In re Delinquency as to A.S.

1

IN RE DELINQUENCY AS TO A.S.

No. 1 CA-JV 22-0210

Court of Appeals of Arizona, First Division

March 9, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. JV207011 The Honorable Amanda Chua, Judge Pro Tempore

Maricopa County Public Advocate, Phoenix By Caitlin Engstrand Counsel for Appellant

Maricopa County Attorney's Office, Phoenix By Krista Wood Counsel for Appellee

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in which Judge Jennifer B. Campbell and Judge David D. Weinzweig joined.

MEMORANDUM DECISION

BAILEY, JUDGE

¶1 A.S. ("Juvenile") appeals the superior court's restitution order. We affirm the order, except for the portion of that order holding Juvenile's maternal grandparents jointly and severally liable, which we vacate.

FACTS AND PROCEDURAL HISTORY

¶2 In December 2021, Juvenile and an accomplice, each armed with a handgun, carjacked M.S. ("the victim"), threatening to shoot her if she did not relinquish her vehicle and its contents. Later that day, the victim filed a stolen property list with the Glendale Police Department. The police later arrested Juvenile, and he was charged in a delinquency petition with three felonies: (1) armed robbery, (2) theft of means of transportation, and (3) being a minor in possession of a firearm. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-1904, -1814, -3111.

¶3 As part of a plea agreement, Juvenile pled delinquent to an amended charge of robbery, a class four felony, see A.R.S. § 13-1902, and the State agreed to drop the remaining charges. Juvenile also promised to "pay restitution for all economic loss to all victims . . . for all counts and/or events, including dismissed and/or amended counts or events." The plea agreement also provided that Juvenile's parents or legal guardians could be held jointly and severally liable. The court accepted the plea and adjudicated Juvenile delinquent.

¶4 The victim then submitted a verified victim statement of financial loss ("VVS"), listing items in her vehicle that were not recovered. Juvenile requested a restitution hearing, and over three days, the victim testified to the loss of each item on her VVS. Although she lacked receipts for the listed items, she provided several photographs of advertisements for comparable items.

¶5 The court awarded the victim $3,391.68 in restitution, including (1) $420 for lost income, (2) $38.02 for medical mileage, (3) $500 for her auto insurance deductible, (4) $150 in missing cash, (5) $1,483.66 for three iPhones, and (6) $800 for other property she lost. The court also held Juvenile's maternal grandparents jointly and severally liable.

¶6 We have jurisdiction over Juvenile's timely appeal under A.R.S. §§ 8-235(A) and 12-2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 601(a).

DISCUSSION

¶7 We review a restitution order for an abuse of discretion. In re Richard B., 216 Ariz. 127, 130, ¶ 12 (App. 2007). The superior court retains broad discretion to make victims whole, In re Joseph L., 251 Ariz. 447 449, ¶ 9 (App. 2021), and we will uphold the court's award if it bears a reasonable relationship to the victim's loss, State v. Lindsley, 191 Ariz. 195, 197 (App. 1997).

¶8 To support a restitution order, evidence must show the victim suffered a loss that (1) is economic, (2) is "one that the victim would not have incurred but for the defendant's criminal offense," and (3) "directly result[s] from the defendant's criminal conduct." In re Stephanie B., 204 Ariz. 466, 469, ¶ 10 (App. 2003) (citing State v. Wilkinson, 202 Ariz. 27, 29, ¶ 7 (2002)). The evidence must also "provide a basis for setting an amount that is not speculative." In re Michelle G., 217 Ariz. 340, 343, ¶ 10 (App. 2008) (citation omitted). The burden is on the State to prove by a preponderance of the evidence that the victim is entitled to restitution. Stephanie B., 204 Ariz. at 470, ¶ 15. We view the facts in the light most favorable to affirming the court's determination. In re Andrew A., 203 Ariz. 585, 586, ¶ 5 (App. 2002).

I. The Victim's Credibility

¶9 Throughout his brief, Juvenile argues the victim was unreliable and her testimony was not credible, which he maintains rendered her restitution request "speculative."

¶10 Because the superior court is in the best position to determine witness credibility and analyze exhibits for restitution purposes, we defer to its factual findings if supported by reasonable evidence. Richard B., 216 Ariz. at 130, ¶ 12. We will not reweigh the evidence. See Andrew A., 203 Ariz. at 587, ¶ 9. If the victim's testimony supports the restitution order, it is within the court's discretion to find her credible and accept her testimony as proof of loss for restitution purposes. See id.

¶11 Juvenile argues the victim included missing items on the VVS that she did not include on the stolen property list she filed with the Glendale Police Department, and he suggests the additional items show either dishonesty or a general lack of credibility. As he acknowledges, however, "it may be common for a victim to notice additional missing items after the offense," and given the nature of the crime, it was not unreasonable for the victim to make additions and corrections after reflection. At the hearing, the victim testified she realized more items were missing after she first spoke with police. She tried to call the police department multiple times to update her stolen property list, but likely because of the language barrier, was not successful. The superior court acted within its discretion when it implicitly found the VVS to be more accurate than the initial property list.

¶12 Juvenile also notes the victim provided inconsistent and at times confusing testimony, especially when she appeared to testify that she had two birthdates. During her testimony, the victim stated she received a purse for her birthday in May. She later stated she received a phone for her birthday in December. When questioned about the incongruity, she clarified that the purse was a gift for Mother's Day. The superior court did not abuse its discretion in implicitly accepting her explanation, especially given the inherent and obvious difficulties posed by the victim's use of an interpreter at the hearing.

¶13 Juvenile next notes the victim acknowledged having memory problems, due at least in part to her diabetes and two recent diabetic comas. But nothing in the record suggests her problems necessarily rendered her entire testimony unreliable. The court acted within its discretion in accepting her testimony as to those items she could remember.

¶14 Juvenile also argues the victim misrepresented the reason for her physical absence during the second day of the restitution hearing. But the victim explained she had recently experienced a medical emergency, and she was in transit to a follow-up doctor's appointment scheduled at a time likely to overlap with the hearing. The court accepted her explanation, denied Juvenile's motion to deny the victim's restitution request, and continued with the restitution hearing. We find no abuse of discretion by the court.

¶15 Juvenile further argues the victim's testimony was not credible as she was confused as to the exact models or generations of the three iPhones that had been stolen from her vehicle.^[1] Juvenile presented impeachment testimony from an investigator for the Public Advocate's Office, who testified as to the inconsistencies in her testimony and why the generation of the iPhones would affect their value. The court found the victim credible as to her valuation of some items for which she requested restitution, but also found at least a portion of the investigator's testimony credible because it relied on that testimony in valuing one of the missing iPhones. The superior court acted within its discretion in implicitly finding the victim credible and relying on at least some portion of her testimony in ordering restitution.

II. The Sufficiency of the Victim's Evidence

¶16 Juvenile notes the victim lacked receipts or other documentation for much of the restitution she was seeking, and he argues that, even if the victim were credible, the court abused its discretion in relying on her VVS and testimony, which he maintains were insufficient evidentiary support for restitution. We disagree.

¶17 A victim's VVS and credible testimony may be sufficient, on their own, to support a monetary award. See A.R.S. § 8-344(B) ("The court may consider a verified statement from the victim or estate of the victim concerning damages for lost wages, reasonable damages for injury to or loss of property and actual expenses of medical treatment for personal injury, excluding pain and suffering."); State v. Stutler, 243 Ariz. 128, 131, ¶ 8 (App. 2017) (holding that a victim's testimony and loss affidavit were sufficient to support a restitution award). Substantial evidence supported the superior court's restitution order, and the court did not abuse its discretion in relying on the victim's VVS and testimony in crafting its restitution order.

III. The Court's Reference to the Unadmitted Police Report

¶18 Juvenile argues that, in awarding restitution, the superior court abused its discretion by referencing a police report that was not entered into evidence or relied on by either party during the restitution hearing.

¶19 We review for harmless error the superior court's consideration of a report not admitted into evidence. See State v. Stevens, 158 Ariz. 595, 597 (1988). In general error is harmless if the evidence is merely cumulative. See State v. Williams, 133 Ariz. 220, 226 (1982).

¶20 In awarding the victim $420 for lost income, the court stated:

Victim's loss of income

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