed] him frantic, Emily has fallen, she 
STATE v. WEST

Opinion of the Court

27

won’t move, she’s not moving, I don’t 

know if she’s breathing, and she’s frantic 

and hysterical, and he has to rush home, 

and he doesn’t ask the paramedics how the 

child is. What happened? He doesn’t ask 

his children what happened this morning? 

He didn’t go to the hospital until after 4:00 

that day to be with his wife.

¶57 Even assuming Penny’s argument is not waived, see 

State v. Oakley, 180 Ariz. 34, 36 n.1, 881 P.2d 366, 368 n.1 (App. 1994)

(issue raised for first time in reply brief waived), we can discern no 

suggestion by the prosecutor that Randall kept the girls home from 

school to coach them to lie. Rather, the prosecutor was responding 

to defense counsel’s claim that Randall was a “concerned, caring 

father.”

¶58 Moreover, it is not readily apparent to us how Randall’s 

conduct affected Penny’s case. Penny cites nothing to suggest that 

the prosecutor argued she had encouraged or otherwise knew 

Randall had kept the girls home from school in order to “fabricate a 

lie.” We thus agree with the trial court that no prosecutorial 

misconduct occurred as to this incident.

Attack on Defense Expert Witnesses

¶59 Penny contends the prosecutor “unfair[ly] attack[ed]” 

three defense expert witnesses: Dr. Joseph Scheller, Dr. John 

Plunkett, and Dr. Ronald Uscinski. We address each in turn.

1. Dr. Scheller

¶60 As to Scheller, Penny maintains the prosecutor 

“insinuated a bias” by suggesting Scheller trained criminal defense 

attorneys. She points to the following question posed by the 

prosecutor during Scheller’s cross-examination: “When you’ve gone 

and done . . . defense bar training on how to defend child abuse 

cases, have you seen some of your colleagues?” But Penny has not 

directed us to where she objected to this particular question at trial 
STATE v. WEST

Opinion of the Court

28

or raised this instance of alleged misconduct in her motion for a new 

trial. And we cannot find any such challenge in the record. We 

therefore deem the issue waived. See State v. Milton, 85 Ariz. 69, 74,

331 P.2d 846, 849 (1958) (issue waived where not objected to at trial 

or set forth as ground for new trial); see also Moreno-Medrano, 218 

Ariz. 349, ¶¶ 16-17, 185 P.3d at 140 (argument forfeited for all but 

fundamental, prejudicial error if not raised below; argument then 

waived if fundamental error not argued on appeal).

2. Dr. Plunkett

¶61 As to Plunkett, Penny first contends the prosecutor 

created a “false impression” about the existence of more recent 

medical studies on determining the age of brain injuries while crossexamining him. Plunkett testified that Emily’s subdural hemorrhage

“pre-dated” August 17, reasoning that “[i]t takes seven to 10 to 14 

days to get fibroblast growth in the dura to the extent that” Emily 

had. During cross-examination, the following exchange occurred:

Q. Could [Emily’s membrane] be 

newer?

A. Pretty unlikely to be newer. It 

could be. But I wouldn’t go . . . below five 

or six days, at least from the published 

literature on the development of 

membranes.

Q. Now can you tell us what the 

published literature says about the 

development of membranes, does it go in 

stages as to how many fibroblasts you 

might expect to see?

A. Meritt and Munro wrote an 

article in ’36, ’37, ’38, on this topic, it was 

on adults but there is no reason to expect 

that kids are going to be any different. A 

fellow, I am blocking on his name right 
STATE v. WEST

Opinion of the Court

29

now, published an article in the Archives of 

Pathology in 1947 or 1948 in which he 

described the development of iron as his 

primary focus of the article, and the 

development of a membrane as a 

secondary focus of the article. And so he 

plugged this into the Meritt and Munro 

chart, and that’s about what you come up 

with.

. . . .

Q. Now, again, you have read the 

more recent literature? When you said ’38, 

you are talking 1938 when these studies 

came out. Have you read more recent 

literature about the development of 

fibroblasts?

A. There isn’t one. ’47 is the most 

recent one I’m aware of. Well, there are a 

whole number of articles in Japanese 

written by Japanese neuro-surgeons 

published in the Journal of Neuro-surgery 

in this country. . . .

Q. You are not aware though of 

any more recent literature that talks about

how rapidly fibroblasts will form and at 

what stages?

Penny asserts, “The clear insinuation from this line of questioning 

was that the prosecutor had recent research studies that undermined 

[Plunkett’s] testimony regarding the fibroblast membrane.” But she 

argues the prosecutor did not produce any such research and none 

exists.

