State v. Gibbons
| Decision Date | 02 October 2014 |
| Docket Number | No. 2 CA-CR 2013-0129,2 CA-CR 2013-0129 |
| Parties | THE STATE OF ARIZONA, Appellee, v. JOHN DAVID GIBBONS, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Cochise County
The Honorable Wallace R. Hoggatt, Judge
REVERSED
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
Mark A. Suagee, Cochise County Public Defender, Bisbee
Counsel for Appellant
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Miller concurred and Judge Espinosa specially concurred.
¶1 Appellant John Gibbons appeals from the trial court's finding of a probation violation and imposition of a jail term as a condition of his reinstated probation. For the following reasons, we reverse.
¶2 In January 2013, law enforcement officers responded to a 9-1-1 call from a seven-year-old child. The child, J.G., told the dispatcher that "his father had been in a fight and he needed to get the cops down to his house immediately."
¶3 Upon arrival, the first officer to respond found J.G. standing outside his father's trailer. The officer then found J.G.'s father, Gibbons, in the trailer next door with his two brothers. All three men were highly intoxicated, to the point of being unable to stand up or speak coherently. Gibbons was so intoxicated that he had "fouled himself."
¶4 J.G. indicated that he and his younger brother had been left alone in the trailer long enough to watch a movie. After the movie ended, J.G. went next door and called for his father "for a long time," but Gibbons did not respond. J.G. also reported that his Uncle Eddie had "beat up" his father and that he could hear the fighting.
¶5 The state filed a petition to revoke Gibbons's probation. The petition alleged that Gibbons had violated condition number 1 of his probation, which required him to "[o]bey all . . . state . . . laws," by having committed child abuse and "child neglect." Thetrial court dismissed the allegation of child abuse due to insufficient evidence, but found child neglect pursuant to A.R.S. § 13-3619 proven. The court reinstated Gibbons on lifetime probation and ordered that he serve 365 days in jail. Gibbons filed a timely notice of appeal. This court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(3).
¶6 Gibbons maintains the evidence was insufficient for the trial court to find that he violated his probation by committing the crime of child neglect pursuant to § 13-3619. A violation of probation must be established by a preponderance of the evidence. Ariz. R. Crim. P. 27.8(b)(3); State v. Elmore, 174 Ariz. 480, 483, 851 P.2d 105, 108 (App. 1992). We will not overturn a finding of a probation violation "'unless the finding is arbitrary or unsupported by any theory of evidence.'" State v. Vaughn, 217 Ariz. 518, ¶ 14, 176 P.3d 716, 719 (App. 2008), quoting State v. Thomas, 196 Ariz. 312, ¶ 3, 996 P.2d 113, 114 (App. 1999).
¶7 A person violates § 13-3619 if by abuse, neglect, or immoral associations, he endangers the life of a child, injures the health of a child, or imperils the moral welfare of a child. The trial court found that Gibbons had not endangered the lives of the children, but found he had injured the health of the children and imperiled their moral welfare "by reason of not being supervised," which we take to mean neglect.1 Gibbons argues the trial court applied an incorrect legal definition in finding that he had injured his children by neglect pursuant to § 13-3619. He claims the court erroneously applied a definition borrowed from a child dependency statute, A.R.S. § 8-201(24), under which risk of harm is sufficient, whereas § 13-3619 requires that the neglect result in actual harm. The record before us supports Gibbons's contention.
¶8 During the hearing, the trial court cited the definition of neglect from the current § 8-201(24). 2 The court then stated, "[A]lthough no harm actually occurred to the child[ren], . . . the law does not require that the child or children actually be harmed, only that an unreasonable risk of harm be caused to . . . the children's health or welfare." But under § 13-3619, the neglect must cause the minor's "health to be injured." By its plain language, this clause of the statute requires actual harm; a risk of harm is insufficient.3 See Rineer v. Leonardo, 194 Ariz. 45, ¶ 7, 977 P.2d 767, 768 (1999) (), quoting Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991) (alteration in Rineer). The court therefore erred in concluding Gibbons had violated § 13-3619 by injuring the health of his children simply because he had created a risk of harm.
