In Re J.U. ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
IN RE J.U.
No. 2 CA-JV 2016-0064
Filed November 2, 2016
Appeal from the Superior Court in Cochise County
No. JV201500109
The Honorable Karl D. Elledge, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Brian M. McIntyre, Cochise County Attorney
By Nancy J. Galey, Deputy County Attorney, Sierra Vista
Counsel for State
Emily Danies, Tucson
Counsel for Minor
OPINION
Chief Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Brammer1 concurred.
1 The Hon. J. William Brammer, Jr., a retired judge of this
court, is called back to active duty to serve on this case pursuant to
orders of this court and our supreme court.
IN RE J.U.
Opinion of the Court
E C K E R S T R O M, Chief Judge:
¶1 J.U. and two other juveniles telephoned two schools and
threatened them with a “terrorist attack,” resulting in the evacuation
and closure of the schools. After an adjudication hearing on a
forty-eight count, amended delinquency petition, the juvenile court
found J.U. had committed all but eight of the charges. On appeal,
J.U. challenges the court’s restitution order, entered after a combined
restitution and disposition hearing. We vacate a portion of the
restitution order and affirm the remainder for the reasons that
follow.
¶2 We view the evidence presented at the adjudication and
restitution hearings in the light most favorable to sustaining the
juvenile court’s rulings. See In re Andrew C., 215 Ariz. 366, ¶ 6, 160
P.3d 687, 688 (App. 2007); In re James P., 214 Ariz. 420, ¶ 2, 153 P.3d
1049, 1051 (App. 2007). On August 26, 2015, J.U. and two other high
school students called two Douglas schools using a cell phone in
Mexico. In both instances, the caller left a recorded message that
school personnel received the next day, stating he would “be doing
[a] terrorist attack” and that the school must be closed for
seventy-two hours. On August 27, the students called the schools a
second time, pointing out one of the schools had not closed as
directed and stating, “I am not playing games, with you, do not play
games with me, please I do not want to harm the children or the
teachers.” The Douglas Police Department (DPD) responded to the
initial calls, evacuated and searched the schools for firearms or
explosive devices, and investigated the threats. As a result of the
investigation, J.U. was charged with multiple offenses.
¶3 After an adjudication hearing, the juvenile court found
J.U. delinquent and that the state had proved beyond a reasonable
doubt multiple counts of the following offenses: threatening or
intimidating; conspiracy to commit threatening or intimidating; use
of an electronic communication to terrify, intimidate, or harass;
conspiracy to commit use of an electronic communication to terrify,
intimidate, or harass; false reporting by initiating a report of a
bombing, fire, offense, or other emergency; interference with or
disruption of an educational institution; and conspiracy to commit
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IN RE J.U.
Opinion of the Court
interference with or disruption of an educational institution.
Relevant to this case, the court found J.U. responsible on eight
counts of false reporting under A.R.S. § 13-2907: two violations of
§ 13-2907(A)(1) and two violations of § 13-2907(A)(3), committed on
August 26, and the same violations of these subsections on
August 27. Under § 13-2907(A)(1) a person commits false reporting
“by initiating or circulating a report of a bombing, fire, offense or
other emergency knowing that such report is false and intending” to
“cause action of any sort by an official or volunteer agency
organized to deal with emergencies.” Under § 13-2907(A)(3) a
person commits the offense by committing the same conduct,
intending to “prevent or interrupt the occupation of any building,
room, place of assembly, public place or means of transportation.”
¶4 At a subsequent restitution hearing, the state presented
general claims for restitution on behalf of the schools and DPD and
requested restitution pursuant to § 13-2907 for the expenses DPD
had incurred investigating and responding to the false report of a
terrorist attack. The statute imposes liability on a person who
commits the offense of false reporting for an agency’s
emergency-response or investigation expenses, authorizing the
juvenile court to order a juvenile to pay this amount as restitution.
§ 13-2907(B).
¶5 Kraig Fullen, DPD’s chief of police, testified at the
restitution hearing that his agency was requesting $5,957.21 for
emergency response to and investigation of the offense, explaining
the supporting documentation admitted as an exhibit.2 The exhibit
shows both regular hours and overtime paid for officers related to
those efforts. He also testified the officers had been required to
travel to attend court hearings in Sierra Vista and requested
reimbursement for mileage DPD paid for those trips.
2Although the transcript suggests the police chief requested
$10 more at the restitution hearing, his request clearly was based on
DPD’s statement of loss, and the juvenile court ultimately awarded
the $5,957.21 requested in that document.
