                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                              IN RE DILLON D.

                             No. 1 CA-JV 14-0219
                               FILED 2-10-2015


            Appeal from the Superior Court in Navajo County
                        No. S0900JV201400010
               The Honorable Michala M. Ruechel, Judge

                                  REVERSED


                                   COUNSEL

Navajo County Attorney’s Office, Holbrook
By Galen Wilkes
Counsel for Appellee

Emery K. La Barge, Attorney At Law, Snowflake
By Emery K. La Barge
Counsel for Appellant



                       MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia K. Norris joined. Judge Randall M. Howe specially
concurred.
                             IN RE DILLON D.
                            Decision of the Court

D O W N I E, Judge:

¶1            Dillon D. (“Juvenile”) appeals his delinquency adjudication
for child molestation. For the following reasons, we reverse.

                 FACTS AND PROCEDURAL HISTORY

¶2            Juvenile’s half-brother, M.L., reportedly made statements
during a family gathering that led to a criminal investigation. Detective B.
interviewed M.L., who stated Juvenile had touched him inappropriately.
M.L. also alleged Juvenile had inappropriately touched half-sister A.L.1

¶3           The State filed a four-count delinquency petition, alleging: (1)
sexual conduct with a minor (A.L.); (2) sexual conduct with a minor (M.L.);
(3) child molestation (A.L.); and (4) child molestation (M.L.). All of the
counts were alleged as class two felonies and dangerous crimes against
children.

¶4            After an adjudication hearing, the superior court ruled the
State had offered insufficient proof regarding counts one through three but
adjudicated Juvenile delinquent as to count four (child molestation of M.L.)
and sentenced him to intensive probation, including participation in a sex
offender treatment program. Juvenile timely appealed. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 8-
235(A).

                               DISCUSSION

¶5            We review de novo the sufficiency of the evidence to support
a conviction, State v. Snider, 233 Ariz. 243, 245, ¶ 4, 311 P.3d 656, 658 (App.
2013), which, for our purposes is the functional equivalent of a delinquency
adjudication. “[A] conviction rests upon insufficient evidence when, even
after viewing the evidence in the light most favorable to the prosecution, no
rational factfinder could have found the defendant guilty beyond a
reasonable doubt.” Tibbs v. Florida, 457 U.S. 31, 37 (1982); see also State v.
Hickle, 133 Ariz. 234, 239, 650 P.2d 1216, 1221 (1982) (disagreeing with trial
court’s determination “no credible, clear evidence” was introduced of
premeditation under sufficiency of the evidence analysis).


1       The forensic interview with Detective B. was not introduced into
evidence. Although portions of the interview were played at the
adjudication hearing, those excerpts were not transcribed and are not part
of the record on appeal.


                                      2
                             IN RE DILLON D.
                            Decision of the Court

¶6            A trial court errs when “the record fails to provide substantial
support” for its decision. State v. Cowles, 207 Ariz. 8, 9, ¶ 3, 82 P.3d 369, 370
(App. 2004). Although the term “abuse of discretion” has been aptly
described as “unfortunate,” the phrase “as a whole has been interpreted to
apply where the reasons given by the court for its action are clearly
untenable, legally incorrect, or amount to a denial of justice.” State v. Garza,
192 Ariz. 171, 175 n.7, 962 P.2d 898, 902 n.7 (1998). Applying these
principles to the case at bar, we conclude the superior court erred by
concluding, beyond a reasonable doubt, that Juvenile molested M.L.

¶7            The offense of child molestation requires proof that a person
intentionally or knowingly engaged in or caused a person to engage in
sexual contact with a child who is under fifteen years of age. A.R.S. § 13-
1410(A). Sexual contact means “any direct or indirect touching, fondling
or manipulating of any part of the genitals, anus or female breast by any
part of the body or by any object or causing a person to engage in such
contact.” A.R.S. § 13-1401(2).

