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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


      STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY,
               Maricopa County Attorney, Petitioner,

                                        v.

THE HONORABLE JOSE PADILLA, Judge of the SUPERIOR COURT OF
  THE STATE OF ARIZONA, in and for the County of MARICOPA,
                     Respondent Judge,

      CHRIS A. SIMCOX a.k.a. CHRISTOPHER ALLEN SIMCOX,
                        Real Party in Interest.
__________________________________________________________________

            A.S., mother of minor crime victim, Z.S., Petitioner,

                                        v.

 THE HONORABLE JOSE S. PADILLA, Judge of the SUPERIOR COURT
  OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
                       Respondent Judge,

                          CHRIS ALLEN SIMCOX.
                           Real Party in Interest.

                   No. 1 CA-SA 15-0203, 1 CA-SA 15-0211
                              (Consolidated)
                             FILED 9-10-2015

 Petition for Special Action from the Superior Court in Maricopa County
                        No. CR2013-428563-001 DT
                   The Honorable Jose S. Padilla, Judge

     JURISDICTION ACCEPTED; RELIEF GRANTED IN PART
                                  COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Petitioner State of Arizona

Chris A. Simcox, Phoenix
Real Party in Interest

Office of the Legal Defender, Phoenix
By Sheena Chawla, Robert S. Shipman
Advisory Counsel for Real Party in Interest

Arizona Voice for Crime Victims, Tempe
By Colleen Clase
Counsel for A.S.

DeFusco & Udelman, PLC, Scottsdale
By Randall Udelman
Counsel for Amicus Curiae National Crime Victim Law Institute




                       MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Chief Judge Michael J. Brown
joined.


T H U M M A, Judge:

¶1            These consolidated special actions arise out of pretrial
proceedings in a criminal case where Chris Simcox is charged with three
counts of sexual conduct with a minor, two counts of child molestation and
one count of furnishing harmful items to minors, alleged to have occurred
at various times between April 2012 and May 2013. Accepting special action
jurisdiction over both petitions, because the superior court did not properly




                                       2
                      STATE v. HON. PADILLA/SIMCOX
                            Decision of the Court

apply Arizona Revised Statute (A.R.S.) section 13-1421 (2015),1 this court
grants relief and remands for further proceedings consistent with this
decision. Because the superior court did not properly apply the Victims’ Bill
of Rights, Ariz. Const. art 2, § 2.1, (VBR) as implemented in the Victims’
Rights Implementation Act (VRIA), A.R.S. § 13-4401, et seq., this court also
grants relief on that basis and remands for further proceedings consistent
with this decision.

                    FACTS AND PROCEDURAL HISTORY

¶2            The victims Z.S. and J.D. were approximately 8-years old at
the time of the alleged offenses. The State challenges the superior court’s
application of A.R.S. § 13-1421(A) to statements made by Z.S., while A.S.,
the mother and legal representative of Z.S., challenges the application of the
VBR and the VRIA. An evidentiary hearing addressing A.R.S. § 13-1421(A)
provides much of the basis for both challenges.

¶3            The State developed concerns that Simcox, who has elected to
represent himself, would offer evidence at trial that Z.S. “has made prior
allegations of sexual abuse against another individual.” In April 2015, the
State moved in limine pursuant to A.R.S. § 13-1421(A)2 to preclude any
evidence or reference at trial “regarding alleged sexual activity between
victim Z.S. and anyone other than” Simcox. Simcox argued the statute did

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

2   As relevant here, that statute states:

                 Evidence of specific instances of the victim’s
                 prior sexual conduct may be admitted only if a
                 judge finds the evidence is relevant and is
                 material to a fact in issue in the case and that the
                 inflammatory or prejudicial nature of the
                 evidence does not outweigh the probative value
                 of the evidence, and if the evidence is . . .
                 [e]vidence of false allegations of sexual
                 misconduct made by the victim against others.

A.R.S. § 13-1421(A)(5). “The standard for admissibility of evidence under
subsection A is by clear and convincing evidence.” A.R.S. § 13-1421(B).




                                          3
                      STATE v. HON. PADILLA/SIMCOX
                            Decision of the Court

not apply because he intended to introduce evidence that Z.S. alleged an
individual, referred to here as N., touched her inappropriately, arguing
such evidence would constitute a third-party defense to the charges against
him involving Z.S. The superior court set an evidentiary hearing on the
matter, the relevant portion of which was held on July 23, 2015.

