Opinion
1 CA-JV 12-0154
03-28-2013
IN RE R.H.
Law Office of Florence M. Bruemmer, P.C. By Florence M. Bruemmer Attorney for Appellant Sheila Polk, Yavapai County Attorney By Tanaaz R. 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.
S ee Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Ariz. R.P. Juv. Ct. 103(G);
ARCAP 28)
Appeal from the Superior Court in Yavapai County
Cause No. V1300JV201080111
The Honorable Jennifer B. Campbell, Judge
AFFIRMED
Law Office of Florence M. Bruemmer, P.C.
By Florence M. Bruemmer
Attorney for Appellant
Anthem Sheila Polk, Yavapai County Attorney
By Tanaaz R. Wheeler, Deputy County Attorney
Attorneys for Appellee
Camp Verde KESSLER, Judge ¶1 R.H. ("Juvenile") appeals from the juvenile court's adjudication of delinquency and resulting disposition for a class six felony theft. For the following reasons, we affirm the juvenile court's judgment.
FACTUAL AND PROCEDURAL HISTORY
¶2 The State filed a petition in juvenile court to revoke probation, alleging that Juvenile committed second-degree burglary (a class six felony), first-degree trespassing (a class six felony), misdemeanor theft, and violation of probation. After the petition was filed, the State learned of additional items that the victim, A.F., alleged were stolen by Juvenile. The State filed a petition in juvenile court alleging that Juvenile committed a class six felony theft when he "knowingly controlled" property of A.F., with intent to deprive her of such property, including an iPod nano, an X-box controller, linens, six collectible dragon figurines, approximately $100 in currency, and approximately $150 worth of food and drink, in violation of Arizona Revised Statutes ("A.R.S.") § 13-1802(A)(1) (Supp. 2012). The second-degree burglary and misdemeanor theft charges were subsequently dismissed. ¶3 At the contested adjudication hearing on the class six felony theft count, A.F.'s house-sitter testified that she was house-sitting for A.F. on July 16, 2011, and left to go to dinner. When she returned, she "had a feeling" that something was going on, so she left and did not return until 6:30 a.m. the following morning. When she entered the home, she saw "dirty dishes . . . Coke cans . . . booze mixers . . . everything was out of place." She testified that she had seen Juvenile "up on the road" prior to the incident, but not in or around the residence. ¶4 A.F. testified that upon her return to her home a few weeks after the theft occurred, she discovered a large quantity of food and drink missing. A.F. found blankets, pillows, and comforters in her doghouse and her van. Other missing items included an X-box controller, an iPod nano, several "collector['s] bottles" of alcohol, and her son's dragon collection. A.F. testified that she did not allow her teenage son, C.F., to see Juvenile, although they had been friends previously. ¶5 Detective S. of the Yavapai County Sheriff's Office investigated the incident. He testified that jars that contained "loose change or collector coins" were missing. He identified the likely point of entry into the home as a window in C.F.'s bedroom, which was "a little bit cracked open." Detective S. also testified that he discovered a swimming pool ladder had been "pulled over into the flower bed right underneath the window." Detective S. noted shoe impressions in the dirt near A.F.'s van behind the residence that measured 11 1/8 inches and appeared to be made by a person wearing Vans tennis shoes. ¶6 Detective S. contacted Juvenile. Juvenile initially denied any involvement in the theft, but allowed Detective S. to measure his shoes, which were Vans that measured 11 1/8 inches and matched the tread pattern of the shoeprints at A.F.'s residence. Approximately fifteen minutes after Detective S. left the residence, Juvenile called him and admitted to entering A.F.'s home through the open window and consuming food. ¶7 Juvenile testified that despite A.F.'s prohibition, he and C.F. would "hang out" at each other's houses nearly every other day. Juvenile testified that he ran away from home for two or three weeks in July 2011, and after the first week C.F. allowed him to stay in his room. He stayed for about a week and consumed food and drink at the home, but denied that he stole any of the missing items. Juvenile stated that C.F. told him he could not stay at the house while C.F. and his mother were on vacation, so he returned to his home. However, when Juvenile found the unlocked window, he entered and consumed pudding and sodas. Juvenile also stated