State v. FAR WEST WATER & SEWER INC.

OPINION

¶ 1 Far West Water & Sewer, Inc. (“Far West”) appeals its convictions and sentences for negligent homicide, aggravated assault, two counts of endangerment and violating a safety standard or regulation which caused the death of an employee. 1 We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A) (2001). For reasons that follow, we affirm Far West’s convictions and sentences.

PROCEDURAL HISTORY 2

¶ 2 The charges arose from an incident that occurred on October 24, 2001 at a sewage collection and treatment facility owned and operated by Far West, an Arizona corporation. At that time, Santee Corporation (“Santee”) was a subcontractor of Far West. A Far West employee, James Gamble, and a Santee employee, Gary Lanser, died in an underground tank after they were overcome by hydrogen sulfide gas. Another Far West employee, Nathan Garrett, suffered severe injuries when he attempted to rescue Gamble from the tank. Other Far West and Santee employees were involved in rescue attempts, but none was injured to a significant degree.

¶ 3 Far West was indicted for two counts of manslaughter for the deaths of Gamble and Lanser, one count of aggravated assault as to Garrett, four counts of endangerment as to Gamble, Garrett and two Santee employees, Shawn Hackbarth and Eric Andre, and one count of violating a safety standard or regulation that caused the death of Gamble. Far West’s president, Brent Weidman, one of its forepersons, Connie Charles, and Santee were also indicted for the same or similar charges.

¶4 Santee pled guilty to one count of violating a safety standard or regulation that caused the death of its employee, Lanser. It was placed on probation for two years and fined $30,000. Charles pled guilty to two counts of endangerment as to Gamble and Garrett and was placed on concurrent one-year terms of probation.

¶ 5 On the State’s motion, the trial court severed the trials of Far West and Weidman. The jury acquitted Far West of both counts of manslaughter as to Gamble and Lanser, but found it guilty of one count of the lesser-ineluded offense of negligent homicide for the death of Gamble, one count of aggravated assault as to Garrett, two counts of endangerment as to Gamble and Garrett, and one count of violating a safety standard or regulation that caused the death of Gamble. 3

¶6 The court ordered the sentences suspended and placed Far West on four years’ probation for negligent homicide, five years’ probation for aggravated assault and three years’ probation for each count of endanger *181 ment and for violating a safety standard or regulation that caused the death of an employee. It ordered some terms of probation to run concurrently and others to run consecutively. The court imposed fines and penalties totaling $1,770,000. On appeal, Fat-West argues as follows:

1. Far West cannot be prosecuted under general criminal laws for conduct involving the failure to maintain a safe workplace because federal law preempts it and/or A.R.S. § 23-418(E) provides the exclusive criminal sanction for such conduct;

2. By allowing Far West to be prosecuted under general criminal laws for failure to maintain a safe workplace, the trial court violated A.R.S. § 13-103(A), which abolished all common law criminal offenses;

3. Far West is not a “person” for purposes of imposing criminal liability;

4. The indictment was insufficient;

5. The evidence was insufficient to support the convictions;

6. The trial court erred when it admitted Weidman’s out-of-court statements at trial;

7. The jury instructions impermissibly created strict liability;

8. The trial court erred when it refused to give Far West’s requested jury instructions;

9. The trial court erred when it did not allow evidence of industry standards until the thirteenth day of trial;

10. The trial court erred when it admitted evidence obtained during an investigation conducted by the Arizona Division of Occupational Safety and Health;

11. The trial court erred when it denied a mistrial following a reference to an original co-defendant’s guilty plea;

12. The trial court erred when it excused a juror; and

13. The fines and penalties imposed by the trial court were excessive.

DISCUSSION

A. Denials of Motions to Dismiss

¶ 7 In motions to dismiss made before and during trial, Far West challenged the underlying legal basis for the charges of manslaughter, aggravated assault and endangerment, claiming its criminal prosecution was precluded as a matter of law. In a separate pretrial motion to dismiss, Far West challenged the sufficiency of the indictment. We review the decision to grant or deny a motion to dismiss for abuse of discretion. State v. Pecard, 196 Ariz. 371, 376, ¶ 24, 998 P.2d 453, 458 (App.1999). Matters of statutory construction and interpretation are questions of law which we review de novo. State v. Nelson, 208 Ariz. 5, 7, ¶7, 90 P.3d 206, 208 (App.2004).

