In Re Delinquency of B.S. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 DELINQUENCY OF B.S.
No. 1 CA-JV 23-0153
FILED 12-21-2023
Appeal from the Superior Court in Yavapai County
No. S1300JV202300147
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Law Office of Florence M. Bruemmer PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant
Yavapai County Attorney’s Office, Prescott
By Danalyn Savage
Counsel for Appellee
IN RE DELINQUENCY OF B.S.
Decision of the Court
MEMORANDUM DECISION
Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Maria Elena Cruz joined.
C A T L E T T, Judge:
¶1 B.S. appeals the superior court’s judgment finding him
delinquent for disorderly conduct and threatening or intimidating, each a
class one misdemeanor. B.S. argues the evidence was insufficient to
support a finding of delinquency beyond a reasonable doubt. We disagree
and affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In March 2023, B.S. confronted E.P., another juvenile,
regarding court fees B.S. thought his mother had to pay because of E.P. B.S.
was subsequently charged with two class one misdemeanors—disorderly
conduct under A.R.S. § 13-2904(A)(1) and threatening or intimidating
under A.R.S. § 13-1202(A)(1).
¶3 The superior court held a delinquency adjudication hearing.
E.P. testified he was riding his bike home from school when B.S.
approached and told E.P. he was “going to pay for what [E.P.] did to [B.S.’s]
mom[.]” B.S. then partially pulled an Airsoft gun out of his jacket such that
E.P. could see the handle. E.P. testified he did not know it was an Airsoft
gun at the time; he thought it was a real gun and was “terrified” he was
going to “get shot in the back of [his] head or [his] back” as he rode off. E.P.
rode away and called his grandmother, who testified E.P. was “hysterical”
on the phone, so she sent E.P.’s brother, F.P., to check on him. F.P.
confirmed that E.P. had been crying and looked frightened when F.P. found
him. F.P. then went to the school, confronted B.S., and asked him if he
threatened E.P. B.S. denied threatening E.P. F.P. also testified he saw the
Airsoft gun “hanging out” of B.S.’s pocket.
¶4 B.S. testified in his own defense. He testified that he
approached E.P. as he was riding home from school and asked him if he
was “the one that cost [B.S.’s] mom money.” B.S. then told E.P. to “get your
sped ass back on the bike,” at which point E.P. left. B.S. admitted he had
the Airsoft gun with him, but he denied showing it to E.P. and denied
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IN RE DELINQUENCY OF B.S.
Decision of the Court
saying anything else. B.S.’s friend and sister were with B.S. during the
exchange; both testified consistent with B.S.’s account of the interaction.
¶5 The superior court concluded E.P. saw the Airsoft gun
because “[t]here’s no way that [E.P.] and [F.P.] knew that there was a gun
unless they actually saw that the gun was there, and the defense witnesses
have acknowledged that the gun was there.” The court also found that B.S.
initiated the contact with E.P. and “made a really kind of mean, awful
remark to” E.P. The court found the State met its burden on both counts
and adjudicated B.S. delinquent.
¶6 B.S. timely appealed. We have jurisdiction. See A.R.S. §§ 8-
235(A), 12-120.21(A)(1).
DISCUSSION
¶7 We review a superior court’s adjudication of juvenile
delinquency for an abuse of discretion. In re Miguel R., 204 Ariz. 328, 331
¶ 3 (App. 2003). In reviewing the sufficiency of the evidence, we consider
whether the evidence presented, when viewed in the light most favorable
to sustaining the delinquency adjudication, would allow the court to find
beyond a reasonable doubt that the juvenile committed the essential
elements of the offense. In re Dayvid S., 199 Ariz. 169, 170 ¶ 4 (App. 2000).
“[W]e will not reweigh the evidence or consider the credibility of witnesses
on appeal.” In re James P., 214 Ariz. 420, 425 ¶ 24 (App. 2007); In re John M.,
201 Ariz. 424, 426 ¶ 7 (App. 2001). And “we will only reverse on the
grounds of insufficient evidence if there is a complete absence of probative
facts to support the judgment or if the judgment is contrary to any
substantial evidence.” In re John M., 201 Ariz. at 426 ¶ 7. We review
questions of law de novo. Id.
I. Disorderly Conduct
¶8 B.S. first argues there was insufficient evidence that B.S.
disturbed E.P.’s peace. “A person commits disorderly conduct if, with
intent to disturb the peace or quiet of a . . . person, or with knowledge of
doing so, such person . . . [e]ngages in . . . seriously disruptive behavior[.]”