that he used a pipe and was "getting high" while in A.F.'s home. ¶8 Juvenile claimed that another friend of C.F. who stayed at A.F.'s house with her permission may have taken the missing items. Juvenile also testified that he witnessed another juvenile stealing C.F.'s iPod nano. ¶9 C.F. testified that although he and Juvenile were friends, he never allowed Juvenile to sleep at the home but occasionally gave him food or water. C.F. also testified that when he confronted Juvenile about the iPod nano, Juvenile told him another child had taken the iPod, but when C.F. asked that child, the child said Juvenile had taken the iPod. ¶10 Juvenile's father testified that in May or June 2011 he had a phone conversation with A.F. in which she stated that her "valuable coin collection" was missing and she suspected another juvenile of stealing it. ¶11 The court found Juvenile responsible for the theft beyond a reasonable doubt. The court adjudicated Juvenile delinquent for theft, a class six felony, and proceeded to disposition. The court made Juvenile a ward of the court and placed him on intensive probation until his eighteenth birthday. The court released Juvenile to the custody of Child Protective Services. The court ordered restitution to be paid to A.F. in the amount of $2352.03, and stated that Juvenile's parents were jointly and severally responsible for restitution. Juvenile's motion to extend time for filing of notice of appeal was granted, and we have jurisdiction pursuant to A.R.S. § 8-235(A) (2007).
We cite the current version of the applicable statute because no revisions material to this decision have since occurred.
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DISCUSSION
¶12 On appeal, Juvenile argues there is insufficient evidence to support his delinquency adjudication pursuant to A.R.S. § 13-1802. When reviewing the adjudication, "we will not re-weigh the evidence, and we will only reverse on the grounds of insufficient evidence if there is a complete absence of probative facts to support the judgment or if the judgment is contrary to any substantial evidence." In re John M., 201 Ariz. 424, 426, ¶ 7, 36 P.3d 772, 774 (App. 2001). In addition, "we view the evidence in the light most favorable to sustaining the adjudication." Id. ¶13 A person commits theft if the person knowingly "[c]ontrols property of another with the intent to deprive the other person of such property." A.R.S. § 13-1802(A)(1). If the value of the property is one thousand dollars or more but less than two thousand dollars the theft is a class 6 felony. A.R.S. § 13-1802(G). ¶14 Juvenile argues that the State failed to prove beyond a reasonable doubt that he committed theft of A.F.'s property in an amount exceeding one thousand dollars. The State responds that there is sufficient evidence to find that Juvenile committed the theft of A.F.'s property in an amount exceeding one thousand dollars. We agree with the State. ¶15 To support his argument, Juvenile argues: (1) testimony by C.F. and Juvenile's father implicates other friends of C.F. in the disappearance of the iPod nano and the coin collection; (2) the "testimony is undisputed" that Juvenile could only have been present in A.F.'s house for a few hours on one evening; (3) A.F.'s decision to replace the locks "had nothing to do with any alleged theft committed by [Juvenile] and should not be included in the value of property taken"; and (4) A.F.'s documentation of the fair market value of the dragon collection does not constitute "substantial evidence" necessary for a class six felony theft conviction. ¶16 "The juvenile court is in the best position to assess witness credibility, and our role is to determine if the evidence adduced at the hearing is sufficient to support the court's adjudication. Accordingly, we will not reweigh the evidence or consider the credibility of witnesses on appeal." In re James P., 214 Ariz. 420, 425, ¶ 24, 153 P.3d 1049, 1054 (App. 2007) (citation omitted). When there is "a conflict in the evidence and there is substantial evidence to uphold the trial court's finding, we must abide by the judgment of the trial judge who has had the opportunity to observe the witnesses and hear the testimony firsthand." State v. Natzke, 25 Ariz. App. 520, 521, 544 P.2d 1121, 1122 (1976). ¶17 The juvenile court found A.F.'s testimony to be persuasive. A.F. testified that the items missing from the home included an iPod nano and the dragon collection, and the value of the dragons was over $1000. Moreover, Detective S. testified