                                                                FILED BY CLERK
                           IN THE COURT OF APPEALS                  MAR 23 2007
                               STATE OF ARIZONA
                                                                    COURT OF APPEALS
                                 DIVISION TWO                         DIVISION TWO




                                             )
                                             )      2 CA-JV 2006-0049
IN RE NATALIE Z.                             )      DEPARTMENT B
                                             )
                                             )      OPINION
                                             )


           APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

                             Cause No. JV-200300627

                       Honorable Gilberto V. Figueroa, Judge

                                    AFFIRMED


Robert Carter Olson, Pinal County Attorney
 By Susan Crawford                                                        Florence
                                                                Attorneys for State

Mary Wisdom, Pinal County Public Defender
 By Teri L. Shaw                                                          Florence
                                                               Attorneys for Minor


E C K E R S T R O M, Presiding Judge.
¶1             The juvenile court entered orders adjudicating Natalie Z. delinquent for

aggravated assault and placing her on juvenile intensive probation for twelve months.

Natalie challenges the juvenile court’s finding that she was responsible for the delinquent

conduct, claiming the court committed various errors in rejecting her defense of insanity.

We affirm.

¶2             We view the evidence in a light most favorable to sustaining the juvenile

court’s ruling. In re John M., 201 Ariz. 424, ¶ 7, 36 P.3d 772, 774 (App. 2001). On

August 30, 2005, Natalie was a detainee in the Pinal County Juvenile Detention Center;

twice, she had attempted suicide. When she refused to return to her cell as instructed by

detention center staff, additional staff members were summoned. Among those who

responded were detention officer Susan Patterson and detention center manager Gilbert

Contreras. Natalie repeatedly refused their commands to enter her cell, prompting Patterson

and Contreras to forcibly take her there. Natalie resisted, causing the specialized suicide

prevention clothing she was wearing to open, exposing her. Contreras then let go, and

Natalie charged at Patterson, striking Patterson’s face with her head and causing Patterson

to fall against a wall. Patterson suffered a concussion and missed four days of work as a

result of her injuries.

¶3             The state charged Natalie by amended delinquency petition with aggravated

assault in violation of A.R.S. § 13-1204(A)(10)(a)(iv) and (b).1 She asserted a defense of


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        Under that statute, a person commits aggravated assault if the person “[i]s imprisoned
or otherwise subject to the custody of . . . [a] juvenile detention facility of a city or county”
and “[c]ommits an assault knowing or having reason to know that the victim is acting in an

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“insanity,” which the juvenile court understood as a request that the court find her

“responsible but insane” rather than responsible for the charged delinquent act. Without

objection, the court applied the test for insanity contained in A.R.S. § 13-502(A), which

states:

              A person may be found guilty except insane if at the time of the
              commission of the criminal act the person was afflicted with a
              mental disease or defect of such severity that the person did not
              know the criminal act was wrong. A mental disease or defect
              constituting legal insanity is an affirmative defense. Mental
              disease or defect does not include disorders that result from
              acute voluntary intoxication or withdrawal from alcohol or
              drugs, character defects, psychosexual disorders or impulse
              control disorders. Conditions that do not constitute legal
              insanity include but are not limited to momentary, temporary
              conditions arising from the pressure of the circumstances, moral
              decadence, depravity or passion growing out of anger, jealousy,
              revenge, hatred or other motives in a person who does not suffer
              from a mental disease or defect or an abnormality that is
              manifested only by criminal conduct.

In support of her defense, Natalie presented the testimony of Scott Silberman, a licensed

psychologist who had evaluated Natalie in December 2003 and December 2005. The

purpose of the 2005 evaluation had been to assess both her competency to contest the

delinquency petition and her state of mind at the time of the offense.

¶4            Dr. Silberman testified that Natalie suffered from “Bipolar Type I” disorder,

a subtype of bipolar disorder characterized by “more severe and debilitating . . . manic

episodes” than those exhibited by persons with Type II of the disorder. He concluded

Natalie had likely been “in the middle of” such a manic episode at the time of the offense.


official capacity as an employee of” the detention facility. § 13-1204(A)(10)(a)(iv) and (b).

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On direct examination, he testified that it was “likely that [Natalie] did not know what she

was doing was wrong, nor did she even take that into account at the moment.” However,

under further examination by the court, Silberman agreed it was equally likely Natalie had

reacted angrily to the conditions in which she found herself, including that she had been

detained and made to wear suicide prevention clothing referred to as a “turtle suit.”

¶5            Ruling from the bench, the juvenile court made several remarks, including the

following.

              It is likely that the behavior was the result of the temporary
              conditions arising from the pressure of her circumstances, that
              . . . she was in isolation, she was on suicide watch, she was, as
              the doctor indicated, for at least a period of two years, had been
              very angry, not just at her mother, but at everything going on
              around her.

