Date: 05-21-2013

Case Style: In Re Donald B., Jr.

Case Number: 1 CA-JV 12-0289

Judge: Patricia A. Orozco

Court: Arizona Court of Appeals, Division One on appeal from the Superior Court, Mohave County

Plaintiff's Attorney: Matthew J. Smith, Mohave County Attorney Kingman
By Melissa M. Moore, Deputy County Attorney
Attorneys for Appellee

Defendant's Attorney: Jill L. Evans, Mohave County Appellate Defender Kingman
By Diane S. McCoy, Deputy Appellate Defender
Attorneys for Appellant

Description: ¶1 Donald B., Jr. (Juvenile) appeals his adjudication of
2
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
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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
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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 felony1; 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).
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
1 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.
5
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
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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
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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
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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 secondguess
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
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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).2
2 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.
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¶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.
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
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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
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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 Miranda3 and his Fifth
Amendment4 privilege against self incrimination. Juvenile also
contends his statements were involuntary under the Due Process
Clause of the Fourteenth Amendment.5
¶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
3 Miranda v. Arizona, 384 U.S. 436 (1966).
4 U.S. Const. amend. V.
5 U.S. Const. amend. XIV.
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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 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
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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 un15
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
16
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
17
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
18
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.6
¶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
6 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).
19
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.

Outcome: ¶43 For the foregoing reasons, we affirm Juvenile’s
adjudication and disposition.

Plaintiff's Experts:

Defendant's Experts:

Comments: