                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                            IN RE R.E.

                      No. 2 CA-JV 2016-0104
                       Filed January 6, 2017


         Appeal from the Superior Court in Pinal County
                    No. S1100JV201400051
           The Honorable Daniel A. Washburn, Judge

                  AFFIRMED IN PART;
            VACATED IN PART AND REMANDED


                           COUNSEL

William G. Montgomery, Maricopa County Attorney
By Karen Sciarrotta, Deputy County Attorney, Mesa
Counsel for State

Sabrina Ayers Fisher, Maricopa County Public Advocate
By Colleen Engineer, Deputy Public Advocate, Phoenix
Counsel for Minor


                            OPINION

Presiding Judge Vásquez authored the opinion of the Court, in
which Chief Judge Eckerstrom and Judge Miller concurred.


V Á S Q U E Z, Presiding Judge:

¶1         R.E. appeals from juvenile court orders adjudicating
him delinquent for criminal damage and placing him on juvenile
                           IN RE R.E.
                       Opinion of the Court

intensive probation (JIPS). R.E. argues the evidence was insufficient
to prove he acted with the mental state of recklessness required to
find him culpable for criminal damage. For the following reasons,
we affirm the court’s delinquency adjudication, but we vacate the
disposition and remand the case for a new disposition hearing.

                Factual and Procedural Background

¶2           In March 2015, the Maricopa County Attorney filed a
delinquency petition alleging R.E., then eleven years old, had
“recklessly defaced or damaged vehicles” belonging to others in
September 2014, in violation of Arizona’s criminal-damage statute.
The instant case was assigned Maricopa County Cause No.
JV598741, and, after an adjudication hearing held in February 2016,
the juvenile court found R.E. delinquent as charged. On April 7,
2016, the court transferred the matter to Pinal County for
disposition.

¶3           While this case was pending in Maricopa County, R.E.
was the subject of additional delinquency petitions in Pinal County,
assigned Pinal County Cause No. S1100JV201400051. In that case,
on April 12, 2016, R.E. admitted allegations that he had committed
burglary on November 12, 2015, and misdemeanor theft on June 28,
2015. At the admissions hearing, the Pinal County Juvenile Court
advised R.E. that he had been classified as a first-time felony
juvenile offender as a result of the instant case and would be
classified as a repeat felony juvenile offender as a result of his
admissions in the Pinal County matter.

¶4           In considering the two matters consolidated for
disposition, the juvenile court placed R.E. on JIPS, stating that
standard probation was “not an option.” The court told R.E., who
was thirteen at the time, that it had “no discretion in that regard,”
because imposition of JIPS was “mandatory” when a juvenile had
multiple felony adjudications.

                  The Delinquency Adjudication

¶5          We view the evidence at the adjudication hearing in the
light most favorable to sustaining the juvenile court’s adjudication


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                             IN RE R.E.
                         Opinion of the Court

order. In re David H., 192 Ariz. 459, ¶ 3, 967 P.2d 134, 135 (App.
1998). So viewed, the record established that a group of children
were walking to school through an alley when R.E. and two other
boys began picking up “really big rocks” and throwing them over a
wall into the parking lot of an apartment complex. A woman who
lived nearby heard “crashing noises,” saw the rocks being thrown,
and went outside, where she found rocks next to her neighbors’
damaged vehicles.

¶6            When a Mesa police officer later asked R.E. what had
happened, he said he and two other boys were throwing rocks and
trying to hit two cars in the parking lot. R.E. told the officer that D.,
who was described as eight or nine years old at the time, was
“actually aiming for the red car but missed the red car and was
hitting the white car.” R.E. did not think any of the rocks he had
thrown had hit the vehicles, except for one rock that “might have hit
the tire of the white vehicle.”

¶7           At the close of the evidence, R.E. argued that “[t]hree
young boys throwing rocks” over a wall “does not amount to
reckless behavior.” The juvenile court found R.E. delinquent “either
directly or as an accomplice,” noting that, “by [his] own admission,”
R.E. was not just throwing rocks over a wall; instead, he and D. were
knowingly “throwing rocks at cars.”

