                               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., 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, Real Party in Interest.

                        No. 1 CA-SA 16-0017
                            1 CA-SA 16-0027
                             (Consolidated)
                          FILED 3-17-2016


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

JURISDICTION ACCEPTED; ORDER VACATED AND REMANDED
                                  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

Droban & Company PC, Anthem
By Kerrie M. Droban
Advisory Counsel for Real Party in Interest

Wilenchik & Bartness PC, Phoenix
By John D. Wilenchik
Counsel for Petitioner M.A.

Arizona Voice for Crime Victims, Scottsdale
By Colleen Clase, Jessica A. Gattuso, Eric John Aiken
Counsel for Petitioner A.S.



                                  OPINION

Judge Kenton D. Jones delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.


J O N E S, Judge:

¶1             In these consolidated special action proceedings, we again
address what accommodations may be granted to minors who are alleged
victims of sexual abuse when called upon to testify at trial. The State of
Arizona and A.S. seek relief from the trial court’s order (1) denying a
requested trial accommodation for J.D. and Z.S., and (2) granting a closed-
circuit television accommodation pursuant to Arizona Revised Statutes




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                    STATE v. HON. PADILLA/SIMCOX
                          Opinion of the Court

(A.R.S.) section 13-42531 for Z.S.2 We have consolidated the two separate
petitions because Petitioners seek the same relief. We accept jurisdiction
because Petitioners otherwise have no adequate remedy by appeal and the
petitions present issues of statewide importance. See Ariz. R.P. Spec. Act.
1(a); State ex rel. Romley v. Fields, 201 Ariz. 321, 323, ¶ 4 (App. 2001). Having
accepted jurisdiction, we vacate the trial court’s order and remand the
request for accommodation to the trial court for reconsideration consistent
with this Opinion.

                  FACTS AND PROCEDURAL HISTORY

¶2             The State charged Chris A. Simcox with three counts of sexual
conduct with a minor, two counts of molestation of a child, and one count
of furnishing obscene or harmful items to minors for conduct occurring in
2012 and 2013. The alleged victims are Simcox’s nine-year-old daughter,
Z.S., and Z.S.’s eight-year-old friend, J.D. (collectively, the Children).

¶3             The trial court previously granted Simcox’s request to
represent himself pro se and appointed advisory counsel to assist him. The
State indicated it would call the Children as witnesses and requested the
trial court prohibit Simcox from any direct contact with the Children at trial
and require his advisory counsel to conduct any cross-examination of the
Children. When the State declined to present evidence the Children would
be traumatized by Simcox personally cross-examining them, the court
denied the request, and the State petitioned for special action relief. This
Court accepted jurisdiction and held:



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

2         The petition in cause number SA 16-0017 was filed by the State and
joined by J.D.’s mother, M.A., and the petition in cause number SA 16-0027
was filed on behalf of Z.S. by her mother, A.S. See A.R.S. §§ 13-4403(C) (“If
the victim is a minor . . . the victim’s parent . . . may exercise all of the
victim’s rights on behalf of the victim.”), -4437(A) (“The victim has standing
to . . . bring a special action . . . 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.”); P.M. v. Gould, 212 Ariz. 541, 544-
45, ¶ 13 (App. 2006) (holding the parent had standing to assert victim’s
rights and seek special action relief on behalf of her minor daughter).



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                    STATE v. HON. PADILLA/SIMCOX
                          Opinion of the Court

       A trial court may exercise its discretion to restrict a self-
       represented defendant from personally cross-examining a
       child witness without violating a defendant’s constitutional
       rights to confrontation and self-representation. It can do so,
       however, only after considering evidence and making
       individualized findings that such a restriction is necessary to
       protect the witness from trauma.

State ex rel. Montgomery v. Padilla, 237 Ariz. 263, 265, ¶¶ 1-2 (App. 2015).

¶4             The trial court held an evidentiary hearing wherein the
parties presented evidence of trauma as required by Padilla. At the hearing,
the court heard testimony from the Children’s mothers, an expert on
trauma suffered by children who testify in court, and Z.S.’s psychologist.
After taking the matter under advisement, the court denied the State’s
request that Simcox’s cross-examination of the Children be conducted
through advisory counsel. But, finding sufficient evidence that Z.S. would
likely suffer trauma from face-to-face contact with her father and alleged
perpetrator at trial, the court ordered Z.S.’s examination to proceed by
closed-circuit television as provided in A.R.S. § 13-4253(a). These special
action petitions followed.

