Opinion
1 CA-JV 12-0289
05-21-2013
IN RE DONALD B., JR.
Jill L. Evans, Mohave County Appellate Defender By Diane S. McCoy, Deputy Appellate Defender Attorneys for Appellant Matthew J. Smith, Mohave County Attorney By Melissa M. Moore, Deputy County Attorney Attorneys for Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
103(G) Ariz.R.P. Juv.
Ct.; Rule 28 ARCAP)
Appeal from the Superior Court in Mohave County
Cause No. S8015JV201100101
The Honorable Derek C. Carlisle, Judge Pro Tempore
AFFIRMED
Jill L. Evans, Mohave County Appellate Defender
By Diane S. McCoy, Deputy Appellate Defender
Attorneys for Appellant
Kingman Matthew J. Smith, Mohave County Attorney
By Melissa M. Moore, Deputy County Attorney
Attorneys for Appellee
Kingman OROZCO, Judge ¶1 Donald B., Jr. (Juvenile) appeals his adjudication of delinquency on one count of burglary in the third degree and one count of criminal damage. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On March 11, 2011, the owner (Owner) of Meadview Hardware Store (Store) arrived at the Store around 5:00 a.m. Owner noticed significant damage to his property stored in a fenced lumber yard (Yard) across the street from the Store. His truck was damaged, including broken windows, broken lights, melted carpet on the passenger side floorboard from a fire, and water damage from a hose that was placed inside the truck and left running. Upon further investigation, Owner noted that there was other property damage in the Yard: two forklifts' gas tanks had been filled with water, most of the bagged goods had been sliced with a knife, a water heater and swamp cooler had been damaged, and tools were missing from inside the damaged truck. Owner estimated that the total damage was approximately $8000-$9000. ¶3 A deputy sheriff with the Mohave County Sheriff Department (Deputy), was dispatched to the Yard to investigate the criminal damage and burglary. At trial, Deputy testified that he located shoe tracks at the scene and photographed them for evidence. He also indicated that there were drag marks around the area of the Yard where it appeared the perpetrators had crawled underneath a fence to gain access. Deputy stated that the shoe tracks led away from the Yard and stopped in front of a residential address on Sandy Point Road. The address did not belong to Juvenile, but it did belong to D.M., one of the other two juveniles involved. Deputy testified that at the scene, he was informed by a Yard customer that two individuals were playing on Sandy Point Road whose shoe prints appeared to match those left at the scene. ¶4 Deputy located two juveniles playing on Sandy Point Road. He testified they identified themselves as Juvenile and T.L. Deputy asked Juvenile and T.L. if they knew anything about the damage done in the Yard and both stated "no." He also testified that he asked to see the juveniles' shoes, and they complied with his request. Deputy noted that Juvenile's shoe prints matched those prints found inside and outside the Yard. T.L. admitted that he and Juvenile had walked around both inside and outside the Yard. ¶5 Deputy drove Juvenile and T.L. home, free of handcuffs, in his patrol car. While speaking with Juvenile's mother (Mother), Deputy learned that Juvenile had spent the night at T.L.'s house the night before and Juvenile admitted that he "had been inside the Yard but [D.M.] had done of [sic] the damage, [and] that he did just a little bit of it." However, at trial, both Mother and Juvenile testified that Juvenile never admitted to Deputy that he committed any of the damage. ¶6 A delinquency petition was filed against Juvenile alleging four counts: burglary in the third degree, a class four felony; criminal damage, a class four felony; arson of a structure, a class four felony; and theft, a class six felony. A contested adjudication hearing was held, and the juvenile court acquitted Juvenile on the arson and theft charges but adjudicated him delinquent on one count of burglary in the third degree and one count of criminal damage. The court placed Juvenile on standard probation for one year and ordered him to pay $8847.72 in restitution. ¶7 Juvenile timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 8-235 (2007) and 12-120.21.A.1 (2003).
Although the petition states that the criminal damage charge was a class four felony, the damages were later determined to be less than $10,000, which altered the classification to a class five felony.
DISCUSSION
¶8 Juvenile appeals the sufficiency of the evidence for the two counts he was adjudicated delinquent. He also contends the delinquency petition was duplicitous, the juvenile court erred in denying his motion to suppress and his counsel was ineffective. We will not disturb the disposition of the juvenile court absent an abuse of discretion. Maricopa County Juv. Action No. JV-128676, 177 Ariz. 352, 353, 868 P.2d 365, 366 (App. 1994). We also view the facts in the light most favorable to affirming the findings of the juvenile court. Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994).