1. Prosecution Not Barred by Federal or State Law

¶ 8 In 1970, Congress enacted the Occupational Safety and Health Act (“OSHA”). See 29 U.S.C. §§ 651 to -678. The purpose of OSHA was “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. § 651(b). Congress authorized the states to adopt standards that substantially complied with OSHA. 29 U.S.C. § 667(b).

¶ 9 Under this authority, the Arizona legislature enacted the Arizona Occupational Safety and Health Act. A.R.S. §§ 23-401 to -433 (1995) (“AOSHA”). It created a division of occupational health and safety within the Arizona Industrial Commission to recommend and enforce safety standards. See A.R.S. §§ 23-406,-407, -410. Arizona adopted the OSHA health and safety standards as published in 29 C.F.R. § 1910. See Ariz. Admin. Code R20-5-602.

¶ 10 Under A.R.S. § 23-403(A), “[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees” (“the statutory duty”). Employers who knowingly violate the requirements of A.R.S. § 23-403(A) or other AOSHA safety standards may be subject to criminal penalties under A.R.S. § 23-418(E).

¶ 11 In 1977, the Arizona legislature enacted A.R.S. § 13-305, which permits an enterprise to be held criminally liable. An enter *182 prise includes a corporation. A.R.S. § 13-105(15)(2001). Section 13-305 provides in relevant part:

A. [A]n enterprise commits an offense if:

1. The conduct constituting the offense consists of a failure to discharge a specific duty imposed by law; or

2. The conduct undertaken in behalf of the enterprise and constituting the offense is engaged in, authorized, solicited, commanded or recklessly tolerated by the directors of the enterprise in any manner or by a high managerial agent acting within the scope of employment.

A.R.S. § 13-305(A)(1), (2) (2001). “‘Agent’ means any officer, director, employee of an enterprise or any other person who is authorized to act in behalf of the enterprise.” A.R.S. § 13-305(B) (1) (2001). “ ‘High managerial agent’ means an officer of an enterprise or any other agent in a position of comparable authority with respect to the formulation of enterprise policy.” A.R.S. § 13-305(B)(2).

¶ 12 Far West filed a motion to dismiss the charges brought under the Arizona Criminal Code for manslaughter, aggravated assault and endangerment (“Title 13 offenses”). 4 Assuming that its criminal liability was based solely on a “failure to discharge a specific duty imposed by law” under A.R.S. § 13-305(A)(1) and a failure to provide a safe workplace under A.R.S. § 23-403(A), Far West argued that the OSHA provision set forth in 29 U.S.C. § 653(b)(4) (“the savings clause”) preempted the State’s prosecution under Title 13. It also argued that A.R.S. § 23-418(E) provided the exclusive criminal sanction for a violation of the statutory duty. Far West further claimed that by charging it with Title 13 offenses, the State violated A.R.S. § 13-103(A), which abolished all common law offenses.

