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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARIA LOPEZ, Appellant.

Nos. 1 CA-CR 22-0036 

1 CA-CR 22-0146

(Consolidated)

Appeal from the Superior Court in La Paz County

No. S1500CR201600044

The Honorable Matthew G. Newman, Judge, Retired

AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Eliza C. Ybarra

Counsel for Appellee

Carr Law Office, PLLC, Kingman

By Sandra Carr

Counsel for Appellant

FILED 5-9-2023
STATE v. LOPEZ

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in 

which Judge Jennifer B. Campbell and Judge David D. Weinzweig joined.

B A I L E Y, Judge:

¶1 Maria Lopez appeals her convictions and sentences for child 

abuse.

1 For the following reasons, we affirm the conviction for child abuse

committed recklessly, vacate the sentence for that conviction and remand 

for resentencing, and vacate the conviction and sentence for child abuse

committed with criminal negligence.

FACTS AND PROCEDURAL HISTORY

¶2 Aiden was born in October 2015.2 He suffered a broken 

clavicle and ruptured blood vessels in his eyes during delivery, but he

otherwise appeared healthy, and the delivery injuries resolved in due time. 

In his first four months, Aiden showed no developmental concerns, 

underlying medical conditions, or diseases, and no evidence of trauma.

¶3 When Aiden was three months old, his mother, Carmen, 

arranged for Lopez to babysit him two days a week. Lopez lived next door 

to Carmen’s mother. Lopez had only a sixth-grade education but years of 

experience taking care of children.

¶4 A few days after Aiden turned four months old, Carmen 

dropped him off at Lopez’s house at about 7:00 a.m. He appeared fine that 

morning and was sleeping when Carmen left him. At about 10:00 a.m., two 

women from a local church visited Lopez for ten to twenty minutes. Aiden 

was awake, alert, and seemed “normal” and “healthy” during the visit. He 

smiled, kicked his feet, looked around, and appeared “happy” when Lopez 

fed him some banana.

¶5 When Carmen arrived to pick up Aiden a little after 3:00 p.m., 

Lopez met her at the door and told her he “wasn’t doing good.” Lopez told 

1 Lopez also filed a notice appealing a restitution order, but she raises 

no claims about that order.

2 We use pseudonyms to protect the privacy of the victim and his 

mother.
STATE v. LOPEZ

Decision of the Court

3

Carmen she had tried to call her, but Carmen had no record of any missed 

calls from Lopez. Carmen went into the house and found Aiden already in 

his car seat—which was unusual. He was “pale,” a “pink fluid” was 

leaking from his nose, and he was having “trouble breathing.” Carmen 

rushed outside crying and screaming for her parents’ help. The family 

brought him to a local hospital, and technicians took some scans before 

having him airlifted to Phoenix Children’s Hospital that same day. Carmen 

called Lopez from the hospital to ask what happened, and Lopez told her

Aiden “was sleeping most of the day and he wasn’t eating.”

¶6 Aiden arrived at Phoenix Children’s Hospital with bilateral 

subdural hematomas—bleeding on both sides of the brain, in the space 

between the brain and the protective membrane lining the skull—and 

significant brain swelling as a result. When doctors operated to relieve the 

swelling, Aiden’s heart stopped. They revived him and later placed a drain 

in his skull to reduce the swelling.

¶7 A pediatric neuroradiologist and a pediatric ophthalmologist 

each saw Aiden about a week after he entered the hospital. The 

neuroradiologist observed that Aiden had “extensive” brain swelling and 

hemorrhaging that extended down into his spinal column. The 

neuroradiologist also saw evidence of injury to Aiden’s neck ligaments. 

The ophthalmologist found “thousands of hemorrhages throughout the 

back of both eyes,” with blood sitting “in front of the retina, on the retina, 

and underneath his retina.” Aiden was blind.

¶8 Police questioned Lopez. She told them that when Aiden 

woke up at about 9:00 a.m., he “was having difficulty breathing” and his 

“body went limp.” She said she tried to reach Carmen by calling her 

personal and work phone numbers, but there was no record she had made 

such calls. Lopez also said she looked next door to see if Carmen’s mother’s 

car was there but did not see it. Carmen’s mother later said she was home 

from work that day and did not leave the house for more than five minutes. 

When police asked Lopez why she did not bring Aiden to the hospital, she 

said nothing.

¶9 The State tried Lopez on one count of child abuse committed 

intentionally or knowingly. See Ariz. Rev. Stat. (“A.R.S.”) § 13-3623(A)(1). 

