State ex rel. Montgomery v. Padilla, s. 1 CA–SA 15–0203

• Decision Date: 08 December 2015
• Docket Number: 1 CA–SA 15–0211.,Nos. 1 CA–SA 15–0203,s. 1 CA–SA 15–0203
• Parties: STATE of Arizona ex rel. William G. MONTGOMERY, Maricopa County Attorney, Petitioner, v. The Honorable Jose PADILLA, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Chris A. Simcox a.k.a. Christopher Allen Simcox, Real Party in Interest. A.S., mother of minor crime victim, Z.S., Petitioner, v. The Honorable Jose S. Padilla, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Chris Allen Simcox. Real Party in Interest.
• Court: Arizona Court of Appeals

364 P.3d 479

STATE of Arizona ex rel. William G. MONTGOMERY, Maricopa County Attorney, Petitioner,

v.The Honorable Jose PADILLA, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,Chris A. Simcox a.k.a. Christopher Allen Simcox, Real Party in Interest.

A.S., mother of minor crime victim, Z.S., Petitioner,

v.The Honorable Jose S. Padilla, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,Chris Allen Simcox. Real Party in Interest.

Nos. 1 CA–SA 15–0203

1 CA–SA 15–0211.

Court of Appeals of Arizona, Division 1.

Dec. 8, 2015.

Maricopa County Attorney's Office, By Amanda M. Parker, Phoenix, Counsel for Petitioner State of Arizona.

Chris A. Simcox, Phoenix, Real Party in Interest.

Office of the Legal Defender, By Sheena Chawla, Robert S. Shipman, Phoenix, Advisory Counsel for Real Party in Interest.

Arizona Voice for Crime Victims, By Colleen Clase, Tempe, Counsel for A.S.

DeFusco & Udelman, PLC, By Randall Udelman, Scottsdale, Counsel for Amicus Curiae National Crime Victim Law Institute.

Judge SAMUEL A. THUMMA delivered the opinion of the Court, in which Presiding Judge JON W. THOMPSON and Chief Judge MICHAEL J. BROWN joined.

OPINION

THUMMA, Judge:

¶ 1 These consolidated special actions arise out of pretrial proceedings in a criminal case where Chris Simcox is charged with three counts of sexual conduct with a minor, two counts of child molestation and one count of furnishing harmful items to minors, alleged to have occurred at various times between April 2012 and May 2013. Accepting special action jurisdiction over both petitions, because the court did not properly apply Arizona Revised Statutes (A.R.S.) section 13–1421 (2015),¹ this court grants relief and remands for further proceedings consistent with this opinion. Because the court did not properly apply the Victims' Bill of Rights, Ariz. Const. art. 2, § 2.1, (VBR) as implemented in the Victims' Rights Implementation Act (VRIA), A.R.S. § 13–4401 et seq., this court also grants relief on that basis and remands for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2 Z.S. and J.D. were approximately 8–years old at the time of the alleged offenses. The State challenges the superior court's application of A.R.S. § 13–1421(A) to statements made by Z.S. A.S., the mother and legal representative of Z.S., challenges the superior court's application of the VBR and the VRIA. The record generated at an evidentiary hearing addressing A.R.S. § 13–1421(A) provides much of the basis for both challenges.

¶ 3 In a motion in limine, the State expressed concern that Simcox, who has elected to represent himself, would offer evidence at trial that Z.S. "has made prior allegations of sexual abuse against another individual." Citing A.R.S. § 13–1421(A),² the State sought to preclude any evidence or reference at trial "regarding alleged sexual activity between victim Z.S. and anyone other than" Simcox. Simcox countered that the statute was inapplicable because he intended to introduce evidence that Z.S. alleged an individual, referred to here as N., touched her inappropriately, arguing such evidence would constitute a third-party defense to the charges involving Z.S. The court set an evidentiary hearing on the matter, the relevant portion of which was held on July 23, 2015.

¶ 4 Counsel for A.S. attempted to assert various rights on behalf of A.S. and as legal representative of Z.S. At a July 7, 2015 hearing, counsel for A.S. stated: "I just want the record to note our continued objection to Mr. Simcox conducting any cross-examination of" A.S. The court responded that counsel for A.S. does not "have a right to participate in this part.... You're not representing the State. You represent this witness. We're not dealing with litigation involving this witness. So it will be noted, but that's about it." After counsel for A.S. cited A.R.S. § 13–4437,³ the court noted counsel had standing to represent A.S. "but not participate," citing Lindsay R. v. Cohen, 236 Ariz. 565, 343 P.3d 435 (App.2015).

