IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2002-0391 Appellan t, ) DEPARTMENT B )
v. ) O P I N IO N )
JOHN WILLIAM JACKSON, )
)
Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR-20021942
Honorable Paul E. Tang, Judge REVERSED AND REMAND ED
Barbara LaWall, Pima County Attorney By Elizabeth Hurley Tucson Attorneys for Appellant
Susan A. Kettlewell, Pima County Public Defender By John F. Palumbo Tucson Attorneys for Appellee
P E L A N D E R, Presiding Judge.
¶1 On Ju ne 20, 2 002, a Pima County grand jury indicted appellee John William Jackson on seventy-eight counts of child molestation and sexual conduct with a minor under fifteen years of age, allegedly committed against his daughter R. between August 1989 and
August 1992. On September 12, 2002, the trial court granted Jackson’s motion to dismiss the charges on the ground they were barred by the statute of limitation. The state contends the trial court abused its discretion by granting the motion. We agree and therefore reverse the dismissal order and remand the case for further proceedings.
BACKGROUND
¶2 We view the s cant eviden ce presente d at the hear ing on Jac kson’s m otion in the light mo st favo rable to u pholdi ng the tr ial court ’s ruling . See State v. Vera, 196 Ariz. 342, ¶ 3, 996 P.2d 1246, 1247 (App. 1999). At that hearing, a police report written by Officer Sueme was admitted into evidence pursuant to the parties’ stipulation. The following facts are based s olely on that repo rt.1 In 1994, Jackson had custody of his two children, his daughter R., who w as then tw elve years old, an d his then ten-year-old son. That year, the aunt of one of R.’s frie nds, J., 2 reported to the police that R. had told J. Jackson was doing “nasty things” and “messing with her.” T he report co ntained no details about Jack son’s purported acts.
¶3 Three officers went to Jackson’s home. Officer Sueme interviewed R. privately and told her what her friend’s aunt had related to the police. R. immediately denied having made any such statements. Officer Sueme explicitly asked R. “if her dad ever had her touch any of his privates.” R. denied any such activity, although she did tell Sueme “several
1 Although apparently available, Officer Sueme did not testify at the hearing.
2 According to Officer Sueme’s report, J. is developmentally challenged. Although she was twelve years old in 1994, she reportedly had the mental age of a five or six year old.
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times” that “just onc e her Dad [had] sho wed he r his ‘ding dong,’” but that it had been an accident. Jackson a lso denied a ny wrongd oing. He to ld the office rs R. wan ted to live w ith her mother in California rather than with him.
¶4 While the off icers w ere at the residen ce, a neighbor came over and told them R. had also told the neighbor’s daughter that Jackson was “messing” with R. R. again denied having made any such statements to her friends. She became upset when her friend’s mother demanded that the officers remove R. from the home and at the thought that her father might “go to jail.” R. also confirmed that she would prefer to live with her mother. Because R. denied “anything [was] happening” with her father and expressed a desire to remain at home, Sueme to ok no further acti on th at da y.
¶5 Two days later, Officer Sueme contacted Sergeant Spillman and asked him to review the case. Citing pressure R. had received fro m friends and neigh bors, Suem e told Spillman she thought it advisable for someone to talk to R. while she was at school and “away from outside influences.” Sueme stated in her report that Child Protective Services (CPS) needed to follow up by investigating the home, apparently because Jackson’s home was very dirty and he needed some suggestions about his housekeeping practices. She also stated that a Detec tive Thompson had eventually spoken to R., but the record contains no information confirming any such conversation actually occurred.
¶6 A police report prepared b y Detective O lson in 200 0 also wa s admitted in to evidence at the hearing on the motion to dismiss. In his report, Olson stated he had received information from C alifornia law enforcem ent authorities that R. had reported to them that
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Jackson had molested her in 1994. Mistakenly noting that R. was “mentally slow,” Olson reported that he found she had m ade the sam e report in 19 94 in Tuc son “and that it had been investigated and closed as unfounded.” Olson contacted R.’s mother in California, told her of his findings, and then reported the case was closed.
¶7 According to undisputed facts in Jackson’s motion to dismiss, in June 2002, Tucson police were told that Jackson’s son had reported having been molested by Jackson between 1994 and 1997. In response, Detective Rydzak interviewed R., who reported that her father had sexually abused her on a regular basis for several years. Rydzak and two other detectives also interviewed Jackson, who denied all allegations of sexual mis conduct w ith his children. One day later, however, Jackson telephoned Detective Rydzak, admitted that he had lied to her the day before, and told her he had something to confess. Four days later, Jackson was interv iewed by de tectives and admitted h aving mo lested R. on ce or twice a week from 1989, when she was eight years old, through 1992. Jackson denied any sexual conduct with his son. He was subsequently indicted for the offenses against R.
¶8 At the hearing on the mo tion to dismiss, Detective Rydzak testified that, when she investigates a child sexual abuse case, she generally first interviews the alleged victim. If the child denies that any abuse occurred, she will interview the person suspected of abusing the child. If that person tells her nothing has occurred, she will typically close the investigation. Rydzak also testified that she had been trained in how to interview children in such cases and that she conducts forensic inte rviews, tho se intended to obtain information from a ch ild without leading questions or suggestions about what might have occurred. A
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forensic interview is typically the only type of interview she conducts with children, and she said she rein terview s a child only if she obtains addition al infor mation , because repetitive interviewing can be very suggestive.
¶9 On cross-examination, Rydzak testified that, if she were assigned to a case and the investigating officer told her to go to a school and interview a child away from “outside influen ces,” she would do so. She also testified that she had checked wh ether there were any 1994 repo rts in the case o ther than Off icer S uem e’s a nd th at she had been unable to find any, raising the inference that neither Detective Thompson nor any other officer had interviewed R. at schoo l.
