In Re Kalib A. ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 KALIB A.
No. 1 CA-JV 17-0429
FILED 2-27-2018
Appeal from the Superior Court in Yavapai County
No. P1300JV201700054
The Honorable Anna C. Young, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
COUNSEL
Law Office of Florence M. Bruemmer, PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant
Yavapai County Attorney’s Office, Prescott
By Amy C. Drew
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Patricia A. Orozco1 joined.
1 The Honorable Patricia A. Orozco, Retired Judge of the Arizona
Court of Appeals, Division One, has been authorized to sit in this matter
pursuant to Article VI, Section 3 of the Arizona Constitution.
IN RE KALIB A.
Decision of the Court
B R O W N, Judge:
¶1 Kalib A. appeals the juvenile court’s order adjudicating him
delinquent for arson of a structure or property, reckless burning, and
criminal damage, and the resulting disposition. He argues there was
insufficient evidence to find him delinquent or to support the court’s
restitution order. We affirm the delinquency adjudication but vacate the
restitution award and remand for reconsideration of the award.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On January 1, 2017, Kalib (age 12 at the time) and several
juveniles were “riding around” on their bikes and scooters at a park in
Prescott Valley when Kalib and at least one other boy, Jackson, decided to
retrieve Christmas trees from a nearby dumpster. They decided to drag one
of the trees into the park restroom and place it in a toilet, believing it was
“funny.” Eventually, either Kalib, Jackson, or both lit the tree on fire,
causing smoke to billow from the restroom and many of the juveniles to
scatter in various directions.
¶3 One of the juveniles ran up to Officer Hyde and his training
officer, who were sitting in their car near the park, and told them the
restroom was on fire. The officers drove through the north parking lot, ran
to the restroom, which was “billowing black smoke,” and unsuccessfully
attempted to put out the fire with a fire extinguisher. After firefighters
extinguished the fire, the officers talked to a man nearby, who gave them
“descriptions of the individuals there as far as a blue and black jacket, kids
on scooters, and who he saw on bikes.” Officer Cozens, provided with the
witness descriptions, searched for juveniles around the area and spotted
Kalib, who was riding away from the park on a bike. When Cozens stopped
him, Kalib explained that “he was there at the scene when the fire was
started” but that “another juvenile by the name of Jackson was the one that
started the fire.” The officers contacted Kalib’s father, detained Kalib, read
him his juvenile Miranda rights, and interviewed him. With his father
present, Kalib admitted his involvement in the fire, explaining he and
Jackson pulled the Christmas tree into the bathroom, but again denied
lighting the tree on fire.
¶4 The State filed a delinquency petition alleging Kalib
committed the offenses of (1) arson of a structure or property, a class 4
felony; (2) reckless burning, a class 1 misdemeanor; and (3) criminal
damage, a class 5 felony. The juvenile court held a contested adjudication
hearing on these allegations, and after photographs of the damaged
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IN RE KALIB A.
Decision of the Court
bathroom were presented and seven witnesses testified, including Kalib,
the court adjudicated him delinquent, finding the State met its burden of
proving beyond a reasonable doubt that Kalib committed the alleged
offenses and that he automatically violated his probation. The court then
held a disposition hearing, ordering Kalib to pay $7,088.48 in restitution in
full by August 31, 2019. This timely appeal followed.
DISCUSSION
¶5 When reviewing a challenge to the sufficiency of the evidence,
we do not reweigh the evidence but view it in the light most favorable to
upholding the adjudication. In re Kyle M., 200 Ariz. 447, 448-49, ¶ 6 (App.
2001). We will reverse for insufficient evidence only when there is a
“complete absence of probative facts to support a judgment or when a
judgment is clearly contrary to any substantial evidence.” Id.¶6 Kalib argues there was insufficient evidence for the juvenile
court to find him responsible beyond a reasonable doubt of the alleged
offenses. Specifically, Kalib contends there was insufficient evidence to
establish each offense because (1) “[t]he only evidence at trial that Kalib
caused the fire or had any involvement in starting the fire was” Jackson’s
testimony; (2) the other two juvenile witnesses either believed Jackson
started the fire or did not know who started it; and (3) Kalib, consistent with
what he told officers, testified that Jackson started the fire. Kalib also argues
there was insufficient evidence to establish that the damage to the park
restroom was more than $2,000.
¶7 To be held responsible for reckless burning, a person must
“recklessly caus[e] a fire . . . which results in damage to” a structure, and
for arson of a structure or property, a person must “knowingly and
unlawfully damag[e] a structure or property by knowingly causing a fire.”