The neuroradiologist and ophthalmologist who examined Aiden testified

that his injuries likely arose from a single, significant trauma that caused 

his head to quickly accelerate and decelerate—as by being aggressively 

shaken or propelled into a stationary surface. A pediatrician who evaluated 

Aiden as part of the Child Protection Team at Phoenix Children’s Hospital
STATE v. LOPEZ

Decision of the Court

4

testified that because he had no reported history of trauma, the combination 

of neck ligament injury, retinal hemorrhaging, and subdural hematomas

were “suspicious for abusive head trauma” that could have been caused by 

an intentional whiplash motion. The pediatrician acknowledged that 

Aiden had no fractures and no external injuries or marks. But she said a 

child could receive internal injuries from an acceleration/deceleration 

event with no external injuries or bruising. At the time of trial, Aiden was 

six years old and unable to walk, see, or eat by mouth. He was permanently 

disabled and would require care for the rest of his life.

¶10 Lopez testified and denied abusing Aiden. She admitted she 

lied about calling Carmen and that she could have sought help for Aiden, 

but she insisted she did not realize how ill he was. She said he seemed “a 

little bit congested” when he woke at about 9:00 that morning and was “a 

little pale” and breathing “a little bit fast” after waking from another nap at 

noon but that she gave him some Tylenol and he seemed to improve after

she fed and changed him.

¶11 A neurologist testified as an expert for the defense that

Aiden’s injuries were likely caused by a chronic subdural hematoma that 

arose at an earlier date and began to rebleed. In support of that hypothesis, 

the expert pointed to the presence of “intermediate” and “older” blood seen 

in Aiden’s initial brain scans; he testified that subdural hematomas could 

easily rebleed and “enlarge suddenly and catastrophically” with little or no 

force; he disputed the neuroradiologist’s conclusion that Aiden suffered 

injury to his neck ligaments; and he opined that abnormalities seen in 

Aiden’s neck region, as well as the retinal hemorrhages, resulted from 

pressure caused by the rebleed and subsequent medical interventions. The 

expert also disputed that shaking alone, or impact with a soft surface, could 

cause bilateral subdural bleeding, and he contended that the amount of 

force needed to cause such bleeding would have caused other injuries and 

external marks that were not present.

¶12 State medical witnesses acknowledged that Aiden’s scans 

showed blood at different “stages of healing or stages of bleeding” that 

could “be indicative of repeated trauma,” but they also testified that it was 

hard to determine the precise age of subdural blood. Apart from Aiden’s 

minor injuries at birth, the defense offered no evidence to explain how or 

when Aiden might have suffered earlier subdural hematomas. Aiden’s

pediatrician testified that he had never seen a baby develop a subdural 

hematoma from a normal delivery, it would take “a significant force” to 

cause such bleeding, and a baby with a subdural hematoma would present 

as irritable and not eating well.
STATE v. LOPEZ

Decision of the Court

5

¶13 The jury found Lopez not guilty of child abuse committed 

intentionally or knowingly but guilty of child abuse committed recklessly 

and with criminal negligence. The superior court sentenced her to 

concurrent prison terms of five and three years. We have jurisdiction over 

Lopez’s timely appeal under Article 6, Section 9, of the Arizona 

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

DISCUSSION

I. Sufficiency of the Evidence

¶14 Lopez contends the evidence was insufficient to support her 

convictions. We review a claim of insufficient evidence de novo, viewing 

all facts and resolving all evidentiary conflicts in favor of the jury’s verdict. 

State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014). Our review is confined to 

determining whether substantial evidence supports the verdict. Id. 

“Substantial evidence is more than a mere scintilla and is such proof that 

reasonable persons could accept as adequate and sufficient to support a 

conclusion of defendant’s guilt beyond a reasonable doubt.” State v. Ellison, 

213 Ariz. 116, 134, ¶ 65 (2006) (citation omitted). We do not reweigh the 

evidence to determine whether we would reach the same conclusions as the 

trier of fact. State v. Barger, 167 Ariz. 563, 568 (App. 1990).

¶15 Lopez was convicted of violating A.R.S. § 13-3623(A). One 

commits child abuse under § 13-3623(A) if “[u]nder circumstances likely to 

produce death or serious physical injury, [the] person [] 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.”

¶16 Thus, § 13-3623(A) contemplates three ways to commit child 

abuse: (1) causing a child to suffer physical injury, (2) causing or permitting 

a child’s person or health to be injured while in the defendant’s care or 

custody, or (3) causing or permitting a child’s person or health to be 

endangered while in the defendant’s care or custody. State v. West, 238 Ariz. 

482, 490, ¶ 21 (App. 2015). The penalties for child abuse vary, depending

on whether the defendant acted intentionally or knowingly, recklessly, or 

with criminal negligence. See A.R.S. § 13-3623(A)(1)–(3); State v. Payne, 233 

Ariz. 484, 506, ¶ 71 (2013).