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IN RE J.U.
Opinion of the Court
¶6 J.U. concedes that after reducing portions of the
amounts the schools requested, the juvenile court entered
appropriate restitution awards to each. He contends the court erred,
however, when it awarded DPD the full $5,957.21 requested
pursuant to § 13-2907. J.U. argues the statute does not contemplate
awarding an agency investigative costs after the emergency has
ended, which he claims it had by August 31, 2015, the date he
contends Fullen testified an emergency no longer existed. J.U. asks
this court to “interpret the statute strictly and hold that only direct
costs related to the immediate response and investigation are
recoverable and that expenses attributable to an ongoing
investigation and prosecution after the emergency passes are too
attenuated and thus, unrecoverable.” He insists the order must be
reduced by $5,061.63, which is the total amount for time DPD
officers expended on the case during their regular working hours,
overtime hours, and mileage DPD paid for its officers’ travel to and
from the court for court hearings.
¶7 J.U. asserts he “timely objected to expenses incurred
after the emergency response had ended.” The portion of the
transcript he cites, however, does not support this contention. It
shows he objected during the state’s direct examination of Fullen
about reimbursement of DPD for the cost of having officers attend
hearings, which, as discussed below, was part of the general
restitution claimed by DPD as a victim. J.U.’s counsel stated, “I
think the statute says that the Court may impose for costs of the
emergency response, but that’s all the statute says.” When the court
responded that it did not understand the objection, counsel stated,
“The objection would be relevance” because the police chief
intended to request reimbursement for the cost of gas to travel to
and from court hearings in Sierra Vista. The court overruled the
objection.
¶8 During closing arguments, the prosecutor appeared to
respond to J.U.’s earlier objection by asserting § 13-2907 does not
limit compensable expenses to those incurred by an agency in
responding to the emergency; rather, it includes the cost of
investigating the false report as well. J.U.’s only response to the
state’s closing argument was to ask the juvenile court not to require
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IN RE J.U.
Opinion of the Court
J.U.’s parents to pay the restitution. Counsel then expressly
submitted the matter to the court. Having failed to preserve the
argument he now raises on appeal as to investigative costs beyond
those incurred responding to an emergency, J.U. has forfeited the
right to seek relief for all but fundamental, prejudicial error. See
State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08
(2005).
¶9 A restitution order that is not supported by statutory
authority is fundamental, prejudicial error. See State v. Whitney, 151
Ariz. 113, 115, 726 P.2d 210, 212 (App. 1985). To determine whether
this restitution order was unlawful, we must interpret and
determine the proper application of § 13-2907, a question of law that
we review de novo. See In re Casey G., 223 Ariz. 519, ¶ 1, 224 P.3d
1016, 1017 (App. 2010). “In interpreting a statute, we must ascertain
and give effect to the legislature’s intent in enacting it.” In re C.D.,
240 Ariz. 240, ¶ 6, 377 P.3d 1034, 1036 (App. 2016). “The best
indicator of that intent is the language of the statute itself.” Id.,
quoting Casey G., 223 Ariz. 519, ¶ 2, 224 P.3d at 1017.
¶10 Section 8-344(A), A.R.S., the general restitution statute
applicable to juvenile proceedings, provides that when “a juvenile is
adjudicated delinquent, the court . . . shall order the juvenile to make
full or partial restitution to the victim of the offense for which the
juvenile was adjudicated delinquent.” Section 13-2907(B) is a more
specific statute pertaining to compensation of an agency as a result
of false reporting; it states that a person convicted of that offense “is
liable for the expenses that are incurred incident to the emergency
response or the investigation of the commission of false reporting.”
When the person who commits the offense is a juvenile, however,
§ 13-2907(B) permits the court to “order the juvenile to pay the
expenses incurred under this subsection as restitution.”
¶11 The statute defines “[e]xpenses” as “any reasonable
costs that are directly incurred by a public agency . . . that makes an
appropriate emergency response to an incident or an investigation
of the commission of false reporting.” § 13-2907(D)(1). The statute
also specifies that “[e]xpenses include[] the costs of providing police,
fire fighting, rescue and emergency medical services at the scene of
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IN RE J.U.
Opinion of the Court
an incident and the salaries of the persons who respond to the
incident.” Id.