¶8           In reviewing a challenge to the sufficiency of the
evidence, we consider whether it “sufficed to permit a rational trier
of fact to find the essential elements of [each] offense beyond a
reasonable doubt.” In re Dayvid S., 199 Ariz. 169, ¶ 4, 15 P.3d 771,
772 (App. 2000). “[W]e will not re-weigh the evidence, and we will
only reverse on the grounds of insufficient evidence if there is a
complete absence of probative facts to support the judgment or if the
judgment is contrary to any substantial evidence.” In re John M., 210
Ariz. 424, ¶ 7, 36 P.3d 772, 774 (App. 2001).

¶9           To establish R.E. acted recklessly, the state was required
to show (1) he was “aware of and consciously disregard[ed] a
substantial and unjustifiable risk” that the vehicles in the parking lot
would be damaged by his conduct and (2) that risk was “of such
nature and degree” that his disregard of it “constitute[d] a gross


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                             IN RE R.E.
                         Opinion of the Court

deviation from the standard of conduct that a reasonable person
would observe in the situation.” A.R.S § 13-105(10)(c). Relying on
In re William G., R.E. maintains the juvenile court was required to
consider whether his conduct was a gross deviation from the
conduct of reasonable “juveniles of like age, intelligence and
maturity.” 192 Ariz. 208, 214, 963 P.2d 287, 293 (App. 1997). He
argues, “An eleven year old throwing a rock over a six foot fence on
his way to school is not a gross deviation of a standard of conduct
for an eleven year old.” And, to the extent R.E.’s delinquency
adjudication was premised on accomplice liability for D.’s conduct,
he argues the state failed to show D.’s conduct was a gross deviation
from that expected of a reasonable eight- or nine-year old.

¶10           We find William G. inapposite.            In that case, a
fifteen-year old had been “riding” shopping carts in a parking lot
and was “shocked” when he “accident[ally]” collided with and
damaged a parked car. Id. at 210-11, 963 P.2d at 289-90. The court
distinguished between civil negligence and recklessness, stating the
“deviation from acceptable behavior required for recklessness must
be markedly greater than the mere inadvertence or heedlessness
sufficient for civil negligence.” Id. at 215, 963 P.2d at 294. Moreover,
“recklessness requires that the person actually be ‘aware’ of the risk
being created by his conduct,” a risk that was “minimized” in that
case by William’s “proficiency” in riding the carts. Id. at 213-14, 963
P.2d at 292-93.

¶11          In contrast, the evidence here supports the juvenile
court’s determination that R.E. was well aware of the risk of hitting
the cars in the parking lot with the rocks he threw over the wall; he
admitted to the police officer that he and D. had been trying to hit
them. This was not a matter of the “inadvertence or heedlessness”
at issue in William G., 192 Ariz. at 215, 963 P.2d at 294, and the
juvenile court reasonably could find throwing large rocks at specific,
targeted vehicles was a gross deviation from the conduct of a
reasonable child at age eleven, or at age eight or nine.

                         Imposition of JIPS

¶12          In the course of our appellate review, we determined
the juvenile court’s imposition of JIPS could constitute fundamental


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                             IN RE R.E.
                         Opinion of the Court

error, and we asked the parties for supplemental briefing on that
issue. See State v. Mann, 188 Ariz. 220, 232 n.1, 934 P.2d 784, 796 n.1
(1997) (Martone, J., concurring) (appellate court has discretion to
address fundamental error it observes in course of appellate review).
The parties agree that the court’s factual findings were insufficient to
warrant the imposition of JIPS. It also appears the court erroneously
believed it lacked discretion in the matter and was required to
impose JIPS. We therefore agree that the appropriate remedy is to
remand the case for a new disposition hearing.

¶13          “The juvenile court has broad discretion to determine
the proper disposition of a delinquent juvenile,” but “[t]he court
abuses its discretion if it misapplies the law or a legal principle.” In
re Thomas D., 231 Ariz. 29, ¶ 9, 290 P.3d 223, 225 (App. 2012). Section
8-352, A.R.S., identifies the evaluation and criteria required for a
juvenile’s placement on JIPS. As a general matter, prior to
recommending JIPS, a juvenile probation officer must “evaluate the
needs of the juvenile and the juvenile’s risk to the community,
including the nature of the offense, the delinquent history of the
juvenile, the juvenile’s history of referrals and adjustments and the
recommendation of the juvenile’s parents.” § 8-352(B). The
probation officer may recommend that the court place the juvenile
on intensive probation “[i]f the nature of the offense and the prior
delinquent history of the juvenile indicate that the juvenile should
be included in an intensive probation program pursuant to supreme
court guidelines for juvenile intensive probation.” Id.; see also Ariz.
Code of Jud. Admin. § 6-302.01(H) (“Eligibility Requirements for
JIPS”).1



