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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                             No. 1 CA-JV 14-0345
                               FILED 6-2-2015


           Appeal from the Superior Court in Maricopa County
                             No. JV597239
            The Honorable Julia M. Vigil, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Maricopa County Public Advocate, Mesa
By Suzanne Sanchez
Counsel for Appellant

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Appellee
                             IN RE JOHN C.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Jon W. Thompson joined.


J O N E S, Judge:

¶1           John C. (Juvenile) appeals from the trial court’s order
adjudicating him delinquent on one count of indecent exposure. For the
following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            On October 31, 2013, an undercover security officer at Wal-
Mart recognized Juvenile from an incident in the store the previous day
and began watching him as he shopped. After about ten minutes, the
officer observed Juvenile pull his erect penis through the zipper of his
pants and walk down an aisle and past a female customer. The customer
was oblivious to the event, and, before exiting the aisle, Juvenile returned
his penis to his pants. The security officer contacted store management
and the police, who arrived as Juvenile was leaving the store.

¶3            A Mesa Police Department officer escorted Juvenile and his
mother to the loss prevention office and read Juvenile his rights pursuant
to Miranda v. Arizona, 384 U.S. 436 (1966). Juvenile agreed to answer
questions, but initially denied any wrongdoing. Acknowledging the
“embarrassing nature” of the situation, the officer asked Juvenile’s mother
to leave the room. She agreed, and Juvenile did not object. Juvenile then
admitted having engaged in the conduct observed by the security officer.

¶4           In January 2014, the State filed a petition alleging Juvenile
was delinquent as a result of indecent exposure in violation of Arizona
Revised Statutes (A.R.S.) section 13-1402.2 Under Arizona law:



1      We view the facts and all reasonable inferences in the light most
favorable to sustaining the adjudication of delinquency. Maricopa Cnty.
Juv. Action No. JV–123196, 172 Ariz. 74, 78 (App. 1992).




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                           Decision of the Court

      A person commits indecent exposure if he or she exposes his
      or her genitals . . . and another person is present, and the
      defendant is reckless about whether the other person, as a
      reasonable person, would be offended or alarmed by the act.

A.R.S. § 13-1402(A).

¶5            At the adjudication hearing on August 22, 2014, Juvenile
testified he did not intentionally expose himself, and denied making any
incriminating statements to police. Instead, he contended his belt had
broken and, as a result, his pants “might have came down . . . below the
access hole in [his] boxers and somebody might have been able to see
something,” but according to Juvenile, it had only been for a few seconds.
Juvenile’s counsel argued twice in his closing that the State had not
proven the case beyond a reasonable doubt. However, immediately
following closing arguments, the judge stated she found “by a
preponderance of the evidence that the Juvenile [wa]s delinquent as to the
charge of indecent exposure,” and specifically rejected his defense “that it
was an accident.” The minute entry order from the hearing confirmed the
adjudication of delinquency, but also memorialized the court’s finding
that “the State has proven by a preponderance of the evidence the offense
of Indecent Exposure.”

¶6             In September 2014, the State filed a motion to amend the
minute entry order “to reflect the proper burden of proof.” The next day,
the trial court judge signed an order amending the minute entry “to reflect
that the State has proven beyond a reasonable doubt that the juvenile
committed Indecent Exposure.”

¶7            In October 2014, counsel for Juvenile made an oral motion to
dismiss, apparently arguing the court applied the wrong standard of
proof at trial and exceeded its authority in modifying the minute entry
order. The State provided no response to the merits of the argument,
instead arguing the proper remedy for Juvenile was an appeal from the
disposition order. The trial court denied the motion to dismiss, and, on its
own motion, for the express purpose of “clarifying the record,” entered an
order, nunc pro tunc, deleting the reference to the preponderance of the
evidence standard, and inserting a finding that “the State has proven
beyond a reasonable doubt” the charge of indecent exposure.


