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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT THOMAS MCMORRIS, Appellant.

No. 1 CA-CR 17-0379 

Appeal from the Superior Court in Yuma County

No. S1400CR201301328

The Honorable David M. Haws, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Gracynthia Claw

Counsel for Appellee

Yuma County Public Defender’s Office, Yuma

By Cynthia Brubaker

Counsel for Appellant

FILED 5-17-2018
STATE v. MCMORRIS

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in 

which Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

H O W E, Judge:

¶1 Robert Thomas McMorris appeals his convictions and 

sentences for aggravated assault, a class 2 felony, and reckless child abuse, 

a class 3 felony. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to upholding the 

jury verdicts. State v. Miranda-Cabrera, 209 Ariz. 220, 221 ¶ 2 (App. 2004).

McMorris is the father of M.M. and L.M. McMorris and the children’s 

mother, N.E., split from each other in October 2013. The following month, 

4-month-old M.M. and 18-month-old L.M. spent the weekend with 

McMorris. This was the first solo weekend the children had with McMorris 

since the couple ended their relationship.

¶3 During the weekend, McMorris gave M.M. a bath. While 

taking M.M. out of the bathtub, McMorris became frustrated, squeezed and 

shook M.M., and then dropped M.M. on the bathroom floor. M.M. 

immediately became unresponsive and was “stiffening up and grunting.”

McMorris called N.E. and informed her that M.M. “was not responding” 

and together they took M.M. to Yuma Regional Medical Center. Because

M.M.’s injuries required more specialized care, M.M. was airlifted to 

Phoenix Children’s Hospital for emergency care. Phoenix Children’s 

Hospital staff were unable to control M.M.’s seizures and placed him in a 

week-long medical coma. M.M.’s test results showed mild swelling, 

damaged retinas causing partial blindness, and subdural hematomas 

spanning the occipital and posterior parietal lobes of his brain, which 

required the insertion of tubes into his head to drain the fluid.

¶4 A Yuma police detective interviewed McMorris at Phoenix 

Children’s Hospital. McMorris told the detective that while he was giving 

M.M. a bath, M.M. fainted, fell backward, and hit his head on the plastic 

bather McMorris was using in the bathtub. A couple weeks later, the 

detective asked McMorris to conduct a reenactment interview at 
STATE v. MCMORRIS

Decision of the Court

3

McMorris’s apartment to which McMorris agreed. McMorris explained 

what had occurred in roughly the same way he had explained two weeks 

prior. After the reenactment interview, the detective asked McMorris to 

come to the police station for an additional interview. McMorris followed 

the detective to the police station.

¶5 While at the police station, the detective told McMorris that 

he was not under arrest but nonetheless read McMorris his Miranda1 rights.

During the interview, the detective explained to McMorris that his story

was inconsistent with M.M.’s injuries as the doctors described them. Faced 

with this information, McMorris told the detective that M.M. had been 

crying and screaming while getting bathed and that he had pulled M.M. 

out of the bath to grab a towel and M.M. slipped out of his hands and fell.

The detective asked more questions and McMorris then admitted that he 

had squeezed, shaken, and dropped M.M. on the bathroom floor. When 

asked how hard he had shaken M.M., McMorris responded, “[h]ard 

enough.” McMorris then told the detective that if he could tell N.E. 

anything he would tell her that he “was frustrated.” McMorris was 

subsequently indicted on one count of intentional and knowing child abuse, 

and one count of aggravated assault causing serious physical injury to a 

person under 15 years of age, each charged as dangerous crimes against 

children under A.R.S. § 13–705.

¶6 During trial in June 2016, N.E. testified that M.M. was born 

without any complications and was healthy before this incident. She also 

testified that she had received a call from McMorris telling her that M.M. 

“was not responding” and that she and McMorris took M.M. to the hospital.

