Opinion
2 CA-JV 2012-0119
05-02-2013
IN RE JASON S.
Bradley D. Beauchamp, Gila County Attorney By June Ava Florescue Globe Attorneys for State Harriette P. Levitt Tucson Attorney for Minor
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Not for Publication
Rule 28, Rules of Civil
Appellate Procedure
APPEAL FROM THE SUPERIOR COURT OF GILA COUNTY
Cause No. JV201100091
Honorable Gary V. Scales, Judge Pro Tempore
AFFIRMED
Bradley D. Beauchamp, Gila County Attorney
By June Ava Florescue
Globe
Attorneys for State
Harriette P. Levitt Tucson
Attorney for Minor
KELLY, Judge. ¶1 Jason S. appeals from the juvenile court's orders adjudicating him delinquent, placing him on probation, and ordering him to pay restitution. He argues that the court improperly found he had committed reckless burning as a lesser-included offense of the charged offense of arson and that insufficient evidence supported the court's finding he had committed any offense. He further asserts the court erred in imposing probation until his eighteenth birthday and in setting the amount of restitution. We affirm. ¶2 We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the juvenile court's adjudication order. In re David H., 192 Ariz. 459, ¶ 3, 967 P.2d 134, 135 (App. 1998). In June 2011, Jason and two other juveniles—Darrian S. and Nicholas B.—started multiple fires in a dry creek bed near several homes and other structures. The last of these fires spread out of the creek bed and damaged or destroyed homes and other property, including fences, sheds, and a vehicle. All three juveniles started fires, and each testified they had agreed to do so. Darrian and Jason claimed Nicholas had started the fire that went out of control, while Nicholas said it had been Darrian. Darrian and Jason stated they had told Nicholas not to start that fire, and had attempted to put it out when he did so. Nicholas denied the other two had told him not to start fires. ¶3 Jason was charged by delinquency petition with three counts of endangerment, eight counts of arson of a structure or property, one count of arson of an a occupied structure, and one count of criminal damage. After an adjudication hearing, the juvenile court found the state had established beyond a reasonable doubt that Jason had committed the offenses of endangerment and criminal damage, but had not sustained its burden on the remaining counts of arson, having failed to prove Jason had the requisite specific intent to burn the structures or property. See A.R.S. §§ 13-1703, 13-1704. But the court found the state had presented sufficient evidence that Jason had committed reckless burning, in violation of A.R.S. § 13-1702, and that reckless burning is a lesser-included offense of arson. The court adjudicated Jason delinquent, placed him on probation until his eighteenth birthday, and ordered him to pay approximately $340,000 in restitution. ¶4 Jason first argues the juvenile court improperly amended the delinquency petition pursuant to Rule 29(D)(1), Ariz. R. P. Juv. Ct., by finding he had committed reckless burning as a lesser-included offense of arson. Rule 29(D)(1) provides that a charge "may be amended only to correct mistakes of fact or remedy formal or technical defects, unless the juvenile consents to the amendment. The charging document shall be deemed amended to conform to the evidence presented at any court proceeding." Jason concedes that Rule 29(D)(1) permits amendment, without the juvenile's consent, of a delinquency petition to include a lesser-included offense of the offense charged. See In Jeremiah T., 212 Ariz. 30, ¶¶ 10-13, 126 P.3d 177, 180-81 (App. 2006) (rejecting argument petition automatically amended because new charge not lesser-included offense); see also In re Victoria K., 198 Ariz. 527, n.3, 11 P.3d 1066, 1071 (App. 2000) (juvenile court "may adjudicate an offender for an offense that is necessarily included in the principal charge"); In re Isaac G., 189 Ariz. 634, 637, 944 P.2d 1248, 1251 (App. 1997) (court permitted to amend petition "when the amended charge constitutes a lesser included offense of the original charge"). ¶5 Jason asserts, however, that "reckless burning is not necessarily a lesser included offense of arson." Although he acknowledges that our supreme court concluded "reckless burning is a lesser included offense of arson" in State v. Bay, 150 Ariz. 112, 117, 722 P.2d 280, 285 (1986), he argues that case is factually distinguishable. In Bay, however, the court determined reckless burning was a lesser-included offense of arson by comparing the statutory elements—not by examining the underlying facts. See id. Thus, that Bay is arguably factually distinguishable is irrelevant to the court's holding that reckless burning is a lesser-included offense of arson. We therefore find no error in the juvenile court considering whether Jason had committed reckless burning. ¶6 Jason next asserts the evidence was insufficient to support the