that a jar of coins was also missing. In contrast, the court found Juvenile and C.F. to be the "least credible" of any of the witnesses who testified. The court also stated that Juvenile was not credible "based on the fact that he was consuming marijuana at the time of the event." Based on the evidence presented taken in the light most favorable to affirming and the court's credibility findings, there is substantial evidence supporting beyond a reasonable doubt that Juvenile committed the theft and the value of the items was over $1000. ¶18 Juvenile claims that he was only present in A.F.'s home for a few hours, and could not possibly have consumed large amounts of food and drink, nor could he have "carried away" the other missing items. However, A.F.'s house-sitter testified that she did not enter A.F.'s home on the night of the incident and did not return until 6:30 the following morning. Juvenile also admitted that he entered A.F.'s home through the unlocked window and stayed for two hours. Therefore, there was sufficient evidence for the juvenile court to conclude that Juvenile had enough time to commit the theft. ¶19 To the extent Juvenile attacks the restitution order, his arguments are not persuasive. The juvenile court is required to impose restitution to reimburse the victim for economic loss. A.R.S. § 8-344(A) (Supp. 2012). An award of restitution requires proof by a preponderance of the evidence. In re Stephanie B., 204 Ariz. 466, 469-70, ¶ 15, 65 P.3d 114, 117-18 (App. 2003). The court may consider a verified victim statement when ordering restitution. A.R.S. § 8-344(B). A.F. submitted such a statement, itemizing the stolen items and replacement costs for locks. ¶20 Juvenile disputes only the cost of replacing door locks and the value of the dragon collection. As to the locks, he contends that because he gained entrance to the property through an unlocked window, A.F.'s "unilateral decision to replace the locks on her home had nothing to do with any alleged theft" committed by Juvenile. However, restitution is appropriate for expenses incurred to restore a victim's mental well-being or physical safety. State v. Morris, 173 Ariz. 14, 19, 839 P.2d 434, 439 (App. 1992) (stating basic necessities of life are legitimate items for restitution); State v. Brady, 169 Ariz. 447, 448, 819 P.2d 1033, 1033 (App. 1991) (stating moving expenses for sexual assault victim are economic loss and appropriate for restitution). A.F. testified that after the theft, she did not feel safe in her home. A.F.'s decision to change her locks is directly attributable to the theft of her property by Juvenile, and is appropriate for an award of restitution. ¶21 Juvenile also argues that A.F. provided only the "current value" of the dragon collection, but not her rationale for that value nor any documentation supporting a fair market value appraisal of their worth. "'Value' means the fair market value of the property or services at the time of the theft. When property has an undeterminable value the trier of fact shall determine its value and, in reaching its decision, may consider all relevant evidence, including evidence of the property's value to its owner." A.R.S. § 13-1801(A)(15) (Supp. 2012). ¶22 The juvenile court found A.F.'s testimony about the theft "persuasive." A.F. submitted a "Summary of Victim Financial Losses" that listed her losses from the theft dated October 14, 2011, and subsequently submitted an amended statement dated January 4, 2012. Attached to the October statement is a letter from the woman who sold the dragons to A.F., listing their current value, as well as photos of the dragons and an eBay bidding page. ¶23 The record reflects that the juvenile court heard testimony about the missing items, and A.F.'s financial loss statement was entered into evidence. In addition, A.F. testified about the dragon collection, including the number of pieces and how much she paid for the entire collection. A.F.'s financial loss statement, the documentation from the seller of the dragons, and her testimony regarding her valuation of the dragons provided sufficient evidence for the juvenile court to make a determination of the dragon collection's value.
CONCLUSION
¶24 For the preceding reasons, we affirm the juvenile court's adjudication and disposition.
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DONN KESSLER, Judge
CONCURRING: ______________________________
JOHN C. GEMMILL, Presiding Judge
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JON W. THOMPSON, Judge