¶4             Counsel for A.S. attempted to assert various rights on behalf
of A.S. and as legal representative of Z.S. At a July 7, 2015 evidentiary
hearing, counsel for A.S. stated “I just want the record to note our continued
objection to Mr. Simcox conducting any cross-examination of” A.S. The
superior court responded that counsel for A.S. does not “have a right to
participate in this part. . . . You’re not representing the State. You represent
this witness. We’re not dealing with litigation involving this witness. So it
will be noted, but that’s about it.” After counsel for A.S. cited A.R.S. § 13-
4437,3 the court noted counsel had standing to represent A.S. “but not
participate,” citing Lindsay R. v. Cohen, 236 Ariz. 565, 343 P.3d 435 (App.
2015).


3   As relevant here, that statute states:

                 A. The victim has standing to seek an order, to
                 bring a special action or to file a notice of
                 appearance in an appellate proceeding seeking
                 to enforce any right or to challenge an order
                 denying any right guaranteed to victims under
                 the victims' bill of rights, article II, § 2.1,
                 Constitution of Arizona, any implementing
                 legislation or court rules. In asserting any right,
                 the victim has the right to be represented by
                 personal counsel at the victim's expense.
                   ....
                 C. At the request of the victim, the prosecutor
                 may assert any right to which the victim is
                 entitled.
                 D. On the filing of a notice of appearance and if
                 present, counsel for the victim shall be included
                 in all bench conferences and in chambers
                 meetings and sessions with the trial court that
                 directly involve a victim's right enumerated in
                 article II, § 2.1, Constitution of Arizona.

A.R.S. § 13-4437(A), (C)-(D).


                                         4
                    STATE v. HON. PADILLA/SIMCOX
                          Decision of the Court

¶5              Counsel for A.S. filed a motion to reconsider, which the
superior court denied. Counsel for A.S. also filed a motion for a protective
order seeking to preclude testimony from Dr. C.P. on the grounds it would
violate the privacy rights of Z.S. At the July 23, 2015 hearing, when the
prosecutor stated the motion for protective order was filed by A.S.’s counsel
“on behalf of the victim,” the court stated “[a]ny information that counsel
for any of the victims” wanted to raise with the court comes through the
prosecutor pursuant to Lindsay R. When A.S.’s counsel argued she had
standing to assert her rights under A.R.S. § 13-4437(A), “rather than asking
the State to do it on her behalf,” the court stated that, because A.S. had
testified at the July 7, 2015 hearing when called by the State, Simcox had a
right to cross-examine her. A.S.’s counsel responded that she was “not
saying that [A.S.] shouldn’t be cross-examined. I wanted to make a record
that I objected to Mr. Simcox cross-examining her.” The court noted that the
parties to a criminal case are the State and the defendant and “[t]o the extent
that they [the victims] do have rights, you can make your position known
by way of objecting to what’s going on, but that’s it.” When A.S.’s counsel
asked if she could argue her motion for protective order, the court
responded “[t]hat would be [the prosecutor’s] job.” The court later
acknowledged that A.S. has a right to be heard and to be present. The
rulings outlined above, however, were not altered.

¶6            At the July 23, 2015 evidentiary hearing, the superior court
heard testimony from Dr. C.P. who met with Z.S. periodically from June
2011 to May 2013. Dr. C.P. testified that Z.S. reported in May 2013 that N.
had touched her inappropriately. Dr. C.P. immediately reported that
disclosure to the Department of Child Safety (DCS). A DCS investigative
case manager testified about the investigation of that report.

¶7             At the conclusion of the hearing, the superior court confirmed
that A.R.S. § 13-1421(A)(5) sets forth the applicable analysis and addresses
“false allegations against others.” The court characterized certain testimony
as “’[w]e simply couldn’t find evidence of it, but we can’t tell you that it did
not happen.’” The court, however, declared it was “not making a
determination that there is a basis” for the statement by Z.S. that N. had
touched her inappropriately. This declaration was consistent with an earlier
statement by the court that the scope of the hearing was:

              simply trying to establish is there some credible
              evidence that there was an allegation made as to
              another individual. This is not a trial of that
              other individual. So the statement is not to
              prove that [N.] did it, but that the allegation was


                                       5
                    STATE v. HON. PADILLA/SIMCOX
                          Decision of the Court

              made, there is credible evidence, and the
              witnesses should be examined in front of a jury
              about those things. That’s the entire scope of
              this hearing.

