Opinion
No. 1 CA-JV 18-0180
02-14-2019
IN RE LEMAR L.
COUNSEL John A. Banker, Attorney at Law, Taylor By John A. Banker Counsel for Plaintiff/Appellant Navajo County Attorney's Office, Holbrook By Justin Dale Gettler Counsel for Appellee Department of Child Safety
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Navajo County
No. S0900JV201500330
The Honorable Michala M. Ruechel, Judge
AFFIRMED
COUNSEL John A. Banker, Attorney at Law, Taylor
By John A. Banker
Counsel for Plaintiff/Appellant Navajo County Attorney's Office, Holbrook
By Justin Dale Gettler
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Maria Elena Cruz joined. HOWE, Judge:
¶1 Lemar L. appeals the juvenile court's order requiring him to register as a sex offender until his 25th birthday. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2016, Lemar signed a disposition agreement and the court adjudicated him delinquent of two counts of child molestation, class 2 felonies under A.R.S. § 13-1410. The agreement stated that the court would determine the issue of sex-offender registration after Lemar completed sex-offender treatment. Nonetheless, at Lemar's disposition hearing in July 2016, the court ordered him to register as a sex offender but agreed to review the matter if he completed treatment. The court also placed him on two years' probation and ordered him to spend one year either in detention or at a sex-offender-treatment facility. Lemar spent the next 11 months in detention, receiving some therapy while awaiting an opening at a treatment program.
¶3 Around June 2017, Lemar entered a treatment facility. He had some setbacks in the program but completed it in June 2018—one month before his 18th birthday. Shortly before Lemar completed the treatment program, the court held a Review Hearing and reviewed its order requiring him to register as a sex offender. At the Review Hearing, the court heard from Lemar's probation officer, Lemar's mother, the victims' representatives, the victims (via letter), Lemar's counsel, and counsel for the State. The court also reviewed a psychosexual evaluation completed that same month by Dr. Lee Underwood, a psychologist who had evaluated Lemar's progress during his treatment program. Ultimately, the court upheld its order requiring Lemar's registration. Lemar timely appealed.
DISCUSSION
1. Victims' Statements
¶4 Lemar argues that the court erred by considering the victims' statements at the Review Hearing. Lemar, however, did not object to the victim statements at the hearing, other than for relevance. Yet, on appeal, Lemar does not argue that the victims' letters were not relevant but instead argues that receiving victim statements at such a "late stage in the proceeding" was "unfair" to him. He cites no authority supporting his assertion that the court erred by considering them. As such, Lemar has waived this argument. See ARCAP 13(a)(7)(A) (stating that opening briefs must contain an "[a]ppellant's contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities and appropriate references to the portions of the record on which appellant relies"); see also Childress Buick Co. v. O'Connell, 198 Ariz. 454, 459 ¶ 29 (App. 2000) (stating that "issues not clearly raised in appellate briefs are deemed waived").
¶5 Waiver aside, we find no error on this record. Victims have the right "to be present at court proceedings" and "to be heard before the court makes a decision on release, negotiation of a plea, scheduling and disposition." A.R.S. § 8-421; see Ariz. Const. Art. II, § 2.1. The court resolved two issues at the Review Hearing: the remaining dispositional issue of Lemar's registration and his release back into the community—both issues on which victims may be heard. Upon Lemar's relevance objection, the court noted that it would afford the victims' statements their appropriate weight, allaying concerns that the court was "improperly influenced by the victims," as Lemar contends. Moreover, after reading the victims' statements, the court allowed Lemar and his mother an opportunity to speak. Finally, when imposing registration, the court relied heavily on the psychosexual report, which it found raised "serious concerns" and suggested "a significant likelihood of reoffense."
