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State ex rel. Montgomery v. Padilla

Court of Appeals of Arizona, First Division

December 8, 2015

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., mother of minor crime victim, Z.S., Petitioner,
v.
THE HONORABLE JOSE S. PADILLA, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, CHRIS ALLEN SIMCOX. Real Party in Interest

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

Maricopa County Attorney's Office, Phoenix, By Amanda M. Parker, Counsel for Petitioner State of Arizona.

Chris A. Simcox, Phoenix, Real Party in Interest.

Office of the Legal Defender, Phoenix, By Sheena Chawla, Robert S. Shipman, Advisory Counsel for Real Party in Interest.

Arizona Voice for Crime Victims, Tempe, By Colleen Clase, Counsel for A.S.

DeFusco & Udelman, PLC, Scottsdale, By Randall Udelman, Counsel for Amicus Curiae National Crime Victim Law Institute.

Judge Samuel A. Thumma delivered the opinion of the Court, in which Presiding Judge Jon W. Thompson and Chief Judge Michael J. Brown joined.

OPINION

Page 480

Samuel A. Thumma, Judge

[¶1] These consolidated special actions arise out of pretrial proceedings in a criminal case where Chris Simcox is charged with three counts of sexual conduct with a minor, two counts of child molestation and one count of furnishing harmful items to minors, alleged to have occurred at various times between April 2012 and May 2013. Accepting special action jurisdiction over both petitions, because the court did not properly apply Arizona Revised Statutes (A.R.S.) section 13-1421 (2015),[1] this court grants relief and remands

Page 481

for further proceedings consistent with this opinion. Because the court did not properly apply the Victims' Bill of Rights, Ariz. Const. art 2, § 2.1, (VBR) as implemented in the Victims' Rights Implementation Act (VRIA), A.R.S. § 13-4401, et seq., this court also grants relief on that basis and remands for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

[¶2] Z.S. and J.D. were approximately 8-years old at the time of the alleged offenses. The State challenges the superior court's application of A.R.S. § 13-1421(A) to statements made by Z.S. A.S., the mother and legal representative of Z.S., challenges the superior court's application of the VBR and the VRIA. The record generated at an evidentiary hearing addressing A.R.S. § 13-1421(A) provides much of the basis for both challenges.

[¶3] In a motion in limine, the State expressed concern that Simcox, who has elected to represent himself, would offer evidence at trial that Z.S. " has made prior allegations of sexual abuse against another individual." Citing A.R.S. § 13-1421(A),[2] the State sought to preclude any evidence or reference at trial " regarding alleged sexual activity between victim Z.S. and anyone other than" Simcox. Simcox countered that the statute was inapplicable because he intended to introduce evidence that Z.S. alleged an individual, referred to here as N., touched her inappropriately, arguing such evidence would constitute a third-party defense to ...


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