¶62 We disagree that the prosecutor committed misconduct 

by suggesting more recent research existed. Plunkett was the first to 
STATE v. WEST

Opinion of the Court

30

bring up the “published literature,” and only at that point did the 

prosecutor ask what that literature consisted of. Based on Plunkett’s 

response, the prosecutor asked generally if more recent research 

existed. And, after Plunkett referred to more recent Japanese 

studies, the prosecutor attempted to clarify the issue. The questions 

were relevant to impeach Plunkett’s testimony about when Emily’s 

brain injury likely occurred. See State v. Burns, 237 Ariz. 1, ¶ 104, 344 

P.3d 303, 327 (2015).

¶63 Next, Penny contends the prosecutor “tried to 

mischaracterize the evidence in order to prejudice the jury” while 

questioning Plunkett about whether Emily’s injury had resulted 

from a “violent force.” Her argument is based on the following 

exchange:

Q. Your ultimate conclusion as to 

the cause of Emily’s death was that it was, I 

think you said you agreed with [the county 

medical examiner, Dr. Eric Peters,] and that 

it was due to blunt impact?

A. Correct.

Q. And did you agree with Dr. 

Peters’[s] assessment that it was a violent 

force?

A. No.

Q. So you didn’t agree with Dr. 

Peters?

A. I don’t recall Dr. Peters ever 

using the term violent force in his report of 

it. Let me take a look. He doesn’t use the 

term violent force. This child’s death is due 

to a non-natural and violent cause.

Violence is a generic term used to indicate 
STATE v. WEST

Opinion of the Court

31

anything other than natural disease. He 

does not use the term violent force.

Q. Unnatural and violent cause?

A. Correct.

Q. And you don’t believe that in 

any way connotates the level of force it 

would have had to take?

A. I certainly wouldn’t use that. 

The connotation was there was something 

other than a low velocity impact.

Q. Would you agree with me that 

violent cause does not equate to low 

velocity impact?

A. Violence, if you look it up in 

the dictionary, does not have a quantitative 

term. Any time you strike somebody in the 

arm, regardless of the force that is used, 

that’s an act of violence.

¶64 We disagree that the prosecutor mischaracterized the 

county medical examiner’s conclusion about Emily’s cause of death. 

Even assuming he did, we are satisfied beyond a reasonable doubt 

that the prosecutor’s actions did not contribute to or affect the 

verdict. See Roque, 213 Ariz. 193, ¶ 152, 141 P.3d at 403. As the state 

points out, “[t]he prosecutor was attempting to impeach . . . Plunkett 

by using language from the medical examiner’s report to undermine 

his conclusion [Emily] had not been the victim of a crime.” But, 

because Plunkett had the medical examiner’s report with him, he 

was able to cite directly from it and distinguish between the 

prosecutor’s use of “violent force” and the medical examiner’s use of 

“non-natural and violent cause.” Thus, Plunkett’s testimony 

clarified the medical examiner’s conclusion, and, if his testimony

had any effect on the verdict, it was in Penny’s favor.
STATE v. WEST

Opinion of the Court

32

3. Dr. Uscinski

¶65 Penny also argues the prosecutor “improperly injected a 

false claim” into the trial while cross-examining Uscinski “by using a 

hypothetical that had no basis in fact.” The prosecutor’s question 

was: “So if for example hypothetically speaking if the caretaker 

says, I lost my cool and I shook the child violently, and you see a 

child with retinal hemorrhages, because you don’t believe shaking 

can cause retinal hemorrhages you would not consider the 

admission the caretaker made to a paramedic about shaking the 

child.”

¶66 However, after the prosecutor posed the hypothetical, 

defense counsel objected and the trial court sustained the objection. 

The court also instructed the jury to disregard questions to which it 

had sustained objections. We assume the jury follows its 

instructions. See State v. Canion, 199 Ariz. 227, ¶ 43, 16 P.3d 788, 798 

(App. 2000). Thus, even if the hypothetical was improper, we are 

satisfied beyond a reasonable doubt that the prosecutor’s conduct 

did not contribute to or affect the verdict. See Roque, 213 Ariz. 193, 

¶ 152, 141 P.3d at 403.

Violation of Rule 803(18)

¶67 Penny next contends the prosecutor introduced hearsay 

evidence during the trial while questioning Scheller, Plunkett, and 

Dr. Patrick Barnes by reading from “articles that w[ere] not 

established as reliable.” She argues this conduct violated 

Rule 803(18), Ariz. R. Evid., and constituted misconduct.