¶8              The court then indicated it would allow Simcox to question
witnesses about the statement by Z.S. that N. had touched her
inappropriately. In response, the State argued that “[j]ust because . . . [Z.S.]
may have been touched by somebody else doesn’t prove or disprove
anything about the defendant. She could have been touched by both. So
that’s why it’s not relevant to this proceeding, and would only serve to
confuse the jury.” The court indicated it was impeachment and “[t]here is
clear evidence that the statements were made to a mandated reporter whose
job it was to figure out if these things were made,” meaning Simcox was not
“simply making them up.” The court concluded that Simcox “has met his
burden of showing that there were allegations made against another
individual. . . . The fact that they turned out to be unsubstantiated is
something [the State] can bring up.”

¶9            The State argued A.R.S. § 13-1421(A)(5) “talks about evidence
of the false allegations of sexual misconduct made by the victim against
others. That’s not what the defendant is arguing here. He’s arguing that she
wasn’t touched by him, that she was touched by somebody else. That’s not
what this statute is for.” The State argued allegations could be admissible
“[o]nly if they were false” and met the other requirements of the statute,
adding:

              But just because she may have been touched by
              somebody else, it’s just like as if somebody
              would have been sexually assaulted by
              somebody else. Just because it may have
              happened doesn’t make him less a defendant or
              not, less the perpetrator or not. That’s what the
              purpose of [A.R.S. § 13-]1421 is, not to confuse
              the jury.

The court responded that it disagreed with the State, adding “[m]y ruling
stands.” After the State obtained a stay from the superior court, the State
and A.S. filed these petitions for special action. Simcox filed the same
response in both matters, which addresses in part the State’s arguments
under A.R.S. § 13-1421 but does not directly address the arguments made
by A.S.




                                       6
                     STATE v. HON. PADILLA/SIMCOX
                           Decision of the Court

                               DISCUSSION

I.     Special Action Jurisdiction.

¶10            Special action jurisdiction is appropriate where petitioner has
no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P.
Spec. Act. 1(a). Special action jurisdiction is appropriate to address an issue
that is “‘a purely legal question, is of statewide importance, and is likely to
arise again.’” Lear v. Fields, 226 Ariz. 226, 229 ¶ 6, 245 P.3d 911, 914 (App.
2011) (quoting Vo v. Superior Court, 172 Ariz. 195, 198, 836 P.2d 408, 411
(App. 1992)). “Although ‘highly discretionary,’ accepting special action
jurisdiction is particularly appropriate where the welfare of children is
involved and the harm complained of can only be prevented by resolution
before an appeal,” Dep’t. of Child Safety v. Beene, 235 Ariz. 300, 303 ¶ 6, 332
P.3d 47, 50 (App. 2014) (citations omitted).

¶11            As applied, the petitions seek review of decisions that are not
final and appealable at this time, implicate the interests of children and
involve legal issues of statewide importance that are likely to arise again.
Moreover, there is no equally plain, speedy and adequate remedy by
appeal. Accordingly, in exercising its discretion, this court accepts special
action jurisdiction over the petitions filed by the State and A.S. In doing so,
the court notes A.S. has standing to participate in this special action under
A.R.S. § 13-4437(A). See Lindsay R., 236 Ariz. at 567 ¶ 5, 343 P.3d at 437.

II.    The Merits.

       A.     Standard Of Review.

¶12            Although this court reviews a superior court’s decision to
admit evidence for an abuse of discretion, a superior court’s interpretation
of statutory provisions is subject to a de novo review. See State v. Bernstein,
237 Ariz. 226, 228 ¶ 9, 349 P.2d 200, 202 (2015) (citing cases). Similarly, the
superior court’s interpretation of the VBR, the VRIA and Ariz. R. Crim. P.
39 is subject to a de novo review. See State ex rel. Thomas v. Klein, 214 Ariz.
205, 207 ¶ 5, 150 P.3d 778, 780 (App. 2007).




