Opinion
1 CA-JV 12-0077
10-23-2012
IN RE DANIEL P.
Law Office of Florence M. Bruemmer, By Florence M. Bruemmer Attorneys for Appellant/Juvenile %Sheila Polk, Yavapai County Attorney By Tanaaz Wheeler, Deputy County Attorney Attorneys for Appellee
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(Not for Publication -
103(G) Ariz.R.P. Juv.
Ct.; Rule 28 ARCAP)
Appeal from the Superior Court in Yavapai County
Cause No. V1300JV201180075
The Honorable Jennifer B. Campbell, Judge
AFFIRMED
Law Office of Florence M. Bruemmer,
By Florence M. Bruemmer
Attorneys for Appellant/Juvenile
PC Anthem
Sheila Polk, Yavapai County Attorney
By Tanaaz Wheeler, Deputy County Attorney
Attorneys for Appellee
Camp Verde
OROZCO, Judge ¶1 Daniel P. (Juvenile) appeals his adjudication of delinquency on one count of burglary in the third degree, two counts of unlawful use of means of transportation, and one count of criminal damage, as well as the restitution he is required to pay in conjunction with the criminal damage charge. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Between July 3 and July 7, 2011, Juvenile ran away from home and committed various delinquent acts, including stealing three bicycles, a BMW and damaging the BMW. Cottonwood Police Department Detective S. (Detective) investigated those thefts and determined that Juvenile committed the crimes. On July 7, 2011, at approximately 5:00 p.m., Detective was informed that Juvenile and another individual were at an apartment complex. When Detective arrived, he was notified by a resident that two males had just run from the building. ¶3 Detective located the other individual hiding a short distance from the apartment complex. During an interview, that individual admitted to stealing the BMW with Juvenile and being with Juvenile shortly before police found him. Prior to leaving the police station, Detective received information that Juvenile was driving a white Ford Ranger (Ranger), and an attempt to locate Juvenile was issued. ¶4 At approximately 7:15 p.m., the county special crimes unit located Juvenile at a convenience store with his father and siblings. Detective testified that upon questioning, Juvenile admitted to stealing a bicycle and a car, but Juvenile denied committing any other crimes. When Detective questioned him about the Ranger, Juvenile stated that he found the truck at the fairgrounds behind property owned by a landscaping company, Bedrock Landscaping (Bedrock) and had abandoned the Ranger after it ran out of gas. ¶5 Detective and Cottonwood Police Department Officer G. (Officer) located the Ranger, and Detective contacted the owner of Bedrock (Owner). Owner informed Detective that Juvenile was driving the Ranger without her knowledge or consent. When Owner inspected the Ranger, she noticed that it had body damage, including a missing toolbox that had been attached to the bed of the truck, a cracked bed, and a bent frame and tailgate. ¶6 Owner later contacted Officer to inform him that she had discovered additional damage at the Bedrock property, including damage to a gate, garage door, and a 1989 Dodge Ram Dually (1989 Dodge). When Officer arrived at Bedrock, he observed that a 2001 Dodge Ram Dually (2001 Dodge) had been rummaged through and driven about ten feet. Owner also pointed out that the 1989 Dodge had been left about twenty feet outside of Bedrock's gate, and it appeared that the 1989 Dodge had almost hit a building on the fairgrounds property. Officer testified that based on the tire tracks, it appeared that the 1989 Dodge had been backed into a garage door and then driven through Bedrock's gate. ¶7 Juvenile was detained and a delinquency petition was filed, containing a total of thirteen counts, including the crimes that took place at Bedrock. On October 24, 2011, Juvenile admitted the facts alleged in seven of the counts, and he was adjudicated delinquent on those counts. However, Juvenile contested the facts alleged in five of the counts, all of which occurred at Bedrock. Juvenile asserted that he found the Ranger on the fairgrounds located north of Bedrock and never entered the company's property. ¶8 A contested adjudication hearing was held in February 2012. Although Juvenile was acquitted on a theft charge, he was adjudicated delinquent on one count of burglary in the third degree, two counts of unlawful use of means of transportation, and one count of criminal damage. Juvenile was placed on intensive probation and ordered to pay $4,202.04 in restitution. ¶9 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).