                                DISCUSSION

I.     Restricting Simcox’s Confrontation Rights

¶5            Petitioners first assert the trial court erred by holding that, as
long as a self-represented defendant does not breach court rules and
decorum, he may never be prohibited from personally cross-examining an
alleged minor victim. “We review purely legal or constitutional issues de
novo.” Padilla, 237 Ariz. at 266, ¶ 8 (citing State v. Booker, 212 Ariz. 502, 504,
¶ 10 (App. 2006)).

¶6            In its order, the trial court stated:

       This trial Court was unable to find any authority nor was any
       presented which would allow the trial court to make
       exceptions to the right to self-representation without
       violating both the State and Federal Constitutions. Therefore,
       this Court cannot grant the State’s request to have advisory
       counsel conduct the cross-examination of the victim
       witnesses. So long as Defendant exercises his right of self-
       representation and he complies with court rules and
       decorum, this Court must allow it, to do otherwise would be


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

       a violation of constitutional proportion and therefore
       reversible error.

Contrary to the court’s statement, however, this Court specifically held in
Padilla that the right of a self-represented defendant to personally conduct
cross-examination is not absolute. Id. at 267, ¶ 10.

¶7            Although the Confrontation Clause of the U.S. Constitution
provides a defendant the right to confront those who testify and to cross-
examine witnesses who testify against him, “denying a face-to-face
confrontation will not violate the Confrontation Clause when it is
‘necessary to further an important public policy’ and the reliability of the
testimony is otherwise assured.” Id. (quoting Maryland v. Craig, 497 U.S.
836, 850 (1990)). Consistent therewith, this Court stated:

       If the State believes that a defendant’s personal cross-
       examination of a witness would cause particular trauma to
       the witness, it can — consistent with the United States
       Constitution — present evidence that the trauma will occur
       and ask the trial court to make case-specific findings that will
       justify restricting the defendant from personally cross-
       examining the witness.

Id. at 270, ¶ 24; see also Craig, 497 U.S. at 855 (holding a state’s interest “in
the physical and psychological well-being of child abuse victims may be
sufficiently important to outweigh, at least in some cases, a defendant’s
right to face his or her accusers in court” and recognizing “the protection of
minor victims of sex crimes from further trauma and embarrassment is a
compelling one”) (quotation and citations omitted).

¶8             Because Simcox’s confrontation rights, even as a pro se
defendant, are not absolute, the trial court erred in concluding any
restriction of his right to personally cross-examine witnesses would be “a
violation of constitutional proportion” and “reversible error.” Given the
court’s inaccurate assessment of the law, we cannot conclude the court
considered whether the evidence of the risk of trauma was sufficient to
restrict Simcox’s right to personally cross-examine the Children. Therefore,
we vacate the trial court’s order and remand for redetermination. In doing
so, we reiterate this Court’s conclusion in Padilla that restricting a
defendant’s confrontation rights is significant and, to justify the restriction,
the State must make an individualized and case-specific showing that it is
necessary to protect the physical or psychological well-being of an alleged
minor victim. 237 Ariz. at 268-69, ¶¶ 15, 19.



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

II.    Burden of Proof

¶9             The State acknowledges it bears the burden of proving the
necessity of its requested accommodation, but correctly notes the standard
of proof it must meet in doing so has not been articulated in Arizona. We
address this issue because it is likely to arise on remand. See State v. Lopez,
234 Ariz. 465, 466, ¶ 1 (App. 2014). Our review of relevant U.S. Supreme
Court jurisprudence fails to illuminate any constitutionally mandated
standard of proof. See Craig, 497 U.S. at 855 (requiring the State to make
“an adequate showing of necessity in an individual case” before an
accommodation is granted); Coy v. Iowa, 487 U.S. 1012, 1021 (1988)
(requiring the State show “something more than the type of generalized
finding” of trauma to trigger a statutory accommodation for alleged minor
victims that would implicate Confrontation Clause concerns) (citing
Bourjaily v. United States, 483 U.S. 171, 183 (1987)).