She further testified that for the first couple of days after the incident 

McMorris kept stating that he had no idea how M.M. had been hurt. Finally,

she testified that by the time of trial, M.M. (1) still needed physical,

occupational, and speech therapy; (2) was no longer seizing; (3) had started 

to make improvements in his vision; and (4) had started walking two 

months earlier. Two child abuse pediatricians who observed M.M. testified 

at trial. One testified that M.M.’s injuries were “much more severe and 

widespread” than she would have expected from falling backwards in a

plastic bather. She also testified that the injuries were “highly suspicious for 

inflicted injury, or abus[ive] head trauma.” The other pediatrician testified 

that his medical opinion was that M.M.’s injuries were not accidental and 

that the injuries were likely caused by shaking M.M.

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
STATE v. MCMORRIS

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¶7 Before releasing the jury for deliberations, the trial court read 

the final jury instructions, which included an instruction on the dangerous 

crimes against children statute. The instruction stated that if the jury found 

McMorris guilty of either crime, it must determine beyond a reasonable 

doubt whether the offense was a dangerous crime against a child, that is, if 

McMorris’s conduct “was focused on, directed against, aimed at, or 

targeted a victim” under 15. But the jury was not given any verdict form 

that allowed it to make that designation. After deliberations, the jury found 

McMorris guilty of aggravated assault causing serious physical injury and 

guilty of reckless child abuse, the lesser-included offense of the intentional 

and knowing child abuse charge. The jury also found that both convictions 

were domestic violence crimes and that M.M. was under age 15. But the 

jury did not expressly find that McMorris’s aggravated assault crime was a 

dangerous crime against a child. 

¶8 After a hearing on aggravating and mitigating circumstances, 

the trial court sentenced McMorris to a mitigated but enhanced sentence of 

ten years’ imprisonment for the aggravated assault conviction pursuant to 

the dangerous crimes against children statute. For the lesser-included 

offense of reckless child abuse, the court imposed a consecutive term of 36 

months’ probation. McMorris timely appealed.

DISCUSSION

1. Dangerous Crimes Against Children

¶9 McMorris argues that the trial court erred by sentencing him 

under A.R.S. § 13–705, the dangerous crimes against children statute,

because the jury did not find that his conviction was a dangerous crime 

against a child. McMorris failed to object below, however, and we therefore 

review only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567 

¶ 19 (2005). Whether the trial court correctly enhanced a sentence as a 

dangerous crime against children is a legal question we review de novo. See 

State v. Sepahi, 206 Ariz. 321, 321 ¶ 2 (2003). Because any reasonable jury

would have found that McMorris’s crime was a dangerous crime against a 

child, any error was harmless.

¶10 To prove that a defendant has committed a dangerous crime 

against a child, the State must show that the defendant committed one of 

the enumerated crimes in A.R.S. § 13–705 and that “his conduct was focused 

on, directed against, aimed at, or target[ed] a victim under the age of 

fifteen.” Sepahi, 206 Ariz. at 324 ¶ 19. McMorris does not dispute that the 

jury found him guilty of aggravated assault—one of the enumerated crimes 
STATE v. MCMORRIS

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in A.R.S. § 13–705(D). Nor does McMorris challenge that the jury expressly 

found that four-month-old M.M. was under the age of 15 at the time of the 

crime. He argues, however, that the jury did not find that his conduct “was 

focused on, directed against, aimed at, or targeted” M.M. and therefore he 

could not be subject to an enhanced sentence under A.R.S. § 13–705. 

¶11 The State concedes that the jury did not return a finding on 

the targeting factor but contends that the “error was harmless because 

overwhelming trial evidence satisfied the factor.” The State is correct. 

“Blakely[2] error . . . can be harmless if no reasonable jury, on the basis of the 

evidence before it, could have failed to find [the facts] . . . necessary to 

expose the defendant to the sentence imposed.” State v. Hampton, 213 Ariz. 

167, 183 ¶ 72 (2006). Here, the evidence at trial showed that M.M. was a 

healthy four-month-old before spending the weekend with McMorris. The

jury heard from the detective that McMorris admitted to being frustrated 

and squeezing, shaking, and dropping M.M. Further, the two pediatricians 

that saw M.M. testified that the injuries to M.M. did not seem accidental 

and that McMorris’s original story of events was improbable. As such, any 

reasonable jury would have found that McMorris’s conduct was focused on 

and directed against M.M.—a child. See Miranda-Cabrera, 209 Ariz. at 227 

¶ 30 (App. 2004) (finding harmless error where defendant argued that the

jury verdict did not satisfy the targeting requirement of the dangerous 

crimes against children sentencing enhancement).