¶17 Lopez was found guilty of child abuse committed both 

recklessly and with criminal negligence. A defendant commits child abuse 

“recklessly” by being “aware of and consciously disregard[ing] a 
STATE v. LOPEZ

Decision of the Court

6

substantial and unjustifiable risk” that the defendant’s conduct will cause 

or permit the child to be injured or endangered. A.R.S. § 13-105(10)(c). The 

risk must be such that disregarding it “constitutes a gross deviation from 

the standard of conduct that a reasonable person would observe in the 

situation.” Id. A jury finding of recklessness necessarily establishes a 

finding of criminal negligence. See A.R.S. § 13-202(C) (“If a statute provides 

that criminal negligence suffices to establish an element of an offense, that 

element also is established if a person acts intentionally, knowingly or 

recklessly.”).

¶18 Substantial evidence supports the verdicts. Reasonable 

persons could accept a jury determination that Lopez caused Aiden “to 

suffer physical injury” under A.R.S. § 13-3623(A) based on evidence that (1)

he was in her care when the injuries manifested; (2) multiple doctors 

testified that his injuries were likely caused by someone recently inflicting 

an acceleration/deceleration of his head, as through a violent shaking; (3) 

shaking injuries would not necessarily leave external marks; (4) there was 

no indication he was injured by accident; (5) there were no reports of him 

suffering from a previous trauma, underlying disease, or disorder; and (6) 

Lopez made false and inconsistent statements that undermined the 

accuracy of her account. See West, 238 Ariz. at 487, ¶ 9 (finding substantial

evidence the defendant caused the victim’s injury where the defendant was 

the only adult present when the injury occurred, the defendant’s accident 

defense was refuted by “virtually every doctor involved in [the victim’s] 

emergency care,” and there were inconsistencies in the defendant’s 

account); Payne, 233 Ariz. at 507, ¶ 77 (finding substantial evidence the 

defendant caused the victim’s injuries based on testimony that the injuries

likely occurred while in the defendant’s care); see also State v. Fulminante, 

193 Ariz. 485, 494, ¶ 27 (1999) (observing that the defendant’s false and 

inconsistent statements showed consciousness of guilt).

¶19 Lopez contends that the conclusions of the State’s medical 

witnesses should be disregarded because those witnesses did not consider 

evidence that Aiden’s condition was caused by a rebleed of a preexisting 

subdural hematoma. She points to the evidence of older blood seen in 

Aiden’s initial brain scans, his lack of external injuries, and her expert’s 

testimony that the injuries described by the ophthalmologist and 

neuroradiologist could have been caused by a rebleed and medical 

interventions.

¶20 Lopez’s contentions do not establish a lack of substantial 

evidence. All she shows are conflicts in the evidence—which we resolve in 

favor of the verdict. The existence of a preexisting subdural hematoma was 
STATE v. LOPEZ

Decision of the Court

7

not a settled fact given evidence that it is hard to determine the age of 

subdural blood and given the lack of evidence Aiden suffered an earlier 

trauma. Furthermore, Lopez’s expert acknowledged his “rebleed” theory 

was not universally accepted and that he had been censured for giving 

biased testimony about rebleeds in six prior child abuse cases. In the end, 

no direct evidence explained precisely how Aiden was injured, and jurors 

could reasonably accept the State’s theory.

¶21 Even were we to assume the evidence supported Lopez’s 

rebleed theory and was therefore insufficient to show she physically caused 

Aiden’s injury, substantial evidence still supports her convictions. 

Substantial evidence supports that Lopez “permit[ted] [Aiden’s] person or 

health . . . to be injured” and “permit[ted] [him] to be placed in a situation 

where [his] person or health . . . [was] endangered,” A.R.S. § 13-3623(A), by 

failing to seek care for him. In the five-hour period between when the 

women from the church left Lopez’s house and Carmen arrived to pick up 

Aiden, he went from appearing to be a normal, healthy baby to suffering 

from a catastrophic brain injury that left him pale, limp, and struggling to 

breathe. According to Carmen’s mother, he looked “like he had already 

passed” when the family brought him to the hospital that afternoon. 

Lopez’s statements on the day of the incident and her testimony at trial 

show she was aware of his deterioration and considered seeking help for 

him. Her own expert testified that Aiden’s condition declined gradually, 

as the bleeding caused swelling, which caused oxygen deprivation. Jurors 

could reasonably conclude that Lopez was aware Aiden needed medical 

assistance and that his prognosis would have been better had she sought 

help sooner. See Payne, 233 Ariz. at 507, ¶ 77 (finding substantial evidence 

the defendant permitted the victim to be injured where he made statements 

conveying that he knew the victim needed medical care but did not seek it).

¶22 Substantial evidence also supports the jury’s findings that 

Lopez acted recklessly, A.R.S. § 13-105(10)(c), and “[u]nder circumstances 

likely to produce death or serious physical injury,” A.R.S. § 13-3623(A). 