                                      7
                    STATE v. HON. PADILLA/SIMCOX
                          Decision of the Court

       B.      A.R.S. § 13-1421(A)(5).

¶13            As applicable here, for evidence of specific instances of the
victim’s prior sexual conduct to be admissible, the proponent of such
evidence must prove by clear and convincing evidence that (1) the
“evidence is relevant and is material to a fact in issue in the case;” (2) the
“evidence is . . . of false allegations of sexual misconduct made by the victim
against others;” and (3) “the inflammatory or prejudicial nature of the
evidence does not outweigh the probative value of the evidence.” A.R.S. §
13-1421(A)(5); see also State v. Gilfillan, 196 Ariz. 396, 401 ¶ 16, 998 P.3d 1069,
1074 (App. 2000); Ariz. R. Evid. 608(b).

¶14             It is not clear that the superior court determined whether
evidence regarding the statement by Z.S. that N. had touched her
inappropriately was relevant and material to a fact at issue, a necessary
predicate to an admissibility ruling under A.R.S. § 13-1421(A)(5). See State
ex rel. Montgomery v. Duncan, 228 Ariz. 514, 516 ¶ 7, 269 P.3d 690, 692 (App.
2011) (“A finding of relevancy alone does not act to trump victim’s rights”).
It is clear, however, that the superior court neither found the statement was
false (as is required to be admissible under A.R.S. § 13-1421(A)(5)) or may
be true (as would be required for a third-party defense theory). Instead,
although finding “clear evidence that statements were made,” the superior
court expressly stated it was “not making a determination that there is a
basis for those claims.” Finally, there is nothing in the record indicating the
court assessed whether the inflammatory or prejudicial nature of the
evidence did not outweigh its probative value, an assessment required by
the statute that differs from the standard in Ariz. R. Evid. 403 and that the
superior court has considerable discretion in addressing. See Gilfillan, 196
Ariz. at 405 ¶ 29, 998 P.3d at 1078.

¶15            In opposing the State’s special action petition, Simcox argues
the evidence is admissible under A.R.S. § 13-1421(A)(3), which addresses
admissibility of prior sexual conduct evidence “that supports a claim that
the victim has a motive in accusing the defendant of the crime.” Simcox,
however, did not press that argument with the superior court. Cf. Trantor v.
Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (“[A]bsent
extraordinary circumstances, errors not raised in the trial court cannot be
raised on appeal.”). Moreover, to show admissibility under A.R.S. § 13-
1421(A)(3), Simcox would be required to prove by clear and convincing
evidence: (1) the “evidence is relevant and is material to a fact in issue in
the case;” (2) the “evidence is . . . [e]vidence that supports a claim that the
victim has a motive in accusing the defendant of the crime;” and (3) “the
inflammatory or prejudicial nature of the evidence does not outweigh the


                                         8
                   STATE v. HON. PADILLA/SIMCOX
                         Decision of the Court

probative value of the evidence.” A.R.S. § 13-1421(A)(3). As noted above,
the record does not support a finding that Simcox met his burden regarding
the first and third of these required showings. Nor, as to the second
required showing, has Simcox shown how Z.S.’s allegation regarding N.
shows Z.S. has a motive in accusing Simcox the crimes alleged. On this
record, and recognizing Simcox did not raise the argument with the
superior court, the order is not supported by A.R.S. § 13-1421(A)(3).4

¶16           The superior court’s findings do not support the conclusion
that evidence regarding the statement by Z.S. that N. had touched her
inappropriately is admissible under A.R.S. § 13-1421(A)(5). Accordingly,
the superior court’s ruling that such evidence is admissible is vacated.

       C.     VBR And VRIA.

¶17             The superior court’s rulings regarding A.S.’s participation in
the matter are less specific than the ruling under A.R.S. § 13-1421(A)(5). As
a result, A.S.’s arguments regarding the VBR and VRIA are somewhat more
general. A.S. makes two primary arguments: (1) Lindsay R. does not
preclude the ability of a victim’s private counsel from asserting the victim’s
rights in pretrial proceedings and (2) the superior court violated Z.S.’s
rights to standing and have her own counsel when A.S.’s counsel was
prohibited from asserting and making arguments to protect victim’s rights,
including on Z.S.’s behalf, during pretrial proceedings.