¶12 McMorris counters that because the jury found him guilty of 

only reckless child abuse and not intentional or knowing child abuse, the 

jury “may not have believed that his conduct was ‘focused’ at all.” Even 

assuming that the jury found McMorris guilty of the aggravated assault 

charge because of reckless conduct instead of intentional or knowing 

conduct, this argument is without merit. A defendant’s reckless conduct 

can give rise to a dangerous crime against children sentence. See State v. 

Gurrola, 219 Ariz. 438, 440 ¶ 8 (App. 2008) (“The requirement that conduct 

be focused on a child does not mean . . . that a dangerous crime against 

children may not be committed by reckless conduct.”). Thus, no error 

occurred.

2. Alleged Double Jeopardy Violation

¶13 McMorris next argues that his convictions and consecutive 

sentences for aggravated assault and reckless child abuse violates double 

jeopardy “because it is impossible to commit aggravated assault on a child 

 

2 Blakely v. Washington, 542 U.S. 296 (2004).
STATE v. MCMORRIS

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without also committing child abuse.” We review de novo whether double 

jeopardy applies. State v. Cope, 241 Ariz. 323, 325 ¶ 8 (App. 2016). Because 

each crime requires at least one element that is not found in the other, 

McMorris’s convictions do not violate double jeopardy.

¶14 “The Double Jeopardy Clause prohibits the imposition of 

multiple punishments for the same offense.” State v. Eagle, 196 Ariz. 188, 

190 ¶ 6 (2000). “The applicable rule is that, where the same act or transaction 

constitutes a violation of two distinct statutory provisions, the test to be 

applied to determine whether there are two offenses or only one is whether 

each provision requires proof of an additional fact which the other does 

not.” State v. Anderson, 210 Ariz. 327, 399 ¶ 139 (2005). Accordingly, to 

analyze a double jeopardy claim, the court will look to the elements of the 

crimes for which a defendant was sentenced “to ensure that each crime 

contains an element not present in the other.” Id. 

¶15 McMorris was convicted and sentenced for class 2 felony 

aggravated assault and class 3 felony reckless child abuse. A defendant is 

guilty of class 2 felony aggravated assault if he or she (1) intentionally, 

knowingly, or recklessly (2) causes serious physical injury (3) to a victim 

under 15 years old. A.R.S. §§ 13–1203(A)(1), –1204(A)(1), (E). Child abuse 

under A.R.S. § 13–3623(A) is an alternative means statute that provides 

three ways of committing child abuse. State v. West, 238 Ariz. 482, 490 

¶¶ 21–22 (App. 2015). Reckless child abuse occurs when a person, “[u]nder 

circumstances likely to produce death or serious physical injury,”

(1) recklessly causes a child to suffer a physical injury; (2) having the care 

or custody of a child, recklessly causes or permits the child to be injured; or

(3) having the care or custody of a child, recklessly causes or permits the 

child to be placed in a situation where the child is endangered. A.R.S. § 13–

3623(A)(2).

¶16 In analyzing the two crimes to determine whether each crime 

has an element not present in the other, class 2 felony aggravated assault as 

charged here requires proof of two elements not contained in reckless child 

abuse—serious physical injury and a victim under 15 years old. Class 3 

felony reckless child abuse as charged here, on the other hand, requires 

proof that a child was injured or endangered while in the care and custody 

of the defendant, that a child suffer physical injury, and that the victim be 

under 18 years old. See A.R.S. § 13–3623(F)(2) (noting that under the child 

abuse statute, “child” means an individual under 18 years old). Because 

aggravated assault and reckless child abuse require at least one element that 

the other does not, McMorris’s convictions do not violate double jeopardy.
STATE v. MCMORRIS

Decision of the Court

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CONCLUSION

¶17 For the foregoing reasons, we affirm.