Sufficiency of the Evidence
¶9 In reviewing the sufficiency of the evidence, we consider whether the evidence presented, when viewed in the light most favorable to sustaining the delinquency adjudication, would allow the juvenile court to find beyond a reasonable doubt that Juvenile committed the essential elements of the offenses. In re Dayvid S., 199 Ariz. 169, 170, ¶ 4, 15 P.3d 771, 772 (App. 2000). The evidence presented may be direct or circumstantial, and "the probative value of the evidence is not reduced simply because it is circumstantial." State v. Anaya, 165 Ariz. 535, 543, 799 P.2d 876, 884 (App. 1990). Even if the evidence is entirely circumstantial, it can still support reasonable inferences that are sufficient to uphold a conviction. Id. We will reverse only if there is a complete absence of probative facts to support the adjudication or if the adjudication is clearly contrary to the evidence presented. In re Kyle M., 200 Ariz. 447, 448-49, ¶ 6, 27 P.3d 804, 805-06 (App. 2001).
Criminal Damage ¶10 Juvenile argues that there was insufficient evidence to adjudicate him delinquent on the criminal damage charge. He contends that the court erred because it impliedly found him delinquent of criminal damage under an accomplice liability theory. Juvenile also argues that the trial court erred in finding him delinquent of criminal damage to the extent that the court qualified it as a class five felony because the court "did not specify which of the many acts of criminal damage it was relying on for its finding that [Juvenile] committed criminal damage to property valued at an amount that would bring the commission of the offense within the class five felony range."
Accomplice Liability Theory ¶11 In order to prove Juvenile committed the crime of criminal damage, the State had to establish that Juvenile recklessly defaced or damaged property of another person. A.R.S. § 13-1602.A.1 (2010). Recklessness requires that a juvenile be aware of and consciously disregard the risks being created by his conduct. In re William G. , 192 Ariz. 208, 213, 963 P.2d 287, 292 (App. 1997). A juvenile's "mental state must necessarily be ascertained by inference from all relevant surrounding circumstances." Id. ¶12 Juvenile alleges that the juvenile court erred by relying on a theory of accomplice liability to adjudicate him delinquent of criminal damage. However, the juvenile court did not solely rely on a theory of accomplice liability; it stated that because it found Juvenile had "engaged in causing damage, then it [was] easier to find that he [was] . . . aiding the other juvenile who was also causing damage." Pursuant to A.R.S. § 13-303.B.2 (2010), a person is criminally accountable for the conduct of another if "[t]he person aids, counsels, agrees to aid or attempts to aid another person in planning or engaging in the conduct causing such result." See State v. Rosas-Hernandez, 202 Ariz. 212, 220, ¶ 29, 42 P.3d 1177, 1185 (App. 2002). "The mere presence of a person at the time and place of a crime does not make him an aider, abettor, or principal." State v. Strayhand, 184 Ariz. 571, 587, 911 P.2d 577, 593 (App. 1995). However, under accomplice liability theory, the "presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." State v. Villegas, 101 Ariz. 465, 468, 420 P.2d 940, 943 (1966) (citation and internal quotation marks omitted). ¶13 Deputy testified that Juvenile admitted that he had been in the Yard. He also stated that Juvenile told him that he had done a little bit of the damage when Deputy was speaking to Mother about the damage caused in the Yard. Both Juvenile and Mother denied that Juvenile made statements to Deputy that he committed any of the damage. However, Juvenile did admit that he had been in the Yard while D.M. was damaging Owner's property. In addition, the juvenile court found that when questioned at trial, Juvenile admitted to turning on the hose and placing it into the truck; whether it was to put out the fire in the truck, as Juvenile claimed, is irrelevant because the hose was left on and caused damage. "The juvenile court is in the best position to assess witness credibility, and our role is to determine if the evidence adduced at the hearing is sufficient to support the court's adjudication." In re James P. , 214 Ariz. 420, 425, ¶ 24, 153 P.3d 1049, 1054 (App. 2007). Accordingly, we will not consider the credibility of the witnesses or reweigh the evidence on appeal. Id. ¶14 The testimony of both Deputy and Juvenile supports the juvenile court's order adjudicating Juvenile delinquent for criminal damage. The juvenile court found Deputy to be more credible than Juvenile because Juvenile initially lied to Deputy about being in the Yard. We are not in the position to second-guess that finding. ¶15 Because the juvenile court found that Juvenile committed some of the damage based on his confession to Deputy, it inferred that Juvenile had assisted D.M. in committing the damage. Based on the evidence, the juvenile court did not err in adjudicating Juvenile delinquent for criminal damage.