Ariz. Rev. Stat. (“A.R.S.”) §§ 13-1702(A), -1703(A). Criminal damage
requires that a person “recklessly defac[e] or damag[e]” another’s property,
and is a class 5 felony if the amount of property damage is $2,000 or more
and less than $10,000. Id. § 13-1602(A)(1), (B)(3). A person can be held
responsible for these offenses as an accomplice, which is described as “one
who knowingly and with criminal intent participates, associates, or concurs
with another in the commission of a crime.” State v. McNair, 141 Ariz. 475,
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IN RE KALIB A.
Decision of the Court
480 (1984) (internal quotation and citation omitted); see also A.R.S. §§ 13-301
to -303.2
¶8 K.S., one of the juveniles at the park, testified that Kalib and
Jackson removed a Christmas tree from a nearby dumpster, and that Kalib,
when “Jackson was with him,” moved the tree to the restroom. Both had a
lighter and were “passing it back and forth,” and were joking about lighting
the tree on fire. Although unsure of who exactly started the fire, K.S. saw
Jackson trying to light the tree on fire and Kalib near the sink when he
walked by the restroom entrance; he also saw both of them leave once
“smoke started coming out.”
¶9 S.S., a friend of K.S. who was also at the park, testified that
both Kalib and Jackson moved a Christmas tree into the restroom. Kalib
had a black lighter and Jackson had a green lighter, and both ran out of the
restroom “together” when a “bunch of smoke” was in the restroom.
¶10 Jackson, who was also at the park, testified that he, S.S., and
Kalib moved Christmas trees to the “ramada,” a structure near the
bathroom, for jumping and playing “flat scoot and stuff like that.” He and
Kalib then decided to move a tree into the restroom—Kalib pulled the tree
inside and Jackson placed it in the toilet. After about an hour, Jackson, as
he was bringing a lighter to Kalib, but “before [he] could really say
anything,” saw Kalib light the tree on fire.
¶11 Officer Hyde testified that he was “made aware that [the
damage] was over $5,000.” Using 11 photographs, Hyde explained the
extent of the damage to the restroom: (1) smoke damage to the restroom’s
exterior and the male and female restrooms; (2) “physical damage” to a
door’s locking mechanism (firefighters “sledgehammered” the door so they
could access and turn off the electrical); (3) “bubbling” paint on the walls
and ceiling; (4) drywall damage in the men’s restroom (firefighters tore
down the drywall to access the “attic space” because the fire “burned
through the drywall”); (5) “major burn marks in the stall behind the urinal”
in the men’s restroom; (6) “major fire damage and boiling of the actual
partition” of the stall; and (7) possible “electrical damage.” He also testified
he saw “branches and small tree debris” in the men’s restroom stall where
the fire originated.
2 The State’s delinquency petition cited the accomplice liability
statutes, and during closing arguments, the State and Kalib’s attorney each
referred to Kalib’s liability as an accomplice.
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IN RE KALIB A.
Decision of the Court
¶12 On this record, we cannot say there are no probative facts to
support the juvenile court’s delinquency judgment or that its judgment is
clearly contrary to the evidence. The record shows that Kalib and Jackson
were accomplices; contrary to Kalib’s assertion, it does not matter that
Jackson was the only person who testified that Kalib started the fire. See
A.R.S. § 13-302 (“In any prosecution, testimony of an accomplice need not
be corroborated.”). And even assuming Jackson started the fire, Kalib
participated, associated, and concurred with him in committing each
offense. The record also shows, based on Hyde’s testimony and the 11
photographs, that the damage to the restroom was well over $2,000, and
that Kalib did not contest the State’s evidence regarding the amount of
damage. State v. Printz, 125 Ariz. 300, 301-02, 304-05 (1980) (explaining that
the jury could use “common sense” to determine the value of stolen
property and upholding conviction for attempted possession of stolen
property—a television—even though the only evidence was an officer’s
testimony about the price of similar television sets); State v. Brockell, 187
Ariz. 226, 227-29 (App. 1996) (declaring, in a criminal damage case, that the
trier of fact uses the “rule of reasonableness to the particular fact situation
presented” to determine the amount of damages, and that the defendant
may dispute the State’s method of calculation by presenting evidence of a
more reasonable calculation).
¶13 Kalib also argues the court committed fundamental error by
awarding any amount of restitution because the State failed to prove that
Kalib caused the damage to the restroom and failed to prove the amount of
restitution by a preponderance of the evidence.3 He requests that we vacate
the restitution order.