¶10            Given the constitutional significance of limiting a defendant’s
right to confront witnesses face-to-face and a pro se defendant’s right to
personally cross-examine those witnesses, see Padilla, 237 Ariz. at 266-67,
269, ¶¶ 9, 19, we conclude the heightened standard of clear and convincing
evidence must apply. This is consistent with at least ten other states whose
statutorily crafted accommodations for minor victims of sexual crimes are
similar to A.R.S. § 13-4253 and require clear and convincing evidence of
harm be proffered by the State to establish the necessity of an
accommodation. See, e.g., Ark. Code Ann. § 16-43-1001(a)(1); Cal. Penal
Code § 1347(b)(2) (West); Conn. Gen. Stat. § 54-86g(a); Idaho Code Ann.
§ 9-1805(1)(a)-(b) (West); Kan. Stat. Ann. § 22-3434(b) (West); Mont. Code
Ann. § 46-16-229(1) (West); Nev. Rev. Stat. Ann. § 50.580(1) (West); N.Y.
Crim. Proc. Law § 65.10(1) (McKinney); Okla. Stat. tit. 12, § 2611.7(A); W.
Va. Code Ann. § 62-6B-3 (West).

¶11          Therefore, upon remand, the trial court must determine
whether the State has presented clear and convincing evidence of an
individualized and case-specific need for an accommodation as to each
minor victim witness.

III.   The Court’s Discretion             to   Impose     a    Closed-Circuit
       Accommodation

¶12         Finally, Petitioners argue the trial court abused its discretion
by imposing the closed-circuit television accommodation when no party
had requested it. Petitioners argue the language of A.R.S. § 13-4253




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

prohibits imposition of the statutory accommodation absent a motion
specifically invoking the statute. We disagree.

¶13           While Petitioners are correct that the accommodations
described in A.R.S. § 13-4253 are statutorily triggered “on motion of the
prosecution,” a trial court has considerable discretion to determine what
procedures are appropriate in a particular case, cf. State v. Ferrari, 112 Ariz.
324, 329 (1975) (holding the trial court acted within its discretion in varying
the order of proof) (citing United States v. Halpin, 374 F.2d 493, 495 (7th Cir.
1967), and State v. Cassidy, 67 Ariz. 48, 56-57 (1948)), even absent a specific
invocation of the statute. Arizona Rule of Evidence 611(a) empowers the
court to “exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to: (1) make those
procedures effective for determining the truth; (2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.” See also
Pool v. Superior Court, 139 Ariz. 98, 104 (1984) (holding Rule 611(a) “gives
the court discretion to determine and control the method of interrogation”);
Padilla, 237 Ariz. at 270, ¶ 24 (“If the State believes that a personal cross-
examination of a witness is intimidating or harassing the witness, it may
always ask the court to control the examination.”) (citing Ariz. R. Evid.
611(a)). The trial court is further mandated by statute to “provide
appropriate safeguards to minimize the contact that occurs between the
victim, the victim’s immediate family and the victim’s witnesses and the
defendant” during court proceedings. A.R.S. § 13-4431. This discretion
extends to the court’s consideration of how minor victim witnesses should
be accommodated following a proper request and presentation of evidence.

¶14          Accordingly, so long as sufficient evidence is presented to
support the ordered accommodation, see supra ¶¶ 8, 10, the trial court is not
bound by the specific requests of the parties and may order any procedure
necessary and appropriate under the specific circumstances presented,
whether provided for by statute, proposed by the parties, or otherwise.

                               CONCLUSION

¶15          The trial court erred in concluding it was per se
unconstitutional to restrict Simcox from personally cross-examining the
Children. Accordingly, we vacate the court’s order and remand for
redetermination consistent with this opinion. On remand, the court must
consider whether the State presented clear and convincing, individualized,
and case-specific evidence that the Children will suffer trauma if the court
does not restrict Simcox’s right to personally cross-examine them. If an
accommodation is supported by clear and convincing evidence, the trial


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

court has discretion to employ an accommodation it deems necessary to
protect the Children from suffering trauma. We leave to the trial court’s
discretion whether additional briefing, argument, or evidence is required
in redetermining the accommodation request.




                               :ama




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