Class Five Felony ¶16 Juvenile argues that because the State "did not prove what acts [Juvenile] committed to amount to criminal damage, or what the amount of damage caused by those acts was," the evidence was insufficient to establish that the damage Juvenile committed was in the class five felony range. ¶17 Criminal damage is punishable as a class five felony "if the person recklessly damages property of another in an amount of two thousand dollars or more but less than ten thousand dollars." A.R.S. § 13-1602.B.3. Because we found that the juvenile court properly adjudicated Juvenile delinquent for criminal damage, the only issue is whether the amount attributed to Juvenile was proper. ¶18 A person convicted of an offense is required to make restitution to the victim in the full amount of the victim's economic loss. A.R.S. § 13-603.C (2010). A court has discretion to set the amount of restitution according to the facts. State v. Taylor, 158 Ariz. 561, 564, 764 P.2d 46, 49 (App. 1988). In addition, multiple defendants are jointly and severally liable for restitution when "more than one defendant is convicted of the offense which caused the loss." A.R.S. § 13-804.F (2010). ¶19 The juvenile court found that the amount of damage that Owner suffered was $8847.72 based on the testimony of Owner at trial and the receipts provided in the disposition report. It also found that Juvenile engaged in criminal damage to Owner's property based on the statements Juvenile made to Deputy. It is not necessary for the juvenile court to find with specificity the damage that Juvenile caused in relation to the damage that D.M. caused. "Restitution is proper if evidence reasonably leads to the inference that [the] juvenile's criminal conduct was related to victim's damages." In re Andrew A., 203 Ariz. 585, 586, ¶ 7, 58 P.3d 527, 528 (App. 2002) (citation and internal quotation marks omitted). ¶20 Therefore, we find that because the evidence supports the restitution award of $8847.72 and Juvenile was correctly adjudicated delinquent of the class five felony criminal damage charge.
The State alleged that D.M. was charged with crimes relating to his involvement in this incident, but he left town before his adjudication hearing. In the event that he is adjudicated delinquent of the criminal damage charge, the juvenile court may find him responsible for the restitution amount as well.
Burglary ¶21 Juvenile also claims that there was insufficient evidence to adjudicate him delinquent on the burglary charge because there was no evidence that he entered the Yard with the intent to commit a theft or a felony. ¶22 Burglary in the third degree is defined as "[e]ntering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein." A.R.S. § 13-1506.A.1 (2010). In this case, to support the conviction of burglary in the third degree, the State must show that Juvenile was unlawfully in the Yard and committed, or intended to commit, criminal damage to the property. Owner testified that the area where the damage occurred is a fenced lumber yard. As previously stated, Juvenile admitted to entering and remaining in the Yard, and Deputy testified that Juvenile stated to him that he committed some of the damage. In addition, Juvenile also testified that he had placed a hose with running water inside the truck. ¶23 The testimony of Juvenile and Deputy was sufficient to support the juvenile court's adjudication of delinquency on the burglary charge.
Duplicitous Petition Claim
¶24 Juvenile alleges for the first time on appeal that the petition was duplicitous because it charged Juvenile with criminal damage without specifying the criminal damage. He claims that it violated his due process rights because he was not put on notice of the charges against him. ¶25 "Failure to object to duplicity either prior to or during trial constitutes a waiver of that objection." State v. Rushton, 172 Ariz. 454, 455, 837 P.2d 1189, 1190 (App. 1992). "By failing to object to the indictment, . . . a defendant demonstrates his or her 'complicity in the charge as alleged.' And because no prejudice results from such a strategic maneuver, a defendant will 'not [be] entitled to relief from this court.'" State v. Butler, 230 Ariz. 465, 471, ¶ 16, 286 P.3d 1074, 1080 (App. 2012) (second alteration in original) (citations omitted). Because Juvenile did not raise this argument to the juvenile court, we decline to address it.
