                               IN THE
              ARIZONA COURT OF APPEALS
                             DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                 MARK ANTHONY LUCAS, Appellant.

                         No. 1 CA-CR 13-0215
                           FILED 3-20-2014


           Appeal from the Superior Court in Mohave County
                       No. S8015CR201200025
                The Honorable Steven F. Conn, Judge

              AFFIRMED IN PART; VACATED IN PART


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Craig W. Soland
Counsel for Appellee

Mohave County Legal Defender’s Office, Kingman
By Diane S. McCoy
Counsel for Appellant
                            STATE v. LUCAS
                           Opinion of the Court



                                OPINION

Judge Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined.


H O W E, Judge:

¶1             Mark Anthony Lucas appeals his convictions and sentences
for two counts of sexual conduct with a minor, two counts of transferring
dangerous drugs, and two counts of involving a minor in drug offenses.
He raises several issues on appeal, all but one of which we resolve in a
separate memorandum decision pursuant to Arizona Rule of Criminal
Procedure 31.26. In this opinion, we consider his claim that he had the
right to interview the victim’s grandmother because although she had the
right to refuse an interview under A.R.S. § 13–4433(G) as the victim’s
representative while the victim was a minor, she lost that right once the
victim turned eighteen years old. We hold that once a parent or legal
guardian exercises the victim’s rights on the victim’s behalf, the right to
refuse an interview remains effective until the end of the criminal
proceedings.

                FACTS AND PROCEDURAL HISTORY

¶2            As relevant here, the minor victim—who has developmental
difficulties and attended special education classes—lived with his
grandmother at the time of the criminal acts. Once the victim revealed that
the criminal acts had occurred and the State began prosecuting Lucas, the
grandmother was designated the victim’s representative pursuant to
Arizona Rule of Criminal Procedure 39(g) and A.R.S. § 13–4403(C) and
exercised the victim’s rights on the victim’s behalf under the Victims’ Bill
of Rights.

¶3             Although trial on the charges was originally scheduled for
June 2012, Lucas obtained at least seven continuances of the trial date,
which delayed trial until January 2013. When the victim turned eighteen
years old during the delay, Lucas moved to depose the victim’s
grandmother, claiming that the grandmother could “no longer stand in
[the victim’s] shoes for purposes of asserting victims’ rights, specifically
the right to refuse a pre-trial interview.” At the hearing on the motion, the
State responded that the victim was a minor at the time of the offenses


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                            Opinion of the Court

and should be considered a vulnerable adult under his grandmother’s
supervision because of his developmental difficulties. Lucas disputed that
the victim was a vulnerable adult.

¶4             The trial court denied the motion to depose the
grandmother. The court declined to decide whether the victim was a
vulnerable adult but held that “status for victims[‘] rights purposes is
defined at the commission of the offense, and the fact that the victim in
this case is no longer a minor[] does not change the grandmother’s right to
act and assert her rights as a victim.”

                               DISCUSSION

¶5             Lucas argues the trial court erred by ruling that the victim’s
grandmother could continue to assert the right to not be deposed even
after the victim turned eighteen. Resolution of this issue involves
interpretation of the implementing statutes for the Arizona Victims’ Bill of
Rights. See Ariz. Const. art. II, § 2.1; A.R.S. §§ 13-4401 to -4438. We review
questions of statutory interpretation de novo. State v. Cheramie, 218 Ariz.
447, 448 ¶ 8, 189 P.3d 374, 375 (2008).

¶6            The Victims’ Bill of Rights grants crime victims particular
rights they may exercise during the criminal prosecution of a defendant.
Ariz. Const., art. II, § 2.1(A). If the victim is a minor or vulnerable adult,
the victim’s parent, immediate family member, or other representative
designated by the court “may exercise all of the victim’s rights on behalf
of the victim.” A.R.S. § 13–4403(C). Among the rights granted to a victim
is the right “[t]o refuse an interview, deposition, or other discovery
request by the defendant, the defendant’s attorney, or other person acting
on behalf of the defendant.” Ariz. Const., art. II, § 2.1(A)(5); accord A.R.S.
§ 13-4433(A); Ariz. R. Crim. P. 39(b)(11). The Legislature has granted the
same right to refuse an interview to “the parent or legal guardian of a
minor child who exercises victims’ rights on behalf of the minor child.”
A.R.S. § 13–4433(G).