Jurors could consider Lopez’s knowledge that Aiden was unwell, together

with the catastrophic brain damage apparent after he left her care, in 

determining that she “consciously disregard[ed] a substantial and 

unjustifiable risk,” A.R.S. § 13-105(10)(c), that her actions or omissions 

would harm him “[u]nder circumstances likely to produce death or serious 

physical injury,” A.R.S. § 13-3623(A). See State v. Allen, 253 Ariz. 306, 312, 

¶ 78 (2022) (reasoning that jurors may consider the defendant’s knowledge 

that the victim was in a dangerous situation and the severity of the victim’s 

resulting injuries in determining the defendant’s guilt of child abuse); State 

v. Martinson, 241 Ariz. 93, 102, ¶ 41 (App. 2016) (reasoning that jurors may 
STATE v. LOPEZ

Decision of the Court

8

consider severity of the victim’s injuries “to conclude the abuse occurred 

under circumstances likely to produce death or serious physical injury”).

II. Juror Unanimity

¶23 Criminal convictions require unanimous verdicts. Ariz. 

Const. art. 2, § 23; Payne, 233 Ariz. at 508, ¶ 81. Lopez argues she was 

deprived of a unanimous verdict because A.R.S. § 13-3623(A) provides 

multiple ways to commit child abuse and the court refused to instruct jurors 

they could only find her guilty if they agreed on how she abused Aiden.

We review the denial of a requested jury instruction for an abuse of 

discretion, but we consider de novo questions of statutory interpretation 

and whether the court’s instructions correctly reflect the law. State v. Cox, 

217 Ariz. 353, 356, ¶ 15 (2007); Allen, 253 Ariz. at 312, ¶ 79.

¶24 The indictment against Lopez mirrored the language of § 13-

3623(A). The State alleged that “under circumstances likely to produce 

death or serious physical injury, [Lopez] intentionally or knowingly caused 

[Aiden], a child under fifteen years of age, to suffer physical injury, or 

having the care or custody of the child caused or permitted the person or 

health of the child to be injured or caused or permitted the child to be placed 

in a situation where the person or health of the child was endangered.”

¶25 “If an indictment is facially valid, but the [S]tate introduces 

evidence of several acts, each of which might satisfy the charge, the risk of 

a non-unanimous verdict is presented.” Payne, 233 Ariz. at 508, ¶ 81

(citation omitted). “However, jurors may find a defendant guilty based 

upon a combination of alternative findings if only one charge is alleged.” 

Allen, 253 Ariz. at 313, ¶ 81 (citations omitted).

¶26 It is well-settled that § 13-3623(A) is an alternative-means 

statute—which means it provides more than one way to commit the single 

unified offense of child abuse. Id. at ¶ 82; accord West, 238 Ariz. at 489–90, 

¶¶ 19–22. When a defendant is charged with violating an alternativemeans statute, “[j]uror unanimity as to the theory under which [the] 

defendant committed [the] crime is not required.” Allen, 253 Ariz. at 313, 

¶ 83 (citation omitted). The superior court may instruct jurors on any of the 

alternative means charged and reasonably supported by the evidence. See 

West, 238 Ariz. at 488, ¶ 15 (“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.” (quoting 

State v. Forrester, 134 Ariz. 444, 447 (App. 1982))); see also State v. Cotten, 228 
STATE v. LOPEZ

Decision of the Court

9

Ariz. 105, 108, ¶ 5 (App. 2011) (holding the “trial court correctly instructed 

the jurors that they could return a guilty verdict if defendant violated 

[either one of two means in an alternative-means statute]” because there 

was evidence to support each of those means). It matters not, therefore,

whether some jurors found Lopez committed child abuse by physically 

harming Aiden while others found her guilty by failing to seek help,

provided there was substantial evidence to support her guilt under each of 

the three means set forth in § 13-3623(A).

¶27 As our analysis in the preceding section establishes,

substantial evidence supports Lopez’s guilt under each of the three means 

set forth in § 13-3623(A): causing Aiden to suffer physical injury, causing or 

permitting him to be injured while in her care, and causing or permitting 

him to be endangered while in her care. The superior court did not err by 

instructing jurors they could find Lopez guilty based on any of those means.

¶28 Lopez’s efforts to distinguish her case from prior decisions 

rejecting a unanimity requirement in child abuse cases is unavailing. In 

West, this court rejected the defendant’s argument that the superior court 

had to instruct jurors they must unanimously agree on a means of child 

abuse. 238 Ariz. at 492–96, ¶¶ 31–46. Lopez’s case is indistinguishable from 

West in all relevant respects. In West, the sixteen-month-old victim died 

from “blunt impacts to the head with subdural hemorrhage” that occurred 

while in the defendant’s care. Id. at 486, ¶¶ 2–3. As in this case, the State 

charged the defendant in West with intentional or knowing child abuse by 

the alternative means set forth in § 13-3623(A). Id. at ¶ 4. The State “had to 

allege the multiple acts” in West—as in Lopez’s case—“because it did not 

know the precise timing and nature of the injury leading to [the victim’s 

demise].” Id. at 496, ¶ 45. The defendant in West, like Lopez, “maintained 

she did not injure [the victim] and offered other possibilities as to what 

ultimately caused [the victim’s condition].” Id. at 495, ¶ 42. In other words, 

the defense in both West and this case was an “overarching claim” that the 

defendant “did not injure” the victim. Id. at ¶ 43. Just as this court found 

in West, Lopez has “failed to demonstrate a reasonable basis for 

distinguishing among the multiple acts” alleged. Id. at 496, ¶ 45. No 

unanimity instruction was required under the circumstances.

