A divided court of appeals affirmed the termination of Lewis's probation. State v. Lewis, 224 Ariz. 512, 513 ¶ 1, 233 P.3d 625, 626 (App. 2010). Judge Hall dissented, arguing that § 13-90KE) "does not authorize a trial court to grant early release to a defendant whose performance while on probation has been unsatisfactory."
It is the duty of the finder of fact, not this court, to weigh the evidence and assess witness credibility. State v. Lewis, 224 Ariz. 512, ¶ 21, 233 P.3d 625, 629 (App. 2010). On appeal, our review is limited to whether substantial evidence supports the court's ruling, and we will affirm if so.
But, despite the possible appealability of the respondent's order here, we accept special action jurisdiction because the issue presented is a matter of law and our grant of relief prevents an unnecessary sentencing proceeding.See also State v. Moore , 254 Ariz. 317, ¶¶ 4, 8-9, 522 P.3d 1108, 1109, 1110 (App. 2022) (noting "probation affects substantial rights of the state"); State v. Lewis , 224 Ariz. 512, ¶¶ 9, 10, 233 P.3d 625 (App. 2010) (citing § 13-4032(4) in noting appellate jurisdiction over state's appeal from decision to terminate, rather than revoke, probation). ¶6 The state argues the respondent judge lacked discretion to revoke Ahlersmeyer's probation in the absence of a petition to revoke.
[9] ¶25 Arizona statutes and court opinions do not provide a precise definition of "substantial rights," but courts have found several circumstances that implicate the substantial rights of the state. See State v. Lewis, 224 Ariz. 512, 513 ¶ 1, 514 ¶¶ 9–10, 233 P.3d 625, 626, 627 (App. 2010) (addressing termination of probation); State v. Cowles, 207 Ariz. 8, 8¶9 ¶¶ 1–2, 82 P.3d 369, 369-70 (App. 2004) (addressing order releasing defendant from incarceration); State v. Como, 179 Ariz. 151, 153, 876 P.2d 1186, 1188 (App. 1994) (addressing denial of motion to withdraw from a plea agreement, and concluding a " ‘substantial right’ is implicated because the state ordinarily may withdraw from a plea agreement when the trial court rejects a sentencing stipulation"). ¶26 This Court addressed the substantial rights of the state in McKelvey, a case in which the defendant was convicted, sentenced to imprisonment for nine months, and ordered to pay a $250 fine.
Generally, the use of "may" indicates permissive intent and a grant of discretion. Democratic Party of Pima Cnty. v. Ford , 228 Ariz. 545, 548 ¶ 9, 269 P.3d 721, 724 (App. 2012) ; State v. Lewis , 224 Ariz. 512, 515 ¶ 17, 233 P.3d 625, 628 (App. 2010) ("A general principle of statutory construction is that the use of the word ‘may’ generally indicates a permissive provision ...."). Similarly, the word "request" conveys asking for a privilege and does not convey an entitlement.
The term "may" indicates discretion. State v. Lewis , 224 Ariz. 512, 515 ¶ 17, 233 P.3d 625, 628 (App. 2010), aff'd , 226 Ariz. 124, 244 P.3d 561 (2011) ; In re Marquardt , 161 Ariz. 206, 210, 778 P.2d 241, 245 (1989). Second, the relevant evidence may be excluded if its probative value is "substantially" outweighed by one of the listed dangers.
He claims the DNA evidence was "illogically misconstrued by the jury" and the evidence was instead "favorable to [him]" because there was no sperm found on the sex toy, the anal swab of A.E. was inconclusive, and he was never alleged to have removed his pants around A.E. As such, Rojas argues that sperm found in A.E.'s underwear could only have occurred through transfer from some other object such as Rojas's toilet and thus the evidence "could not possibly support the jury's verdict." We review the sufficiency of evidence de novo, State v. Rodriguez, 251 Ariz. 90, ¶ 16 (App. 2021), viewing the evidence in the light most favorable to sustaining the verdict, State v. Lewis, 224 Ariz. 512, ¶ 21 (App. 2010).
And we have previously found appellate jurisdiction for a State appeal of a probation termination, declaring probation affects substantial rights of the State. See State v. Lewis , 224 Ariz. 512, 514 ¶¶ 9–11, 233 P.3d 625, 627 (App. 2010) (citing A.R.S. § 13-4032(4) to find jurisdiction). The mere fact that it was the probation office and not the State that moved for the extension and revocation does not negate the State's substantial rights in probation.
We do not reweigh the evidence on appeal; that is the province of the trier of fact. State v. Lewis, 224 Ariz. 512, ¶ 21, 233 P.3d 625, 629 (App. 2010). Rather, we view the evidence and all inferences therefrom in the light most favorable to sustaining the verdict.
We will not reweigh the facts. See State v. Lewis, 224 Ariz. 512, 516, ¶ 21, 233 P.3d 625, 629 (App. 2010). ¶17 Here, Dr. Petty testified that it was her opinion that Thomas would recidivate if discharged, which was based on her review of treatment and psychiatric records, annual reviews filed with the court, an interview conducted with Thomas, and completion of multiple standardized risk assessments.