In re the Appeal in Pima County Juvenile Delinquency Action No. 97036-02

792 P.2d 769, 164 Ariz. 306, 54 Ariz. Adv. Rep. 56, 1990 Ariz. App. LEXIS 43
CourtCourt of Appeals of Arizona
DecidedFebruary 22, 1990
DocketNo. 2 CA-JV 89-0039
StatusPublished
Cited by2 cases

This text of 792 P.2d 769 (In re the Appeal in Pima County Juvenile Delinquency Action No. 97036-02) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Appeal in Pima County Juvenile Delinquency Action No. 97036-02, 792 P.2d 769, 164 Ariz. 306, 54 Ariz. Adv. Rep. 56, 1990 Ariz. App. LEXIS 43 (Ark. Ct. App. 1990).

Opinion

OPINION

LIVERMORE, Presiding Judge.

The minor was charged with two counts each of child molestation, sexual conduct with a minor under 15, kidnapping and aggravated assault. Following a contested hearing, the juvenile court adjudicated the minor delinquent on one count of child molestation and sexual conduct with a minor under 15 and two counts of aggravated assault. Because we find two issues to be dispositive of this appeal, we do not address the other issues raised by the minor.

The charges arose out of an incident in which the minor, a 13-year-old boy, was babysitting for two young children of another family, a seven-year-old girl and a [308]*308three-year-old boy. The parents had planned to participate in a car show which required them to be at Reid Park in Tucson at 5:00 a.m. on October 8, 1988. They arranged for the minor to sit for the children and picked him up at approximately 4:30 a.m. The children’s grandmother, who lived nearby, had arranged for all three children to come to her home to go swimming after lunch. When they arrived, she observed that her grandson’s face appeared bruised and swollen. The granddaughter also had welts on her buttocks and legs. The girl also cried out in pain when she urinated.

The grandmother and mother took the children to the hospital to be examined. The girl testified that the minor had beaten both of them with belts. She also testified that he had made the children dress up in each other’s clothes and discussed sexual conduct with them. She further testified that he had blindfolded her and made her brother lie down on top of her. She then felt something painful in her vagina and heard the minor make a panting noise. Although the girl testified as to other conduct by the minor, in light of the juvenile court’s dismissal of the charges arising out of that alleged conduct, we need not address the remainder of her testimony.

At the hearing, the examining physician at the hospital testified that he had observed abrasions of the girl’s labia and had been unable to see the hymen, but could not state positively whether it was intact. Both the examining physician and another expert, who examined photographs of the children, testified that the injuries to the children’s buttocks and the boy’s face were consistent with being struck by a belt. They further testified to their opinion that the abrasions to the girl’s labia and vagina and the inability to see the hymen were the result of penetration by some object. The minor’s expert, who did not examine the girl but reviewed the same photograph of the child’s vaginal area, testified that the redness and swelling were not the result, of trauma, but were probably secondary to an infection.

On October 13, 1988, after she had interviewed the parents and grandmother of the victims, Deputy Sheriff Jolene Ross of the sex crimes unit went to the minor’s junior high school to interview him. Also present and participating in the interview was Detective Skip Woodward, a Tucson Police Department school resource officer. The interview, which was tape recorded, lasted approximately two hours. Although neither the tape nor a transcript was admitted into evidence, lengthy portions of the interview were read into evidence by Detective Ross.

The minor was given Miranda warnings, acknowledged that he understood them and agreed to answer questions. The minor testified that he was never told that he could have his parents present for the interview; Deputy Ross’s testimony on this point was equivocal. The minor testified that initially he denied hitting the children because he was afraid of the officers. He later admitted hitting the children with a belt but denied any sexual acts with them. After persistent questioning, however, he acknowledged that the children had taken off their clothes and that the boy had lain on top of the girl at his direction. At the hearing, the minor admitted hitting the children with a belt. However, he denied any sexual conduct with the minors and testified that he had made the statements regarding such conduct as a result of a “promise” from the officers during the interview. When asked, “What promise?” he testified:

That it was — like her promise. Skip Woodward, and we call him Skip, because he is the school thing — officer, because he said that this could be over in five minutes if you tell us so and so and we know that you did it and we can prove it to the court and so and so, and so I just told them, I got kind of confused, and I just told them what they wanted to hear, and then I though[t] about that, it was kind of stupid.

He further testified “she kept telling me that I did this and they knew I did this, so I told them what they wanted to hear in order to get out of there.”

[309]*309During cross-examination of Deputy Ross, lengthy portions of the interview were read into the record. The minor was told by Officer Woodward that a doctor had done a “real thorough examination of [the girl]” and “somebody molested that little girl that day,” even though neither officer had spoken to the doctor or seen his reports. The following transpired:

Q. Did you feel that this was proper technique, to mix these representations and to lie to this boy in order to get a statement from him regarding this case?
A. It’s used sir. It’s used as part of our technique.
Q. So it’s part of your technique to tell stories and mistruths and half truths in order to elicit statements from a person who is suspected of a crime, is that you[r] statement?
A. It’s part of it sir.
Q. Did you ever think that a 13 year old boy might be believing everything that you said?
A. I don’t know sir. I don’t have any opinion on that question.
Q. Okay, you were just doing your job?
A. I was just doing my job.
Q. Page 17. You didn’t say this, but I assume that you were still in the room with Detective Woodward when he says, at the top of the page, I understand that you don’t want to say that you did, okay, but David, is what you need to understand is nothing more is going to happen to you whether you hit [the girl] once with the belt, or whether you hit her with the belt three or four or five times. Nothing more is going to happen to you if you slapped [the boy] in the face one or three or four times, or five times. That wasn’t truthful was it?
A. I have no idea what he was trying to get at with that sir. That was not proper questioning.
Q. That was not proper interrogation, because he was making a promise, and that is not appropriate is it?
A. That wasn’t my question.
Q. But you let it continue didn’t you? Even though you knew it was improper interrogation.
A. Well he kept on talking.
Q. You knew that something more was going on, and you knew something more was going to happen to David at this point, and you knew that you were going to arrest him for aggravated assault?
A. Yes.
******
Q. Detective Woodward continues on in the middle of this page in a rather lengthy statement starting about a third sentence down.

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Bluebook (online)
792 P.2d 769, 164 Ariz. 306, 54 Ariz. Adv. Rep. 56, 1990 Ariz. App. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-appeal-in-pima-county-juvenile-delinquency-action-no-97036-02-arizctapp-1990.