¶14 The juvenile court did not conduct a restitution hearing;
however, nothing in the record indicates that Kalib requested a hearing or
raised any objection to the restitution award. Thus, absent fundamental
error, Kalib waived his arguments regarding restitution on appeal. See In
re J.U., 241 Ariz. 156, 159, ¶ 8 (App. 2016).
¶15 When “a juvenile is adjudicated delinquent,” the juvenile
court is required to “order the juvenile to make full or partial restitution to
the victim of the offense for which the juvenile was adjudicated
delinquent.” A.R.S. § 8-344(A). When doing so, “[t]he court may consider
a verified statement from the victim . . . concerning damages for . . . loss of
3 Because we have concluded the evidence is sufficient to uphold the
court’s delinquency judgment, Kalib’s argument that he did not cause
damage to the restroom for the purpose of awarding restitution also fails.
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IN RE KALIB A.
Decision of the Court
property.” Id. § 8-344(B). The court “has discretion to set the restitution
amount according to the facts of the case in order to make the victim
whole,” but must ensure the “award consists of monies for economic losses
that flow directly from or are the direct result of the crime committed.” In
re Ryan A., 202 Ariz. 19, 24, ¶ 20 (App. 2002). A restitution order must be
based on facts that are established by a preponderance of the evidence, In
re William L., 211 Ariz. 236, 238, ¶ 6 (App. 2005), and will be upheld “if it
bears a reasonable relationship to the victim’s loss,” Ryan A., 202 Ariz. at
24, ¶ 20.
¶16 Here, the juvenile court fundamentally erred in setting the
restitution amount because the record lacks any supporting evidence for
the court to determine the ordered amount of restitution. See A.R.S.
§ 8-344(C) (“The court shall determine the amount of restitution ordered
pursuant to this subsection . . . .”); J.U., 241 Ariz. at 159, ¶ 9 (“A restitution
order that is not supported by statutory authority is fundamental,
prejudicial error.”); State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002)
(“Imposition of an illegal sentence constitutes fundamental error.”). The
only information in the record to support the ordered amount of restitution
is the probation officer’s disposition report, which states that a victims’
rights coordinator emailed the Prescott Valley Town Clerk “regarding
restitution in this case,” and that the clerk “advised” that Prescott Valley
was “requesting restitution for $7,088.48.”4 The report then explained that
it did not include the victim’s statement because the victims’ rights
coordinator “was unable to make contact with the victim” before the
probation officer submitted the report. The photographs and Officer
Hyde’s testimony, although enough to support the conclusion that the
amount of damages was over $2,000, see supra ¶ 12, are not enough to
support a $7,088.48 restitution award, especially in the absence of a verified
statement from the victim.
¶17 Without supporting evidence, no “reasonable relationship”
exists between the victim’s loss and the $7,088.48 award, and there is no
way of knowing whether this amount consisted of monies that flowed only
from the direct result of Kalib’s adjudicated crimes. See In re Alton D., 196
Ariz. 195, 197, ¶ 9 (2000) (“Before the court can impose an order of
restitution, a victim must present evidence to establish that the victim’s loss
4 In its answering brief, the State asserts that it provided the juvenile
court with a “packet of documentation submitted by the Victim, including
receipts, which outlines the costs of the repairs to the restrooms.” But no
such information appears in the record before us.
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IN RE KALIB A.
Decision of the Court
relates directly to the juvenile’s offense and to provide a basis for setting an
amount that is not speculative.” (internal citation omitted)).
¶18 Accordingly, we vacate the restitution award. See State v.
Stutler, 243 Ariz. 128, 131, ¶ 8 (App. 2017) (finding sufficient evidence to
uphold restitution award, despite no “documentary evidence” from the
victim, because the victim’s testimony and loss affidavit supported the
amount of the restitution award); In re Michelle G., 217 Ariz. 340, 343-44,
¶¶ 12-14, 16 (App. 2008) (vacating restitution award where prosecutor
never requested restitution or submitted a victim’s restitution affidavit
until after the court issued a final disposition order). On remand, the
juvenile court shall conduct the proceedings it deems necessary to receive
evidence from the victim that provides adequate support for a restitution
award. See State v. Richards, 166 Ariz. 576, 579 n.1 (App. 1990) (noting that
the court can consider additional evidence in resentencing hearing); see also
State v. Fancher, 169 Ariz. 266, 268 (App. 1991) (“The determination of the
amount of restitution is part of the sentencing function of the court . . . .”).
CONCLUSION
¶19 We affirm the juvenile court’s delinquency order. We vacate,
however, the $7,088.48 restitution award and remand for further
proceedings consistent with this decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
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