¶8            The State’s case rested on the allegations of five-year-old M.L.,
whom the prosecutor described as “quite developmentally delayed.”2 Yet
M.L. offered contradictory, internally inconsistent, and, at times, incoherent
testimony. He initially testified as follows when questioned by the
prosecutor:

       [State:] . . . Do you remember telling [Detective B.] that you
       saw your brother have sex with your sister?

       [M.L.:] No.

       [State:] No, you don’t remember? Do I need to ask that
       question again? Did that confuse you? Okay. Did you tell
       [Detective B.] that Dillon had sex with [A.L.]?

       [M.L.:] No.




2   The superior court conducted a brief pretrial inquiry into M.L.’s
competence. Juvenile has not challenged the determination M.L. was
competent, so we do not address it further, other than to note M.L. did not
remember he had just promised to “tell the truth” and could not accurately
answer several questions posed by the judge and prosecutor.



                                       3
                              IN RE DILLON D.
                             Decision of the Court

      [State:] Did you tell [Detective B.] that Dillon ever touched
      your butt?

      [M.L.:] No.

      [State:] Did you tell [Detective B.] that Dillon touched your
      pee-pee?

      [M.L.:] No.

      ....

      [State:] . . . Did you tell [Detective B.] that Dillon put his pee-
      pee in your butt?

      [M.L.:] No.

      [State:] Did you tell [Detective B.] that it hurt and made you
      cry?

      [M.L.:] No.

¶9             M.L. also denied ever having spoken to Detective B. The
prosecutor followed up by asking: “You don’t remember or it didn’t
happen?” M.L. replied: “It didn’t happen.” M.L. similarly denied telling
Detective B. that Juvenile had “sex with [A.L.],” though the detective
testified M.L. in fact made such a statement to her.

¶10            After the foregoing exchange, the court began addressing an
evidentiary issue with counsel and asked M.L.’s “representative” to take
M.L. out of the courtroom to get a drink.3 Upon M.L.’s return to the witness
stand, the following exchange took place:

      [State:] . . . [H]as Dillon ever touched you anywhere that you
      didn’t like?

      [M.L.:] Yes, he has.

      [State:] Okay. Where did he touch you?

      [M.L.:] My privates.



3     Although the “representative” is not identified in the transcript, the
record indicates a victim representative had been appointed for M.L.


                                      4
                      IN RE DILLON D.
                     Decision of the Court

....

[State:] . . . Do you remember when Dillon touched you there?

[M.L.:] Uh-huh. No.

[State:] Do you know if it was last year?

[M.L.:] A long time ago he did.

....

[State:] . . . Did Dillon touch you anywhere else that you did
not like?

[M.L.:] Back here.

[State:] Okay. What do you call that?

[M.L.:] Privates.

[State:] Your private. Is that the private that you pee out of
or that you poop out of?

[M.L.:] Potty out of.

[State:] Okay. I need you to be a little more specific. I know
this is weird questions, [sic] but I need you to answer so the
Judge understands, okay. So I need you to tell her which
private part you are talking about.

[M.L.:] My pee-pee.

[State:] Your pee-pee. Okay. And when you pointed to your
back, where were you pointing to?

[M.L.:] My butt.

[State:] Your butt. Okay. And can you tell us what happened
when Dillon touched your butt?

[M.L.:] I don’t know.

[State:] You don’t know. What did he touch your butt with?

[M.L.:] His hand.


                              5
                              IN RE DILLON D.
                             Decision of the Court

      [State:] . . . Did he touch your butt with any other part of his
      body?

      [M.L.:] Pee-pee.

      [State:] He touched your butt with his pee-pee. And what do
      you remember about that?

      [M.L.:] I don’t know.

      [State:] Do you remember what it felt like? I need you to
      answer out-loud for the Judge.

      [M.L.:] No.

      ....

      [State:] . . . Did it hurt?

      [M.L.:] No. Yes, a little.

      [State:] Okay. Do you remember where it happened?