¶68 Rule 803 provides exceptions to the hearsay rule. 

Subsection (18) explains that a “statement contained in a treatise, 

periodical, or pamphlet” is not excluded by the rule against hearsay 

if “the statement is called to the attention of an expert witness on 

cross-examination or relied on by the expert on direct examination”

and “the publication is established as a reliable authority by the 

expert’s admission or testimony, by another expert’s testimony, or 

by judicial notice.”
STATE v. WEST

Opinion of the Court

33

1. Dr. Scheller

¶69 As to Scheller, Penny appears to challenge the 

prosecutor’s citation to the American Pediatrics Journal, the Journal 

of Neurosurgery, the Journal of Trauma, and the Archives of 

Pediatric and Adolescent Medicine. But, before reading articles 

from each of those journals, the prosecutor asked Scheller if the 

journals were “reputable,” to which Scheller agreed. He also 

confirmed that the latter three were “peer-reviewed.” The 

prosecutor thus complied with Rule 803(18).

¶70 Penny nevertheless seems to suggest that, under 

Rule 803(18), the individual articles, rather than the journals as a 

whole, need to be verified as reliable. We disagree. Rule 803(18)

specifically provides that “the publication” must be “established as 

. . . reliable.” Establishing the publication—or, in this case, the

journal—in which the article is printed as reliable provides sufficient 

“guarantees of trustworthiness” to overcome any hearsay concerns. 

Rossell v. Volkswagen of Am., 147 Ariz. 160, 173, 709 P.2d 517, 530 

(1985).

2. Dr. Plunkett

¶71 As to Plunkett, Penny challenges the prosecutor’s 

reference to “a great deal of literature . . . in the Journal of Pediatrics, 

the Journal of Neurosurgery that says . . . the most common cause 

for retinal hemorrhages is non-accidental inflicted trauma.” But, 

before Plunkett responded, defense counsel objected and the trial 

court sustained the objection. As previously mentioned, the court 

instructed the jury to disregard such questions, and we assume the 

jury followed its instructions. We are therefore satisfied beyond a 

reasonable doubt that this incident did not contribute to or affect the 

verdict. See Roque, 213 Ariz. 193, ¶ 152, 141 P.3d at 403.

3. Dr. Barnes

¶72 Penny challenges the prosecutor’s questioning of Barnes

about a book chapter he had co-authored with Dr. Paul Kleinman. 

She points out that Barnes “specifically stated that the information in 
STATE v. WEST

Opinion of the Court

34

that text had been updated and . . . that the textbook was no longer 

reliable.” She thus suggests there was no verification of reliability as 

required by Rule 803(18). In response, the state argues that 

“Rule 803(18) was not implicated” because the prosecutor used the 

contents of the book chapter, which was inconsistent with Barnes’s

trial testimony, for impeachment purposes. It maintains the book 

chapter constituted a prior inconsistent statement, admissible under 

Rule 801(d)(1)(A), Ariz. R. Evid. We agree.

¶73 Rule 801(d)(1)(A) provides that a statement is not 

hearsay if “[t]he declarant testifies and is subject to crossexamination about a prior statement, and the statement . . . is 

inconsistent with the declarant’s testimony.” This is a “broad 

exception to the hearsay rule” because “[i]t is based upon a belief 

that a jury ordinarily should be permitted to consider a prior 

inconsistent statement in determining credibility.” State v. Carr, 154 

Ariz. 468, 471, 743 P.2d 1386, 1389 (1987); see also State v. Miller, 187 

Ariz. 254, 257, 928 P.2d 678, 681 (App. 1996).

¶74 Here, Barnes’s testimony and opinions in this case were

generally inconsistent with the cited portions of the book chapter he 

co-wrote. See State v. Hines, 130 Ariz. 68, 71, 633 P.2d 1384, 1387 

(1981) (inconsistency determined by “whole impression or effect of 

what has been said or done”; “absolute oppositeness” not required)

(citation omitted). Penny nevertheless argues that the contents of 

the book chapter do not qualify as prior inconsistent statements

because “[Barnes] agreed that the statement[s] w[ere] no longer 

true.” But this argument misses the point of the rule allowing prior 

inconsistent statements, which are typically used for impeachment

as to the witness’s credibility. See Carr, 154 Ariz. at 471, 743 P.2d at 

1389. The requirements under Rule 801(d)(1)(A) were met here.

¶75 In a related argument, Penny contends the prosecutor 

improperly questioned Barnes about the “unknown opinions” of 

Kleinman, who did not testify at trial. She maintains such 

questioning was “collateral, irrelevant and argumentative and . . . an 

unfair insinuation that . . . Barnes’[s] opinion was in conflict with 

that of . . . Kleinman.” But Penny has not supported her argument. 

