                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 STEVEN M.


                             No. 1 CA-JV 18-0171
                               FILED 9-13-2018


           Appeal from the Superior Court in Yavapai County
                        No. V1300JV201880025
                The Honorable Anna C. Young, Judge

                                  REVERSED


                                   COUNSEL

Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Yavapai County Attorney’s Office, Prescott
By Amy Drew
Counsel for Appellee State of Arizona
                            IN RE STEVEN M.
                           Decision of the Court


                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1            Steven M. (“Juvenile”) argues that insufficient evidence
supports the superior court’s order adjudicating him delinquent of
threatening or intimidating, a Class 1 misdemeanor, under Arizona Revised
Statutes (“A.R.S.”) section 13-1202. We agree and reverse the order.

                FACTS AND PROCEDURAL HISTORY1

¶2            In January 2018, one of Juvenile’s high school teachers
(“Teacher”) engaged his twenty-two students in a conversation about
recent school shootings. Most everyone participated in the conversation,
and although serious, the discussion also contained some levity. During
this conversation, according to Teacher, sixteen-year-old Juvenile
commented to the whole class that “[Teacher], you shouldn’t come to
school tomorrow because I’m going to . . . bring a gun and shoot up the
school.” Teacher “knew [Juvenile] was kidding,” but complied with his
duty as a mandatory reporter and reported the comment to school
administration. School administration took no disciplinary action against
Juvenile, but did notify police of his comment. Police then investigated the
matter, and the State petitioned the superior court to adjudicate Juvenile
delinquent of threatening or intimidating.

¶3             The superior court held a contested adjudication hearing in
April 2018. There, the State presented one witness (Teacher) and offered no
exhibits. Juvenile did not present any witnesses or exhibits and did not
testify. The court ultimately adjudicated Juvenile delinquent, and he timely
appealed. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and A.R.S. §§ 8-235(A) and 12-120.21(A)(1).




1      We view the evidence and reasonable inferences to be drawn from it
in the light most favorable to sustaining the court’s decision. Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009).


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                             IN RE STEVEN M.
                            Decision of the Court

                                 ANALYSIS

¶4            Juvenile asserts that the State’s evidence is insufficient to
prove that his comment was a “true threat.” Considering the absence of
probative facts in the record supporting the State’s position, we agree.

¶5            This court will not reweigh the evidence but will reverse for
insufficient evidence “when there is a complete absence of probative facts
to support a judgment or when a judgment is clearly contrary to any
substantial evidence.” In re Kyle M., 200 Ariz. 447, 448-49, ¶ 6 (App. 2001)
(citation omitted). To prove the offense of threatening or intimidating, the
State must demonstrate beyond a reasonable doubt that a juvenile has
threatened or intimidated by word or conduct:

       1. To cause physical injury to another person or serious
       damage to the property of another; or

       2. To cause, or in reckless disregard to causing, serious
       public inconvenience including, but not limited to,
       evacuation of a building, place of assembly or transportation
       facility.

A.R.S. § 13-1202(A)(1)-(2); Ariz. R.P. Juv. Ct. 29(C).

¶6             This offense “does not require the State to prove [that] a . . .
juvenile acted with ‘wrongful intent,’ [but] the State must demonstrate that
the [juvenile] communicated a ‘true threat.’” Kyle M., 200 Ariz. at 448, ¶ 2.
In interpreting the word “threat,” this court has held that “the legislature
intended only to criminalize genuine expressions of intent to either inflict
bodily harm or seriously damage property of another.” Id. at 451, ¶ 18. To
demonstrate a true threat, the State must show:

       the [juvenile] made a statement in a context or under such
       circumstances wherein a reasonable person would foresee
       that the statement would be interpreted by those to whom the
       maker communicates the statement as a serious expression of
       an intention to inflict bodily harm upon or to take the life of
       [a person].

Id. at ¶ 21 (citation omitted). Because this is an objective standard, the State
need not prove that the listener subjectively feared or felt threatened by the
communication for it to constitute a “true threat.” In re Ryan A., 202 Ariz.
19, 22-23, ¶¶ 9-14 (App. 2002).



