Opinion
No. 1 CA-JV 13-0195
01-21-2014
IN RE SAMUEL T.
Maricopa County Public Advocate's Office, Mesa By Maria P. Dodge Counsel for Appellant Maricopa County Attorney's Office, Phoenix By Andrea L. Kever Counsel for Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
JV558725
The Honorable Julia Lopez, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Public Advocate's Office, Mesa
By Maria P. Dodge
Counsel for Appellant
Maricopa County Attorney's Office, Phoenix
By Andrea L. Kever
Counsel for Appellee
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Patricia A. Orozco joined. THUMMA, Judge:
¶1 Samuel T. appeals from the superior court's finding that he was delinquent of two counts of aggravated assault with a deadly weapon or dangerous instrument. Samuel argues the superior court erred in finding he provoked the fight and, as a result, in rejecting his justifications of self-defense and defense of a third person. Because the delinquency findings are properly supported by the record, they are affirmed.
FACTS AND PROCEDURAL HISTORY
This court views "the evidence in the light most favorable to sustaining the adjudication." In re Kyle M., 200 Ariz. 447, 449, ¶ 6, 27 P.3d 804, 806 (App. 2001).
¶2 In March 2012, five friends -- B.P., M.M., M.C. and the two victims in this case, R.M. and S.D. (collectively Group A) -- were at a school playground. R.M. and B.P. were playing with scooters they had taken without permission from the house of A.T., Samuel's younger brother. Samuel and A.T. had discussed beating up R.M. and B.P. for taking the scooters. A second group of friends -- Samuel, J.H. and J.M. (collectively Group B) -- then came to the playground and confronted Group A and asked for the return of the scooters. After R.M. and B.P. returned the scooters, Samuel and A.T. threw drinks at R.M. and B.P. R.M. and B.P. then went home, changed their shirts and returned to the playground. At some point, Samuel and A.T. left and then returned with a metal foosball rod. None of the other individuals present had any similar items or weapons.
¶3 When R.M. and B.P. returned to the playground, Group A and Group B began arguing and at least one juvenile dared someone to "[t]hrow the first punch." Amid the arguing, someone handed S.D. the foosball rod, S.D. threw it into a nearby field, someone else then retrieved it and at some point Samuel picked up the foosball rod.
¶4 Although no one threw a punch, M.M. pushed A.T. into R.M. and A.T. and R.M. fell to the ground and began fighting. R.M. made conflicting statements whether he was hitting A.T. or whether he was just "trying to get him [A.T.] off me." Samuel then hit R.M. in the head with the foosball rod and R.M. stopped fighting.
¶5 S.D. then began kicking A.T. in the back and Samuel hit S.D. with the foosball rod. S.D. testified he was only lightly kicking A.T. to try to break up the fight. However, at the time of the fight, A.T. was much smaller than S.D. and S.D. did not state an intention to break up the fight. Other witnesses confirmed that S.D. was kicking A.T. in the back in some manner and that Samuel swung the foosball rod at S.D. twice, hitting him on the second swing and causing a deep cut on S.D.'s face. The fight then broke up, the individuals scattered and a nearby policeman rendered assistance.
¶6 The State charged Samuel with two counts of aggravated assault with a deadly weapon or dangerous instrument, each class three felonies. Samuel's counsel argued the justifications of self-defense and defense of a third person. Samuel did not testify. Based on the testimony received, the superior court found Samuel delinquent as charged, noting Samuel's actions were not negated by the justifications of self-defense or defense of a third person under Arizona Revised Statutes (A.R.S.) section 13-404(B)(3) (2014) because he provoked the fight. At disposition, Samuel was placed on probation for one year, ordered to complete twenty hours of community service, assessed restitution in the amount of $2,347.96, ordered to complete an "Amends class" and ordered to write a letter of apology to the victims. This court has jurisdiction over Samuel's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 8-235(A).
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
I. Standard Of Review.
¶7 On appeal, this court looks at whether the evidence at the adjudication was sufficient to permit a rational trier of fact to find the essential elements of the offense beyond a reasonable doubt. In re Dayvid S., 199 Ariz. 169, 170, ¶ 4, 15 P.3d 771, 772 (App. 2000). This court does not re-weigh evidence and will only reverse for 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, 426, ¶ 7, 36 P.3d 772, 774 (App. 2001) (citation omitted). Issues of statutory interpretation are reviewed de novo. Id.
II. The Superior Court Did Not Err In Finding Samuel Provoked The Fight.
¶8 The superior court found Samuel committed the elements of the charged offenses. Samuel's appeal argues that his actions did not amount to provocation. That argument implicates the (1) law for a self-defense and defense of a third person justification and (2) evidence received at the adjudication hearing.