¶12 The plain language of § 13-2907 permits a juvenile court
to order a juvenile who has been adjudicated delinquent to pay the
costs specified in the statute as part of a restitution order. See 2005
Ariz. Sess. Laws, ch. 83, § 1; see also S. Fact Sheet for S.B. 1031, 47th
Leg., 1st Reg. Sess. (Ariz. Feb. 23, 2005) (explaining bill passed by
Senate Feb. 22, 2005, intended to permit courts to “[r]equire[] a
person who is convicted of false reporting to pay the costs incurred
in responding to and investigating the emergency”; permitting but
not requiring juvenile court to order juvenile to pay expenses as part
of restitution); H. Summary of S.B. 1031, 47th Leg., 1st Reg. Sess.
(Ariz. Apr. 15, 2005) (summarizing bill transmitted to Governor)
(amending statute expressly to “[a]llow[] the court to order a
juvenile adjudicated delinquent for false reporting to pay expenses
incurred as a result of the false reporting as restitution”). Nothing in
the statute limits the investigation costs to those incurred only while
an emergency continues to exist.3
¶13 Moreover, although J.U. asserts Fullen testified the
emergency had ended by August 31, that was not the testimony.
Fullen was asked whether there was an emergency on August 31,
and he responded, “A direct emergency, no.” Upon further
questioning by the court, Fullen clarified sweeps of the school were
conducted on that date and that the investigation continued on
September 2 and 3.
¶14 J.U. suggests that case law interpreting the general
restitution statute, A.R.S. § 13-603, provides guidance in determining
whether an expense may be regarded as “directly related” to the
investigation. J.U. urges us to rely in particular on State v. Guilliams,
208 Ariz. 48, 90 P.3d 785 (App. 2004). There, this court rejected the
defendant’s argument that the crime of escape was a “victimless
3To the extent J.U. contends that restitution is not recoverable
for “officers . . . who[] . . . would have worked normal hours
whether or not there was an emergency response,” this argument is
foreclosed by the text of the statute.
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IN RE J.U.
Opinion of the Court
crime” for purposes of § 13-603(C) and the Arizona Department of
Corrections (ADOC) was not a victim entitled to restitution. 208
Ariz. 48, ¶¶ 11, 15, 90 P.3d at 789-90. We granted the defendant
partial relief, however, because the limited record suggested some of
the damages included in the restitution order did not appear to
represent direct economic losses but rather non-compensable,
consequential damages. Id. ¶¶ 18-27.
¶15 Unlike the general restitution statute addressed in
Guilliams, the language of § 13-2907(B) expressly imposes liability for
two specific kinds of readily identifiable expenses: those incurred
from an agency’s response to an emergency and those incurred in
investigating the false report that created the emergency. We
therefore see no error, much less fundamental error, in the juvenile
court’s order requiring J.U. to pay costs that, based on the evidence
presented at the adjudication and restitution hearings, were a direct
result of the response to the report of a possible terrorist attack at the
schools and the investigation into that report.4
¶16 Finally, J.U. contends the juvenile court erred by
including in the restitution award to DPD the $570 in mileage it paid
for twelve officers to travel to and from court to testify in three
hearings in this matter. Arguing the award was improper under
§ 13-2907, he asserts summarily, but correctly, that the mileage was
“not associated with any emergency response or investigation but
only with J.U.’s prosecution.” But the court did not award the
4J.U. also suggests some of the investigative costs were part of
the costs of prosecution, which he insists are not compensable. But
the record shows that although DPD continued to work on the case
after September 3, 2015, and documented time spent through the
adjudication hearing in March 2016, it sought restitution under
§ 13-2907 only for those expenses directly incurred in responding to
the emergency and investigating the terrorist threat through
September 3, 2015, when it determined the identity of all three
perpetrators and initially gathered evidence. That the initial
investigation also assisted the prosecution of J.U. and the other
students does not change the fact that those actions qualified for
restitution under the express terms of the statute.
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IN RE J.U.
Opinion of the Court
mileage expenses pursuant to § 13-2907. Rather, as the state
observed in its answering brief, it awarded them instead under the
general restitution statutes, A.R.S. §§ 13-105(16) and 13-603(C).
¶17 In his reply brief, J.U. counters that the mileage award
was not appropriate under those statutes either. He asserts the
officers did not appear in court in their individual capacity, they are
not individual victims, and law enforcement agencies are not, in any
event, victims “within the meaning of” § 13-603(C).
¶18 We generally decline to address issues that are not
argued adequately, with appropriate citation to supporting
authority. See Ariz. R. Civ. App. P. 13(a)(7) (requiring appellant’s
brief to contain supporting legal authority and reasons for each
contention); Ariz. R. P. Juv. Ct. 106(A) (applying ARCAP 13 to
juvenile appeals); cf. State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830,
838 (1995) (claims waived for insufficient argument on appeal).