juvenile court's finding that he had committed endangerment, reckless burning, or criminal damage. He asserts he lacked the requisite mental state, specifically recklessness, to have committed those offenses because he believed he and the other juveniles were starting fires in a safe location and had no reason to believe a fire would spread and cause significant damage. A.R.S. §§ 13-1201(A); 13-1602(A); 13-1702(A). ¶7 In reviewing a challenge to the sufficiency of the evidence, "we consider whether the evidence sufficed to permit a rational trier of fact to find the essential elements of [each] offense beyond a reasonable doubt." In re Dayvid S., 199 Ariz. 169, ¶ 4, 15 P.3d 771, 772 (App. 2000). "[W]e will not re-weigh the evidence, and we will only reverse on the grounds of insufficient evidence if there is a complete absence of probative facts to support the judgment or if the judgment is contrary to any substantial evidence." In re John M., 201 Ariz. 424, ¶ 7, 36 P.3d 772, 774 (App. 2001). It is for the juvenile court as the trier of fact, not this court, to assess the credibility of witnesses and weigh the evidence. In re James P., 214 Ariz. 420, ¶ 24, 153 P.3d 1049, 1054 (App. 2007). Thus, when there are conflicts in the evidence, the juvenile court must resolve them. Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, ¶ 16, 107 P.3d 923, 928 (App. 2005). ¶8 A person acts recklessly if he or she is "aware of and consciously disregards a substantial and unjustifiable risk . . . of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." A.R.S. § 13-105(10)(c). To convict a person of endangerment, the state must demonstrate that person "recklessly endanger[ed] another person with a substantial risk of imminent death or physical injury." § 13-1201(A). A conviction of criminal damage requires proof a person recklessly "defac[ed] or damag[ed] property of another person." § 13-1602(A)(1). Finally, "A person commits reckless burning by recklessly causing a fire or explosion which results in damage to an occupied structure, a structure, wildland or property." § 13-1702(A). ¶9 Based on the evidence regarding the surrounding area, with trees and brush nearby, the risk that one of the fires set by the juveniles could grow out of control was clearly attendant to every fire they had ignited. Cf. State v. McGill, 213 Ariz. 147, ¶ 19, 140 P.3d 930, 936 (2006) (finding evidence defendant ignited fire by throwing gasoline on victims in one duplex sufficient to support endangerment conviction as to victim in adjoining apartment because trier of fact reasonably could find reckless disregard of risk fire would spread and apartment would be occupied). A fire inspector testified the area had "heavy, dry, tall grass," providing "[a] lot of fuel" for a fire, and that there were "high winds" that day. Nicholas, who had entered a plea agreement before trial, testified that each of them had taken turns lighting dead grass on fire, several feet away from a bare spot where he claimed they initially had ignited gunpowder. ¶10 And the juvenile court could conclude that Jason, along with the others, was aware there were residences and structures nearby that could be damaged by an out-of-control fire. Photographs taken at the fire's origin point showed houses and other structures immediately adjacent to and clearly visible from the creek bed. Although Jason is correct that the court was required to consider his conduct in light of his age, twelve at the time of his offenses, see In re William G., 192 Ariz. 208, 214, 963 P.2d 287, 293 (App. 1997), the court readily could conclude that a reasonable twelve-year-old would understand that it was unreasonably dangerous to start fires on a windy day in an area full of tall, dry grass near residences and other structures. ¶11 Jason asserts, however, pursuant to A.R.S. § 13-203, that "[r]ecklessness is proven if the actual result of the defendant's conduct is similar to that intended, or if the actual result is less than the result intended by the defendant's conduct." Thus, he reasons, his adjudications for reckless burning were improper because "the actual result of [his] conduct was far more excessive than what [he] thought might happen or reasonably expected might happen." But § 13-203 does not apply here. Relevant to reckless conduct, that statute provides that, "[i]f recklessly . . . causing a particular result is an element of an offense, and the actual result is not within the risk of which the person is aware," recklessness nonetheless is established, inter alia, if the "injury or harm . . . contemplated would have been more serious or extensive than that caused" or "[t]he actual result involves similar injury or harm as the probable result." § 13-203(C). But we already have rejected Jason's argument there was insufficient evidence that he understood the risks attendant to setting fire to dry grass in close proximity to homes and other structures. The