Opinion
No. 2 CA-JV 2019-0030
07-18-2019
IN RE A.H.
COUNSEL Barbara LaWall, Pima County Attorney By Dale Cardy, Deputy County Attorney, Tucson Counsel for State Sarah Michèle Martin, 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NOT FOR PUBLICATION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. JV20180134
The Honorable Deborah Pratte, Judge Pro Tempore
AFFIRMED
COUNSEL Barbara LaWall, Pima County Attorney
By Dale Cardy, Deputy County Attorney, Tucson
Counsel for State Sarah Michèle Martin, Tucson
Counsel for Minor
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 A.H. appeals from the juvenile court's order adjudicating him delinquent based on one count of molestation of a child under the age of fifteen. A.H. challenges the sufficiency of the evidence to support the adjudication and contends the court erred when it denied his request for a continuance of the adjudication hearing so that he could consult a sleep expert in light of the victim's testimony. We affirm for the reasons stated below.
¶2 A.H. was charged with two counts of child molestation, both class two felonies, and one count of misdemeanor assault. The victim was his ten-year-old stepsister; A.H. was fourteen years old. After an adjudication hearing at which A.H. and the victim testified, the juvenile court found the state had sustained its burden of proving beyond a reasonable doubt that A.H. had committed child molestation as alleged in count two of the petition, by knowingly engaging in sexual contact with the victim involving the genitals or anus by touching her with his penis, in violation of A.R.S. § 13-1410(A). The court dismissed the remaining counts for lack of sufficient evidence, and subsequently placed A.H. on probation for twelve months.
¶3 A.H. first contends there was insufficient evidence to support the adjudication. He argues there was "no credible evidence that [he] touched [the victim] with his penis," and "[t]he only evidence presented was [the victim's] statement that she thinks her stepbrother tried to put his 'private spot' into her butt." He asserts the victim testified she had been "half asleep and half awake" and "'asleep most of the time' during the incident," and she could not describe what the "'private spot' felt like or looked like."
¶4 We review an adjudication of delinquency in a juvenile proceeding for an abuse of discretion. In re Ryan A., 202 Ariz. 19, ¶ 16 (App. 2002). We view the evidence and all reasonable inferences from that evidence in the light most favorable to upholding the adjudication. In re Jessi W., 214 Ariz. 334, ¶ 11 (App. 2007). To determine whether there was sufficient evidence, we consider only whether "a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt," In re Maricopa Cty. Juv. Action No. JT9065297 , 181 Ariz. 69, 82 (App. 1994), and we will not disturb the juvenile court's order unless "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 (App. 2001). "Substantial evidence is more than a mere scintilla and is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. Mathers, 165 Ariz. 64, 67 (1990) (quoting State v. Jones, 125 Ariz. 417, 419 (1980)).
¶5 The victim testified she had fallen asleep on a couch in the living room of the family's home and A.H. had picked her up and had carried her to her bedroom upstairs. He said to her that she had asked for a massage, although she had not, and while she was laying on her bed on her stomach, he began to touch her all over her body over her clothes, including her "butt," which made her feel "[v]ery uncomfortable." He also touched her "private spot," which she identified as her vagina, testifying that this made her "very, very uncomfortable." The victim then described how A.H. kept lifting her hips up as she lay on her stomach. After acknowledging a boy's "private part" is called a penis, she stated A.H. had "tried putting his private spot into my butt." Although she was still wearing her sweatpants, she responded "yes" when she was asked if she could feel his "private spot."
¶6 The victim also testified that she tried to turn her head around to see what A.H. was doing, but he pushed her head towards the pillow and although she heard the sound of him pulling his shorts up and down, she never saw his "private spot." The things he did to her made her feel "[v]ery uncomfortable and weird," and she had asked him to stop "like six or seven times." After he left her room, she went downstairs, where she ran into her mother and told her what had happened and began to cry.