Juvenile admitted to Counts 2 and 5 (Burglary in the Second Degree), Count 3 (Unlawful Use of Means of Transportation of the 1987 Blue BMW), Count 10 (Unlawful Use of Means of Transportation for the 1998 White Ford Ranger), Count 4 (Criminal Damage of 1987 Blue BMW), Count 6 (Theft of Green Mountain Bicycle), and Count 7 (Theft of Grey Mountain Bicycle). One count of theft was dismissed. Juvenile was placed on probation and ordered to pay restitution for the above counts.
DISCUSSION
¶10 Juvenile appeals the four counts for which he was adjudicated delinquent, as well as the restitution award. We will not disturb the disposition of the juvenile court absent an abuse of discretion. Maricopa County 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
¶11 Juvenile contends that the State failed to introduce sufficient evidence to prove beyond a reasonable doubt that he committed the four crimes for which he was adjudicated delinquent. 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). ¶12 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). Burglary ¶13 Juvenile claims that there was insufficient evidence to adjudicate him delinquent on the burglary charge because the State could not place Juvenile at Bedrock. ¶14 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 commit any theft or any felony therein." A.R.S. § 13-1506 (2010). Juvenile contends that because the State did not introduce fingerprints, surveillance videos, eyewitness testimony, or other direct evidence of that nature, he should have been acquitted on this charge. Contrary to Juvenile's assertion, there need not be direct evidence that Juvenile burglarized Bedrock where circumstances support an inference that he did so. See Maricopa County Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996). In this case, the State introduced sufficient circumstantial evidence to connect Juvenile to the crime. ¶15 When the police first located Juvenile, he admitted to possessing the Ranger belonging to Bedrock. While possession of recently stolen goods "would not, standing alone, suffice to determine the possessor's guilt," its evidentiary "quality is of such high degree that only slight corroborative proof of other inculpatory circumstances would warrant a conviction" of burglary. State v. Pederson, 102 Ariz. 60, 67, 424 P.2d 810, 817 (1967) (quoting People v. Alexander, 78 Cal.App.2d 954, 956-57, 178 P.2d 813, 815 (1947)). The State presented the necessary corroborative proof at the contested adjudication hearing. ¶16 Brent H., the employee responsible for locking Bedrock's gates at night, testified that on the night of the burglary he locked both gates between 4:30 p.m. and 5:30 p.m. before leaving work and all of the company vehicles in question were in their usual parking spots, including the Ranger. At 5:00 p.m., Juvenile and another individual were seen running from an apartment complex. Juvenile was located by police at approximately 7:15 p.m. and admitted driving and abandoning the Ranger. ¶17 Only a couple of hours had passed from the time that Brent H. locked the gates at Bedrock and the time Juvenile was apprehended. Additionally, when questioned by police, Juvenile admitted to being in possession of a vehicle that was recently stolen from Bedrock. See In re Andrew A., 203 Ariz. 585, 587, ¶ 10, 58 P.3d 527, 529 (App. 2002) (citing A.R.S. § 13-2305 (2010) for the inference that the juvenile participated in the theft of the vehicle because he was found in possession of it). Juvenile's intent to commit a felony on Bedrock's property could also be inferred, as Juvenile was running from police prior to entering the property and admitted to driving one of Bedrock's vehicles. See State v. Talley, 112 Ariz. 268, 269, 540 P.2d 1249, 1250 (1975) ("Evidence that an individual was found in the possession of property from the building may support an inference that he had the requisite intent to commit a crime at the time he entered the premises."). ¶18 Juvenile's contention is that while on the run from police, he found the Ranger on the fairgrounds outside of Bedrock based on information he received from someone he spoke to in the Fry's parking lot. The juvenile court stated that it did not believe that Juvenile "could have found a truck that had been moved to the fairgrounds property and happened along it without having knowledge of what went on before." The idea that within a two hour window someone else burglarized the Bedrock property, drove the Ranger and the 1989 Dodge outside of Bedrock's gate, and then left both vehicles on the fairgrounds property was implausible. ¶19 Given the short window of time between the gates being locked at Bedrock and Juvenile's possession of one of Bedrock's vehicles, the fact that Juvenile ran from police and the juvenile court's determination that Juvenile's story was incredible, we find that the court could properly infer that Juvenile burglarized Bedrock. Because a conviction "may rest solely upon proof of a circumstantial nature," State v. Tison, 129 Ariz. 546, 554, 633 P.2d 355, 363 (1981), we affirm Juvenile's adjudication of delinquency for this charge. Unlawful Use of Means of Transportation ¶20 Juvenile asserts that there was insufficient evidence to find him delinquent for the unlawful use of means of transportation of the 1989 Dodge and the 2001 Dodge. We find that the State introduced sufficient evidence to prove that Juvenile was responsible on both counts. ¶21 Unlawful use of means of transportation is knowingly taking unauthorized control over another person's means of transportation without intending to permanently deprive the owner of the vehicle. A.R.S. § 13-1803.A.1 (2010). Juvenile contends that because there is no direct evidence linking him to the two Dodge trucks, there was insufficient evidence to adjudicate him