Similarly, we typically do not consider arguments raised for the first
time in a reply brief. See State v. Brown, 233 Ariz. 153, ¶ 28, 310 P.3d
29, 39 (App. 2013). But again, an improper restitution order is
fundamental error. See Whitney, 151 Ariz. at 115, 726 P.2d at 212.
And we conclude this portion of the order was erroneous.
¶19 “Restitution is appropriate for those losses that (1) are
economic, (2) would not have occurred but for the juvenile’s
delinquent conduct, and (3) are directly caused by the delinquent
conduct (e.g. not consequential damages).” Andrew C., 215 Ariz. 366,
¶ 9, 160 P.3d at 689; cf. State v. Wilkinson, 202 Ariz. 27, ¶ 7, 39 P.3d
1131, 1133 (2002) (stating criteria for restitution payment by adult
upon conviction). At the restitution hearing and in its order, the
juvenile court articulated these factors in determining whether
claimed losses were economic losses and therefore compensable
under § 8-344(A). It concluded mileage is an “out of pocket cost[]”
that qualifies as an economic loss under § 8-344(A) and ordered J.U.
to pay mileage for two witnesses who had appeared on behalf of the
schools and mileage DPD paid for twelve officers to appear at three
court hearings.
¶20 We first reject J.U.’s contention in his reply brief that
DPD is not a victim for purposes of restitution. In Guilliams, we
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IN RE J.U.
Opinion of the Court
rejected the defendant’s argument that ADOC was not a victim of
the offense of escape for purposes of § 13-603(C). 208 Ariz. 48, ¶ 15,
90 P.3d at 790. Based on the same reasoning, DPD was a victim
here. Moreover, DPD was a victim of the false reporting counts
based on the plain language of § 13-2907(A)(1). It was the “official
. . . agency organized to deal with emergencies” that was compelled
to act because of the threatened attack of the two schools.
§ 13-2907(A)(1).
¶21 Expenses incurred by a victim to attend trial generally
are considered an economic loss for purposes of general restitution
statutes. See State v. Madrid, 207 Ariz. 296, ¶ 10, 85 P.3d 1054, 1058
(App. 2004) (finding travel expenses incurred by murder victim’s
children to attend trial “constitute an economic loss for which they
are entitled to restitution”). Nevertheless, the juvenile court erred in
ordering J.U. to pay DPD for the officers’ mileage.5
¶22 In Guilliams, we adopted the “modified but for”
standard utilized by the First Circuit Court of Appeals for
determining whether losses are direct or consequential, an inquiry to
be made on a case-by-case basis considering the reasonableness of
the expenses. 208 Ariz. 48, ¶ 18, 90 P.3d at 790-91, quoting United
States v. Vaknin, 112 F.3d 579, 589-90 (1st Cir. 1997). Addressing the
issue of what constitutes an economic loss when the victim is a
governmental entity, we “decline[d] to construe the restitution laws
to encompass costs incurred by [such] entities that are performing
their routine functions, regardless of whether those costs can be
traced back to a criminal act.” Id. ¶ 23. We stated in a footnote that
we would leave to the “trial court’s sound discretion the task of
determining whether and to what extent travel costs are justifiable
and amenable to restitution under the guidelines” we established in
that case. Id. n.4.
5Because the issue was not raised here, we decline to address
whether due process principles provide any limitation on a state’s
authority to shift to criminal defendants traditional
prosecution-related costs incurred by public officers.
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IN RE J.U.
Opinion of the Court
¶23 We need not remand the issue to the juvenile court
here, however. The mileage paid for the officers was not a “cost[] . .
. beyond the normal costs of operating” DPD. Id. ¶ 21. Applying
the test we articulated in Guilliams, we conclude the mileage was an
expense incurred as part of the routine functioning of DPD, like any
law enforcement agency, of having its officers testify in criminal
proceedings in connection with the prosecution of a criminal
offense. Thus, in the absence of a statute expressly permitting these
kinds of routine prosecution expenses as part of a restitution order,
see, e.g., Idaho Code § 37-2732(k), they do not constitute an economic
loss for purposes of general restitution statutes.
¶24 We affirm the juvenile court’s order adjudicating J.U.
delinquent and the disposition. We vacate the portion of the
restitution order requiring J.U. to pay DPD $570 for its officers
traveling to and from court, but affirm the order in all other respects.
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