In re Jason S.
| Decision Date | 02 May 2013 |
| Docket Number | 2 CA-JV 2012-0119 |
| Parties | IN RE JASON S. |
| Court | Arizona Court of Appeals |
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 DECISIONNot for Publication
Rule 28, Rules of Civil
Appellate Procedure
APPEAL FROM THE SUPERIOR COURT OF GILA COUNTY
AFFIRMED
Bradley D. Beauchamp, Gila County Attorney
Globe
Attorneys for State
Harriette P. Levitt
Tucson
Attorney for Minor
¶1 Jason S. appeals from the juvenile court's orders adjudicating him delinquent, placing him on probation, and ordering him to pay restitution. He argues that the court improperly found he had committed reckless burning as a lesser-included offense of the charged offense of arson and that insufficient evidence supported the court's finding he had committed any offense. He further asserts the court erred in imposing probation until his eighteenth birthday and in setting the amount of restitution. We affirm.
¶2 We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the juvenile court's adjudication order. In re David H., 192 Ariz. 459, ¶ 3, 967 P.2d 134, 135 (App. 1998). In June 2011, Jason and two other juveniles—Darrian S. and Nicholas B.—started multiple fires in a dry creek bed near several homes and other structures. The last of these fires spread out of the creek bed and damaged or destroyed homes and other property, including fences, sheds, and a vehicle. All three juveniles started fires, and each testified they had agreed to do so. Darrian and Jason claimed Nicholas had started the fire that went out of control, while Nicholas said it had been Darrian. Darrian and Jason stated they had told Nicholas not to start that fire, and had attempted to put it out when he did so. Nicholas denied the other two had told him not to start fires.
¶3 Jason was charged by delinquency petition with three counts of endangerment, eight counts of arson of a structure or property, one count of arson of an a occupied structure, and one count of criminal damage. After an adjudication hearing, the juvenile court found the state had established beyond a reasonable doubt that Jason had committed the offenses of endangerment and criminal damage, but had not sustained its burden on the remaining counts of arson, having failed to prove Jason had the requisitespecific intent to burn the structures or property. See A.R.S. §§ 13-1703, 13-1704. But the court found the state had presented sufficient evidence that Jason had committed reckless burning, in violation of A.R.S. § 13-1702, and that reckless burning is a lesser-included offense of arson. The court adjudicated Jason delinquent, placed him on probation until his eighteenth birthday, and ordered him to pay approximately $340,000 in restitution.
¶4 Jason first argues the juvenile court improperly amended the delinquency petition pursuant to Rule 29(D)(1), Ariz. R. P. Juv. Ct., by finding he had committed reckless burning as a lesser-included offense of arson. Rule 29(D)(1) provides that a charge Jason concedes that Rule 29(D)(1) permits amendment, without the juvenile's consent, of a delinquency petition to include a lesser-included offense of the offense charged. See In Jeremiah T., 212 Ariz. 30, ¶¶ 10-13, 126 P.3d 177, 180-81 (App. 2006) (); see also In re Victoria K., 198 Ariz. 527, n.3, 11 P.3d 1066, 1071 (App. 2000) (); In re Isaac G., 189 Ariz. 634, 637, 944 P.2d 1248, 1251 (App. 1997) ().
¶5 Jason asserts, however, that "reckless burning is not necessarily a lesser included offense of arson." Although he acknowledges that our supreme court concluded "reckless burning is a lesser included offense of arson" in State v. Bay, 150 Ariz. 112,117, 722 P.2d 280, 285 (1986), he argues that case is factually distinguishable. In Bay, however, the court determined reckless burning was a lesser-included offense of arson by comparing the statutory elements—not by examining the underlying facts. See id. Thus, that Bay is arguably factually distinguishable is irrelevant to the court's holding that reckless burning is a lesser-included offense of arson. We therefore find no error in the juvenile court considering whether Jason had committed reckless burning.
¶6 Jason next asserts the evidence was insufficient to support the juvenile court's finding that he had committed endangerment, reckless burning, or criminal damage. He asserts he lacked the requisite mental state, specifically recklessness, to have committed those offenses because he believed he and the other juveniles were starting fires in a safe location and had no reason to believe a fire would spread and cause significant damage. A.R.S. §§ 13-1201(A); 13-1602(A); 13-1702(A).
¶7 In reviewing a challenge to the sufficiency of the evidence, "we consider whether the evidence sufficed to permit a rational trier of fact to find the essential elements of [each] offense beyond a reasonable doubt." In re Dayvid S., 199 Ariz. 169, ¶ 4, 15 P.3d 771, 772 (App. 2000). "[W]e 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, ¶ 7, 36 P.3d 772, 774 (App. 2001). It is for the juvenile court as the trier of fact, not this court, to assess the credibility of witnesses and weigh the evidence. In re James P., 214 Ariz. 420, ¶ 24, 153 P.3d 1049, 1054 (App. 2007). Thus, when there are conflicts in the evidence, the juvenile court must resolve them. Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, ¶ 16, 107 P.3d 923, 928 (App. 2005).
¶8 A person acts recklessly if he or she is "aware of and consciously disregards a substantial and unjustifiable risk . . . of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." A.R.S. § 13-105(10)(c). To convict a person of endangerment, the state must demonstrate that person "recklessly endanger[ed] another person with a substantial risk of imminent death or physical injury." § 13-1201(A). A conviction of criminal damage requires proof a person recklessly "defac[ed] or damag[ed] property of another person." § 13-1602(A)(1). Finally, "A person commits reckless burning by recklessly causing a fire or explosion which results in damage to an occupied structure, a structure, wildland or property." § 13-1702(A).
¶9 Based on the evidence regarding the surrounding area, with trees and brush nearby, the risk that one of the fires set by the juveniles could grow out of control was clearly attendant to every fire they had ignited. Cf. State v. McGill, 213 Ariz. 147, ¶ 19, 140 P.3d 930, 936 (2006) (). A fire inspector testified the area had "heavy, dry, tall grass," providing "[a] lot of fuel" for a fire, and that there were "high winds" that day. Nicholas, who had entered a plea agreement before trial, testified that each of them had taken turns lighting dead grass on fire, several feet away from a bare spot where he claimed they initially had ignited gunpowder.
¶10 And the juvenile court could conclude that Jason, along with the others, was aware there were residences and structures nearby that could be damaged by an out-of-control fire. Photographs taken at the fire's origin point showed houses and otherstructures immediately adjacent to and clearly visible from the creek bed. Although Jason is correct that the court was required to consider his conduct in light of his age, twelve at the time of his offenses, see In re William G., 192 Ariz. 208, 214, 963 P.2d 287, 293 (App. 1997), the court readily could conclude that a reasonable twelve-year-old would understand that it was unreasonably dangerous to start fires on a windy day in an area full of tall, dry grass near residences and other structures.1
¶11 Jason asserts, however, pursuant to A.R.S. § 13-203, that "[r]ecklessness is proven if the actual result of the defendant's conduct is similar to that intended, or if the actual result is less than the result intended by the defendant's conduct." Thus, he reasons, his adjudications for reckless burning were improper because "the actual result of [his] conduct was far more excessive than what [he] thought might happen or reasonably expected might happen." But § 13-203 does not apply here. Relevant to reckless conduct, that statute provides that, "[i]f recklessly . . . causing a particular result is an element of an offense, and the actual result is not within the risk of which the person is aware," recklessness nonetheless is established, inter alia, if the "injury or harm . . . contemplated would have been more serious or extensive than that caused" or "[t]heactual result involves similar injury or harm as the probable result." § 13-203(C). But we already have rejected Jason's argument there...
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