Opinion
No. 2 CA-JV 2013-0115
02-07-2014
IN RE D.K.
Barbara LaWall, Pima County Attorney By Kristi Mehes, Deputy County Attorney, Tucson Counsel for State The Hopkins Law Office, P.C., Tucson By Cedric Martin Hopkins 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NOT FOR PUBLICATION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. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
No. JV16322102
The Honorable Michael J. Butler, Judge
AFFIRMED
COUNSEL
Barbara LaWall, Pima County Attorney
By Kristi Mehes, Deputy County Attorney, Tucson
Counsel for State
The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Minor
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred.
ESPINOSA, Judge:
¶1 Seventeen-year-old D.K. appeals from the juvenile court's orders adjudicating him delinquent for indecent exposure and placing him on a six-month term of probation. He maintains the court improperly "shift[ed to him] the burden . . . to prove that he was not involved in the incident" and abused its discretion in denying his motion to continue the adjudication hearing. Finding no error, we affirm.
¶2 We view the facts in the light most favorable to sustaining the juvenile court's adjudication. See In re Julio L., 197 Ariz. 1, ¶ 6, 3 P.3d 383, 385 (2000). In January 2013, D.K. and four other members of his high school's wrestling team encircled M.J., a freshman member of the junior varsity team, and "twirled" their genitalia while making howling noises. M.J. was disturbed by the display and "yelled a little" and "tried to fake like [he] was going to kick one of them" in order to leave. M.J. identified D.K. in a photographic lineup as one of the boys who had been in the circle.
¶3 The state filed delinquency petitions against D.K., initially alleging unlawful imprisonment and aggravated assault based on another incident (hereinafter the "assault incident") and later amending the petition to include indecent exposure. At a delinquency hearing, the juvenile court dismissed the unlawful imprisonment and aggravated assault counts, but adjudicated D.K. delinquent as to the indecent exposure count. The court placed him on a six-month term of probation and imposed various other conditions. This appeal followed.
¶4 D.K. first claims the juvenile court improperly shifted the burden of proof to him when it stated in its delinquency ruling
that he had "provided no evidence that he was not part of the [circle], nor did he present any evidence that the incident did not occur." And he contends this statement violated his Fifth Amendment right not to incriminate himself.
¶5 D.K. cites no authority to suggest that a comment on the lack of evidence in support of a defendant's defense necessarily constitutes a comment on the defendant's failure to testify. Indeed, case law in the context of a prosecutor's comment on the lack of evidence to support a defense is to the contrary. See, e.g., State v. Garcia, 173 Ariz. 198, 201, 840 P.2d 1063, 1066 (App. 1992) (prosecutor's statement about lack of exculpatory evidence not improper comment on failure to testify when "an explanation could have been given through sources other than appellant"). Thus, even if not waived, D.K.'s Fifth Amendment argument is without merit.
¶6 Furthermore, we cannot agree with D.K.'s interpretation of the juvenile court's ruling. As the state points out, the comment on the lack of evidence is in a paragraph about M.J.'s testimony and credibility. And read in the broader context of the court's ruling, the comment is in the nature of a description of what happened at the hearing. We do not view it as the court requiring D.K. to have presented evidence, but rather reflected the court's finding, as the trier of fact, that the incident had occurred as M.J. described. See United States v. Brobst, 558 F.3d 982, 999-1000 (9th Cir. 2009) (concluding court's statement to defendant that he needed "evidence" not improper burden shifting).
¶7 D.K. also maintains the juvenile court abused its discretion in denying his motion to continue, which he had filed on the Thursday before his Monday delinquency adjudication hearing and argued at the start of that hearing. In his motion, D.K. indicated he had received information on Thursday that the victim in the assault incident had been charged with a "similar act" to that charged against D.K. He requested time to "investigate that matter" and to "get police reports" and disclosure. The prosecutor indicated that the events giving rise to the charges against the victim in the assault incident had occurred before that event and that its investigation and related reports had been disclosed. D.K.'s counsel
admitted he had received a police report relating to the incident in earlier disclosure. But he argued he needed more time to investigate the charges to establish "the culture" of the high school's locker room and "whether there was an intent to embarrass or whether this was just part of what happens down there."
¶8 The juvenile court denied D.K.'s motion, indicating it already had continued the adjudication hearing past the sixty-day time frame set forth in Rule 29(B), Ariz. R. P. Juv. Ct. It also found there was no indication "there's anything more that we can find from additional time that we don't have in front of you that you could use."
¶9 Pursuant to Rule 15(C), Ariz. R. P. Juv. Ct., a motion to continue "shall be granted only upon a showing that good cause exists and that delay is indispensable to the interests of justice." And, in ruling on such a motion, the juvenile court "shall consider the victim's views and the victim's right to a timely adjudication of the juvenile." Ariz. R. P. Juv. Ct. 15(C). "Motions to continue are addressed to the sound discretion of the trial court and its decision will not be reversed absent a clear abuse of discretion." In re Yavapai Cnty. Juv. Action No. J-9365, 157 Ariz. 497, 499, 759 P.2d 643, 645 (App. 1988).
¶10 On the record before us, we cannot say the juvenile court abused its discretion in denying D.K.'s motion. See id. First, D.K. was acquitted of the crimes in the assault incident, so the evidence he sought to investigate did not directly relate to M.J. and the offenses for which D.K. was convicted. Indeed, M.J. testified several times that as a freshman he was uncertain what was acceptable in the locker room, but was uncomfortable with and disturbed by D.K. and the other boys' behavior.
¶11 Additionally, the state had disclosed evidence about the activity leading to the charges against the victim in the assault offense several months before the adjudication hearing. D.K. therefore had ample time to investigate that activity, but failed to do so, apparently seeking to investigate further only when charges were filed against the victim. But, uncharged activity of a similar
nature would have supported D.K.'s proposed "culture" argument in the same way as charged activity. We therefore cannot say the juvenile court abused its discretion in denying D.K. further opportunity to investigate.
¶12 Finally, even accepting arguendo that the "culture" of the locker room would be relevant to the "reasonable person" standard set forth in the indecent exposure statute, given M.J.'s testimony about his lack of familiarity with the locker room, we cannot say any further evidence about events there would have changed the outcome of the proceeding or otherwise been "indispensable to the interests of justice." Ariz. R. P. Juv. Ct. 15(C).
¶13 For all the foregoing reasons, the juvenile court's adjudication and disposition are affirmed.