Opinion
No. 2 CA-JV 2018-0141
12-21-2018
IN RE S.W.
COUNSEL Barbara LaWall, Pima County Attorney By Dale Cardy, Deputy County Attorney, Tucson Counsel for State Joel Feinman, Pima County Public Defender By Susan C. L. Kelly, Assistant Public Defender, Tucson Counsel for Minor
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
No. JV20170405
The Honorable Alyce Pennington, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL
Barbara LaWall, Pima County Attorney
By Dale Cardy, Deputy County Attorney, Tucson
Counsel for State
Joel Feinman, Pima County Public Defender
By Susan C. L. Kelly, Assistant Public Defender, Tucson
Counsel for Minor
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred.
VÁSQUEZ, Presiding Judge:
¶1 S.W. was adjudicated delinquent after she admitted to committing criminal damage by pouring maple syrup on the victim's motorcycle. The juvenile court ordered S.W. to pay the victim $552.50 in restitution. On appeal, S.W. challenges the portion of the restitution award for the replacement of the motorcycle's radiator, arguing the state failed to present any evidence that she had punctured the radiator. Because we agree, we vacate that portion of the award and remand for proceedings consistent with this decision.
Factual and Procedural Background
¶2 We view the evidence presented at the restitution hearing in the light most favorable to affirming the juvenile court's award. In re J.U., 241 Ariz. 156, ¶ 2 (App. 2016). S.W. and C.V., who were high-school classmates, had been dating, and, after their relationship ended, C.V. obtained an order of protection against S.W. Thereafter, in January 2018, C.V. drove his motorcycle to school and went to class. When he attempted to leave, C.V. discovered that his motorcycle was covered in maple syrup. After contacting police, C.V. drove his motorcycle to a friend's house to clean it. He missed work that afternoon as a result.
¶3 "A day or two" later, C.V. saw "a little green mist" and "a puddle . . . on the ground next to the tire," and he realized that his motorcycle was "spewing antifreeze." The motorcycle was towed to a service center, where technicians found "the radiator had been punctured," likely by "a screwdriver, an ice pick, or some sort of instrument of that nature." The technicians also discovered "a significant presence" of maple syrup "on the center of the motorcycle, the seat, and fuel tank." Although the syrup "didn't appear to be caustic or corrosive in nature," the motorcycle was professionally cleaned because C.V. was concerned the syrup would cause damage. The technicians also replaced the radiator.
¶4 In February 2018, the state filed a delinquency petition, alleging that S.W. had committed one count of criminal damage by recklessly defacing or damaging C.V.'s motorcycle. The following month, S.W. was adjudicated delinquent after she admitted to committing criminal damage as alleged in the petition. As the factual basis for her admission, S.W. agreed she had "poured some syrup over the motorcycle causing some damage." The juvenile court placed S.W. on twelve months' probation and scheduled a restitution hearing.
¶5 At the hearing, the state requested $552.50 in restitution on behalf of C.V., who testified he had missed a five-hour work shift on the day of the incident and incurred $52.50 in lost wages. His mother also testified that she had paid to get the motorcycle repaired. The service bill—including the towing, the replacement of the radiator, and the cleaning—was $1,205.26, of which C.V.'s mother paid a $500 insurance deductible.
¶6 In response, S.W. asserted there should be "no restitution," arguing, in part, that there had been "absolutely zero . . . testimony that she did any damage to th[e] radiator" and, consequently, she should not be responsible for its replacement. In its under-advisement ruling, the juvenile court adopted the state's position and ordered S.W. to pay $552.50 in restitution, representing the $52.50 in lost wages and the $500 insurance deductible. This appeal followed. We have jurisdiction pursuant to A.R.S. § 8-235 and Rule 104(A), Ariz. R. P. Juv. Ct.
Discussion
¶7 As she did below, S.W. maintains, "The state failed to establish that [she] took any action which could have led to damaging the radiator of [C.V.'s] motorcycle." Accordingly, she asks that we vacate the $500 portion of the restitution award. We review a juvenile court's restitution award for an abuse of discretion. In re Michelle G., 217 Ariz. 340, ¶ 9 (App. 2008).
¶8 "If a juvenile is adjudicated delinquent, 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." A.R.S. § 8-344(A). "[T]he purpose of restitution is rehabilitation of the offender and reparation to the victim of the crime." In re Andrew A., 203 Ariz. 585, ¶ 7 (App. 2002). Thus, our supreme court has provided a three-part test: "Restitution is appropriate for losses that (1) are economic, (2) would not have occurred but for the juvenile's delinquent conduct, and (3) are directly caused by the delinquent conduct (e.g. not consequential damages)." In re Andrew C., 215 Ariz. 366, ¶ 9 (App. 2007) (citing State v. Wilkinson, 202 Ariz. 27, ¶ 7 (2002)).
¶9 In ordering restitution, the juvenile court weighs the evidence and judges the credibility of witnesses. In re Richard B., 216 Ariz. 127, ¶ 12 (App. 2007). "The burden of proof applicable to restitution is proof by a preponderance of the evidence." In re Stephanie B., 204 Ariz. 466, ¶ 15 (App. 2003). On appeal, we do not reweigh but only consider whether there is reasonable evidence supporting the juvenile court's findings. In re Maricopa
Cty. Juv. Action No. JV-132905, 186 Ariz. 607, 609 (App. 1996); see also Richard B., 216 Ariz. 127, ¶ 12.