¶ 13 The trial court denied the motion to dismiss. The court found that the duty to provide a safe workplace was not the statutory duty, but rather was the established common law duty of an employer to provide a safe workplace to an employee. See Smith v. Goodman, 6 Ariz.App. 168, 172, 430 P.2d 922, 926 (1967) (employer has a duty to “ ‘furnish [an] employee a reasonably safe place in which to work and reasonably safe instrumentalities with which to do his work’”) (quoting Morrell v. City of Phoenix, 16 Ariz. 511, 513, 147 P. 732, 734 (1915)). The court ruled that OSHA did not preempt application of general criminal laws to Far West and that A.R.S. § 23-418(E) was not the exclusive criminal sanction available to the State for the failure to discharge that duty. We consider each related argument in turn. 5

а. Preemption by OSHA Savings Clause

¶ 14 Far West argues that, except for the criminal penalties found in A.R.S. § 23-418(E), the OSHA savings clause preempts the State from prosecuting employers under Title 13 for failure to provide safe working conditions under standards set forth in AOSHA. 6 The OSHA savings clause provides that:

Nothing in this chapter shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

29 U.S.C. § 653(b)(4). Far West claims that this enforcement of general criminal laws *183 impermissibly enlarges an employer’s duties and liabilities under AOSHA in violation of the savings clause.

¶ 15 While no Arizona ease has addressed this issue, jurisdictions considering it have uniformly held that the OSHA savings clause does not preempt prosecution under state criminal laws. For example, in People v. Chicago Magnet Wire Corp., 126 Ill.2d 356, 128 Ill.Dec. 517, 534 N.E.2d 962, 965 (1989), corporate officers were charged with several criminal offenses after numerous employees suffered physical injuries due to their exposure to toxic substances, inadequate ventilation and dangerously overheated working conditions. The indictments claimed the defendants knowingly and recklessly caused the injuries by failing to provide the employees with necessary safety precautions to avoid harmful exposure to the poisonous substances. The defendants argued that OSHA preempted the prosecutions on several grounds. The Supreme Court of Illinois disagreed and reversed the appellate court, which had affirmed an order dismissing the indictments. Id. 128 Ill.Dec. 517, 534 N.E.2d at 963-64.

¶ 16 The Illinois Supreme Court discussed the doctrine of federal preemption under the Supremacy Clause of the United States Constitution and analyzed the language, history and purpose of OSHA. The court held that, “[tjhere is nothing in the structure of OSHA or its legislative history which indicates that Congress intended to preempt the enforcement of State criminal law prohibiting conduct of employers that is also governed by OSHA safety standards.” Id. 128 Ill.Dec. 517, 534 N.E.2d at 966. The court stated that:

We cannot see that State prosecution of employers for conduct which is regulated by OSHA would conflict with the administration of OSHA regulations or be at odds with its goals or purposes. On the contrary, prosecution of employers who violate State criminal law by failing to maintain safe working conditions for their employees will surely further OSHA’s stated goal of “assuring] so far as possible every working man and woman in the Nation safe and healthful working conditions.” (29 U.S.C.A. § 651(b) (1982)). State criminal law can provide valuable and forceful supplement to insure that workers are more adequately protected and that particularly egregious conduct receives appropriate punishment.

Id. 128 Ill.Dec. 517, 534 N.E.2d at 969. Accord People v. Hegedus, 432 Mich. 598, 443 N.W.2d 127, 137-38 (1989) (OSHA did not preempt state prosecution for manslaughter when worker died from carbon monoxide poisoning in company-owned van); People v. Pymm, 76 N.Y.2d 511, 561 N.Y.S.2d 687, 563 N.E.2d 1, 4 (1991) (OSHA did not preempt criminal prosecution of corporate officers when employees suffered serious physical injuries caused by mercury contamination, in part because savings clause allows “continued viability of statutory and common law duties”); Sabine Consol., Inc. v. State, 806 S.W.2d 553, 559-60 (Tex.Crim.App.1991) (OSHA did not preempt criminal prosecutions of corporation and its president for negligent homicide when two employees died after walls of a trench collapsed and buried them); State ex rel. Cornellier v. Black, 144 Wis.2d 745, 425 N.W.2d 21, 25 (Ct.App.1988) (OSHA did not preclude state from charging officer and manager of fireworks plant with homicide by reckless conduct following fire and explosion which killed employee). We similarly conclude that the savings clause does not preclude other criminal prosecution. 7

*184 b. A.R.S. § 23-418(E) as Sole Sanction

¶ 17 Far West next argues that A.R.S. § 23-418(E) provides the exclusive criminal sanction for an employer who fails to perform the duty to maintain a safe workplace. Under A.R.S. § 23-418(E), “[a]ny employer who knowingly violates the requirements of A.R.S. § 23-403 or any standard or regulation adopted pursuant to § 23-410 or 23-414 or any provision of this article and that violation causes death to an employee is guilty of a class 6 felony, except that if the conviction is for a second or subsequent violation the employer is guilty of a class 5 felony.”