III. Alleged Prosecutorial Misconduct

¶29 Lopez argues that the prosecutor’s improper trial conduct, 

and the superior court’s failure to curb it, deprived her of a fair trial. She 

contends the prosecutor’s behavior amounted to intentional misconduct. 

See State v. Murray, 250 Ariz. 543, 548, ¶ 12 (2021).
STATE v. LOPEZ

Decision of the Court

10

¶30 Whether based on allegations of inadvertent error or 

intentional misconduct, our analysis of a prosecutorial misconduct claim is

the same. Id. The defendant must establish “that the prosecutor’s 

misconduct so infected the trial with unfairness as to make the resulting 

conviction a denial of due process.” Id. at ¶ 13 (citations omitted). A

defendant does so by showing that “(1) misconduct exists and (2) a 

reasonable likelihood exists that the misconduct could have affected the 

jury’s verdict, thereby denying defendant a fair trial.” Id. (citations and 

internal quotation marks omitted).

¶31 When a defendant objects to allegations of prosecutorial 

misconduct, we review for harmless error, and when they do not object, we 

review allegations for fundamental error. State v. Arias, 248 Ariz. 546, 555, 

¶ 31 (App. 2020). We assess each allegation independently and consider

whether multiple acts of misconduct cumulatively led to an unfair trial. Id.

at 556, ¶ 32; State v. Johnson, 247 Ariz. 166, 200, ¶ 133 (2019). We “evaluate 

[a defendant’s] claims of prosecutorial misconduct in the context of the 

issues presented to the jury at trial.” Arias, 248 Ariz. at 556, ¶ 33.

A. Cross-examination

¶32 Lopez asserts that the prosecutor intentionally badgered and

intimidated her during cross-examination. On direct examination, Lopez

admitted she lied about phoning Carmen. The prosecutor revisited that 

testimony on cross-examination—repeatedly asking Lopez if she called 

Carmen and if she lied to police about doing so. Lopez contends the 

prosecutor repeated the same questions in an intimidating manner,

confused her by quickly changing the subject, and then badgered her when 

she could not follow his line of thought. The superior court overruled 

defense counsel’s objections that the prosecutor was badgering Lopez and 

repeating questions she had already answered.

¶33 The State has “great latitude” to impeach a defendant on 

cross-examination and “to show any matter which bears on the 

[defendant’s] credibility.” State v. Torres, 97 Ariz. 364, 366 (1965). Lopez’s

credibility was a key factor in the case, and the State had a right to question 

her about the false statements she made to Carmen and later to law 

enforcement. The line of questioning she challenges reveals no 

improprieties. It simply shows the prosecutor following up on questions 

about Lopez’s statements after she answers the prosecutor’s questions

inconsistently with her prior testimony. Although the record is unclear 

whether Lopez’s inconsistent testimony resulted from a misunderstanding 

of the questions, difficulties with the court interpreter, or an intent to 
STATE v. LOPEZ

Decision of the Court

11

mislead, the record does not support her argument that the prosecutor 

intentionally set out to confuse her and then capitalize on that confusion.

¶34 Lopez also contends the prosecutor badgered her expert 

witness by repeating questions he had already answered, yelling at him,

and harassing him about irrelevant issues. Lopez objected more than a 

dozen times during the expert’s cross-examination. The superior court 

sustained many of her objections to questions being “asked and answered.” 

But the court overruled, or did not formally rule on, objections based on 

relevance, badgering, and yelling.

¶35 The testimony of Lopez’s expert was critical to her defense. 

Because the believability of her rebleed theory was largely tied to the 

expert’s credibility, we consider the allegations of misconduct during his

cross-examination in that context. See Arias, 248 Ariz. at 556, ¶ 33. As with 

lay witnesses, “[w]ide latitude is allowed in cross-examination of expert 

witnesses . . . for purposes of testing their knowledge, judgment, bias and 

the validity of their opinions.” City of Tucson v. LaForge, 8 Ariz. App. 413, 

417 (1968).

