Opinion
1 CA-JV 11-0244
04-26-2012
IN RE ROSARIO L.
David Rozema, Coconino County Attorney Flagstaff by Heather Mosher, Deputy County Attorney Attorneys for Appellee Gary Pearlmutter, Coconino County Legal Defender Flagstaff Attorneys for Appellant
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(Not for Publication -103(G), Ariz.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 Coconino County
Cause No. S0300JV201100197
The Honorable Ted Stuart Reed, Judge Pro Tempore
AFFIRMED
David Rozema, Coconino County Attorney Flagstaff
by Heather Mosher, Deputy County Attorney
Attorneys for Appellee
Gary Pearlmutter, Coconino County Legal Defender Flagstaff
Attorneys for Appellant
PORTLEY, Judge
¶1 Rosario L. was adjudicated delinquent of a misdemeanor assault and subsequently placed on probation. He challenges the adjudication. For the following reasons, we affirm the adjudication and resulting disposition.
FACTS AND PROCEDURAL HISTORY
We review the facts in a light most favorable to sustaining the trial court's determination. State v. Sullivan, 205 Ariz. 285, 287, ¶ 6, 69 P.3d 1006, 1008 (App. 2003).
¶2 While at school on March 28, 2011, Rosario and his friend each touched the buttocks of the victim with his open hand. During the subsequent investigation, Rosario admitted his action.
¶3 The State charged him with a misdemeanor assault - with the intent to injure, insult or provoke - pursuant to Arizona Revised Statutes ("A.R.S.") section 13-1203(A)(3) (West 2012). Prior to the adjudication, the State amended the charge and added sections 13-301 to -303 (West 2012) to allege that Rosario was an accomplice.
We cite the current version of the applicable statute if no revisions material to this decision have since occurred.
¶4 At the close of the State's case, Rosario moved for a directed verdict. After the motion was denied, he called his first witness. The next day, the court sua sponte reconsidered "the issue of the motion for directed verdict as to part or at least one theory upon which the State is proceeding." The court then found that the State had failed to present "substantial evidence to support an adjudication of delinquency based upon a theory of accomplice liability . . . [a]nd, therefore, the matter will proceed under the theory of direct liability.
After granting the motion for directed verdict on the theory of accomplice liability, the court determined that Rosario's motion for mistrial based on duplicitous charges was moot.
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¶5 After the court heard all of the evidence, Rosario was adjudicated delinquent. Following his probation disposition, he filed this appeal.
DISCUSSION
¶6 Rosario argues that his adjudication on the misdemeanor assault after the court directed a verdict on accomplice liability theory violates the double jeopardy clause of the Fifth Amendment to the U.S. Constitution. See State v. Millanes, 180 Ariz. 418, 420, 885 P.2d 106, 108 (App. 1994). We disagree.
¶7 The State originally charged the youngster as a principal. The charge was later amended to also allege that he was an accomplice. As a result, the State had two theories it wanted to present at the adjudication to attempt to demonstrate that Rosario was delinquent: that he was responsible for his actions either as a principal, or as an accomplice pursuant to sections 13-301 to -303. After the State presented evidence that he had admitted to the unwanted touching, the juvenile court appropriately directed a verdict on the theory of accomplice liability and the adjudication continued. Rosario testified and was adjudicated delinquent.
¶8 He argues that Millanes requires us to find that double jeopardy precluded his adjudication as a principal. Millanes, however, is inapposite. There, the trial court erroneously granted a directed verdict on the theft charge after striking testimony about the value of the stolen truck. Millanes, 180 Ariz. at 419, 885 P.2d at 107. Although the court subsequently reversed itself, id., this court stated that "[o]nce a defendant is acquitted of a particular crime, the state is precluded from further prosecutions by the prohibition against double jeopardy." Id. at 423, 885 P.2d at 111.
¶9 Here, the court only directed a verdict on the theory of accomplice liability, it did not direct a verdict on the misdemeanor crime of assault. The State was, as a result, only precluded from attempting to prove that Rosario was responsible as an accomplice. And, as the court noted, it was not precluded from attempting to prove that he was responsible as a direct principal. Accordingly, the double jeopardy doctrine did not preclude the court from allowing the adjudication to continue as to Rosario's direct responsibility or from finding him delinquent.
CONCLUSION
¶10 Based on the foregoing, we affirm the adjudication and disposition.
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MAURICE PORTLEY, Presiding Judge
CONCURRING:
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ANN A. SCOTT TIMMER, Judge
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ANDREW W. GOULD, Judge