¶ 18 Under the theory that a more specific statute controls over a general one, Far West asserts that when the legislature enacted AOSHA with the specific penalties found in A.R.S. § 23-418(E), it intended to preclude the State from obtaining convictions with harsher criminal penalties under the general provisions of Title 13. Far West also claims that to conclude otherwise renders A.R.S. § 23-418(E) superfluous. We, however, disagree.

¶ 19 “Our primary task in construing a statute is to identify and give effect to legislative intent.” State v. Takacs, 169 Ariz. 392, 395, 819 P.2d 978, 981 (App.1991). In doing so, we give words them “plain and ordinary meaning” [and] “apply a practical and commonsensical construction.” State v. Alawy, 198 Ariz. 363, 365, ¶ 8, 9 P.3d 1102, 1104 (App.2000). “To the extent possible, the courts must enforce all statutes that have been duly enacted [and] it is the court’s ‘obligation to harmonize related statutes,’ and this obligation ‘applies even where the statutes were enacted at different times and contain no reference one to the other.’ ” Hounshell v. White, 219 Ariz. 381, 385, ¶ 12, 199 P.3d 636, 640 (App.2008) (citations omitted). “[It] is immaterial to this endeavor that the statutes are found in different titles.” Id. “[W]hen reconciling two or more statutes, courts should construe and interpret them, whenever possible in such a way so as to give effect to all the statutes involved.” Pima County By City of Tucson v. Maya Constr. Co., 158 Ariz. 151, 155; 761 P.2d 1055, 1059 (1988). Finally, “[w]e will also look to the policy behind the statute and to the evil that it was designed to remedy.” State v. Takacs, 169 Ariz. at 395, 819 P.2d at 982.

¶ 20 There is nothing in the language of A.R.S. § 23-418(E) or any other provision of AOSHA to indicate that the legislature intended A.R.S § 23-418(E) be the exclusive criminal sanction against an employer who violates the statutory duty thereby causing the death or serious harm of an employee. Further, the principle that the specific law controls over the general law “applies only where the specific conflicts with the general.” State v. Weiner, 126 Ariz. 454, 456, 616 P.2d 914, 916 (App.1980). “This conflict arises only where the elements of proof essential to conviction under each statute are exactly the same [and] if the two statutes do not contain the same elements, the legislature is presumed not to have precluded the state from prosecuting under either at the state’s option.” Id. Thus, “where there is no conflict between two statutes, a criminal offense may be prosecuted under either statute where the facts are such that they fall within the prohibitions of both.” State v. Mussiah, 141 Ariz. 212, 214, 685 P.2d 1364, 1366 (App.1984); A.R.S. § 13-116 (2001)(“[a]n act or omission which is made punishable in different ways by different sections of the laws may be punished under both,____”).

¶ 21 Here, the elements of proof essential to find guilt under A.R.S. § 23-418(E) are not identical to the elements of proof essential to find guilt under the relevant Title 13 offenses. Because there is no conflict between that specific statute and the general criminal statutes, we conclude that the legislature did not intend to preclude the state from prosecuting Far West under any other applicable statute.

