                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


               THOMAS WALTER WASHBURN, Petitioner,

                                        v.

  THE HONORABLE TERESA A. SANDERS, Judge of the SUPERIOR
   COURT OF THE STATE OF ARIZONA, in and for the County of
               MARICOPA, Respondent Judge,

                STATE OF ARIZONA, Real Party in Interest.

                             No. 1 CA-SA 14-0222
                              FILED 12-16-2014


 Petition for Special Action from the Superior Court in Maricopa County
                          No. CR2014-102533-001
                 The Honorable Teresa A. Sanders, Judge

             JURISDICTION ACCEPTED; RELIEF DENIED


                                   COUNSEL

Feder Law Offices, PA, Phoenix
By Bruce Feder

Law Office of Thomas M. Hoidal, PLC, Phoenix
By Thomas M. Hoidal
Co-Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix
By Robert Prather
Counsel for Real Party in Interest
                 WASHBURN v. HON. SANDERS/STATE
                       Decision of the Court



                             DECISION ORDER

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.


C A T T A N I, Judge:

¶1             Thomas Washburn seeks special action relief from the
superior court’s denial of his motion to remand the indictment for
redetermination of probable cause. Because denial of a motion for remand
is not subject to review on direct appeal, see Francis v. Sanders, 222 Ariz. 423,
426, ¶ 9, 215 P.3d 397, 400 (App. 2009), in an exercise of our discretion, we
accept special action jurisdiction. See Ariz. R.P. Spec. Act. 1(a). For reasons
that follow, we deny relief.

¶2            We review the denial of a motion to remand an indictment for
an abuse of discretion. See Francis, 222 Ariz. at 426, ¶ 10, 215 P.3d at 400. In
reviewing a trial court’s order within the context of a special action, we
defer to the trial court with regard to any findings of fact, explicitly or
implicitly made, and we will not grant relief unless the judge committed an
“error of law” in the process of reaching a discretionary conclusion. Id.

¶3             A prosecutor must provide a grand jury with “a fair and
impartial presentation of the evidence.” Maretick v. Jarrett, 204 Ariz. 194,
197, ¶ 8, 62 P.3d 120, 123 (2003). The prosecutor need not present all
exculpatory evidence, but must present “clearly exculpatory” evidence:
“evidence of such weight that it might deter the grand jury from finding the
existence of probable cause.” Trebus v. Davis, 189 Ariz. 621, 625, 944 P.2d
1235, 1239 (1997). This may include evidence supporting a justification
defense. See Herrell v. Sargeant, 189 Ariz. 627, 631, 944 P.2d 1241, 1245 (1997).
Moreover, the prosecutor may not “deflect the grand jury from its inquiry.”
Maretick, 204 Ariz. at 197, ¶ 10, 62 P.3d at 123. Similarly, the prosecutor
must properly instruct the grand jury on applicable law. Trebus, 189 Ariz.
at 623, 944 P.2d at 1237. Although “the State has no obligation to anticipate
every defense, . . . it does have an obligation to respond in an accurate
fashion to grand jurors’ questions concerning defenses.” Francis, 222 Ariz.
at 427, ¶ 16, 215 P.3d at 401.

¶4          Here, the State charged Washburn, a kindergarten teacher,
with one count of aggravated assault of a minor for allegedly removing a


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                 WASHBURN v. HON. SANDERS/STATE
                       Decision of the Court

student’s shirt during class, leaving her naked above the waist for around
ten minutes. After hearing testimony from an investigating detective, the
grand jury found probable cause and returned an indictment.

¶5              Washburn argues that the prosecutor misled the grand jury
by failing to present evidence that Washburn removed the shirt as a form
of discipline. Even assuming such evidence could be considered clearly
exculpatory, the State in fact presented such evidence. The detective
testified that, according to the student’s mother, Washburn related that the
student “had not been looking at him, had been covering her face with her
shirt, so he removed her shirt from her.” Similarly, the detective explained
that, according to a teacher’s aide, several students had been covering their
faces with their shirts earlier in the day and that Washburn had warned the
kids to “stop doing that or I’ll take your shirts from you” and, after
returning the student’s shirt, had admonished the class to “make sure that
we wear our clothing properly.”

¶6            Additionally, as the superior court found, the detective’s
response to a juror’s inquiry whether “this [was] supposed to be a type of
punishment for the child for not -- for covering her eyes with her shirt”
apparently accurately related the mother’s description that Washburn acted
in response to the student covering her face and failing to look at him.

¶7             Washburn’s reliance on Francis is unavailing. In that case, the
prosecutor responded to a juror’s question by misstating the elements of
entrapment and deflecting the inquiry by stating “entrapment is an issue
for the court to determine.” See 222 Ariz. at 426, ¶ 11, 215 P.3d at 400. In
contrast, in the instant case, there is no suggestion that the State presented
false evidence or improperly deflected the grand jury’s inquiry. See
Maretick, 204 Ariz. at 197, ¶ 10, 62 P.3d at 123.

¶8              Washburn also argues the State improperly failed to instruct
the grand jury on the justification defense for reasonable discipline. See
A.R.S. § 13-403(1) (“A . . . teacher . . . entrusted with the care and supervision
of a minor . . . may use reasonable and appropriate physical force upon the
minor . . . when and to the extent reasonably necessary and appropriate to
maintain discipline.”).1 Although the prosecutor did not reiterate this
statute when presenting the charge to the grand jury, the justification
statute had been read and provided to the grand jury only three weeks
before. Additionally, although the State must accurately respond to grand


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


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                WASHBURN v. HON. SANDERS/STATE
                      Decision of the Court

jurors’ questions about defenses, it need not anticipate possible defenses
absent inquiry from the grand jury. Francis, 222 Ariz. at 427, ¶ 16, 215 P.3d
at 401. Here, a juror asked a fact question about Washburn’s motivations—
to which the witness provided an accurate response—but no grand juror
pursued a legal inquiry regarding possible justification.

¶9           Accordingly, we accept jurisdiction but deny relief.




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