delinquent on these counts. Once again, we find that the juvenile court could have properly inferred that Juvenile committed these crimes based on the circumstantial evidence submitted by the State. ¶22 Juvenile first asserts that the State failed to prove that he was even on Bedrock's property. Because we affirmed Juvenile's burglary adjudication, we have placed Juvenile at the scene where the other crimes occurred, including the unlawful use of the two Dodge trucks. ¶23 Juvenile also asserts that there is no evidence that he planned to take control of the vehicles for use as a means of transportation as is required by § 13-1803.A.1. As previously discussed, Juvenile and another individual were seen fleeing an apartment complex. Shortly thereafter, Juvenile unlawfully used Bedrock's Ranger as a means of transportation and admitted to the crime after police questioned him about it. ¶24 Furthermore, the tire tracks leading from where the two Dodge trucks were parked when Bedrock closed for the night to where they were found after the burglary, indicates that each vehicle was driven. Owner also testified that both Dodge trucks have manual transmissions, and it was difficult to figure out how to put each vehicle in reverse, which could explain why neither vehicle was driven very far. ¶25 Based on the foregoing facts, we find the juvenile court could have properly inferred that Juvenile unlawfully used both vehicles as a means of transportation. We, therefore, affirm Juvenile's adjudication of delinquency on both of these counts. Criminal Damage ¶26 Juvenile also contends that there was insufficient evidence to adjudicate him delinquent on the criminal damage charge. Under A.R.S. § 13-1602.A.1 (2010), 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. Juvenile raises two arguments as to why the juvenile court erred. ¶27 Juvenile first asserts that the State failed to prove that the damage to the Ranger did not occur before he unlawfully used the vehicle. ¶28 In Maricopa County Juv. Action No. JV-132905, 186 Ariz. at 608, 925 P.2d at 749, a juvenile admitted to stealing a vehicle, but when the victim submitted evidence of damages, the juvenile asserted that the vehicle had sustained the damage prior to his possession of it. The restitution award was affirmed on appeal after we determined that the juvenile court properly inferred that the damage was caused by the juvenile's admitted criminal conduct and the juvenile did not submit credible evidence to refute this inference. Id. at 609, 925 P.2d at 749-50. ¶29 Similarly in this case, the juvenile court also properly inferred that Juvenile was responsible for the criminal damage to the Ranger. Brent H., the employee responsible for locking Bedrock's gates, also testified that he had inspected the Ranger in July 2011, about a week before the vehicle was taken by Juvenile. Brent H. stated that other than a cracked radiator, nothing was wrong with the Ranger during this inspection, and the vehicle was in close to perfect condition. However, when he inspected the Ranger after it was stolen, he observed that the tool box in the back of the truck had been removed, the truck bed was cracked from the removal of the tool box, and both the frame and the tailgate were bent. ¶30 The juvenile court could properly infer that the damage to the vehicle was caused by Juvenile based on: (1) Brent H.'s testimony regarding his inspections of the Ranger before and after it was taken from the Bedrock property; and (2) the fact that Juvenile admitted to unlawfully using the Ranger as a means of transportation. ¶31 Additionally, we find that there was sufficient evidence that Juvenile was responsible for the damage to the 1989 Dodge and the garage door. Officer testified that based on the tire tracks, it appeared that the 1989 Dodge had been backed into the garage door and then driven through Bedrock's gate. Because we have determined that Juvenile unlawfully used the 1989 Dodge as a means of transportation while at Bedrock, we find that the juvenile court properly inferred that the damage to the garage door and the 1989 Dodge was caused by Juvenile. ¶32 Juvenile's second argument is that he should not be held responsible for the damage to the 1989 Dodge and the garage door because that damage was not included in the delinquency petition; therefore he did not receive proper notice of the damage. He contends that the criminal damage charge should be reversed because without the damage to the 1989 Dodge and the garage door, the amount of damage fell below the statutory requirement for a class 5 felony. See A.R.S. § 13-1602.B.3. ¶33 "Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections." Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 355, 884 P.2d 234, 241 (App. 1994). In this case, the delinquency petition was sufficient to inform Juvenile of the pendency of the action. Additionally, Juvenile was charged with criminal damage for the damage to the Ranger and Bedrock's gate; the addition of the damage to the garage door and the 1989 Dodge did not raise the dollar value to a class 4 felony, rather than the class 5 felony charged in the delinquency petition. See A.R.S. § 13-1602.B.1, 3. Although the damage to the 1989 Dodge and the garage door was not included in the delinquency petition, the inclusion of that damage at the contested hearing had no effect on Juvenile's defense. Throughout the case, Juvenile asserted that he had never set foot on the Bedrock property, and his defense would have been the same, regardless of whether the additional damage was included in the criminal damage charge. Juvenile was still afforded the opportunity to present his objections to the charge at the contested hearing; therefore, we find that Juvenile had sufficient notice of the criminal damage charge against him.