                      I cannot find by clear and convincing evidence that the
              mental disease or a manic episode were the sole causes of her
              behavior. It is likely and perhaps even highly likely . . . that a
              manic episode was cycling, but I think I have to take into
              account the fact that she had also voluntarily failed to adhere to
              her medical regimen. . . . Based on that evidence and the
              testimony from the doctor that it was just highly likely and not
              clear and convincing to him that the behavior was the result of
              the mental disease or defect, I find that the defendant has failed
              to carry the burden of establishing by clear and convincing
              evidence as required in [§] 13-502(C) that the child was insane
              at the time of the offense.

The court then adjudicated Natalie delinquent for aggravated assault and dismissed another

charge not at issue in this appeal.

¶6            On appeal, Natalie first claims the juvenile court “erred in applying” § 13-502

when she had asserted an insanity defense “pursuant to A.R.S. § 8-291.03.” We reject this


                                              4
argument because § 8-291.03 pertains, in relevant part, only to the procedure for procuring

a mental health expert’s pretrial “screening report” that includes information about the

juvenile’s mental status and “mental disease, defect or disability,” if any, at the time of the

alleged offense. § 8-291.03(A). And, the juvenile court’s application of § 13-502 consisted

merely of the court’s use of Arizona’s legal test for insanity and its assignment of the burden

of proof to meet that test by clear and convincing evidence to the juvenile. These questions

are not addressed in § 8-291.03(A), which prescribes neither a procedure for asserting a

defense of insanity nor a substantive legal test for proving insanity in the juvenile context.

¶7            Although Natalie is correct that § 13-502 does not expressly apply to juveniles

accused of delinquent acts, she presents no authority for her implicit proposition that a test

for insanity other than that set forth in § 13-502 applies in the juvenile court, nor any

rationale why any such alternative standard should apply. To the contrary, the legislature

has required that we define delinquent juvenile behavior with reference to adult offenses,

most of which are described in Title 13, A.R.S. See A.R.S. § 8-201(10) (defining

“[d]elinquent act” to include “an act by a juvenile that if committed by an adult would be

a criminal offense”). The boundaries of adult criminal culpability are defined no less by the

statutory defenses set forth in Title 13, including the insanity defense set forth in § 13-502.

Accordingly, we have previously utilized the statutory provisions of Title 13 in evaluating

whether a juvenile has raised a successful justification defense. See In re Roy L., 197 Ariz.

441, ¶¶ 21-22, 4 P.3d 984, 990 (App. 2000) (juvenile’s justification defense failed where

facts did not meet criteria prescribed by A.R.S. § 13-404(A)). We find no error in the


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juvenile court’s relying on § 13-502 in the manner it did here, let alone the fundamental and

prejudicial error Natalie is required to show to justify a reversal of her adjudication based

on a claim she failed to raise below. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115

P.3d 601, 607 (2005).

¶8             In a related argument, Natalie claims that even if the juvenile court correctly

applied § 13-502, it nevertheless erred by “consider[ing] only part of the language in [the

statute].” She points out that “[h]er diagnosis also included psychotic features,” presumably

suggesting she must have been psychotic at the time of her offense. In essence, Natalie

contends that § 13-502(A) prohibits a juvenile court from rejecting an insanity defense on

the remaining statutory criteria once it has acknowledged that a juvenile suffers from a

mental disease or disorder. But the express language of that provision makes clear that the

mere existence of a mental disease or defect is not alone sufficient to support a finding of

guilty except insane. Rather, the mental disease or defect must be of “such severity that the

person did not know the criminal act was wrong.” Id.

¶9             Moreover, nothing in the statute suggests that juveniles otherwise afflicted with

a mental disease or disorder must be deemed insane even when their offense has been

motivated by a condition that, under § 13-502, does not constitute legal insanity. Natalie

suggests that the last clause of § 13-502(A) can be read to apply the exclusions only to

persons who “do[] not suffer from a mental disease or defect or an abnormality.” Although

this inartfully drafted clause might be so read in isolation, we do not believe that language

modifies the entire list of “[c]onditions that do not constitute legal insanity” but only the last


                                                6
phrase of that sentence. Nor could Natalie’s interpretation of that language be harmonized

with the rest of § 13-502(A) because, under the first sentence of that subsection, “a person

who does not suffer from a mental disease or defect” would not be considered insane in any

event—and therefore it would be illogical and redundant for the legislature to add a list of

exclusions triggered only as to persons not suffering from a mental disease or defect. Thus,

we can only interpret the last clause of the subsection as creating a catch-all exclusion for

types of motivations found in those who are not legally insane. See State v. Rodriguez, 205

Ariz. 392, ¶ 11, 71 P.3d 919, 923 (App. 2003) (even if statutory language taken alone

susceptible to different interpretations, we interpret statute as a whole in relation to its

purpose).