¶36 The State has met its burden of showing that any improper 

questions to which Lopez objected were harmless. The superior court 

sustained many of Lopez’s objections to the prosecutor’s repetitive 

questions, and the jury was instructed to disregard questions to which an 

objection was sustained. We presume the jury followed that instruction 

here. See Payne, 233 Ariz. at 513, ¶ 120. As to Lopez’s objections about

badgering and yelling, the record does not show an intent to harass the 

defense expert. It shows, rather, that the prosecutor at times raised his 

voice, or repeated a question, when the defense expert gave what might be 

considered an evasive or nonresponsive answer.

¶37 Lopez fails to show that the misconduct allegations to which 

she did not object amounted to fundamental, prejudicial error. She

contends that the prosecutor spent too much time criticizing irrelevant 

details in the expert’s written report—including mistaken references to 

Aiden being a girl and being dropped off at a daycare center rather than 

Lopez’s home, and the lack of footnotes, page numbers, or inclusion of 

Aiden’s doctors’ names in the report. However, the prosecutor’s questions 

were relevant to the expert’s credibility and theory by suggesting the expert 

did not fully consider and address the facts of Aiden’s case. Given the 

latitude afforded on cross-examination and the importance of the defense 

expert’s testimony in this case, the prosecutor’s conduct was not improper.
STATE v. LOPEZ

Decision of the Court

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B. Closing Argument

¶38 Lopez also argues the prosecutor committed misconduct 

during closing argument by denigrating the defense expert and by 

expressing the prosecutor’s personal beliefs. Because Lopez did not object 

at trial, we review the challenged statements for fundamental error only.

¶39 Lopez first contends the prosecutor engaged in a “wholesale 

denigration” of the defense expert’s testimony based on the expert’s 

decade-old censure. In the State’s initial and rebuttal closing arguments, 

the prosecutor repeatedly referred to the defense expert being “censured,” 

“disciplined,” “punished,” and “biased.”

¶40 “Because attorneys are given wide latitude in closing 

arguments and may draw reasonable inferences from the evidence,” Arias, 

248 Ariz. at 563, ¶ 67 (citation omitted), the prosecutor’s characterization of 

the defense expert here was permissible. The credibility of the expert’s 

rebleed theory was paramount to the jury’s assessment of Lopez’s guilt, and 

evidence that the expert had been censured for giving similar testimony in 

similar cases was therefore highly relevant. Under the circumstances, the 

prosecutor did not engage in misconduct by emphasizing the expert’s prior 

censure as a reason to discredit his opinion. Cf. id. at ¶ 69 (concluding that 

characterization of an expert’s testimony as “contaminated” and “foul” was

improper because it was not reasonably supported by the evidence).

¶41 Lopez also argues that the prosecutor impermissibly vouched 

for the State’s case by conveying his personal beliefs during closing 

arguments. First, she challenges two statements he made using the phrase

“I submit to you”:

Then I asked [the defense expert], and I was surprised 

he answered it this way, if the child had a pre-existing 

condition and the child was shaken, could you get those 

bilateral subdural hematomas? And he said yes. He said yes, 

I sat down. Then he started talking on his own. And I submit 

to you that he knew that what he just said was accurate.

. . . .

I submit to you, ladies and gentlemen, that [the defense 

expert] has no credibility. He testified that a child with a 

chronic subdural hematoma can poop and end up the way 

[Aiden] ends up? That’s insulting. That’s not a defense. 

That’s an insult. And I am not here to insult your intelligence. 
STATE v. LOPEZ

Decision of the Court

13

I’m here to appeal to it. [The defense expert] has no 

credibility.

¶42 Second, Lopez challenges the prosecutor’s frequent use of the 

phrases “how do we know that” and “we know.” She offers five examples:

[A State expert] said that in a child of [Aiden’s] age, four 

months, there was no history of trauma. Well, how do we 

know that? Because [Aiden’s pediatrician] testified to the 

same thing.

. . . .

We know from [a State expert] in his testimony that 

nothing was wrong with that baby. Because if [] that baby 

[had] been abused, and the juror asked the question, we 

would have seen the results immediately. The child was 

healthy.

. . . What happened in that short time frame from when 

those ladies left when the baby was absolutely healthy until 

the mom picked the child up and ran out of the house 

screaming? We know what happened. The evidence shows 

us that the defendant abused the child. . . .

. . . .

Well, how do we know that [the defense’s rebleed 

theory] didn’t happen? [The defense expert witness], biased 

testimony. He was disciplined, punished . . . for six cases 

where he gave biased testimony in rebleeds. Just like he 

talked about here.

. . . .

. . . And we know that [the defense expert has] already 

been biased [sic] and disciplined for it, based on his own 

theory, that he’s never done any independent research [on], 

never.

¶43 A prosecutor may not vouch for the State’s case by “plac[ing] 

the prestige of the government behind its evidence” or “suggest[ing] that 

information not presented to the jury supports the evidence.” State v. 