¶7            Lucas does not contest that § 13–4433(G) gave the victim’s
grandmother the right to refuse a pretrial interview or deposition on her
own behalf while the victim was a minor, but argues that this right ceased
when the victim turned eighteen. This interpretation, however, is not
consistent with the statute’s language and purpose.

¶8             The primary goal in interpreting a statute is to determine
and give effect to the Legislature’s intent as reflected in the terms of the
statute. State v. Tschilar, 200 Ariz. 427, 434 ¶ 25, 27 P.3d 331, 338 (App.


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                            Opinion of the Court

2001). In construing the language “[w]e employ a common sense
approach, reading the statute in terms of its stated purpose and the system
of related statutes of which it forms a part, while taking care to avoid
absurd results.” State v. Barragan-Sierra, 219 Ariz. 276, 282 ¶ 17, 196 P.3d
879, 885 (App. 2008). The Crime Victims’ Rights statutes “shall be liberally
construed to preserve and protect the rights to which victims are entitled.”
A.R.S. § 13–4418.

¶9            Section 13–4433(G) grants “the parent or legal guardian of a
minor child who exercises victims’ rights on behalf of the minor child” an
independent right to refuse an interview on the parent or legal guardian’s
own behalf. Lincoln v. Holt, 215 Ariz. 21, 26 ¶ 14, 156 P.3d 438, 443 (App.
2007) (construing identical statutory predecessor, A.R.S. § 13–4433(H)). A
common sense reading of this language is that once a parent or legal
guardian “exercises” victims’ rights on the victim’s behalf, the statutory
right to refuse an interview attaches to the parent or legal guardian and
remains enforceable until the criminal proceedings have concluded. See
A.R.S. § 13–4402(A) (the rights the Crime Victims’ Rights statutes establish
“arise on the arrest or formal charging” of the defendant and “continue to
be enforceable . . . until the final disposition of the charges”). Because the
victim’s grandmother exercised the victim’s rights on his behalf during
the criminal proceedings, she had a right to refuse an interview until the
end of all the proceedings in this case, even though the victim had turned
eighteen and could exercise his rights himself.

¶10             Reading § 13–4433(G) to the contrary as Lucas posits inserts
a temporal limitation of the parent or legal guardian’s right not expressed
in the statutory language. Nothing in § 13–4433(G)’s text or purpose
indicates that a temporal limitation should be read into the language. The
Legislature enacted § 13–4433(G) pursuant to its authority to “define,
implement, and protect” victims’ rights under Arizona Constitution article
II, § 2.1(D). Lincoln, 215 Ariz. at 26 ¶ 19, 156 P.3d at 443. Because a parent
or legal guardian communicates with the minor victim about the facts of
the case in exercising the victim’s rights on the victim’s behalf, granting
the parent or legal guardian the right to refuse an interview on his or her
own behalf “further ensures that the minor victim is ‘provided with basic
rights of respect [and] protection’ for the enumerated victims’ rights.” Id.
at 26–27 ¶ 19, 215 Ariz. at 443–44 (quoting 1991 Ariz. Sess. Laws, ch. 229,
§ 2 (1st Reg. Sess.)). The Legislature viewed this right as so important to
protect the victim’s own right to refuse an interview that it rejected a
proposed amendment to the statute that would have required a parent or
legal guardian who witnessed the crime to submit to an interview. Id. at
25 ¶ 12, 156 P.3d at 442.


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                             STATE v. LUCAS
                            Opinion of the Court

¶11           Holding that the parent or legal guardian’s right to refuse an
interview ends the moment that the minor victim turns eighteen would
defeat the protection the statute provides. Such a holding would allow the
disclosure of formerly confidential information between the victim and
the parent or guardian. This would chill the minor victim’s free and
honest disclosure of information with a trusted adult, thereby disrupting
the victim’s ability to rely on the parent or guardian and frustrating the
very purpose of the Victims’ Bill of Rights.