¶18            Lindsay R. held that neither the VBR, the VRIA nor Ariz. R.
Crim. P. 39 “provide for privatized restitution hearings.” 236 Ariz. at 567 ¶
6, 343 P.3d at 437. Lindsay R. declared that “[t]he VBR does not make victims
‘parties’ to the prosecution, and does not allow victims to usurp the
prosecutor's unique role.” 236 Ariz. at 567 ¶ 8, 343 P.3d at 437 (citation
omitted). A.S. does not dispute these directives, admits she is not a party to
the criminal case and is not seeking to displace or usurp the prosecutor.
More broadly, the issue of guilt in the criminal case has not yet been
resolved, meaning restitution is not yet implicated. Accordingly, the
concerns expressed in Lindsay R. – that allowing victim’s counsel to
substitute for the prosecution in a restitution proceeding would “essentially




4Similarly, although his response takes issue with the State’s prosecution
of the case and other rulings by the superior court, Simcox has not filed a
petition for special action review, meaning those issues will not be
addressed here.


                                      9
                    STATE v. HON. PADILLA/SIMCOX
                          Decision of the Court

transform a criminal sentencing function into a civil damages trial” – are
not presented here. 236 Ariz. at 568 ¶ 10, 343 P.3d at 438.

¶19            Lindsay R. does, however, offer some guidance applicable
here. Lindsay R. made clear that the “prosecutor does not ‘represent’ the
victim.” 236 Ariz. at 567 ¶ 9, 343 P.3d at 437 (citation omitted). “Unlike a
prosecutor, a victim’s personal counsel serves solely as an advocate for the
victim.” Id. at ¶ 10. Moreover, as noted two decades ago in a different
context, “the VBR and the VRIA give victims the right to participate and be
notified of certain criminal proceedings.” State v. Lamberton, 183 Ariz. 47,
49, 899 P.2d 939, 941 (1995). Accordingly, it is not correct to say broadly that
the victim provides information to the State and the State then decides
whether it is going to use that information (with no recourse by the victim).

¶20             The VBR guarantees a crime victim various rights, including
“[t]o be present at and, upon request, to be informed of all criminal
proceedings where defendant has the right to be present.” Ariz. Const. art.
2, § 2.1(A)(3). Under the VRIA, in asserting any right the victim holds, “the
victim has the right to be represented by personal counsel at the victim’s
expense.” A.R.S. § 13-4437(A); accord Ariz. R. Crim. P. 39(c)(4). “On the
filing of a notice of appearance and if present, counsel for the victim shall
be included in all bench conferences and in chambers meetings and sessions
with the trial court that directly involve a victim’s right enumerated in” the
VBR. A.R.S. § 13-4437(D).

¶21           Under the VRIA, “the victim has standing to seek an order, to
bring a special action or to file a notice of appearance in an appellate
proceeding seeking to enforce any right or to challenge an order denying
any right guaranteed to victims.” A.R.S. § 13-4437(A). To the extent that the
superior court may have initially viewed this provision as applying only to
appellate proceedings, such a reading would not be supported. The
Legislature has directed that the VRIA “shall be liberally construed to
preserve and protect the rights to which victims are entitled.” A.R.S. § 13-
4418. Requests “seek[ing] an order” are made to, and granted by, both
appellate and superior courts. Moreover, limiting the ability to enforce the
rights enumerated in the VBR and VRIA to orders issued by appellate
courts (but prohibiting superior courts from issuing such orders) would
largely nullify those rights. Accordingly, A.S., as legal representative of
Z.S., had standing to seek an order from the superior court pursuant to
A.R.S. § 13-4437(A).

¶22          Statutory standing to seek an order implies the right to
properly request an order. With exceptions not applicable here, a request


                                      10
                   STATE v. HON. PADILLA/SIMCOX
                         Decision of the Court

for an order in a criminal case must be timely, in writing, served and filed
with the court. See Ariz. R. Crim. P. 35.3. For victims, the subject matter of
such a request is limited to “enforce[ing] any right or to challeng[ing] an
order denying any right guaranteed to victims.” A.R.S. § 13-4437(A).

¶23            As applied, and without expressing any opinion on the merits
of the requests, A.S., through her counsel, had a right to object to Simcox
personally (as opposed to through other means) conducting cross-
examination of A.S. and, as legal representative of Z.S., to object to Simcox
eliciting testimony based on Z.S.’s rights as a victim, including privacy
rights. Accordingly, the superior court’s rulings to the contrary are vacated.

                              CONCLUSION

¶24           Accepting special action jurisdiction over both petitions, this
court grants relief as set forth above and remands for further proceedings
consistent with this opinion.




                                  :ama




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