See Ariz. R. Crim. P. 31.13(c)(1)(vi); Bolton, 182 Ariz. at 298, 896 P.2d 
STATE v. WEST

Opinion of the Court

35

at 838 (failure to argue claim constitutes waiver and abandonment). 

We therefore do not address it further.

¶76 Penny has not shown any violation of Rule 801 or 

Rule 803. Accordingly, she also has failed to meet the higher 

standard of showing that any error “‘infected the trial with 

unfairness as to make the resulting conviction a denial of due 

process.’” Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d at 1191, quoting 

Donnelly, 416 U.S. at 643.

Attack on Defense Counsel

¶77 Penny lastly contends the prosecutor unfairly attacked 

“the credibility of defense counsel.” According to Penny, the day 

before Emily’s death, during a scheduled visitation with her 

biological family, Emily fell and hit her head on a changing table, 

but a witness mistakenly reported that she had hit her head on a 

bookshelf. Penny claims she “had cleared the issue up prior to trial” 

but the prosecutor “improperly impugned defense counsel” while 

questioning Plunkett “by suggesting that defense counsel had 

misled the medical examiner regarding this prior incident.”

¶78 Penny, however, has failed to provide citations to the 

record showing that the prosecutor in fact knew Emily had hit her 

head on a changing table and not a bookshelf. Consequently, we 

cannot determine whether the prosecutor’s question to Plunkett was 

knowingly improper. We therefore deem the argument waived. See

Ariz. R. Crim. P. 31.13(c)(1)(vi); Bolton, 182 Ariz. at 298, 896 P.2d at

838.

¶79 But, even assuming the argument is not waived, we 

agree with the trial court that no prosecutorial misconduct occurred. 

Despite alleging that the prosecutor “persistently” brought this issue 

up, Penny directs us to only one portion of Plunkett’s crossexamination. The prosecutor showed Plunkett a letter defense 

counsel had written to him and asked whether he had relied on 

information contained in that letter in forming his opinions in this 

case. Penny takes issue with the following questions:
STATE v. WEST

Opinion of the Court

36

Q. . . . I will ask specifically as far 

as there was a description of some falls in 

this letter. And under number three of the 

letter, and let me ask you if you recall being 

. . . given information from the defense that

there was a fall the day prior where Emily 

struck her head on a wooden book shelf?

A. Well, that letter actually states 

that on the 24th, which was the day that 

Emily collapsed, so that’s wrong. . . .

Q. Correct. And assuming that is 

just a typographical error, that incident 

occurred on the 23rd, did you take into 

account whether Emily had fallen the day 

previous to her collapse and struck her 

head on a wooden book shelf?

¶80 Through this questioning, however, we can discern no 

attempt by the prosecutor to “impugn defense counsel.” Rather, we 

agree with the state that “[t]he obvious thrust of this questioning 

was to impeach . . . Plunkett about the basis of his expert opinion, 

i.e. whether he had considered incomplete or inaccurate information 

when rendering his expert opinion.” The emphasis of the questions 

was that Emily had fallen the day before—not what she had hit 

when she fell—and how that affected Plunkett’s opinion. This was a 

proper topic for impeachment. See Burns, 237 Ariz. 1, ¶ 104, 344 P.3d 

at 327.

Cumulative Effect

¶81 As to all the incidents above, we have either determined 

that no prosecutorial misconduct occurred or, assuming there was 

some misconduct, it was harmless. Turning to those incidents 

where we assumed some misconduct, we agree with the trial court 

that the prosecutor did not “intentionally engage[] in improper

conduct . . . ‘with indifference, if not a specific intent, to prejudice 

[Penny].’” Roque, 213 Ariz. 193, ¶ 155, 141 P.3d at 403, quoting 
STATE v. WEST

Opinion of the Court

37

Hughes, 193 Ariz. 72, ¶ 31, 969 P.2d at 1192. Thus, the cumulative 

effect was not “so pronounced and persistent that it permeate[d] the 

entire atmosphere of the trial.” Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d 

at 1191. And, based on the foregoing, we cannot say the court erred 

in denying Penny’s motion for a mistrial based on prosecutorial 

misconduct. See Anaya, 170 Ariz. at 441, 825 P.2d at 966.

Disposition

¶82 For the foregoing reasons, we affirm Penny’s conviction 

and sentence.