¶10 S.W. maintains the state must produce some evidence to "support an inference that the juvenile conduct is related to the restitution award." She argues the state "failed to produce any evidence that [she] had or used the type of sharp object deemed necessary by the mechanic to produce the hole in the [radiator]." "At best," she reasons, the state established "she was merely present in the vicinity of the bike for a time, a fact which does nothing to prove responsibility for mechanical damage which did not become apparent until after the vehicle had been cleaned, visually inspected, and ridden at least three times."
¶11 In response, the state asserts the juvenile court did not abuse its discretion in finding that S.W. had damaged C.V.'s radiator and ordering restitution for its replacement. According to the state, "[t]he nature of the damage to the radiator, [S.W.] being the only person mad enough at [C.V.] to want to damage his motorcycle, and [S.W.] already admitting to committing a malicious act toward the motorcycle within 1-2 days of the damage to the radiator being discovered" support the inference that S.W. punctured the radiator.
¶12 The evidence supporting a restitution award need not be direct, Andrew A., 203 Ariz. 585, ¶ 10, but must "reasonably lead[] to the inference that juvenile's criminal conduct was related to victim's damages," Maricopa Cty. No. JV-132905, 186 Ariz. at 609. For example, in Andrew A., the juvenile was stopped while driving a stolen Jeep, and the victim's car stereo and personal property were missing. 203 Ariz. 585, ¶ 2. The juvenile claimed he knew the Jeep was stolen and a friend had paid him to drive the vehicle from one location to another. Id. After the juvenile admitted to one count of theft, the juvenile court awarded restitution for damage to the Jeep and the loss of the victim's personal property. Id. ¶ 3. On appeal, the juvenile argued that "there was no evidence to support a causal connection between the conduct that constituted his offense and the . . . order of restitution for the victim's personal property." Id. ¶ 4. He claimed the interior of the Jeep was damaged and personal property was stolen before his possession. Id. ¶ 6. This court affirmed the restitution award, explaining that the juvenile court could have properly inferred the juvenile had stolen the Jeep and the victim's personal property, despite his denial otherwise. Id. ¶ 9. We noted the circumstances—including his control over a vehicle that he knew was stolen and his inconsistent agreement to pay restitution for the damage to the Jeep's interior—supported an inference that the
juvenile also had stolen the personal property and several factors weighed against finding the juvenile's denial credible. Id. ¶ 10.
¶13 Unlike in Andrew A., however, the state presented no evidence supporting an inference that S.W. had damaged the radiator on C.V.'s motorcycle. First, the record contains no evidence that S.W. had in her possession "a screwdriver, an ice pick, or some sort of instrument of that nature," which she could have used to puncture the radiator in the manner found by the technicians. More importantly, S.W. presented evidence to the contrary. Cf. Maricopa Cty. No. JV-132905, 186 Ariz. at 609 (affirming restitution award, in part, because no credible evidence submitted by juvenile to refute inference that loss caused by admitted criminal conduct). S.W. explicitly denied puncturing the radiator, but, unlike in Andrew A., a witness also testified that she had watched S.W. walk from her truck to C.V.'s motorcycle, pour syrup all over the motorcycle, and then leave. The witness explained that she had not seen S.W. touch the motorcycle and that S.W. had not been "carrying any implements of any kind," like a "screwdriver" or "ice pick[]."
¶14 Second, in Andrew A., the juvenile had control of the Jeep when he was stopped, and there was no evidence—other than the juvenile's own testimony—that anyone else had control of the Jeep beforehand. 203 Ariz. 585, ¶ 10. It could thus be logically inferred that the juvenile caused the damage and stole the personal property, which was in his exclusive control. Id. Here, however, S.W. was seen leaving the motorcycle in the school parking lot immediately after pouring maple syrup on it, and C.V. did not discover the damaged radiator for "[a] day or two," during which time he cleaned the motorcycle and drove it multiple times. Third, unlike the juvenile in Andrew A., S.W. did not take "logically inconsistent positions," calling into doubt her credibility. Id. Rather, S.W. consistently denied puncturing the radiator, arguing as early as the disposition hearing that "the damage [to the radiator] . . . was not caused by syrup."
¶15 "[A] defendant may be ordered to pay restitution only for an offense that he has admitted, upon which he has been found guilty, or upon which he has agreed to pay restitution." In re Maricopa Cty. Juv. Action No. JV-128676, 177 Ariz. 352, 354 (App. 1994) (quoting State v. Whitney, 151 Ariz. 113, 114 (App. 1985)). S.W. admitted to committing one count of criminal damage by "pour[ing] some syrup over the motorcycle causing some damage." And she agreed to pay restitution for that damage. But the service manager testified—and the state acknowledges—the damage to the radiator could not have been caused by the syrup.
¶16 Accordingly, the juvenile court abused its discretion in ordering restitution for the $500 insurance deductible to the extent it included replacement of the radiator because reasonable evidence does not support the finding that S.W. punctured the radiator. See Michelle G., 217 Ariz. 340, ¶ 9; see also Maricopa Cty. No. JV-132905, 186 Ariz. at 609. We therefore vacate that portion of the award. However, because the service manager testified that of the $1,205.26 service bill, $141 was the "damage estimate," which "included cleaning up the bike," we remand to the juvenile court to determine what amount, if any, should be ordered as restitution for the damage directly caused by S.W. pouring syrup on the motorcycle. See Andrew C., 215 Ariz. 366, ¶ 9.
Disposition
¶17 For the foregoing reasons, we vacate the $500 portion of the restitution award representing the insurance deductible for all of the damage to the motorcycle and remand to the juvenile court for further proceedings consistent with this decision.