      1The  supreme court guidelines provide, inter alia, that “[t]he
probation officer shall include in the disposition summary report,
case information related to delinquent risk and criminogenic needs
as documented by the youth assessment, in addition to other file and
collateral information” and “the officer’s recommendation for
supervision and treatment services based upon the juvenile’s
documented delinquent risk and criminogenic needs.” Ariz. Code
of Jud. Admin. § 6-302.01(H)(3). In addition, “[p]robation officers
shall support any recommendation for the placement of a juvenile

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                             IN RE R.E.
                         Opinion of the Court

¶14          A juvenile court may place a juvenile on JIPS “[a]fter
reviewing the juvenile’s prior record, the facts and circumstances of
the current delinquent act . . . and the [probation officer’s]
disposition summary report.” § 8-352(C). A limited exception to the
extensive evaluation requirements in § 8-352(C) is found in
§ 8-341(D), which provides, “If a juvenile is fourteen years of age or
older and is adjudicated as a repeat felony juvenile offender, the
juvenile court shall place the juvenile on juvenile intensive
probation.” See also In re Russell M., 200 Ariz. 23, ¶¶ 1, 5, 21 P.3d
409, 410-11 (App. 2001) (finding § 8-341(D) mandatory as applied to
adjudication for second felony offense committed by juvenile over
fourteen). In all circumstances, however, “When granting [JIPS] the
court shall set forth on the record the factual reasons for using the
disposition.” § 8-352(D).

¶15          In this case, the only reason the juvenile court stated on
the record for imposing JIPS was its apparent belief that standard
probation was “not an option,” telling R.E. that it had “no discretion
in that regard” because JIPS is “mandatory” when a juvenile has had
multiple felony adjudications. But JIPS is only a mandatory
disposition when a juvenile adjudicated as a repeat felony juvenile
offender “is fourteen years of age or older,” § 8-341(D), and R.E. was
only thirteen years old.

¶16           Because the juvenile court was mistaken about the
requirements of § 8-341(D), the only reason given by the court for
placing R.E. on JIPS, see § 8-352(D), we conclude its disposition was
an abuse of discretion. See In re J.G., 196 Ariz. 91, ¶ 17, 993 P.2d
1055, 1058 (App. 1999) (recognizing “juvenile court erred by failing
to specify its reasons for imposing JIPS”). Although this court has
found it possible to affirm a JIPS disposition, “despite the absence of
specific findings” when “the record demonstrates that the trial court
has considered the statutory factors,” id., that is not the circumstance
here. In particular, we are concerned that the court erroneously
believed it lacked discretion to impose standard probation for what
was R.E.’s first delinquency disposition. Cf. State v. Stroud, 209 Ariz.

on JIPS with the youth assessment, and other documented factors
that increase risk.” Ariz. Code of Jud. Admin. § 6-302.01(H)(4).


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                              IN RE R.E.
                          Opinion of the Court

410, ¶ 21, 103 P.3d 912, 916 (2005) (in criminal case, remand for
resentencing proper when trial court “erred in believing that
consecutive sentences were statutorily mandated”); State v. Harrison,
195 Ariz. 1, ¶¶ 1, 6, 17, 985 P.2d 486, 486, 488, 490 (1999) (remand for
resentencing proper for trial court’s failure to substantially comply
with statutory requirement that aggravated or mitigated sentence be
supported by “factual findings and reasons in support of such
findings . . . set forth on the record”); State v. Hardwick, 183 Ariz. 649,
656-57, 905 P.2d 1384, 1391-92 (App. 1995) (remand for resentencing
necessary when “record does not reveal” whether sentencing judge
would have imposed same sentence when not considering improper
factor).

                              Disposition

¶17          Sufficient evidence supported the juvenile court’s order
adjudicating R.E. delinquent, and we affirm the adjudication. The
court’s disposition, however, while permissible, was based on an
error of law that limited the proper exercise of its discretion.
Accordingly, we vacate the disposition order and remand the case
for further proceedings consistent with this opinion.




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