      [M.L.:] What?

      [State:] Do you remember where it happened?

      [M.L.:] I don’t know.

¶11          At times, M.L. offered testimony entirely out of context,
including the following exchange:

       [State:] . . . Have you ever seen Dillon touch anybody else
      like that?

      [M.L.:] No.

      [State:] No.

      [M.L.:] My mom doesn’t let me watch adult stuff.

      [State:] You are not allowed to watch adult stuff, is that what
      you said?

      [M.L.:] Adults.



                                      6
                            IN RE DILLON D.
                           Decision of the Court

      [State:] Okay.

      [M.L.:] And adults swim.

      [State:] Adults swim. You are not allowed to watch adults
      swim?

      [M.L.:] No, I have (indiscernible) stuff like, killing stuff.

¶12         M.L. insisted Juvenile was not present in the courtroom,
though he was in fact present for the adjudication hearing. The following
exchange then ensued between M.L. and the prosecutor:

      [The State:] [M.L.], is your brother Dillon in the courtroom
      today?

      [M.L.:] No.

      [The State:] Is he here? Okay. If you stand up -- stand up for
      me and look over there. Is Dillon over there?

      ....

      [M.L.:] No.

¶13            Despite testifying he did not know “what sex is,” M.L claimed
Juvenile had “sex” with him “everyday” and stated Juvenile still does so,
even though he previously testified Juvenile lives with his grandpa and
M.L. is not allowed to see him.

¶14           K.L., the mother of Juvenile M.L., and A.L., testified as a
defense witness. She explained that acrimonious divorce proceedings were
ongoing at the time M.L.’s claims were reported, and she discussed her ex-
husband’s dislike of (and alleged abuse of) Juvenile. K.L. suggested her ex-
husband and his family had coached M.L. into making the molestation
accusations. M.L. agreed that his father (Juvenile’s former step-father) did
not like Juvenile and was “mean” to him. M.L. was brought to the interview
with Detective B. by his father.

¶15           At the adjudication hearing, Detective B. confirmed M.L. was
“very developmentally delayed” and testified she “had a very difficult time
understanding him” during the forensic interview. Significantly, M.L. told
Detective B. that his mother, father, and another individual were present in
the room when Juvenile “put his pee-pee in [M.L.’s] butt.” The State,
however, presented no such evidence. M.L.’s mother specifically denied


                                      7
                             IN RE DILLON D.
                            Decision of the Court

witnessing any abuse, and Detective B. testified she was unaware of anyone
who had witnessed the alleged abuse.

¶16           Detective B. testified she had interviewed Juvenile, who
denied M.L.’s allegations. She also related that M.L. had accused a 17-year-
old babysitter we identify as “T.” of touching his “butt” with his “pee-pee”
and told the detective that it hurt. However, T. denied the allegations in a
telephone call, and M.L.’s accusations against him were not pursued
further.

¶17          The superior court labeled M.L. “a credible witness, not a
perfect witness.” We typically give great weight to a trial court’s
assessment of witness credibility. That general rule, though, is not iron-
clad. We also recognize that, amidst the denials and contradictory claims,
M.L. stated Juvenile had touched his “pee-pee” with his hand and had
touched M.L.’s “butt” with his “[p]ee-pee.” Proof beyond a reasonable
doubt, though, is not established by rote incantation of the elements of an
offense. A criminal conviction requires substantial evidence, which is
“more than a mere scintilla.” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866,
869 (1990). Substantial evidence “is such proof that ‘reasonable persons
could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.’” Id.

¶18           Furthermore, M.L. provided inconsistent testimony, so the
court could not have found all of his testimony to be credible. Not only was
M.L.’s testimony internally inconsistent, it lacked detail about the alleged
incidents.4 M.L. also denied ever speaking with Detective B. and could not
accurately state whether his brother was present in the courtroom. Such
testimony certainly was not credible. M.L. also told the detective his
parents had been present when he was molested — a claim unsupported
by any evidence and a claim the State never asserted.