Martinez, 230 Ariz. 208, 215, ¶ 29 (2012) (citations omitted). To that end, “[a]
STATE v. LOPEZ

Decision of the Court

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prosecutor must not convey his personal belief about the credibility of a 

witness,” State v. Lamar, 205 Ariz. 431, 441, ¶ 54 (2003) (citation omitted), or 

“a defendant’s guilt or innocence,” State v. King, 110 Ariz. 36, 42 (1973). But 

prosecutors are otherwise “given wide latitude in argument.” State v. 

Bailey, 132 Ariz. 472, 478 (1982). They may make comments “based on the 

evidence or reasonable inferences which may be drawn from it,” id., and 

may also criticize defense theories and tactics, State v. Ramos, 235 Ariz. 230, 

238, ¶ 25 (App. 2014).

¶44 We see no improper vouching in the prosecutor’s “I submit to 

you” statements. In each case, the prosecutor was not expressing a personal 

belief but submitting that jurors accept a reasonable inference from the 

evidence. See State v. Maddasion, 24 Ariz. App. 492, 494, 496 (1975) (“Viewed 

in context, [the prosecutor’s] remarks [preceded by “I submit to you”] 

appear merely to argue justifiable inferences from the evidence.”); Ramos, 

235 Ariz. at 238, ¶ 27 (“[T]he prosecutor’s use of the phrase ‘the State 

submits’ [was not improper because it] was limited to discussing the 

evidence presented at trial and did not suggest he was aware of information 

not presented to the jury that would support a finding of guilt.”).

¶45 “[B]ecause there is a fine contextual line between the use of 

‘we know’ inclusively, i.e., to describe evidence and outline inferences from 

that evidence with the jury, and the use of ‘we know’ in an exclusive 

manner, i.e., to refer to the State collectively,” our supreme court has 

“caution[ed] prosecutors to refrain from using ‘we know’ and similar 

phrases to suggest that their argument bears the imprimatur of the [S]tate.”

State v. Acuna Valenzuela, 245 Ariz. 197, 218, ¶ 85 (2018). Whether a 

prosecutor’s use of such phrases crosses the line must be considered in 

context. See id. at ¶¶ 84–85. Lopez fails to show improper vouching here 

because each challenged remark was used to summarize or characterize

specific trial evidence. Using “we know” as a rhetorical device to marshal

reasonable inferences from the evidence is permissible. See id. at ¶ 84 (citing 

United States v. Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013)).

¶46 Even if the prosecutor’s statements constituted impermissible 

vouching, Lopez has not established a “reasonable likelihood” that the 

statements “could have affected the jury’s verdict, thereby denying [her] a 

fair trial.” Murray, 250 Ariz. at 548, ¶ 13 (citations omitted). The superior 

court instructed jurors that the lawyers’ comments were not evidence and

it was the jury’s province to determine the facts of the case, including what 

testimony to accept and reject. “These instructions were sufficient to dispel 

any taint if vouching occurred.” Payne, 233 Ariz. at 512, ¶ 113 (citation 

omitted).
STATE v. LOPEZ

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C. Cumulative Effect

¶47 Lopez argues that the prosecutor’s misconduct was “nearly 

continuous” during the defense’s case-in-chief and that it was intentionally 

calculated to obtain a conviction by shifting jurors’ attention from the 

defense’s medical evidence. She contends that the cumulative effect of the 

misconduct deprived her of due process.

¶48 To prevail on a claim of cumulative misconduct, the 

defendant must show misconduct that is “so pronounced and persistent 

that it permeated the entire atmosphere of the trial, indicating that the 

prosecutor intentionally engaged in improper conduct and did so with 

indifference, if not a specific intent, to prejudice the defendant.” Payne, 233 

Ariz. at 515, ¶ 134 (citations and internal quotation marks omitted). 

Because the record does not establish that the State engaged in pervasive

misconduct that deprived Lopez of a fair trial, we reject her claim of 

cumulative misconduct.

D. The Superior Court’s Control of Courtroom Decorum

¶49 Finally, Lopez argues that the superior court deprived her of 

a fair trial by failing to control the prosecutor’s behavior during crossexamination. Because she did not timely object on that basis, we review for 

fundamental error only. State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018).

¶50 The superior court has “discretion to determine and control 

the method of interrogation,” Pool v. Superior Court, 139 Ariz. 98, 104 (1984), 

and it should reasonably exercise that discretion “so as to: (1) make those 

procedures effective for determining the truth; (2) avoid wasting time; and 

(3) protect witnesses from harassment or undue embarrassment,” Ariz. R. 

Evid. 611(a). The record shows no abuse of discretion here. As we observed 

above, the prosecutor’s examination of Lopez and her defense expert was 

generally reasonable under the circumstances. To the extent that the

prosecutor may have crossed the line, the record shows that the superior 

court adequately maintained control. The court sustained many of Lopez’s 

“asked and answered” objections, and even if the court did not technically 

sustain her objections that the prosecutor was badgering or yelling at a

witness, the court cautioned the prosecutor about his conduct several

times—instructing him to “start over” after one objection, to “tone it down 

just a hair” after a second, and saying, “I’m sure he’ll tone it down in a 

second,” after a third.

