In re Victoria K.

• Decision Date: 24 October 2000
• Docket Number: No. 1 CA-JV 99-0218.,1 CA-JV 99-0218.
• Citation: 11 P.3d 1066,198 Ariz. 527
• Parties: In re VICTORIA K.
• Court: Arizona Court of Appeals

11 P.3d 1066

198 Ariz. 527

In re VICTORIA K.

No. -0218.

Court of Appeals of Arizona, Division 1, Department B.

October 24, 2000.

As Amended October 27, and November 7, 2000.

Janet Napolitano, Attorney General By Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and Richard M. Romley, Maricopa County Attorney By Patricia A. Nigro, Deputy County Attorney, Phoenix, for Appellee.

Jeffrey M. Zurbriggen, P.C. By Jeffrey Zurbriggen, Tempe, for Appellant.

OPINION

SULT, Judge.

¶ 1 The juvenile, Victoria K., appeals from an adjudication of delinquency for providing false information to a police officer. Because we find that the juvenile court erred in adjudicating the juvenile for an offense that was not charged and was not a lesser-included offense of the crime that was charged, we vacate the adjudication and remand with directions to enter a judgment of acquittal.

BACKGROUND

¶ 2 In December 1998, Tempe Police Detective Allen Reed was conducting a murder investigation involving two persons who were shot in a Tempe park. One victim lived long enough to identify the assailant as a man named David Wiser. Reed learned that Wiser was the boyfriend of the juvenile's older sister, and in the course of his investigation, Reed spoke with Kathy T., the juvenile's mother. Mrs. T. reported that the juvenile said she had been with Wiser on the night of the murders and that Wiser did not commit them.

¶ 3 Reed telephoned the juvenile to verify her statement. The juvenile told Reed that she had been at a friend's house with Wiser on the night of the murders watching movies from about 6:00 p.m. to 1:00 a.m. She stated that Wiser had not been out of her sight except when she had gone to the bathroom. Reed asked if it were possible for Wiser to have slipped out of the house before 11:00 p.m., which was about the time the murders occurred, and then to have returned. The juvenile responded "no." Reed accused the juvenile of lying and threatened to arrest her, but the juvenile insisted she was telling the truth. Wiser eventually confessed to the murders.

¶ 4 The state filed a petition alleging that the juvenile had hindered prosecution in violation of Arizona Revised Statutes Annotated ("A.R.S.") sections 13-2510 and 13-2512 (1989). The juvenile moved to suppress the telephonic conversation with Reed and during the course of the hearing on the motion, the juvenile court opined that the only way for the state to prove the hindering charge was by showing that the juvenile hindered prosecution by "deception" pursuant to A.R.S. section 13-2510(4).

¶ 5 The court found the statement admissible and thereafter conducted the adjudication hearing. The juvenile testified that on the night of the murders she "wasn't really paying attention," but she did not believe Wiser had left. The juvenile further testified she did not intend to mislead the detective.

¶ 6 The court concluded that the state had not proven hindering prosecution beyond a reasonable doubt. On its own motion and without either party seeking an amendment to the petition, the court adjudicated the juvenile delinquent of providing false information to a police officer in violation of A.R.S. section 13-2907.01 (1989). The juvenile's counsel objected on the grounds that false reporting is not a lesser-included offense of hindering prosecution, and that neither party had moved the court to amend the petition to charge false reporting. The court overruled the objection, finding that an amendment was not necessary because, in the court's opinion, false reporting was a lesser-included offense of hindering prosecution by deception as charged in the petition. The court placed the juvenile on probation, and the juvenile timely appealed.

ISSUES

¶ 7 The juvenile first asserts that because false reporting is not a lesser-included offense of hindering prosecution by deception, her adjudication cannot stand unless the juvenile court's action can alternatively be justified as a permissible substantive amendment to the petition under Rule 4(B) of the Arizona Rules of Procedure for the Juvenile Court. However, she contends this alternative basis does not provide that justification because the juvenile court did not comply with the rule's requirement that she be given additional time to meet the new allegation.¹

ANALYSIS

¶ 8 The juvenile's argument that false reporting is not a lesser-included offense of hindering prosecution is resolved by applying the comparative analysis of elements test to the two offenses. The juvenile's second argument is not as readily disposed of, however, because both the juvenile's argument and the state's response are based on an outdated version of Rule 4(B). The rule was amended in significant part in 1997, and our discussion necessarily incorporates the amended version, resulting in an analysis different from that presented by the parties. We begin with the lesser-included offense issue.