¶19            A cold transcript is admittedly inferior to observing a witness
as he testifies. However, the State’s case rested almost entirely on M.L.’s
contradictory, vague, and at times incoherent testimony. No corroborating


4     The superior court dismissed the counts relating to A.L. because M.L.’s
testimony lacked sufficient specificity. Yet M.L.’s testimony about his own
alleged molestation similarly lacked detail. He testified he witnessed
Juvenile putting his “pee-pee” in A.L.’s “butt” and “gina,” much as he
testified Juvenile touched his “butt” and “pee-pee.”




                                      8
                             IN RE DILLON D.
                            Decision of the Court

evidence was presented. Given the record in this case, we conclude the
State presented insufficient evidence to prove, beyond a reasonable doubt,
that Juvenile molested M.L. on or about November 29, 2013, as alleged.

                               CONCLUSION

¶20            “When a conviction is reversed for insufficiency of evidence,
the reversal is, in effect, an implied acquittal of the charges. Therefore,
double jeopardy precludes retrial.” Peak v. Acuna, 203 Ariz. 83, 85, ¶ 8, 50
P.3d 833, 835 (2002). For the reasons stated, we reverse Juvenile’s
delinquency adjudication and resulting disposition.



H O W E, Judge, specially concurring:

¶21            I concur with the Majority’s conclusion that the State did not
present sufficient evidence to prove beyond a reasonable doubt that
Juvenile molested M.L. I write separately, however, because I question
whether an appellate court may find evidence of an act of delinquency
insufficient because the witness testifying to the act is not credible. I
certainly sympathize with—and the record supports—the Majority’s view
that M.L.’s age, his developmental delays, and the contradictory and
confusing nature of his testimony put the credibility of his testimony in
serious doubt. But the trial judge—who personally interacted with M.L. and
observed his demeanor and heard the tenor of his voice when he testified—
found the testimony credible, at least regarding the act of molestation.
Because “[n]o rule is better established than that the credibility of the
witnesses and the weight and value to be given to their testimony are
questions exclusively for the [finder-of-fact],” State v. Cox, 217 Ariz. 353, 357
¶ 27, 174 P.3d 265, 269 (2007) (quoting State v. Clemons, 110 Ariz. 555, 556–
57, 521 P.2d 987, 988–89 (1974)), I question whether an appellate court may
consider witness credibility in determining sufficiency of the evidence, see
State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995) (recognizing
that “[t]he finder-of-fact, not the appellate court, weighs the evidence and
determines the credibility of witnesses”).

¶22           In this case, however, we need not resolve whether an
appellate court could ever find evidence insufficient for a lack of credibility.
Although M.L. testified that Juvenile touched M.L.’s “pee-pee” with his
hand or butt, that is not sufficient to prove molestation under A.R.S. § 13–
1410. In addition to proving that the charged person engaged in an act of
sexual contact with the child victim, the State must also prove that the
charged person did so “intentionally or knowingly.” A.R.S. § 13–1410(A).


                                       9
                          IN RE DILLON D.
                      Howe, J., Specially Concurring

Nothing in the record shows that Juvenile engaged in the act of sexual
contact intentionally or knowingly. Although a person’s intent or
knowledge may be proved with circumstantial evidence, State v. Harm, No.
1 CA–CR 13–0737, 2015 WL 157813, at *3 ¶ 13 (Ariz. App. Jan. 13, 2015), the
record is devoid of any circumstantial evidence about Juvenile’s mental
state at any time, much less at the time that he allegedly molested M.L.
Without such evidence, the State failed to carry its burden of proving
beyond a reasonable doubt that Juvenile intentionally or knowingly
engaged in an act of sexual contact with M.L.

¶23          For these reasons, I agree with the Majority that Juvenile’s
delinquency adjudication must be reversed for insufficient evidence.




                                :ama




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