IV. Sentencing Errors
STATE v. LOPEZ

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¶51 Lopez argues the superior court erred by (1) sentencing her 

on two child abuse convictions (one committed recklessly and the other 

committed with criminal negligence) and (2) aggravating those sentences. 

Lopez timely objected at the time of sentencing, and the State concedes 

error on appeal. Although we need not accept a concession, see State v. 

Sanchez, 174 Ariz. 44, 45 (App. 1993), we agree that the court erred.

A. Double Jeopardy

¶52 Lopez was charged with a single count of child abuse, but the 

jury found her guilty of child abuse committed recklessly and with criminal 

negligence in two separate verdicts. She submits that the superior court 

violated double jeopardy principles by refusing to vacate the conviction for 

child abuse committed with criminal negligence. We review a double 

jeopardy claim de novo. State v. Carter, 249 Ariz. 312, 315, ¶ 7 (2020).

¶53 The double jeopardy clauses of our state and federal 

constitutions protect a defendant from being punished twice for the same 

offense. Id. A greater and its lesser-included offense are considered the 

same offense for double jeopardy purposes, see id. at 316, ¶ 13, and the 

protection against double jeopardy applies even if a defendant receives 

concurrent sentences for those offenses, id. at 314, ¶ 1 n.1. As we observed 

above, the jury finding that Lopez committed child abuse recklessly 

necessarily included a finding that she committed child abuse with criminal 

negligence. See A.R.S. § 13-202(C). Lopez’s conviction of child abuse 

committed with criminal negligence was therefore a lesser-included offense 

of child abuse committed recklessly. See Carter, 249 Ariz. at 316, ¶ 10. The 

protection against double jeopardy requires that the conviction and 

sentence for child abuse committed with criminal negligence be vacated. 

See id. at 320, ¶ 27; State v. Nunn, 250 Ariz. 366, 370, ¶¶ 16–17 (App. 2020).

B. Aggravation

¶54 The State did not allege, and the jury did not find, any 

statutory aggravating circumstances. And yet the superior court 

aggravated Lopez’s sentence based on harm to the victim. See A.R.S. § 13–

701(D)(9). When Lopez objected that no aggravating factors had been 

presented to the jury, the court said it was treating harm to the victim as “a 

non-statutory aggravating factor” and also agreed with the prosecutor’s

position that such harm was implicit in the offense.

¶55 Whether the superior court may use a particular factor to 

aggravate the defendant’s sentence presents a question of law that we 
STATE v. LOPEZ

Decision of the Court

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review de novo. See State v. Dunbar, 249 Ariz. 37, 51, ¶ 41 (App. 2020). We 

agree with the parties that the court erred by aggravating Lopez’s sentence.

¶56 A defendant has a right to pretrial notice of statutory 

allegations that could increase her sentence. See Ariz. R. Crim. P. 13.5(a), 

16.1(b); see also State v. Benak, 199 Ariz. 333, 336–37, ¶ 14 (App. 2001) 

(“Pretrial notice enables a defendant to know the full range of potential 

punishment he faces upon conviction; fundamental fairness and due 

process require that allegations that would enhance a sentence be made 

before trial so that the defendant can evaluate his options.” (citations 

omitted)). As the State correctly observes, the lack of notice here prejudiced 

Lopez. It deprived her of an opportunity to argue against an aggravated 

sentence in her presentence memorandum, and she appeared surprised 

when the court “spontaneous[ly]” decided to aggravate her sentence. Cf.

Benak, 199 Ariz. at 337, ¶ 16 (observing that alternative notice in lieu of

statutorily required notice may be sufficient if the notice is “such that the 

defendant is not ‘misled, surprised or deceived in any way by the [sentenceenhancement] allegations’” (citation omitted)). Nor could the superior

court aggravate Lopez’s sentence under A.R.S. § 13-701(D)(27), the catch-all 

provision, which broadly encompasses factors “relevant to the defendant’s 

character or background or to the nature or circumstances of the crime.” 

See State v. Schmidt, 220 Ariz. 563, 564, ¶ 1 (2009) (“[A] court may not, 

consistent with due process, increase a defendant’s maximum potential 

sentence based solely on a so-called ‘catch-all’ aggravator . . . .”). Because 

no aggravating factors were properly alleged and proved, Lopez must be 

resentenced on her conviction for child abuse committed recklessly to no 

greater than the statutory presumptive term. See id. at 565–66, ¶¶ 7, 12.

CONCLUSION

¶57 We affirm Lopez’s conviction for child abuse committed 

recklessly, vacate the sentence on that count and remand for resentencing

in accordance with this decision, and vacate the conviction and sentence for 

child abuse committed with criminal negligence.