¶12           Lucas’s reading also creates an anomaly in the statutes.
Section 13–4402(A) provides that victims’ rights arise on the arrest or
formal charging of the defendant and continue to the end of the criminal
proceedings. Under Lucas’s interpretation, the parent or legal guardian’s
right to refuse an interview would arise on the arrest or formal charging of
a defendant, but, unlike all other victims’ rights, would cease the moment
the victim turns eighteen, regardless when that occurs during the criminal
proceedings. Interpreting the statute to create such an anomaly
contravenes the principle that “[s]tatutes on the same subject matter are to
be construed in harmony together.” State v. Jernigan, 221 Ariz. 17, 20 ¶ 15,
209 P.3d 153, 156 (App. 2009).

¶13             In addition, reading § 13–4433(G) to cut off a parent or legal
guardian’s right to refuse an interview the instant a victim turns eighteen
would create practical difficulties that would impose unnecessary burdens
on exercising victims’ rights. If the right disappears at the moment that the
victim turns eighteen, the parent or legal guardian could be compelled to
give an interview or deposition. See Ariz. R. Crim. P. 15.3(a)(2) (material
witness may be deposed if witness fails to grant interview). Because
controversies could arise at the interview or deposition about whether
particular questions involve matters that occurred when the parent or
legal guardian had the protection of § 13–4433(G), the parent or legal
guardian would be entitled to have counsel present to assist in objecting
to those questions. Resolving these controversies would likely cause
litigation on issues collateral to the defendant’s guilt or innocence, and the
time taken to litigate these collateral issues would further delay trying the
defendant. The Arizona Supreme Court has condemned creating “ad hoc
exceptions” to victims’ rights, which the court feared would “lead to
hearings . . . to determine whether the rights expressly granted to victims
by the Victims’ Bill of Rights should be overridden. Such proceedings can
only increase the harassment of victims that the Victims’ Bill of Rights was
designed to decrease.” Knapp v. Martone, 170 Ariz. 237, 239, 823 P.2d 685,
687 (1992).



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                            Opinion of the Court

¶14           Even if a parent or legal guardian would freely waive any
protection § 13–4433(G) affords, litigation could still result. The victim has
an interest in protecting his or her own right to refuse an interview. If the
parent or legal guardian revealed matters that occurred during the time
that the victim’s right to refuse an interview was exercised, the victim’s
own right would be compromised. To protect that right, the victim—and
presumably the victim’s counsel—would have the right to be present at
the interview and object to questions that would impinge upon protected
information. The resulting litigation would not only hamper the victim’s
right to refuse an interview, but would also cause unwarranted delay to
the criminal proceedings, harming both the victim and the defendant.

¶15           For these reasons, Lucas’s interpretation cannot hold. The
proper reading of § 13–4433(G) and § 13–4402(A) is that once a parent or
legal guardian exercises victims’ rights on behalf of the minor victim, the
parent or legal guardian has the right to refuse an interview until the final
disposition of the defendant’s criminal proceedings. Because this right is
independent of the minor victim’s own right to refuse an interview, the
minor’s turning eighteen has no effect on the parent or legal guardian’s
right. Therefore, the trial court correctly denied Lucas’s motion to depose
the victim’s grandmother.

¶16           We recognize that our decision conflicts with J.D. v. Hon.
Hegyi/T.D., 1 CA–SA 13–0296, 2014 WL 943145 (Ariz. App. Mar. 11, 2014).
In J.D., a different panel of this Court held that a parent or legal
guardian’s right to refuse an interview under § 13–4433(G) ceases when
the victim turns eighteen because the parent or legal guardian no longer
“exercises” the victim’s rights on the victim’s behalf. Id., at *1 ¶ 6. To
“avoid the erosion” of the victim’s right to refuse an interview that could
result from J.D.’s interpretation of the statute, J.D. precludes the victim’s
representative from revealing information gained while the victim was a
minor. Id. at *1 ¶ 11. As we have explained in addressing Lucas’s
arguments, however, J.D.’s interpretation of § 13–4433(G) departs from the
statute’s text and purpose, creates an anomaly in the victims’ rights
statutory scheme, and fosters litigation that hinders—rather than
promotes—victims’ rights. Consequently, we respectfully decline to
follow J.D.




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                           STATE v. LUCAS
                          Opinion of the Court

                            CONCLUSION

¶17           For the reasons set forth in this opinion and the
accompanying memorandum decision, we affirm the convictions and
sentences for two counts of sexual conduct with a minor and two counts
of transferring dangerous drugs, and vacate the convictions and sentences
for involving or using a minor in a drug transaction.




                               :mjt




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