Juvenile's Statements to Deputy
¶26 Juvenile argues that the juvenile court should have suppressed the statements he made to Deputy based on the fact that they were obtained in violation of Miranda and his Fifth Amendment privilege against self incrimination. Juvenile also contends his statements were involuntary under the Due Process Clause of the Fourteenth Amendment. ¶27 Because Juvenile did not object to his statements being admitted at trial, our review on appeal is therefore limited to fundamental error review. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607.
Miranda v. Arizona, 384 U.S. 436 (1966).
Miranda and Fifth Amendment ¶28 "Police officers are required to give [Miranda]warnings only when a defendant is undergoing custodial interrogation." Maricopa County Juv. Action No. J-84357, 118 Ariz. 284, 289, 576 P.2d 143, 148 (App. 1978). "Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." In re Jorge D. , 202 Ariz. 277, 279, ¶ 7, 43 P.3d 605, 607 (App. 2002) (citation and internal quotation marks omitted). However, "[p]olice are free to ask questions of a person who is not in custody without having to give the person any warnings under Miranda." State v. Zamora, 220 Ariz. 63, 67, ¶ 9, 202 P.3d 528, 532 (App. 2009). "Whether a person is in custody is an objective test based on whether a reasonable man feel[s] that he was deprived of his freedom of action in any significant way." Id. at 68, ¶ 10, 202 P.3d at 533 (alteration in original) (citation and internal quotation marks omitted). ¶29 The issue here is whether Juvenile was in custody when Deputy spoke to him on Sandy Point Road, and later, when he spoke with Mother, in Juvenile's presence, in Juvenile's home. ¶30 When Deputy approached Juvenile and T.L. on Sandy Point Road, he did not arrest them or place them in handcuffs. He testified that he asked them if he could see their shoes and whether they knew about the damage in the Yard. Deputy testified that Juvenile and T.L. showed Deputy their shoes and ultimately admitted to being inside the Yard when Deputy told them that he found shoe prints that matched their shoes inside the Yard. Deputy then drove both juveniles to their homes. Deputy also testified that neither juvenile was placed in handcuffs when Deputy drove him to his home. Deputy also stated that while he was talking with Mother, Juvenile declared that he had done some of the damage, but that D.M. had done most of it. A statement that is spontaneous and "not made in response to interrogation does not violate Miranda." State v. Valencia, 186 Ariz. 493, 502, 924 P.2d 497, 506 (App. 1996). ¶31 Based on the facts in this case, we find that Juvenile was not in custody or subject to official interrogation at the time that he made the inculpatory statements to Deputy. Juvenile freely made declarations evidencing his guilt in response to statements made by Deputy when speaking with Deputy at Sandy Point Road. Furthermore, a reasonable person would not have believed that he was in custody when he was standing un- handcuffed, in his own home, while a police officer was talking to his parent. Therefore, no fundamental error occurred when the juvenile court allowed Deputy to testify concerning Juvenile's self-incriminating statements.
Due Process Clause of the Fourteenth Amendment ¶32 "To determine whether a confession is voluntary, we consider the totality of the circumstances surrounding the confession." In re Andre M., 207 Ariz. 482, 485, ¶ 11, 88 P.3d 552, 555 (2004). "In Arizona, confessions are prima facie involuntary. The State has the burden to show by a preponderance of evidence that the confession was freely and voluntarily made." State v. Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8 (1988) (citation omitted). Confessions are considered involuntary if the court determines, after considering all the circumstances, one of the following factors exists: (1) impermissible police conduct, (2) confession derived directly from a prior involuntary statement, or (3) coercive pressures not dispelled. State v. Gretzler, 126 Ariz. 60, 82, 612 P.2d 1023, 1045 (1980). ¶33 When a juvenile confession is involved, a number of factors are relevant to the totality of the circumstances analysis, "including defendant's age, education, and intelligence; any advice to defendant of constitutional rights; the length of detention and questioning; and use of physical force." In re Timothy C., 194 Ariz. 159, 163, ¶ 16, 978 P.2d 644, 648 (App. 1998). The juvenile court may consider the presence or absence of the juvenile's parents in determining whether the statement was voluntary. State v. Hardy, 107 Ariz. 583, 584, 491 P.2d 17, 18 (1971); see also State v. Huerstel, 206 Ariz. 93, 106, ¶ 52, 75 P.3d 698, 711 (2003). ¶34 The record indicates that Juvenile's statements to Deputy were voluntary. Juvenile does not allege that there was any coercive pressure or police misconduct on behalf of Deputy. As previously discussed above, Juvenile was not placed into custody or under any sort of physical restraint by Deputy when Deputy initiated contact and began speaking with Juvenile. In addition, Deputy testified that he was talking with Mother when Juvenile voluntarily gave the inculpatory statements evidencing his involvement in the criminal damage. ¶35 Therefore, the juvenile court did not err in finding Juvenile's statements were voluntary and did not violate the Due Process Clause of the Fourteenth Amendment.