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                             IN RE STEVEN M.
                            Decision of the Court

¶7            Here, the only issue is whether the State provided sufficient
evidence to prove beyond a reasonable doubt that Juvenile made a “true
threat” when, in the context of a classroom discussion on recent school
shootings, he apparently in jest stated to the teacher, “you shouldn’t come
to school tomorrow because I’m going to . . . bring a gun and shoot up the
school.” The record shows that Juvenile made the comment and that in
doing so, he exercised very poor judgment. However, on this record, there
is insufficient evidence to prove beyond a reasonable doubt that his
comment constituted a “true threat.”

¶8             A true threat requires “context” or “circumstances” that
suggest to a reasonable person that the listener would interpret the
speaker’s comment as a “serious expression” of intent to harm. Kyle M., 200
Ariz. at 451, ¶ 21. Cases that demonstrate this standard, such as Kyle M.
and Ryan A., are distinguishable here. In Kyle M., the context and
circumstances along with the juvenile’s comment supported a finding that
the juvenile intended a true threat. The juvenile told the victim, a classmate,
that he was upset because his girlfriend broke up with him and then dated
another individual. Id. at 448, ¶ 3. He told the victim that he was “going to
bring a gun to school and shoot” his ex-girlfriend and her new boyfriend
and characterized his plan as “a Columbine thing.” Id. The next morning,
the juvenile appeared nervous as he grabbed the victim by the wrist in front
of two of her friends and stated that if “she told anyone what he had said,
he would kill her.” Id. at ¶ 4. All three classmates reported the incident to
the school principal. Id. The victim was “extremely upset” by his words
and cried as she reported the conversation. Id.

¶9             Likewise, the context and circumstances in Ryan A. also
support a finding that the juvenile communicated a true threat. In that case,
the juvenile and the victim were friends but had a falling out. Ryan A., 202
Ariz. at 21, ¶ 4. Afterwards, the victim’s family received several
anonymous incidents of harassment; they believed the juvenile committed
these incidents. Id. One day, the juvenile drove slowly past the victim’s
home and shouted out “a vulgar threat of death” addressed at him. Id. at
¶ 3. The victim’s mother was upset after overhearing the threat and called
the police. Id.

¶10           Unlike these cases, there is nothing in the context or
circumstances surrounding Juvenile’s comment reasonably suggesting that
Juvenile’s teacher or classmates would reasonably interpret his comment as
a serious expression of an intent to harm. Juvenile’s comment was on topic
and part of a larger classroom discussion in which most students
participated. Indeed, Teacher prompted the discussion about recent school


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                             IN RE STEVEN M.
                            Decision of the Court

shootings as a “teachable moment[]” which would allow him “to reiterate
our plan if something happens at our school.” He testified that the
conversation allowed him “a chance to observe [any] red flags” in students
and allowed students to share their feelings about current events.

¶11            Juvenile’s words, taken outside any context, express possible
future harm. However, unlike in Kyle M. or Ryan A., there is a complete
absence of any context or circumstances beyond Juvenile’s words to
support a finding that his comment was a true threat or would be
interpreted by his listeners as a serious expression of harm. For example,
there is no evidence that Juvenile made the comment for any specific
purpose or impression other than for attention or misguided humor.
Teacher confirmed that although the classroom discussion was on a serious
topic, it also contained some levity. There is no evidence that Juvenile
directed his comment at a specific person or that he made it out of a harmful
motivation, such as retaliation. The record also does not show that Juvenile
harbored any ill will towards the school or the students therein, or that a
poor relationship with any specific person triggered his comment. The
State presented no evidence that Juvenile had any significant history of
mental illness, disciplinary action, threats, or violence that may have given
weight to his classroom comment. Finally, the record contained no
evidence that recent events in his life occurred, such as a break-up,
disagreement, suspension, or another personal issue, that may have driven
his comment. The record instead indicates that he made one isolated,
though ill-advised, comment within the topic of the classroom discussion.