2. Sex-Offender Registration
¶6 Lemar argues that the court abused its discretion by ordering him to register as a sex offender until his 25th birthday. Arizona Revised Statutes section 13-3821(D) authorizes the juvenile court to require a juvenile to register as a sex offender if he has been adjudicated delinquent of certain sexual offenses, including molestation of a child. This is primarily a regulatory provision designed to enable law enforcement to locate juvenile sex offenders. In re Maricopa Cty. Juv. Action No. JV-132744, 188 Ariz. 180, 183 (App. 1996) ("[T]he overriding purpose of the registration requirement was intended to facilitate the location of sex offenders, a purpose unrelated to punishing offenders for past offenses."). The court is not required to consider any specific factors when determining if registration is appropriate. In re Javier B., 230 Ariz. 100, 104 ¶¶ 17-19 (App. 2012).
Lemar includes one heading in his opening brief stating that the court's order "[i]mpos[ed] [c]ruel and [u]nusual [p]unishment," but he develops this argument no further. We therefore do not address it. See ARCAP 13(a)(7)(A). --------
¶7 Rather, the court has broad discretion to determine an appropriate disposition for a delinquent juvenile. In re Niky R., 203 Ariz. 387, 390 ¶ 10 (App. 2002). This Court "will not disturb a . . . disposition order, including the decision whether to require a juvenile to register as a sex offender, absent an abuse of discretion." In re Nickolas T., 223 Ariz. 403, 404 ¶ 4 (App. 2010). An abuse of discretion occurs when the court's order is "characterized by capriciousness, arbitrariness or by failure to conduct an adequate investigation into facts necessary for an intelligent exercise of the court's sentencing power." State v. Grier, 146 Ariz. 511, 515 (1985). We view the facts in the light most favorable to sustaining the juvenile court's orders and resolve all reasonable inferences against Lemar. See State v. Kiper, 181 Ariz. 62, 64 (App. 1994).
¶8 Here, the juvenile court considered several factors before ruling. Before the Review Hearing, the court monitored Lemar's development during treatment over two and a half years. Although Lemar progressed in sex-offender treatment, he also had some setbacks. Around August 2017, Lemar was often tardy to classes and had "killed a rabbit with a rock and laughed about it." At that time, Lemar's probation officer stated that he was "starting to consistently slip backwards." Three months later, in violation of the program's rules, Lemar accessed pornography on the internet using another student's log-in credentials. In March 2018, Lemar's case manager reported that he "continues to bully his peers." Over April and May, Lemar finally made "consistent improvement[s]" and completed the program in June.
¶9 At the Review Hearing, Lemar's probation officer told the court he was leaving the registration question to the court's discretion because he saw "pros and cons" to it and was "torn" about giving a recommendation. The officer noted, however, that Lemar would be released back to the community one month before he turned 18, giving the officer only a few weeks to supervise him in an uncontrolled environment before his probation ended.
¶10 The court also considered Dr. Underwood's report, which assessed Lemar's risk of reoffending to be in the low to moderate range and recommended establishing a community safety plan rather than requiring registration. Dr. Underwood also stated, however, that "it is at least as likely as not" that Lemar would reoffend sexually once released from the program and that Lemar still needed to improve in several areas, including "management of deviant sexual fantasies, criminal thinking errors, boundaries, rules of consent, and general risk factors that lead to criminal behavior." Ultimately, the court relied heavily on Dr. Underwood's report, while noting it had serious concerns with the expert's view that Lemar had about a 50 percent likelihood of reoffending.
¶11 Lemar argues that the court did not adequately consider how registration would affect him, particularly considering his cognitive difficulties. Before ruling, however, the court knew that Lemar had required special education most of his life and had scored extremely low on an intellectual functioning test. His counsel also argued in closing that Lemar's cognitive deficits would make it difficult for him to comply with registration. The court therefore weighed this factor but concluded that Lemar still posed some risk of reoffending and that his registration would help protect the public. Thus, the court did not abuse its discretion in requiring Lemar to register as a sex offender.
CONCLUSION
¶12 For the foregoing reasons, we affirm.