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In re J.U.

Court of Appeals of Arizona, Second Division

November 2, 2016

In re J.U.

         Appeal from the Superior Court in Cochise County No. JV201500109 The Honorable Karl D. Elledge, Judge

         AFFIRMED IN PART; VACATED IN PART

          Brian M. McIntyre, Cochise County Attorney By Nancy J. Galey, Deputy County Attorney, Sierra Vista Counsel for State.

          Emily Danies, Tucson Counsel for Minor.

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Brammer[1] concurred.

          OPINION

          ECKERSTROM, 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.

         ¶2We 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.

         ¶3After 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 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."

         ¶4At 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.

         ¶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 ยง 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 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. ...


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