¶9 The state maintains that physical injury is not required, that mental or emotional injury may also suffice, and that we could therefore affirm the trial court's finding on that basis. However, the trial court expressly found that "no harm actually occurred," and we do not second-guess the trial court's findings on questions of factwhen they find support in the record. See Shooter v. Farmer, 235 Ariz. 199, ¶ 4, 330 P.3d 956, 957 (2014) (per curiam).
¶10 The state emphasizes that the trial court also found "the health of both the [children] w[as] injured by reason of not being supervised." And the state argues that these seemingly contradictory findings can only be harmonized if we construe the latter finding to imply that the children suffered mental or emotional injury, but not physical injury.
¶11 We cannot agree for two reasons. First, the state did not present its current theory—that Gibbons caused mental or emotional injury to the children—to the trial court. We think it unlikely the court would have ruled on a theory of injury, not expressly articulated in § 13-3619, that was not before it. Second, immediately after stating that no harm had occurred, the trial court added that risk of harm was sufficient. In context, the conclusion that Gibbons had injured the health of the children appears to have been based on the application of an incorrect legal definition, as noted above. See Files v. Bernal, 200 Ariz. 64, ¶ 2, 22 P.3d 57, 58 (App. 2001) ().
¶12 Even assuming that we can either ignore the trial court's explicit finding or interpret it in the manner the state suggests, and further assuming that § 13-3619 was intended to criminalize neglect causing emotional injury, the state presented insufficient evidence from which the court could make such a finding. Notably, in the same chapter of the criminal code, A.R.S. §§ 13-3601 through 13-3625, the legislature expressly criminalizes acts or omissions causing "serious emotional damage" to children and requires that such injury be "serious emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior and which emotional damage is diagnosed by a medical doctor or psychologist and is caused by the acts or omissions of an individual who has the care, custody and control of a child." § 8-201(2); see § 13-3623(F)(1).4 Here the state presentedneither evidence of "severe anxiety, depression, withdrawal or untoward aggressive behavior" nor the testimony of a medical doctor or psychologist that either of the children was emotionally damaged. Thus, even assuming § 13-3619, the alleged violation here, was intended to similarly criminalize injury to emotional health, the state presented insufficient evidence to satisfy our legislature's definition of emotional injury.
¶13 The only evidence which would concretely support a finding of such an injury was that J.G. was "frantic[]" when he called 9-1-1. But the record suggests J.G.'s distress arose not from the fact that Gibbons had left him unsupervised, but rather from concern for Gibbons's well-being.5 Furthermore, although we do not dispute that children may be emotionally harmed by exposure to violence, nothing in the record demonstrates that J.G. or his sibling were present when the fight occurred. Moreover, the state presented no evidence that J.G. suffered more than temporary distress and no evidence that J.G.'s sibling suffered even that. Because there was no other evidence presented that either of the children suffered a diagnosable emotional injury, as distinguished from temporary distress, we cannot uphold the trial court's finding of a violation of § 13-3619 based on a mental or emotional injury, even assuming that statute was intended to criminalize such injuries.
¶14 However, the trial court found, in the alternative, that Gibbons had violated § 13-3619 because the moral welfare of the children had been "imperiled by reason of not being supervised." The record demonstrates that (1) Gibbons had left the children unsupervised for at least the length of a movie, (2) J.G. witnessed Gibbons in a state of extreme intoxication and either heard or saw aphysical altercation between his father and uncle, and (3) Gibbons did not respond when J.G. repeatedly called for him.6
¶15 Although the statute does not further define or describe what type of conduct constitutes imperiling the morals of children, our supreme court has held that statutes protecting children's morals "have a long history of common-law interpretation which renders sufficiently clear and meaningful language which might otherwise be vague and uncertain." Brockmueller v. State, 86 Ariz. 82, 84, 340 P.2d 992, 994 (1959). Following this precedent, we therefore must ascertain the common law meaning of imperiling a child's "moral welfare." §...
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