¶ 22 We also reject Far West’s argument that prosecution under Title 13 renders A.R.S. § 23-418(E) superfluous. “When conduct can be prosecuted under two or more statutes, the prosecutor has discretion to determine which statute to apply.” State v. Lopez, 174 Ariz. 131, 143, 847 P.2d 1078, 1090 (1992). In making that determination, a prosecutor may consider the available penal *185 ties upon conviction. State v. Patton, 136 Ariz. 243, 246, 665 P.2d 587, 590 (App.1983). The fact that a prosecutor exercises such discretion and chooses to apply a statute with a harsher penalty does not render A.R.S. § 23-418(E) superfluous.

¶ 23 In an analogous context, we note that in interpreting the preclusive effect of criminal penalties in OSHA for violations of OSHA standards, other courts have consistently held that the “very minor criminal sanctions” found in OSHA do not “preclude state [criminal] penalties” as Congress intended “to allow states to supplement OSHA penalties with their own sanctions.” People v. Hegedus, 443 N.W.2d at 136-37 (citation omitted). See also People v. Chicago Magnet Wire Corp., 128 Ill.Dec. 517, 534 N.E.2d at 967 (holding that it is unreasonable to conclude Congress intended OSHA to provide the only criminal sanctions available so as to preclude other “appropriate criminal sanctions in cases of egregious conduct causing serious or fatal injuries to employees”); Sabine Consol., Inc., 806 S.W.2d at 557 (stating that OSHA penalty provisions “are not designed to cover a broad range of criminal conduct ... [and] “[w]hereas OSHA standards apply only to specific hazards in the workplace, criminal law reaches to regulate conduct in society in general”); Pymm, 561 N.Y.S.2d 687, 563 N.E.2d at 6 (OSHA remedies are “prophylactic measures that are intended to prevent workplace accidents from ever occurring ... [while] [s]tate criminal prosecutions lead to the imposition of penalties that reflect society’s condemnation of behavior in violation of generally accepted norms”).

¶ 24 Similarly, it is unreasonable to suppose the Arizona legislature intended that the minor sanctions in A.R.S. § 23-418(E) be the exclusive remedy for an employer’s egregious failure to maintain a safe workplace that results in death or serious physical injury, without regard to the wrongful conduct at issue. Section 23-418(E) does not provide any criminal penalty for an employer’s negligent or reckless conduct that results in death or serious physical injury to an employee, or reckless conduct that results in the risk of imminent death or serious physical injury to an employee. Limiting criminal sanctions under A.R.S. § 23-418(E) would effectively immunize employers from liability for wrongdoing that threatens or results in death or serious physical injury to an employee. There is nothing to indicate the legislature intended this result.

¶ 25 Moreover, while the purpose of sanctions for a violation of AOSHA is to enforce health and safety standards in the workplace, the purpose of general criminal laws is to “deter conduct that society has labeled intolerable and morally repug-nant____” Pymm, 561 N.Y.S.2d 687, 563 N.E.2d at 6. Adopting Far West’s position would defeat this purpose. We therefore conclude that A.R.S. § 23-418(E) is not the exclusive criminal penalty for an employer’s failure to discharge its statutory duty to provide a safe workplace.

c. Violation of A.R.S. § 13-103(A)

¶ 26 Finally, Far West asserts the trial court impermissibly created new criminal law when ruling that it could be prosecuted for failure to fulfill the statutory or common law duty to provide a safe workplace, an offense not codified by any criminal statute. Far West contends this violates A.R.S. § 13-103(A) (2001) because under that statute “[a]ll common law offenses ... are abolished [and] [n]o conduct or omission constitutes an offense ... unless it is an offense ... under this title or under another statute or ordinance.” See State v. Rios, 217 Ariz. 249, 250, ¶ 6, 172 P.3d 844, 845 (App.2007) (“Arizona law proscribes only those offenses ... identified as crimes in the governing statutes or ordinances.”). We disagree.

¶ 27 We first observe that “[t]he minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform a duty imposed by law....”. A.R.S. § 13-201(2001). “Conduct” is “an act or omission and its accompanying mental state.” A.R.S. § 13-105(5) (2001).