¶ 5 Counsel for A.S. unsuccessfully moved to reconsider. Counsel for A.S. also filed a motion for a protective order seeking to preclude testimony from Dr. C.P. on the grounds it would violate the privacy rights of Z.S. At the July 23, 2015 evidentiary hearing, when the prosecutor stated the motion for protective order was filed by A.S.'s counsel "on behalf of the victim," the court stated "[a]ny information that counsel for any of the victims" wanted to raise with the court must come through the prosecutor, citing Lindsay R. When A.S.'s counsel argued she had standing to assert her rights under A.R.S. § 13–4437(A), "rather than asking the State to do it on her behalf," the court stated that, because A.S. had testified at the July 7, 2015 hearing when called by the State, Simcox had a right to cross-examine her. A.S's counsel responded that she was "not saying that [A.S.] shouldn't be cross-examined. I wanted to make a record that I objected to Mr. Simcox cross-examining her." The court noted that the parties to a criminal case are the State and the defendant and that victims "can make your position known by way of objecting to what's going on, but that's it." When A.S's counsel asked if she could argue her motion for a protective order, the court responded "[t]hat would be [the prosecutor's] job." The court later acknowledged that A.S. has a right to be heard and to be present but did not alter its prior rulings.

¶ 6 At the July 23, 2015 evidentiary hearing, the court heard testimony from Dr. C.P., who met with Z.S. periodically from June 2011 to May 2013. Dr. C.P. testified that Z.S. reported in May 2013 that N. had touched her inappropriately. Dr. C.P. immediately reported that disclosure to the Department of Child Safety (DCS). A DCS case manager testified about the investigation of that report.

¶ 7 At the conclusion of the hearing, the court confirmed that A.R.S. § 13–1421(A)(5) sets forth the applicable analysis and addresses "false allegations against others." The court characterized certain testimony it had heard as " ‘[w]e simply couldn't find evidence of it, but we can't tell you that it did not happen.’ " The court, however, declared it was "not making a determination that there is a basis" for the statement by Z.S. that N. had touched her inappropriately. This was consistent with an earlier court statement that the scope of the hearing was:

simply trying to establish is there some credible evidence that there was an allegation made as to another individual. This is not a trial of that other individual. So the statement is not to prove that [N.] did it, but that the allegation was made, there is credible evidence, and the witnesses should be examined in front of a jury about those things. That's the entire scope of this hearing.

¶ 8 The court then indicated it would allow Simcox to question witnesses about the statement by Z.S. that N. had touched her inappropriately. In response, the State argued that "[j]ust because ... [Z.S.] may have been touched by somebody else doesn't prove or disprove anything about the defendant. She could have been touched by both. So that's why it's not relevant to this proceeding, and would only serve to confuse the jury." The court indicated it was impeachment and "[t]here is clear evidence that the statements were made to a mandated reporter whose job it was to figure out if these things were made," meaning Simcox was not "simply making them up." The court concluded that Simcox "has met his burden of showing that there were allegations made against another individual.... The fact that they turned out to be unsubstantiated is something [the State] can bring up."

¶ 9 The State argued A.R.S. § 13–1421(A)(5)"talks about evidence of the false allegations of sexual misconduct made by the victim against others. That's not what the defendant is arguing here. He's arguing that she wasn't touched by him, that she was touched by somebody else. That's not what this statute is for." The State argued allegations could be admissible "[o]nly if they were false" and met the statute's other requirements, adding:

But just because she may have been touched by somebody else, it's just like as if somebody would have been sexually assaulted by somebody else. Just because it may have happened doesn't make him less a defendant or not, less the perpetrator or not. That's what the purpose of [A.R.S. § 13–]1421 is, not to confuse the jury.

The court indicated it disagreed with the State, adding "[m]y ruling stands." After the State obtained a stay from the superior court, the State and A.S. filed these petitions for special action. Simcox filed the same response in both matters, which addresses in part the State's arguments under A.R.S. § 13–1421 but does not directly address the arguments made by A.S.

DISCUSSION

I. Special Action Jurisdiction.

¶ 10 Special action jurisdiction is appropriate where petitioner has no "equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a). Special action jurisdiction is appropriate to address an issue that is " ‘a purely legal question, is of statewide importance, and is likely to arise again.’ " Lear v. Fields, 226 Ariz. 226, 229 ¶ 6, 245 P.3d 911 (App.2011) (quoting Vo v. Superior Court, 172 Ariz. 195, 198, 836 P.2d 408 (App.1992) ). "Although ‘highly discretionary,’ accepting special action jurisdiction is particularly appropriate where the welfare of children is involved and the harm complained of can only be prevented by resolution before an appeal." Dep't. of Child Safety v. Beene, 235 Ariz. 300, 303 ¶ 6, 332 P.3d 47 (App.2014) (citations omitted).

¶ 11 The petitions seek review of decisions that are not final and appealable at this time, implicate the interests of children and involve legal issues of statewide importance that are likely to arise again. Moreover, there is no equally plain, speedy and adequate...