A.R.S. § 13-2904(A)(1). When a specific victim is named in a charge under
§ 13-2904(A)(1), the State must prove that the victim’s peace was actually
disturbed by “‘seriously disruptive behavior’ . . . of the same general nature
as fighting or violence or conduct liable to provoke that response in others
and thus to threaten the continuation of some event, function, or activity.”
In re Julio L., 197 Ariz. 1, 3–4 ¶¶ 8, 11 (2000).
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IN RE DELINQUENCY OF B.S.
Decision of the Court
¶9 The record contains sufficient evidence to find B.S. engaged
in disorderly conduct as to E.P.
¶10 To begin, sufficient evidence established that the interaction
with B.S. disturbed E.P.’s peace. E.P. testified that B.S. approached him and
partially pulled an Airsoft gun out of his jacket. E.P. stated he was
“terrified” thinking the Airsoft gun was a real gun and concerned he was
going to “get shot in the back of [his] head or [his] back” as he rode off.
Both E.P.’s brother and grandmother separately testified about E.P.’s
reaction, detailing that he was hysterical, crying, and that he looked
frightened.
¶11 B.S., however, argues the delinquency adjudication was
insufficiently supported because there are “other simple explanations” for
the evidence. B.S. argues the court incorrectly found he brandished a
weapon when only E.P. testified to that fact. B.S. maintains there were other
“explanations for how E.P. could have known that B.S. had an Airsoft gun
without B.S. having shown it to E.P. during their interaction.” B.S. similarly
argues his statement regarding his mother’s court costs was benign and
misconstrued by the juvenile court because “it was conclusively tied by the
. . . court with the ‘brandishing’ of the air gun[.]”
¶12 We are not persuaded that there was insufficient evidence.
B.S. asks us, on appeal, to reweigh the evidence in favor of “other simple
explanations” and to discount E.P.’s credibility in favor of other witnesses.
We can do neither. See In re James P., 214 Ariz. 420, 425 ¶ 24 (App. 2007)
(“[W]e will not reweigh the evidence or consider witness credibility on
appeal.”). The juvenile court found E.P. saw the Airsoft gun during their
interaction, and there is sufficient evidence in the record to support that B.S.
showed it to E.P. B.S.’s conduct as recounted by the victim—confronting
and threatening E.P. while brandishing a weapon—was sufficient to
support the juvenile court’s conclusion that B.S. disturbed E.P.’s peace.
II. Threatening or Intimidating
¶13 B.S. also argues the juvenile court erred in finding that he
threatened or intimidated E.P. “A person commits threatening or
intimidating if the person threatens or intimidates by word or conduct . . .
[t]o cause physical injury to another person[.]” A.R.S. § 13-1202(A)(1). The
statute requires the accused to make a “true threat” to the victim. In re Kyle
M., 200 Ariz. 447, 451–52 ¶ 23 (App. 2001). A statement is a “true threat” if
made “in a context or under such circumstances wherein a reasonable person
would foresee that the statement would be interpreted by those to whom the
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IN RE DELINQUENCY OF B.S.
Decision of the Court
maker communicates the statement as a serious expression of an intention
to inflict bodily harm upon or to take the life of a person.” In re Ryan A.,
202 Ariz. 19, 22 ¶ 11 (App. 2002) (quoting Kyle M., 200 Ariz. at 451 ¶ 21)
(internal punctuation omitted).
¶14 B.S. argues the juvenile court’s adjudication is unsupported
by substantial evidence because “[t]he only statement that all witnesses
agreed B.S. made was about the court fees that E.P. had cost B.S.’s mom,”
and “the State failed to prove beyond a reasonable doubt that B.S. ever
touched or pulled out the gun during his interaction with E.P.” But,
contrary to that argument, substantial evidence does not require unanimity
of testimony. Instead, we “will only reverse on the grounds of insufficient
evidence if there is a complete absence of probative facts to support the
judgment or if the judgment is contrary to any substantial evidence.” John
M., 201 Ariz. at 426 ¶ 7. There was substantial evidence that B.S. showed
E.P. the Airsoft gun. All witnesses agreed B.S. was carrying the Airsoft gun,
and the evidence presented that B.S. did not show it to E.P. conflicted with
E.P.’s testimony. Moreover, E.P. testified that B.S. said E.P. was “going to
pay for what he did to [B.S.’s] mom.” E.P. also testified that, when the
interaction occurred, E.P. thought the Airsoft gun was a real gun. With that
testimony in the record, we cannot conclude that there was a complete
absence of probative facts supporting the juvenile court’s conclusions.
CONCLUSION
¶15 We affirm the juvenile court’s delinquency adjudication.
AMY M. WOOD • Clerk of the Court
FILED: AA
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