¶9 Self-defense and defense of a third person are justifications, which "describe conduct that, if not justified, would constitute an offense but, if justified, does not constitute criminal or wrongful conduct." A.R.S. § 13-205(A). As applicable here, Samuel's reliance on these justifications required the State to prove beyond a reasonable doubt that he "did not act with justification." A.R.S. § 13-205(A). Arizona law states:
a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself . . .A.R.S. § 13-404(A), (B)(3). A person may defend another by force if a reasonable person under the circumstances would be justified in using self-defense under A.R.S. § 13-404(A). See A.R.S. § 13-406(A).
The threat or use of physical force against another is not justified . . . [i]f the person provoked the other's use or attempted use of unlawful physical force.
This statute also provides an exception that allows a person who provokes a fight under certain limited conditions to withdraw and therefore claim the justification of self-defense despite the provocation. A.R.S. § 13-404(B)(3). The parties and did not address withdrawal at the adjudication hearing and, on the record, the superior court was not compelled to find Samuel withdrew from the fight in a way contemplated by the statute.
¶10 The superior court rejected Samuel's reliance on the justifications of self-defense and defense of a third person. The court found that, "the real instigator here was [Samuel] and his brother, [A.T.] And I don't think you can instigate something and then be getting the worst of it and then escalate the use of physical force." In doing so, the court noted that, among other evidence, Samuel and A.T. threw the drink at the other juveniles and that Samuel and A.T. discussed beating up the other juveniles and then followed Group A onto the playground with the foosball rod.
¶11 Samuel argues his actions did not amount to provocation. A determination whether Samuel's actions amounted to provocation is solely within the province of the trier of fact. State v. Zamora, 140 Ariz. 338, 341, 681 P.2d 921, 924 (App. 1984). The superior court listened to the evidence and considered Samuel's claims of self-defense and defense of a third person. There was substantial evidence from which the superior court could have found Samuel provoked the situation in rejecting his asserted justifications.
¶12 Samuel relies on State v. Jackson, 94 Ariz. 117, 382 P.2d 229 (1963) in arguing that the superior court erred. Jackson, however, addressed whether the jury should have been instructed that Arizona law "does not require a person to retreat before he may act lawfully in self-defense." Id. at 121, 382 P.2d at 232. The court addressed this jury instruction issue in context of the now-repealed A.R.S. § 13-462, a self-defense statute relating to justifiable homicide, which is clearly not the issue here. Jackson, 94 Ariz. at 122-23, 382 P.2d at 232-33; see State v. McIntyre, 106 Ariz. 439, 442, 477 P.2d 529, 532 (1970); State v. Wallace, 83 Ariz. 220, 223-24, 319 P.2d 529, 531-32 (1957). Moreover, unlike the defendant in Jackson, Samuel's right to assert self-defense was not foreclosed. In this case, the factfinder -- the superior court -- considered Samuel's justifications but rejected them after hearing the evidence and argument at the adjudication.
¶13 Samuel's acts comprise substantial evidence from which the superior court could have found provocation. Samuel sought out R.M. and B.P. and threw a drink on them. Additionally, the superior court found the testimony credible that Samuel and A.T. had discussed starting a fight, returned shortly thereafter with a foosball rod and then pursued Group A on the playground. See In re Juvenile Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996) ("The juvenile court is in the best position to measure the credibility of witnesses.").
¶14 Samuel also argues the superior court should have focused its review for provocation solely on the final meeting between the groups resulting in the fight. The superior court as the finder of fact may weigh all the evidence properly before it. See State v. Salazar, 173 Ariz. 399, 414, 844 P.2d 566, 581 (1992) ("The jury, the sentencing court, and this court are not bound by defendant's version of the evidence."); Christina G. v. Ariz. Dep't Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011) ("The juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings."); Jesus M. v. Ariz. Dep't Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App. 2002) (noting resolution of evidentiary conflicts "is uniquely the province of the juvenile court as the trier of fact"). Seeking out another to confront them about previous disagreements supports a finding of provocation. See State v. Randall, 94 Ariz. 417, 419-20, 385 P.2d 709, 710 (1963) (noting evidence of an earlier altercation between defendant and victim sufficient for a provocation instruction); State v. Sourivathong, 130 Ariz. 461, 463, 636 P.2d 1243, 1245 (App. 1981) (upholding provocation finding, discussing defendant's trespass into another's home and seeking out the owner despite his unwelcome presence "for the admitted purpose of confronting [the owner] about previous difficulties, [means defendant] must be charged with the knowledge that his actions are likely to incite violence"). Viewing the evidence in the light most favorable to upholding the delinquency findings, substantial evidence exists from which the superior court could find Samuel intended to provoke the fight and did so.
In his opening brief Samuel asserts this issue involves statutory interpretation because "the word provoke is not defined in the statute." As discussed, however, the superior court's review of the evidence is not limited to such a narrow time frame.
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CONCLUSION
¶15 The superior court's findings that Samuel T. was delinquent of two counts of aggravated assault with a deadly weapon or dangerous instrument are affirmed.