Court of Appeals of Arizona, Second Division, Department B
August 26, 2013
THE STATE OF ARIZONA, Appellee,
CARLOS GERMAN MENDEZ JR., Appellant.
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY Cause No. CR201000902 Honorable Wallace R. Hoggatt, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and David A. Sullivan Tucson Attorneys for Appellee
Janelle A. Mc Eachern Chandler Attorney for Appellant
PETER J. ECKERSTROM, Judge
¶1 Appellant Carlos Mendez had a sexual relationship with thirteen-year-old E.H. and took her with him to Mexico. As a result, he was charged with one count of custodial interference in violation of A.R.S. § 13-1302(A)(1) and seven counts of sexual conduct with a minor. Pursuant to a plea agreement, Mendez was convicted of custodial interference and placed on intensive supervised probation for five years. In this appeal, he challenges the trial court's order revoking probation based on his having had contact, including additional sexual contact, with E.H.
¶2 Condition one of the Uniform Conditions of Supervised Probation states the probationer agrees to "maintain a crime-free lifestyle by obeying all laws, and not engaging or participating in any criminal activity." Condition nineteen states the probationer agrees not to have "any contact with the victim(s) in any form, unless approved . . . by the [Adult Probation Department]." In the amended petition to revoke probation, the state alleged Mendez had violated conditions of probation by (1) having contact with "the minor victim, in violation of Condition Number 19"; (2) committing the offense of luring a minor for sexual exploitation, the victim of which was also the "minor victim in the instant offense" in violation of conditions one and nineteen; and (3) committing the offense of sexual conduct with a minor, again involving the same "minor victim in the instant offense, " in violation of conditions one and nineteen.
¶3 The state is required to establish the probationer violated conditions of probation by a preponderance of the evidence. Ariz. R. Crim. P. 27.8(b)(3). We will not disturb a trial court's finding of a violation "unless it is arbitrary or unsupported by any theory of evidence." State v. Moore, 125 Ariz. 305, 306, 609 P.2d 575, 576 (1980); see also State v. Thomas, 196 Ariz. 312, ¶ 3, 996 P.2d 113, 114 (App. 1999). Except in limited circumstances, "the revocation of probation has always been deemed to lie within the sound discretion of the trial court." State v. Sanchez, 19 Ariz.App. 253, 254, 506 P.2d 644, 645 (1973); see also A.R.S. § 13-917(B) (trial court may revoke probation any time before expiration of the probationary period and impose prison term authorized by law).
¶4 The probation officer testified at the revocation hearing that she had reviewed the conditions of probation with Mendez when his probationary period began. In discussing the condition prohibiting him from having contact with the victim, they had identified the victim of the offense for which he was being placed on probation as E.H. The probation officer further testified she had received documents from E.H.'s account with the online social network Facebook showing she was having contact with an individual using the name "Carlos Chito." Mendez admitted to the officer that he used that name on Facebook. The officer identified Mendez in the photograph associated with the "Carlos Chito" account and stated that other factors also identified Mendez as the account holder, including references to his car breaking down, his fixing it, and his birthday. Mendez also had admitted to the Sierra Vista Police Detective that the Facebook account in the name of "Carlos Chito" was his.
¶5 The police detective also testified E.H. had reported to him she had engaged in sexual intercourse with Mendez on one occasion just before the Facebook contact was discovered. He identified portions of the Facebook communications that related to this sexual contact. And he gave corroborating information about the location where the two had engaged in intercourse.
¶6 At the end of the hearing, the trial court made extensive factual findings. It also rejected Mendez's legal argument, which he again asserts on appeal, that there was insufficient evidence to support the revocation of his probation because he had pled guilty to custodial interference and E.H.'s parents, not her, were the victim of that offense; therefore, when he was prohibited from having contact with "victim(s)" as provided in condition nineteen of the conditions of probation, he was not being prohibited from having contact with E.H.
¶7 As the state asserts in its answering brief, we need not address whether Mendez's technical interpretation of § 13-1302(A)(1) to include only the parents of a child as the victims of such an offense was correct. Even assuming arguendo E.H. could not be regarded as the victim of the offense of custodial interference, the record established Mendez knew he was not to have any contact with E.H. As the trial court found in rejecting Mendez's strict reading of the statute, Mendez knew at the change-of-plea hearing and at sentencing that E.H. was referred to as the victim. And as we noted above, the probation officer made clear to Mendez he was to have no contact with E.H. Moreover, as the state points out, the evidence established, and the court found, Mendez had committed a new offense by engaging in sexual intercourse with E.H. on one occasion as alleged in count three of the amended petition. Mendez thereby violated condition one of the terms of his probation, which required him to live a law-abiding life and not commit additional crimes.
¶8 Based on the record before us, there was ample evidence supporting the trial court's finding that Mendez violated the conditions of probation as alleged in counts one and three of the amended petition to revoke. In so concluding, the court expressly rejected most of E.H.'s testimony as not credible, but found credible her statement about having engaged in sexual intercourse with Mendez on June 7, 2012. The court refused to make a finding on count two because of E.H.'s questionable credibility. On this record, we cannot say the trial court abused its discretion. And with respect to its factual findings, we defer to that court, because it is in the best position to judge the credibility of witnesses and weigh evidence accordingly. Thomas, 196 Ariz. 312, ¶ 3, 996 P.2d at 114.
¶9 Because we see no error, we affirm the revocation of Mendez's probation and the prison term imposed.
CONCURRING: VIRGINIA C. KELLY, Presiding Judge PHILIP G. ESPINOSA, Judge