¶ 28 In this ease, the State did not charge Far West with a separate offense of failing to discharge the duty to provide a safe workplace. Rather, the State charged Far *186 West with violating specific criminal statutes for conduct defined by those statutes and undertaken as an enterprise pursuant to A.R.S. § 13-305. Significantly, although section 13-103(A) abolished common law offenses, it did not abolish the use of common law, statutory or other duties imposed by law as a basis for criminal liability under statutorily defined offenses.

¶29 For example, in State v. Brown, 129 Ariz. 347, 631 P.2d 129 (App.1981), the defendant operated a boarding house and provided care to a 98-year old woman. Because of her medical condition, the health department obtained a court order that required the defendant cease providing care and lodging to her. Instead, the defendant hid the woman in a different location and put her in the care of a seventeen-year old girl. Due to lack of proper care, the woman died of starvation. Id. at 348, 631 P.2d at 130.

¶ 30 The defendant was convicted of, among other crimes, manslaughter. On appeal, the defendant claimed in part that because the jury was improperly instructed on her duty toward the victim, she was convicted of acts which were not crimes. The Supreme Court disagreed, noting that in some circumstances under which one person owes a legal duty to another, but neglects the legal duty and death is the immediate and direct result, that person may be charged with manslaughter. Id. at 349, 631 P.2d at 131. As applicable here, the court held that “the failure to perform a duty imposed by law may create criminal liability. In the ease of negligent homicide or manslaughter, the duty must be found outside the definition of the crime itself, perhaps in another statute, or in the common law or in a contract.” Id. Accord West v. Commonwealth, 935 S.W.2d 315 (Ky.App.1996) (defendants could be convicted of reckless homicide for failing to provide care to disabled person where duty to provide care arose from a state statute outside definition of crime itself); Commonwealth v. Pestinikas, 421 Pa.Super. 371, 617 A.2d 1339 (1992) (defendants could be convicted of third degree homicide for failure to provide food and medical care that caused death of victim where duty to provide care arose from oral contract). 8 Here, the fact that the relevant duty to provide a safe workplace was not within the definitions of the charged Title 13 offenses did not violate A.R.S. § 13-103(A).

2. Far West as a “Person” for Criminal Liability

¶ 31 In a motion to dismiss made during trial, Far West argued, among other issues, that it was not a “person” for purposes of imposing criminal liability for manslaughter, aggravated assault or endangerment because only human beings can be held criminally liable for those crimes. Although denying the motion to dismiss on other grounds, the trial judge expressed his complete disagreement with Far West’s position.

¶ 32 Arizona’s criminal code defines “person” as “a human being and, as the context requires, an enterprise, a public or private corporation, an unincorporated association, a partnership, a firm, a society, a government, a governmental authority or an individual or entity capable of holding a legal or beneficial interest in property.” A.R.S. § 13-105(26) (2001). There is nothing to indicate that by inclusion of the phrase “as the context requires,” the legislature sought to exclude corporations from the definition of “person” for certain offenses. Further, not only did the legislature include corporations in the definition of person, the legislature described how corporations, as enterprises, can commit criminal offenses through the acts or omissions of their directors, high managerial agents and/or agents. A.R.S. § 13-305(A).

¶33 Our interpretation is also supported by the language of the statutes that prescribe penalties for commission of criminal *187 offenses. Section 13-603 sets forth the authorized disposition of offenders and contains provisions specific to an “enterprise” that commits a criminal offense. A.R.S. § 13-603(F), (G) (2001). Section 13-803 provides for the imposition of fines against “enterprises” convicted of criminal offenses. A.R.S. § 13-803(2001). We therefore conclude that Far West was a person for purposes of imposing criminal liability for Title 13 offenses.

3. Sufficiency of the Indictment

¶ 34 Far West next contends the trial court erred when it denied its motion to dismiss based on insufficiency of the indictment which, it claims, prevented it from preparing an adequate defense. In particular, Far West claims the indictment should have contained specific facts and circumstances surrounding the incident which gave rise to the offenses charged.