2     Absent material revisions from the relevant date, we cite a statute’s
current version.



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                              IN RE JOHN C.
                            Decision of the Court

¶8            In December 2014, the trial court entered a disposition order
placing Juvenile on standard juvenile probation, and Juvenile appealed.
We have jurisdiction pursuant to Article 6, Section 9 of the Arizona
Constitution, A.R.S. §§ 8-235(A) and 12-120.21(A)(1), and Arizona Rule of
Procedure for the Juvenile Court 103.

                                DISCUSSION

¶9            Juvenile asserts four arguments on appeal: (1) the trial court
weighed the evidence against the wrong standard of proof, (2) the State
presented insufficient evidence to support the element of recklessness, (3)
his statements to law enforcement were involuntary and should have been
excluded from the adjudication hearing, and (4) his counsel rendered
ineffective assistance during the delinquency proceedings. We address
each in turn.

   I.         Standard of Proof

¶10           Juvenile first argues the trial court erred in weighing the
evidence against the wrong standard of proof. In response, the State
argues it can be inferred from the circumstances that the trial court judge
“simply misspoke” when she announced the preponderance of the
evidence standard.

¶11            We agree with the State that “[t]he real issue . . . is whether
the court actually applied the wrong standard of proof to the evidence.”
The allegations of the delinquency petition must be proven beyond a
reasonable doubt. Ariz. R.P. Juv. Ct. 29(C), (E). We presume the trial
court judge knew the law and applied it correctly. State v. Trostle, 191
Ariz. 4, 22 (1997) (citing Walton v. Arizona, 497 U.S. 639, 653 (1990)); see also
State v. Beaty, 158 Ariz. 232, 246 (1988) (noting trial court judge is not
required to state on the record the standard of proof being applied
because we can assume the judge applied the proper burden). Thus, the
court knew that, in ordering the Juvenile be adjudicated delinquent, it was
also required to make a finding “[t]hat the facts alleged in the petition
were proven beyond a reasonable doubt,” Ariz. R.P. Juv. Ct. 29(E), and
would not have done one without the other.

¶12          The presumption is supported by the fact that Juvenile’s
counsel specifically referenced the proper standard of proof in his closing
argument on two separate occasions, immediately preceding the trial
court’s oral pronouncement.        Moreover, substantial evidence was
presented to support a finding, beyond a reasonable doubt, that Juvenile
had committed the charged offense. See infra ¶¶ 15-16, 18. And, the court


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                             IN RE JOHN C.
                           Decision of the Court

denied Juvenile’s motion to dismiss, effectively rejecting the argument
that the wrong standard of proof was applied, and instead, issued an
order nunc pro tunc specifically “for the purposes of clarifying the record.”

¶13            The record reflects the trial court applied the correct
standard, but misstated it on the record and in the initial written order.
Once the error was brought to its attention, the court was within its
discretion to amend the order nunc pro tunc to reflect what actually
occurred. See State v. Johnson, 113 Ariz. 506, 509 (1976) (noting inherent
power of court to issue order nunc pro tunc to “make the record speak the
truth”) (quoting Black v. Indus. Comm’n, 83 Ariz. 121, 125 (1957)); Ariz. R.
Crim. P. 24.4 (authorizing the court to correct clerical mistakes in the
record). In our view, substantial justice was done below, and we will not
reverse on a technical error. See Ariz. Const. art. 6, § 27 (“No cause shall
be reversed for technical error in pleadings or proceedings when upon the
whole case it shall appear that substantial justice has been done.”);
Lawrence v. State, 29 Ariz. 318, 320 (1925) (noting the “reversal of
convictions in cases where substantial justice has been done, on account
. . . of some immaterial mistake in points of pleading or procedure . . .
defeat[s] the entire purpose of our penal laws”).

   II.        Sufficiency of Evidence of Recklessness

¶14           Juvenile next argues the State failed to meet its burden of
proving Juvenile was “reckless about whether the other person, as a
reasonable person, would be offended or alarmed by the act.” A.R.S. § 13-
1402(A). We determine as a matter of law whether sufficient evidence
existed to support each element of a crime. See In re William G., 192 Ariz.
208, 212 (App. 1997). In doing so, “[w]e will not re-weigh the evidence,
and we will only reverse . . . 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).