Restitution Award
¶34 We review a juvenile court's restitution award for an abuse of discretion. In re Erika V., 194 Ariz. 399, 400, ¶ 2, 983 P.2d 768, 769 (App. 1999). We will not reweigh the evidence. In re Andrew A., 203 Ariz. at 587, ¶ 9, 58 P.3d at 529. ¶35 Juvenile asserts that the restitution award for the Ranger was improper because the State did not prove that the damage was not pre-existing. Because we addressed this argument above, we will not address it again in this section. ¶36 Juvenile also contends that Owner should not have been awarded restitution because Owner did not suffer any economic loss with the 1989 Dodge and the Ranger. Juvenile asserts that because Owner only got estimates on the vehicles but failed to make the repairs, the juvenile court erred in awarding her restitution. ¶37 Pursuant to A.R.S. § 8-344.A (Supp. 2011), a juvenile court shall order a juvenile "to make full or partial restitution to the victim of the offense for which the juvenile was adjudicated delinquent." Additionally, the court can order a delinquent juvenile "to pay restitution to any person who suffered an economic loss as the result of the juvenile's conduct." A.R.S. § 8-323.F.9 (Supp. 2011). Economic loss is "any loss incurred by a person as a result of the commission of an offense," and it "includes lost interest, lost earnings and other losses that would not have been incurred but for the offense." A.R.S. § 13-105(16) (Supp. 2011). ¶38 At the restitution hearing, Owner submitted estimates for the repairs for both vehicles, which the juvenile court found to be reasonable. She testified that the reason she did not pay to have the vehicles repaired was because of the high deductibles on each vehicle; she had already paid for the repairs to the garage door out of her own pocket and did not want to spend any more money to repair the vehicles. She also stated that she intended to have the repairs done in the future. Juvenile cites no authority for the proposition that a victim cannot be awarded restitution merely because the damage caused by the juvenile has not yet been repaired and the vehicles are still operable. We find that the juvenile court correctly determined that the repair estimates fairly represented the economic loss to Owner because the estimates accurately reflected the damage that each vehicle had sustained as a result of Juvenile's actions. ¶39 Moreover, the vehicles' damage occurred because of Juvenile's unlawful use of them. As discussed above, the juvenile court properly inferred that Juvenile was responsible for the damage to the Ranger, as well as all of the damage that occurred at Bedrock. Economic losses that "flow directly from or are a direct result of the crime committed" are recoverable. State v. Lindsley, 191 Ariz. 195, 198, 953 P.2d 1248, 1251 (App. 1997). Because the juvenile court properly adjudicated Juvenile delinquent on the criminal damage charge and Owner suffered economic loss as a result of Juvenile's actions, the juvenile court was statutorily required to award restitution to Owner. See A.R.S. § 8-344.A. We, therefore, find that the restitution award was proper.
CONCLUSION
¶40 For the foregoing reasons, we affirm.
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PATRICIA A. OROZCO, Judge
CONCURRING: _______________
MAURICE PORTLEY, Presiding Judge
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RANDALL M. HOWE, Judge