False Reporting as a Lesser-Included Offense

¶ 9 The test for whether a particular crime is a lesser-included offense of another crime is whether it is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense.

State v. Brown, 195 Ariz. 206, 207-08, ¶ 5, 986 P.2d 239, 240-41 (App.1999); see State v. Gooch, 139 Ariz. 365, 366-67, 678 P.2d 946, 947-48 (1984)

. Using this approach, the first step is to comparatively analyze the elements of the respective statutes.

¶ 10 A person commits the offense of hindering prosecution if (1) with the intent to hinder the apprehension, prosecution, conviction or punishment of another person for (2) any felony, (3) the person renders assistance to the other person. A.R.S. § 13-2512(A). A person renders assistance by knowingly:

1. Harboring or concealing the other person; or

2. Warning the other person of impending discovery, apprehension, prosecution or conviction; or

3. Providing the other person with money, transportation, a weapon, a disguise or other similar means of avoiding discovery, apprehension, prosecution or conviction; or

4. Preventing or obstructing by means of force, deception or intimidation anyone from performing an act that might aid in the discovery, apprehension, prosecution or conviction of the other person; or

5. Suppressing by an act of concealment, alteration or destruction any physical evidence that might aid in the discovery, apprehension, prosecution or conviction of the other person; or

6. Concealing the identity of the other person.

A.R.S § 13-2510(1)-(6).

¶ 11 A person commits the offense of false reporting by (1) knowingly making to a law enforcement agency, (2) a false, fraudulent or unfounded report or statement or a knowing misrepresentation of a fact, (3) for the purpose of interfering with the orderly operation of a law enforcement agency or misleading a peace officer. A.R.S. § 13-2907.01(A).

¶ 12 The conduct described by the false reporting statute consists essentially of the communication of a falsehood to a law enforcement agency. The conduct that can constitute hindering prosecution, on the other hand, is of a much greater variety. Examples include hiding another person, warning him of impending discovery, or hiding physical evidence. None of these acts involves communicating information to a law enforcement agency. Thus, false reporting is not, "by its very nature, always a constituent part" of hindering prosecution. See Brown, 195 Ariz. at 207-08, ¶ 5, 986 P.2d at 240-41.

¶ 13 Because false reporting does not always fit within hindering prosecution using the statutory elements test, we turn to the second test, namely whether false reporting is a lesser-included of hindering prosecution as the latter was charged in this case. The petition filed by the county attorney alleged:

[The juvenile], on or about the 12th day of July, 1999, while at or near 120 E. 5th Street, in the city of Tempe, Maricopa County, Arizona, with intent to hinder the apprehension, prosecution, conviction, or punishment of David Wiser for Murder ... rendered assistance to David Wiser by knowingly preventing or obstructing by means of force, deception, or intimidation, a person from performing an act that might aid in the discovery, apprehension, prosecution, or conviction of David Wiser. . . .

¶ 14 The juvenile court focused on the "deception" aspect of the charge, concluding that false reporting was a lesser-included offense of this type of hindering. We agree that upon a comparison of these allegations with the offense of false reporting, it appears that if one commits hindering by deception, one must necessarily also commit false reporting. At the least, there is sufficient similarity to trigger an analysis.

¶ 15 In beginning this analysis, we first note the principle that for one offense to be included within another, greater offense, the greater must have all the elements of the lesser plus at least one additional element. See State v. Tims, 143 Ariz. 196, 198, 693 P.2d 333, 335 (1985). It is this additional element that permits the greater to house the lesser and gives the greater its inclusive effect, and consequently its name. State v. Woods, 168 Ariz. 543, 545, 815 P.2d 912, 914 (App.1991).

¶ 16 We are unable to find an element of hindering prosecution by deception that we consider "additional" to the elements of false reporting. Both require the defendant to knowingly act falsely to another in order to impede the processes of justice. Although one act may violate both statutes, it does not follow that one must be a lesser of the other. If there is no additional element in hindering prosecution by deception, and we conclude that there is not, then false reporting cannot be a lesser-included offense of that crime.

¶ 17 Another relevant principle we must consider is that a lesser-included offense must be composed solely of the elements of the...