¶15          As an initial matter, the offense of indecent exposure does
not require the offender have knowledge that another person is present
during the act. See A.R.S. § 13-1402(A); State v. Whitaker, 164 Ariz. 359, 361
(App. 1990) (noting “the purpose of the exposure and the likelihood of
affront” are the crux of indecent exposure) (quoting Rudolph Joseph
Gerber, Criminal Law in Arizona 197 (1978)). Whether Juvenile knew or
should have known he was being surreptitiously observed while
shopping at Wal-Mart is therefore irrelevant to the determination of




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                             IN RE JOHN C.
                           Decision of the Court

whether a person who was actually present was reasonably offended by
the conduct.

¶16            We acknowledge that the mindset of a teenager needs to be
compared to “juveniles of like age, intelligence and maturity,” and that
the relevant surrounding circumstances must be considered. William G.,
192 Ariz. at 213-14. However, it could not have come as a surprise to
Juvenile that his actions in exposing his erect penis in a Wal-Mart were
likely to cause a reasonable person who had gone to the store to shop, or a
security officer employed to monitor the conduct of the persons therein, to
be offended or alarmed. Indeed, the security officer testified he
“immediately became alarmed” at Juvenile’s actions, prompting him to
notify store management and contact law enforcement. See State v.
Sandoval, 175 Ariz. 343, 346 (App. 1993) (“The fact that the [two witnesses]
were scared by defendant’s conduct itself provides some evidence that a
reasonable person would be alarmed by such conduct.”). We therefore
find sufficient evidence was presented to support a finding of recklessness
beyond a reasonable doubt.

   III.      Statements to Law Enforcement

¶17           Juvenile also argues he did not voluntarily submit to
questioning by law enforcement after his mother was asked to leave.
Where, as here, the issue is not raised in the trial court, we review for
fundamental error, which requires Juvenile prove both that an error going
to the foundation of the case occurred, and that the error caused him
prejudice. State v. Valverde, 220 Ariz. 582, 585, ¶ 12 (2009).

¶18            Here, the security officer testified he watched Juvenile for
ten minutes before observing him reach through the zipper of his pants,
remove his erect penis, and walk the length of an aisle before stopping to
replace it in his pants. This eyewitness testimony was sufficient, in and of
itself, to establish Juvenile performed the offending acts, even without
Juvenile’s admissions. Even assuming the statements were involuntary,
Juvenile has not established prejudice, and no fundamental error therefore
occurred. See State v. Cota, 229 Ariz. 136, 146, ¶¶ 33-34 (2012) (holding
erroneous admission of coerced statements following invocation of right
to remain silent did not prejudice defendant and was not fundamental
error); State v. Williams, 133 Ariz. 220, 229 (1982) (finding no prejudice
where erroneously admitted statements were “merely cumulative to other
testimony”).




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                             IN RE JOHN C.
                           Decision of the Court

   IV.        Ineffective Assistance of Counsel

¶19             Finally, Juvenile contends he received ineffective assistance
of counsel during the delinquency proceedings because his counsel failed:
(1) to object to the trial court’s application of the wrong burden of proof at
trial, and (2) to argue Juvenile’s submission to the police interrogation was
involuntary. To prevail on a claim for ineffective assistance of counsel,
Juvenile must show that his counsel’s performance fell below objectively
reasonable standards, and that the deficient performance prejudiced him.
State v. Febles, 210 Ariz. 589, 595, ¶ 18 (App. 2005) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).

¶20           Having already concluded the trial court applied the correct
standard of proof, supra ¶ 13, and that admission of Juvenile’s statements
to law enforcement, even if erroneous, was harmless error, supra ¶ 18,
Juvenile is unable to establish prejudice resulting from the conduct of his
counsel. Juvenile is unable, therefore, to demonstrate his counsel was
ineffective.

                              CONCLUSION

¶21          For these reasons, we affirm Juvenile’s adjudication and
disposition.




                                 :ama




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