¶ 35 A trial court should grant a motion to dismiss if the indictment is insufficient as a matter of law. State v. Wood, 198 Ariz. 275, 277, ¶ 6, 8 P.3d 1189, 1191 (App.2000); Ariz. R.Crim. P. 16.6(b). We review the denial of a motion to dismiss based on insufficiency of the indictment for abuse of discretion. Wood, 198 Ariz. at 277, ¶ 6, 8 P.3d at 1191.

¶ 36 An indictment must give a defendant notice of the crime charged. State v. Arnett, 158 Ariz. 15, 18, 760 P.2d 1064, 1067 (1988). However, “[t]here is no requirement that the defendant receive notice of how the State will prove the alleged offense.” Id. Under the rules of procedure, “nothing more is required than that the indictment [ ] be a plain, concise statement of the facts sufficiently definite to inform the defendant of the offense charged.” State v. Magana, 178 Ariz. 416, 418, 874 P.2d 973, 975 (App.1994); Ariz. R.Crim. P. 13.2(a). An indictment is legally sufficient if it informs the defendant of the essential elements of the charge, is definite enough to permit the defendant to prepare a defense against the charge, and affords the defendant protection from subsequent prosecution for the same offense. State v. Rickard-Hughes, 182 Ariz. 273, 275, 895 P.2d 1036, 1038 (App.1995). In considering whether an indictment provides sufficient notice, the indictment “must be read in the light of the facts known by both parties.” Magana, 178 Ariz. at 418, 874 P.2d at 975.

¶ 37 The indictment here provided Far West with sufficient notice of the crimes charged. Each count identified the defendant, the victim, the offense charged, the date of the offense, the location of the offense, the elements of the offense, the type and class of offense and all applicable statutes. Further, each count mirrored the language of the applicable statutes which defined each offense. The indictment was thereby sufficient to enable Far West to defend against the charged offenses.

B. Sufficiency of the Evidence

¶ 38 After the verdicts, Far West unsuccessfully moved for a judgment of acquittal on the ground that there was no substantial evidence to warrant the convictions. Ariz. R.Crim. P. 20(b). On appeal, Far West argues there was insufficient evidence to support its convictions for the charged offenses. “Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted). “To set aside a jury verdict for insufficient evidence, it must clearly appear that under no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury.” State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). In our review of the evidence, “[w]e construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant.” State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). We resolve any conflict in the evidence in favor of sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

1. The Incident

¶ 39 Far West owned and operated several wastewater treatment plants in Yuma. Weidman, who has a master’s degree in industrial engineering and a Ph.D. in construe *188 tion engineering, had been Far West’s president and chief operating officer for nine years. Rex Noll, who had extensive training and experience in sewage and wastewater treatment plants, was the supervisor for the sewage division of Far West and reported directly to Weidman. Charles was in charge of the sewer crews and was under Noll’s supervision.

¶ 40 Prior to the incident, Far West acquired the Mesa Del Oro Plant and hired Santee to renovate equipment in an underground sewage tank called the Mesa Del Oro Tank (“the Tank”). The 3,000 gallon tank was approximately nine feet underground. The interior of the Tank could only be accessed by descending down a ladder into a manhole approximately four feet wide. Two sewer lines fed .into the Tank. The gravity line carried sewage downhill by gravitational force. The force main line carried sewage pumped by force main pumps from another tank or lift station, approximately one mile away.

¶ 41 On October 24, 2001, Far West and Santee began work on the Tank. The Far West crew included Gamble and Garrett with Charles supervising. The Santee crew included Lanser, Andre, and Hackbarth. After the force main pumps at the lift station were shut off, Gamble and Garrett pumped out the sewage from the surface and cleaned out the remaining sewage from inside the Tank. As part of this process, Gamble inserted a plug into the gravity line