¶12            Further, the State presented no evidence that Juvenile had
access to a gun or had made any previous threats towards the school, the
teachers, or the students. The State also presented no evidence that Juvenile
appeared stressed or combative or that he displayed anger or threatening
body language at any time before, during, or after making the comment.
Nor did the State present evidence that he used an aggressive tone of voice
while making the comment. The record shows no evidence that Juvenile
took any corresponding actions with his comment.

¶13           Moreover, although the State is not required to prove that the
receivers of a communication felt afraid or threatened by it, their objective
reactions may factor into the context or circumstances relevant in assessing
whether a reasonable person would foresee that Juvenile’s statement would
be interpreted as a true threat. See Ryan A., 202 Ariz. at 23, ¶ 15 (noting that
the juvenile’s “tone was such that it frightened the family member who
heard it” and “[t]he police were called, not as a ruse, but due to fear”). Here,
there is no evidence that any of the twenty-one other students reported the


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                            IN RE STEVEN M.
                           Decision of the Court

incident to school administration or other authorities, sought counseling, or
otherwise took any actions that indicate Juvenile’s comment effected a
serious expression of an intent to harm. As a mandatory reporter, Teacher
informed school administration of Juvenile’s comment. However, Teacher
was not threatened by the comment, never thought Juvenile was serious,
and told the investigating officer that he “knew [Juvenile] was kidding.”
And although the students overheard Juvenile’s comment, Teacher testified
that they were upset and “ooh’d and aah’d” in reaction mainly “because
they knew . . . how this was going to develop was probably going to be
unpleasant” for Juvenile. Despite this, Teacher did not observe any
reactions in the students that he interpreted as taking Juvenile’s comment
as a serious threat.

¶14            Nor did the State present any evidence that Juvenile’s
classroom or school was evacuated, placed on high alert, or otherwise
subjected to a serious public inconvenience due to his comment. See In re
J.U., 241 Ariz. 156, 158, ¶ 1 (App. 2016) (adjudicating a juvenile delinquent
who threatened two schools with a “terrorist attack,” causing evacuation
and closure). Finally, there is no evidence that the school administration
took any disciplinary action against Juvenile beyond reporting his
comment to police.2 Overall, there is a complete absence of probative facts
to support the State’s interpretation that Juvenile’s comment constituted a
true threat.

¶15            School shootings are a contemporary and serious concern,
and Juvenile’s comment was quite thoughtless. However, on this record, it
did not rise to the level of a delinquent act. The State argues on appeal that
because Juvenile made his comment during a classroom conversation of
“very real and recent tragedies,” the comment itself is enough that a student
or parent “could feel threatened by” Juvenile’s statement. This argument
misses the definition of a true threat which requires that “a reasonable
person would foresee that the statement would be interpreted” by the listener
“as a serious expression of” an intention to harm or kill. Kyle M., 200 Ariz.
at 451, ¶ 21 (emphasis added). The State’s argument instead suggests that
any insensitive, ill-timed, or outrageous comment made in front of
colleagues or peers could result in a delinquent or criminal record for the
speaker—certainly not the purpose behind Arizona’s criminal statutes. See

2     Even at Juvenile’s disposition hearing, his counsel pointed out that
“the principal at the high school didn’t fill out any kind of victim
information . . . we can infer from that that he doesn’t see [Juvenile] as a
problem child or he would be asking the Court for some pretty serious
consequences.”


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                             IN RE STEVEN M.
                            Decision of the Court

Virginia v. Black, 538 U.S. 343, 359-60 (2003) (“‘True threats’ encompass those
statements where the speaker means to communicate a serious expression
of an intent to commit an act of unlawful violence to a particular individual
or group of individuals.”); Watts v. United States, 394 U.S. 705, 707-08 (1969)
(criminalizing “pure speech” under a statute is unconstitutional); Kyle M.,
200 Ariz. at 451, ¶ 22 (stating the “true threat” standard “sufficiently
narrows the words or conduct prohibited without infringing upon the
privileges of free speech”).

¶16           Thus, in the context of the facts presented here, the State failed
to present sufficient evidence proving beyond a reasonable doubt that
Juvenile’s comment was a true threat.

                               CONCLUSION

¶17          For the foregoing reasons, we reverse the superior court’s
order adjudicating Juvenile delinquent.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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