actual result—a destructive fire—clearly was within the category of risks of which Jason was aware. ¶12 Jason also asserts the juvenile court erred in concluding he was liable as an accomplice because he had "disengaged" from the conduct when he and Darrian had told Nicholas to stop lighting fires. A person is "criminally accountable for the conduct of another . . . including any offense that is a natural and probable or reasonably foreseeable consequence of the offense for which the person was an accomplice" if the person acts as an "accomplice." A.R.S. § 13-303(A)(3). An accomplice is one "who with the intent to promote or facilitate the commission of an offense . . . [s]olicits or commands another person to commit the offense; . . . [a]ids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense[; or] . . . [p]rovides means or opportunity to another person to commit the offense." A.R.S. § 13-301; see also State v. King, 226 Ariz. 253, ¶¶ 16-17, 245 P.3d 938, 943 (App. 2011) (defendant's conviction of negligent homicide proper even though he did not intend to seriously harm or cause death of victim; his and codefendant's negligent acts "amounted to a single criminal episode"). ¶13 As we noted above, there were conflicts in the evidence concerning who had set the fire that ultimately burned out of control and whether Darrian and Jason had told Nicholas to stop starting fires. The juvenile court was not required to believe the testimony that Nicholas had set the fire that caused the damage. The court also could have believed Nicholas had ignited that fire but the others had not been opposed to it and had done nothing to try to stop him. Thus, the court could have concluded the final fire was simply one in a series the juveniles had set as a group as part of a single criminal episode in which they all had participated. Under that interpretation of the evidence, the record contained sufficient evidence establishing Jason's culpability as an accomplice. See § 13-303(A)(3). ¶14 We also disagree with Jason's suggestion that the juvenile court erred in rejecting his defense that he had attempted to withdraw from the agreement to light fires and thereby end his responsibility as an accomplice before Nicholas lit the fire that became uncontrollable. A person may end his responsibility as an accomplice by "notifying others of his intention to withdraw from participation in the criminal conduct and . . . by doing everything in his power to prevent the commission of the crime." State v. Tucker, 118 Ariz. 76, 80, 574 P.2d 1295, 1299 (1978). But, as we already have explained, the court was free to reject Jason's and Darrian's claims that they had attempted to prevent Nicholas from starting fires. ¶15 Jason next asserts the juvenile court erred by placing him on probation until he reaches the age of eighteen. He asserts the term is "grossly unreasonable" because Jason had no criminal history and was unlikely to commit another offense, and that, in light of Jason's age, the probationary term "[w]as essentially double that of the most culpable member of the group," Nicholas. We first observe that the evidence does not compel a conclusion that Nicholas was the "most culpable" actor. And, to the extent Jason asserts the probationary term was improper because the court erred in setting the amount of restitution, as we explain below, we reject his argument that the amount of restitution is improper. In any event, Jason cites no authority suggesting a court abuses its discretion by imposing a probationary term like the one imposed in these circumstances. See Ariz. R. Civ. App. P. 13(a)(6) (appellate brief "shall contain" argument with citation to authorities); Ariz. R. P. Juv. Ct. 106(A) (applying Rule 13, Ariz. R. Civ. App. P., to juvenile appeals). We therefore do not address this argument further. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (failure to develop legal argument waives argument on appeal). ¶16 Jason additionally argues the juvenile court "abused its discretion by imposing a restitution award that exceeds $3[40],000." He does not claim the amount imposed incorrectly reflects the victims' losses, but instead contends the court failed to properly consider his age and inability to pay such a large restitution award. Section 8-344(A), A.R.S., provides that when a juvenile has been adjudicated delinquent and "after considering the nature of the offense and the age, physical and mental condition and earning capacity of the juvenile, [the court] shall order the juvenile to make full or partial restitution to the victim of the offense for which the juvenile was adjudicated delinquent." Restitution is mandatory; in this respect, the statute recognizes and is consistent with Arizona's constitution, which provides crime victims with the right to receive compensation from defendants for their crimes. See Ariz. Const. art. II, § 2.1(A)(8); see also In re Ryan A., 202 Ariz. 19, ¶ 