State v. Jackson

• Decision Date: 28 May 2004
• Docket Number: No. 2 CA-CR 2002-0391.,2 CA-CR 2002-0391.
• Citation: 90 P.3d 793,208 Ariz. 56
• Parties: The STATE of Arizona, Appellant, v. John William JACKSON, Appellee.
• Court: Arizona Court of Appeals

90 P.3d 793

208 Ariz. 56

The STATE of Arizona, Appellant, v. John William JACKSON, Appellee.

No. -0391.

Court of Appeals of Arizona, Division 2, Department B.

May 28, 2004.

Barbara LaWall, Pima County Attorney, By Elizabeth Hurley, Tucson, for Appellant.

Susan A. Kettlewell, Pima County Public Defender, By John F. Palumbo, Tucson, for Appellee.

OPINION

PELANDER, Presiding Judge.

¶ 1 On June 20, 2002, a Pima County grand jury indicted appellee John William Jackson on seventy-eight counts of child molestation and sexual conduct with a minor under fifteen years of age, allegedly committed against his daughter R. between August 1989 and August 1992. On September 12, 2002, the trial court granted Jackson's motion to dismiss the charges on the ground they were barred by the statute of limitation. The state contends the trial court abused its discretion by granting the motion. We agree and therefore reverse the dismissal order and remand the case for further proceedings.

BACKGROUND

¶ 2 We view the scant evidence presented at the hearing on Jackson's motion in the light most favorable to upholding the trial court's ruling. See State v. Vera, 196 Ariz. 342, ¶ 3, 996 P.2d 1246, 1247 (App.1999). At that hearing, a police report written by Officer Sueme was admitted into evidence pursuant to the parties' stipulation. The following facts are based solely on that report.¹ In 1994, Jackson had custody of his two children, his daughter R., who was then twelve years old, and his then ten-year-old son. That year, the aunt of one of R.'s friends, J.,² reported to the police that R. had told J. Jackson was doing "nasty things" and "messing with her." The report contained no details about Jackson's purported acts.

¶ 3 Three officers went to Jackson's home. Officer Sueme interviewed R. privately and told her what her friend's aunt had related to the police. R. immediately denied having made any such statements. Officer Sueme explicitly asked R. "if her dad ever had her touch any of his privates." R. denied any such activity, although she did tell Sueme "several times" that "just once her Dad [had] showed her his `ding dong,'" but that it had been an accident. Jackson also denied any wrongdoing. He told the officers R. wanted to live with her mother in California rather than with him.

¶ 4 While the officers were at the residence, a neighbor came over and told them R. had also told the neighbor's daughter that Jackson was "messing" with R.R. again denied having made any such statements to her friends. She became upset when her friend's mother demanded that the officers remove R. from the home and at the thought that her father might "go to jail." R. also confirmed that she would prefer to live with her mother. Because R. denied "anything [was] happening" with her father and expressed a desire to remain at home, Sueme took no further action that day.

¶ 5 Two days later, Officer Sueme contacted Sergeant Spillman and asked him to review the case. Citing pressure R. had received from friends and neighbors, Sueme told Spillman she thought it advisable for someone to talk to R. while she was at school and "away from outside influences." Sueme stated in her report that Child Protective Services (CPS) needed to follow up by investigating the home, apparently because Jackson's home was very dirty and he needed some suggestions about his housekeeping practices. She also stated that a Detective Thompson had eventually spoken to R., but the record contains no information confirming any such conversation actually occurred.

¶ 6 A police report prepared by Detective Olson in 2000 also was admitted into evidence at the hearing on the motion to dismiss. In his report, Olson stated he had received information from California law enforcement authorities that R. had reported to them that Jackson had molested her in 1994. Mistakenly noting that R. was "mentally slow," Olson reported that he found she had made the same report in 1994 in Tucson "and that it had been investigated and closed as unfounded." Olson contacted R.'s mother in California, told her of his findings, and then reported the case was closed.

¶ 7 According to undisputed facts in Jackson's motion to dismiss, in June 2002, Tucson police were told that Jackson's son had reported having been molested by Jackson between 1994 and 1997. In response, Detective Rydzak interviewed R., who reported that her father had sexually abused her on a regular basis for several years. Rydzak and two other detectives also interviewed Jackson, who denied all allegations of sexual misconduct with his children. One day later, however, Jackson telephoned Detective Rydzak, admitted that he had lied to her the day before, and told her he had something to confess. Four days later, Jackson was interviewed by detectives and admitted having molested R. once or twice a week from 1989, when she was eight years old, through 1992. Jackson denied any sexual conduct with his son. He was subsequently indicted for the offenses against R.