¶7 Relying on the victim's testimony that she did not see A.H.'s "private spot," her inability to describe what it felt like, and her admission during cross-examination that she had been "half asleep and half awake" when this happened and "asleep most of the time," A.H. argues there was "no credible evidence" that he touched the victim with his penis. But in addition to the testimony summarized above, the victim also stated she had been tired but that had not affected her ability to remember what had occurred and her memory of what A.H. had done was clear. And even though she agreed during cross-examination there were times during the incident she had been asleep and times she had been awake, and that she might have fallen asleep when A.H. started to reach under her and touch her "private spot," she also said she woke up after he reached under her with his hand and when he lifted her hips and "tried to put his private spot in [her] butt." She testified she had been asleep when A.H. carried her up the first part of the stairs but she had woken up and was awake when she reached her bedroom and when she was on her bed. And although she said she did not "know how to explain" how she knew what she had been feeling was A.H. trying to put his "private spot against [her] butt," she stated unequivocally that this was what he had done and that he had been behind her with his legs wrapped around hers.
This characterization of the victim's testimony is not entirely accurate. She did not testify she was "half asleep and half awake." She was asked during cross-examination whether she understood what it was to have been "drowsy . . . [w]here you were half asleep or half awake," and whether that had happened that night, to which she responded, "Yes."
¶8 It was for the juvenile court to weigh the evidence and assess the credibility of the witnesses in light of all of the testimony and the court's observation of their demeanor as they testified. See In re Maricopa Cty. Juv. Action No. JV-132905 , 186 Ariz. 607, 609 (App. 1996). Thus, it was for the juvenile court to determine which portions of the victim's testimony to credit and whether she was more credible than A.H., who testified that he had not touched her inappropriately or "put [his] penis against her butt," but had simply massaged her after she had asked him to, rubbing her shoulders, back, legs and feet. That the court carefully considered these factors and weighed the evidence is reflected in its comments and findings at the end of the hearing and its conclusion that the state had not sustained its burden on counts one and three but had established beyond a reasonable doubt A.H. had committed the offense of child molestation as alleged in count two. We will not reweigh the evidence, see In re John M., 201 Ariz. 424, ¶ 7, and have no basis for disturbing the court's ruling.
¶9 At the close of the state's case, A.H.'s counsel stated that she had not been expecting the victim's testimony because it was different from what she had said during her interview. Counsel stated she wanted to "acquire a sleep expert . . . to be able to file a written motion on the Rule 20 to address proper cross-examination of the witness, 6th Amendment issue." The issue of whether the victim had been awake, counsel argued, "goes to a level of consciousness for the witness." The court denied the motion. A.H. challenges that ruling on appeal, arguing his counsel had been "essentially blind-sided by" the victim's testimony, and his due process rights to a fair trial under the state and federal constitutions, specifically the Fifth and Fourteenth Amendments, were violated.
¶10 As the state points out, Rule 15(C), Ariz. R. P. Juv. Ct., provides that a continuance "shall be granted only upon a showing that good cause exists and that delay is indispensable to the interests of justice." The rule requires the court to consider the views of the victim and the victim's right to a timely adjudication. Id. In the analogous context of a criminal trial, a continuance in the middle of trial should only be granted "under the most exigent circumstances." State v. Eisenlord, 137 Ariz. 385, 391 (App. 1983). A court's "exercise of discretion on a motion for continuance . . . is not disturbed unless there is a clear abuse of discretion and prejudice results." State v. Mendoza, 170 Ariz. 184, 193 (1992) (applying Rule 8.5(b), Ariz. R. Crim. P., which requires showing of extraordinary circumstances and delay indispensable to interests of justice before trial may be continued).
¶11 Given the victim's testimony and the arguments A.H.'s counsel made below to justify the continuance, we cannot say the juvenile court abused its discretion here. The victim was subjected to extensive questioning on direct and cross-examination about her sleepiness, and whether she had been awake or asleep during the course of these events and what effect this had on her perception of the events at the time and her ability to recall them. A.H. made no showing, either below or on appeal, how consultation with a sleep expert would have been essential or even helpful to the defense. Moreover, we agree with the state that it appears defense counsel knew before the adjudication hearing that the alleged events had taken place around midnight and that the victim had fallen asleep on the couch when A.H. had carried her upstairs to her room. That her level of consciousness and wakefulness would be a potential issue in the case should have been anticipated rather than something that would have "blind-sided" defense counsel once the victim testified.
¶12 The juvenile court's order adjudicating A.H. delinquent and the disposition are affirmed.