18, 39 P.3d 543, 547-48 (App. 2002) (obligation to pay full or partial restitution to victim of offense committed by juvenile mandatory). ¶17 We will not disturb a restitution order absent an abuse of discretion. In re Andrew C., 215 Ariz. 366, ¶ 6, 160 P.3d 687, 688 (App. 2007). "We will not reweigh evidence, but look only to determine if there is sufficient evidence to sustain the juvenile court's ruling." In re Andrew A., 203 Ariz. 585, ¶ 9, 58 P.3d 527, 529 (App. 2002). A preponderance of the evidence is required to sustain a restitution award. See In re Stephanie B., 204 Ariz. 466, ¶ 15, 65 P.3d 114, 117-18 (App. 2003). And we will uphold a restitution order if it bears a reasonable relationship to the victim's loss. Ryan A., 202 Ariz. 19, ¶ 20, 39 P.3d at 548. ¶18 That the damage to property here was substantial does not necessarily mean the juvenile court abused its discretion by not reducing the order to one of partial restitution, as Jason suggests. Cf. In re William L., 211 Ariz. 236, ¶ 12, 119 P.3d 1039, 1042 (App. 2005) (juvenile court has broad discretion in setting restitution amount to ensure victim is made whole). Nor does the fact that Jason was only twelve at the time he committed the offenses. Id. ¶19 The record reflects that the juvenile court was asked to consider various mitigating circumstances, including the juveniles' ages, the devastating effect a large restitution order would have on their lives, and the fact that they had not intended to harm anyone or damage property. The court acknowledged these and other arguments but stated, "these are all consequences that follow from the [juveniles'] conduct." The court correctly observed that insurance companies are "victims just like anybody else" in response to the argument that only the homeowners, and not their insurance carriers, should be compensated. The court added, "I considered the nature of the offense, the intent of the parties, their age and incapacity." As this court noted in In re Kristen C., 193 Ariz. 562, ¶¶ 8-16, 975 P.2d 152, 153-56 (App. 1999), the significance of the amount and the juvenile's apparent inability to pay it before the juvenile reaches the age of eighteen is not the focus of an order of restitution, rather the goal under the statutes is "accountability for unlawful conduct." If the amount remains unpaid by the juvenile's eighteenth birthday, our legislature has provided the court with the ability to enter a civil judgment and impose a restitution lien, A.R.S. § 8-344(D), reflecting its intent that victims be made whole. ¶20 The record reflects the juvenile court carefully considered all of the relevant factors before entering a final restitution order, including Jason's age and the strain a large restitution amount would place on his finances. But the court was faced with multiple victims, some of whom lost substantial property in the fire. Based on the record and the applicable law, the court soundly exercised its discretion and Jason has not sustained his burden of establishing otherwise. ¶21 The juvenile court's orders adjudicating Jason delinquent, placing him on probation, and requiring him to pay restitution are affirmed.
Jason cites several cases from other jurisdictions also addressing fires started by juveniles and observes that, in each of those cases, "the juvenile was either within, or very close to, a building." Only two of those cases, however, address reckless instead of intentional conduct, and neither of those cases purport to describe the minimum conduct necessary to commit the offense. United States v. Doe, 136 F.3d 631, 633-34 (9th Cir. 1998) (juvenile committed intentional arson by setting fire to towel dispenser inside school restroom); United States v. M.W., 890 F.2d 239, 240-41 (10th Cir. 1989) (juvenile committed intentional arson by lighting school records on fire inside school principal's office); In re M.L., 729 S.E.2d 548, 549 (Ga. Ct. App. 2012) (juvenile reckless in starting fire six feet away from town house); In re Orazio A., 916 N.Y.S.2d 668, 669 (N.Y. App. Div. 2011) (juvenile acted recklessly in lighting firecrackers inside barn). The fact that the evidence was sufficient in those cases does not suggest the evidence was not sufficient here.
Jason cites State v. Hawkins, 134 Ariz. 403, 656 P.2d 1264 (App. 1982), for the proposition that a juvenile court abuses its discretion in imposing a restitution award beyond the juvenile's financial ability to pay. We rejected this argument in Kristen C., noting that Hawkins preceded the addition of the victim's bill of rights to the Arizona Constitution, which includes a victim's right to restitution, and various statutory protections concomitant with that right. See Kristen C., 193 Ariz. 562, ¶¶ 10-12, 975 P.2d at 154-55.
___________________________
VIRGINIA C. KELLY, Judge
CONCURRING: ___________________________
GARYE L. VÁSQUEZ, Presiding Judge
___________________________
PHILIP G. ESPINOSA, Judge