¶ 8 At the hearing on the motion to dismiss, Detective Rydzak testified that, when she investigates a child sexual abuse case, she generally first interviews the alleged victim. If the child denies that any abuse occurred, she will interview the person suspected of abusing the child. If that person tells her nothing has occurred, she will typically close the investigation. Rydzak also testified that she had been trained in how to interview children in such cases and that she conducts forensic interviews, those intended to obtain information from a child without leading questions or suggestions about what might have occurred. A forensic interview is typically the only type of interview she conducts with children, and she said she reinterviews a child only if she obtains additional information, because repetitive interviewing can be very suggestive.

¶ 9 On cross-examination, Rydzak testified that, if she were assigned to a case and the investigating officer told her to go to a school and interview a child away from "outside influences," she would do so. She also testified that she had checked whether there were any 1994 reports in the case other than Officer Sueme's and that she had been unable to find any, raising the inference that neither Detective Thompson nor any other officer had interviewed R. at school.

DISCUSSION

I. Legal framework

¶ 10 The applicable statute of limitation on which the trial court based its ruling is A.R.S. § 13-107(B). That statute provides that "prosecutions ... must be commenced within the following periods after actual discovery by the state ... or discovery by the state ... that should have occurred with the exercise of reasonable diligence, whichever first occurs." (Emphasis added.) In this case, the applicable period is seven years. § 13-107(B)(1). The statute also states that, "[f]or the purposes of subsection B of this section, a prosecution is commenced when an indictment, information or complaint is filed." § 13-107(C).³

¶ 11 In ruling on Jackson's motion to dismiss, the trial court framed the issue as "whether the State exercised reasonable diligence in investigating the molestation allegation of [Jackson] made by [R.] in 1994." Thus, the trial court did not find that § 13-107(B)'s "actual discovery" standard applies or was satisfied here.⁴ Rather, the court granted the motion on three grounds: (1) the state's lack of reasonable diligence in 1994 "to pursue the matter and to follow-up on significant leads," for example, by failing to interview R. at school and complete a referral to CPS; (2) the state's failure to exercise reasonable diligence in 2000 by investigating the report of the California authorities; and (3) the lack of evidence that Jackson had taken any affirmative steps to conceal his crimes.

II. Standard of review

¶ 12 "`We review an order granting a motion to dismiss criminal charges for an abuse of discretion or for the application of an incorrect legal interpretation.'" State v. Sanchez, 192 Ariz. 454, ¶ 4, 967 P.2d 129, 131 (App.1998), quoting State v. Lemming, 188 Ariz. 459, 460, 937 P.2d 381, 382 (App.1997). Similarly, we review for an abuse of discretion a trial court's ruling on whether the state acted with reasonable diligence. State v. Escobar-Mendez, 195 Ariz. 194, ¶ 15, 986 P.2d 227, 230 (App.1999). A trial court abuses its discretion when it misapplies the law or predicates its decision on incorrect legal principles. See Gorman v. City of Phoenix, 152 Ariz. 179, 182, 731 P.2d 74, 77 (1987); State v. Fields, 196 Ariz. 580, ¶ 4, 2 P.3d 670, 672 (App.1999).

¶ 13 Interpretation of statutes is subject to our de novo review. State v. Fell, 203 Ariz. 186, ¶ 6, 52 P.3d 218, 220 (App.2002). "[O]ur primary goal is to discern and give effect to the legislature's intent." Id. "To that end, we construe the statute's language, and if it is unclear, then consider its historical background, subject matter, context, effects, consequences, spirit, and purpose." State v. Kearney, 206 Ariz. 547, ¶ 5, 81 P.3d 338, 340 (App.2003). In addition, we construe the statute of limitation at issue here "liberally in favor of the accused and against the prosecution." Escobar-Mendez, 195 Ariz. 194, ¶ 13, 986 P.2d at 230; see also United States v. Habig, 390 U.S. 222, 227, 88 S.Ct. 926, 929, 19 L.Ed.2d 1055, 1059 (1968); State v. Fogel, 16 Ariz.App. 246, 248, 492 P.2d 742, 744 (1972).⁵

III. Burden and standard of proof

¶ 14 We first note that neither § 13-107 nor Arizona case law specifically addresses the questions of whether the state or the defendant bears the burden of proof or what the standard of proof is when a limitation issue is raised. For example, under § 13-107(B)(1), must a defendant establish that the prosecution is time barred because the state either discovered or reasonably should have discovered the offense more than seven years before the charges were filed? Or, rather, does the state have the burden of essentially...