Ineffective Assistance of Counsel
¶36 Juvenile argues that he was denied effective assistance of counsel because his counsel failed to challenge the admissibility of his statements to Deputy. Juvenile also contends that his counsel was ineffective because he did not move to have Juvenile's competency to proceed in trial evaluated. ¶37 A juvenile may raise a claim of ineffective assistance of counsel in a direct appeal. See Maricopa County Juv. Action No. JV-511576, 186 Ariz. 604, 606-07, 925 P.2d 745, 747-48 (App. 1996). To prevail, Juvenile "must show that counsel's performance was deficient and that the deficient performance prejudiced" him. Sturgis v. Goldsmith, 796 F.2d 1103, 1110 (9th Cir. 1986). An attorney's performance is deficient if it is not "reasonably effective under the circumstances." Id. Prejudice occurs when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). Proof of ineffective assistance of counsel must be that of a demonstrable reality, not mere speculation. State v. Rosario, 195 Ariz. 264, 268, ¶ 23, 987 P.2d 226, 230 (App. 1999).
Failure to Challenge Juvenile's Statements ¶38 Because we affirmed the juvenile court's finding that Juvenile's statements made to Deputy were voluntary and did not violate Miranda, Juvenile's counsel was under no duty to object to these statements being admitted at trial.
Failure to Have Juvenile's Competency Assessed ¶39 Under A.R.S. § 8-291.01.B (2007), "[a]t any time after the filing of a petition for delinquency . . . a party may request in writing or the court on its own motion may order that the juvenile be examined to determine if the juvenile is competent." Juvenile contends that he was not afforded effective assistance of counsel because his attorney did not request a competency hearing. ¶40 Juvenile relies on In re Charles B., 194 Ariz. 174, 978 P.2d 659 (App. 1998), as well as scientific reports and studies attached to his brief, for the proposition that he should have undergone a competency evaluation. However, Charles B. is unpersuasive, and we will not consider the scientific reports or studies attached to the opening brief. ¶41 Charles B. involved an eleven-year-old boy who was found incompetent after his attorney filed a motion to determine his competency and the court found reasonable grounds to question competency. 194 Ariz. at 175, ¶¶ 1-2, 978 P.2d at 660. After receiving two conflicting reports from two separate doctors, the court ordered a third expert to examine the boy, who found him to be incompetent. Id. at ¶ 2. Unlike this case, there was an indication that the juvenile in Charles B. was unable to understand or participate fully in the proceedings as evidenced by his attorney's motion, as well as the court finding reasonable grounds to question his competency. See id. at ¶¶ 1-2. There is nothing in the record before us to support the inference that Juvenile was not competent to stand trial. Juvenile participated in the proceedings and testified on his own behalf. He answered questions and followed directions from his own attorney, the State, and the court without any indication of not understanding the legal proceedings or any confusion about the questions. ¶42 Furthermore, in order to find that Juvenile was prejudiced by his counsel's failure to request a competency evaluation, he must show that there is a reasonable probability that the outcome of his adjudication would have been different. See Strickland, 466 U.S. at 694. Juvenile, however, does not allege specific facts that indicate he was incompetent to stand trial. Therefore, we find Juvenile's attorney was not ineffective.
The scientific reports were not included in the record before the trial court, and as such, will not be considered on appeal. See Premier Fin. Servs. v. Citibank (Ariz.), 185 Ariz. 80, 86-87, 912 P.2d 1309, 1315-16 (App. 1995).
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CONCLUSION
¶43 For the foregoing reasons, we affirm Juvenile's adjudication and disposition.
____________________
PATRICIA A. OROZCO, Judge
CONCURRING: ____________________
ANDREW W. GOULD, Presiding Judge
____________________
MARGARET H. DOWNIE, Judge