¶10           In short, pursuant to the requirements of § 13-502(A), the juvenile court’s

assessment of whether a juvenile suffers from a mental disease or defect is merely a threshold

determination that does not require the court to find the juvenile is insane. Rather, the court

must then address whether that defect was so severe that it deprived the juvenile of the

ability to know the delinquent act was wrong and whether, even if the juvenile’s moral

judgment was impaired, that impairment arose from some other cause excluded as a basis for

legal insanity. Thus, we find the juvenile court did not violate the provisions of § 13-502(A)

when it acknowledged Natalie’s bipolar disorder but also concluded that her assaultive

behavior arose from other “[c]onditions that do not constitute legal insanity.”

¶11           Next, Natalie contends “[t]he juvenile court impermissibly raised the standard

[of proof on the issue of insanity] from clear and convincing to beyond a reasonable doubt


                                              7
by finding that the manic episode was not the sole cause of her behavior.” As best we

understand this argument, Natalie suggests the court rejected her insanity defense based on

a mere reasonable doubt that Natalie was not insane and implicitly required the evidence of

insanity to be “certain and unambiguous.” As evidence of that, Natalie emphasizes that the

court acknowledged it was “highly likely” her manic episode had been “cycling” at the time

of the assault, yet rejected that she was insane. But, as discussed above, the court could

have found that Natalie had been exhibiting mania arising from her bipolar disorder and

nevertheless found her to be sane if it concluded either that: (1) the mania did not prevent

her from knowing her criminal acts were wrong or (2) she was motivated to assault the

guards for reasons not related to her mania. See § 13-502(A). Thus, the juvenile court was

required by Arizona statute to consider factors beyond whether Natalie was manifesting

symptoms of bipolar disorder at the time of the incident. That it properly did so does not

demonstrate that it utilized an incorrect burden of proof in assessing Natalie’s insanity

defense. To the contrary, the juvenile court twice emphasized that it was applying the “clear

and convincing evidence” standard in assessing Natalie’s defense.2

¶12           Nor do we agree with Natalie’s implicit contention that the evidence presented

does not support the court’s conclusion. Natalie’s expert, Dr. Silberman, conceded it was


       2
       The juvenile court appears to have misconstrued the relevant standard of clear and
convincing evidence by requiring a showing of greater certainty than “highly likely.” In fact,
our supreme court has equated the two standards. Kent K. v. Bobby M., 210 Ariz. 279, ¶
25, 110 P.3d 1013, 1018-19 (2005) (defining “clear and convincing” as “‘highly
probable’”), quoting Black’s Law Dictionary 1201 (7th ed. 1999). Natalie has neither
challenged the juvenile court’s ruling on this basis nor suggested that the court’s confusion
was prejudicial in the context of the case.

                                              8
just as likely that Natalie’s behavior had been the result of her angry response to the

circumstances of the encounter as her disorder. Moreover, the juvenile court was free to

take into account that Silberman had not examined Natalie for the second time until

approximately four months after the offense. The court could also have considered the

testimony of eyewitnesses Patterson and Contreras, which included evidence from which the

court could have inferred Natalie had been adamant and purposeful in her refusal to enter

her cell and therefore also knew her assaultive conduct was wrong. Because there was

substantial evidence that Natalie understood the nature of her acts, we reject Natalie’s

assertion that the juvenile court must have applied the wrong standard of proof when it

found the manic episode was not the sole cause of her behavior.3

¶13           Finally, Natalie contends the juvenile court “erred by considering the

consequences of a ruling of insanity in determining the guilt or innocence of the juvenile.”

But, the record does not support her characterization of the court’s actions. The juvenile

court did observe that alternatives for disposition would likely be the same whether the court

adjudicated Natalie delinquent or found her “responsible but insane.” After both parties had

rested and the court had found Natalie had not met her burden of proof on the issue of

insanity, the court also commented on its understanding of what its dispositional alternatives

might have been had she met her burden. However, the court clearly stated it had not based


       3
        We note that A.R.S. § 13-502(A) sets forth no requirement that the juvenile’s mental
defect be the sole cause of his or her behavior to support a verdict of “guilty except insane.”
Natalie has not challenged the court’s ruling on this basis nor is it clear that the juvenile
court necessarily came to that erroneous conclusion when it made the factual observation
that her behavior was caused by a variety of factors including her mental defect.

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its decision on those considerations. In addition, before offering the commentary to which

we refer, the juvenile court stated the bases for its finding on the record.

¶14           Natalie has failed to demonstrate the presence of reversible error.

Accordingly, we affirm her adjudication of delinquency and disposition.




                                               ____________________________________
                                               PETER J. ECKERSTROM, Presiding Judge

CONCURRING:



____________________________________
J. WILLIAM BRAMMER, JR., Judge



____________________________________
PHILIP G. ESPINOSA, Judge




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