DISCUSSION
I. Legal framework
¶10 The applicable statute of limitation on which the trial court based its ruling is A.R.S. § 13-107(B). That statute provides that “prosecu tions . . . must be comme nced w ithin the follow ing per iods af ter actua l discov ery by the sta te . . . or disco very by the s tate . . . that should have occ urred with the exercise of reasona ble diligence, which ever fir st occu rs.” (Empha sis added.) In th is case, the applicable period is seven years. § 13-107(B)(1). The statute also state s that, “[ f]or the purpo ses of s ubsect ion B o f this sec tion, a prosecution is commence d when an ind ictment, information or com plaint is filed.” § 13-107(C). 3
3 In 1997, the legislature amended A.R.S. § 13-107 by adding subsection (E), which states: “The period of limitation does not run for a serious offense as defined in [A.R.S.] § 13-604 during any time when the identity of the person who commits the offense or offenses is unknown.” 1997 Ariz. Sess. Laws, ch. 135 , § 1. The state concede s that statutory change “does not impact” this case. See Martin v. Superior Court, 135 Ariz. 99, 100, 659
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¶11 In ruling on Jackson’s motion to dismiss, the trial court framed the issue as “whether the State exercised reasonable diligence in investigating the molestation allegation of [Jackson] made by [R.] in 1994.” Thus, the trial court did not find that § 13-107(B)’s “actual discovery” standard applies or was satisfied here.4 Rathe r, the court granted the motion on three gro unds: (1) the state’s lack of reasonab le diligence in 1994 “to pursue the matter and to follow-up on significant leads,” for example, by failing to interview R. at school and com plete a referra l to CPS; (2 ) the state’s failu re to exercise reasonable diligence in 2000 by investigating the report of the California authorities; and (3) the lack of evidence that Jackson had taken any affirmative steps to conceal his crimes. II. Standard of review
¶12 “‘We review an order granting a motion to dismiss criminal charges for an abuse of discretion or for the ap plication of an incorrect legal interpretation.’” State v. Sanchez, 192 Ariz. 454, ¶ 4, 967 P.2d 129, 131 (App . 1998) , quoting State v. Lemming, 188 Ariz. 459, 460, 937 P.2d 381, 382 (App. 1997). Similarly, we review for an abuse of
P.2d 652, 653 (198 3); State v. Escobar-Mendez, 195 Ariz. 19 4, n.6, 98 6 P.2d 227, 23 1 n.6 (App. 1999). A nd, in any ev ent, the id entit y of the person who allegedly had “mess[ed]” with R. and done “nasty things” to her was kn own in 1994 . We disagree w ith Jackson’s contention at oral argument in this court, however, that the addition of subsection (E) in 1997 somehow establishes that the legislature had not intended a probable-c ause stand ard to apply to the dis covery iss ue und er subs ection (B ). See ¶¶ 28-3 0, infra.
4 Although the state suggested otherw ise at oral argument in this court, Jackson did argue belo w that “ac tual discove ry” had occu rred in 1994. He did not advance that theory in his answering brief. In his supplemental brief, however, Jackson contended, without elaboration, that the state had actually discovered his offenses in 1994. We disagree and therefore limit our analysis to the issue of constructive discovery, the basis on which the trial court ruled.
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discretion a trial court’s ruling on whether the state acted with reasonable diligence. State v. Escobar-Mendez, 195 Ariz. 194, ¶ 15, 986 P.2d 227, 230 (Ap p. 1999). A trial court abuses its discretion when it misapplies the law or predicates its decision on incorrect legal principles. See Go rman v. C ity of Phoen ix, 152 Ariz. 179, 182, 731 P.2d 74, 77 (19 87); State v. Fields, 196 Ariz. 580, ¶ 4, 2 P .3d 670, 672 (A pp. 1999).
¶13 Interpretation of statutes is subject to our de novo r eview . State v. Fell, 203 Ariz. 186, ¶ 6, 52 P.3d 218, 220 (App. 2002). “[O]ur primary goal is to discern and give effect to the legislature’s intent.” Id. “To that end, we construe the statute’s language, and if it is unclear, then consider its historical background, subject matter, context, effects, consequences, spirit, and purpose.” State v. Kearney, 206 A riz. 547 , ¶ 5, 81 P.3d 338, 340 (App. 2003) . In addition, we construe the statute of limitation at issue here “liberally in favor of the accused and against the prosecution.” Escobar-Mendez, 195 Ariz. 194, ¶ 13, 986 P.2d at 230; see also United Sta tes v. Habig , 390 U.S . 222, 227, 8 8 S. Ct. 926, 929, 19 L. Ed. 2d 1055, 10 59 (1968 ); State v. Fogel, 16 Ariz. App. 246 , 248, 492 P.2d 74 2, 744 (1972). 5
5 In general, “a s tatute of limitations r eflects a legisla tive judgm ent that, after a c ertain time, no quan tum of ev idence is su fficient to co nvict. And that judgm ent typically rests, in large part, upon evidentiary concerns—for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable.” Stogner v . California , 539 U.S. 607, ___, 123 S. Ct. 2446, 2452, 156 L. Ed. 2d 544, ___ (20 03) (citations omitted); see also Toussie v. United States, 397 U.S. 112, 115, 90 S. Ct. 858, 860, 25 L. Ed. 2d 156, 161 (1970) (to same effect, and also noting that a time limit for prosecuting criminal cases “may also have th e salutary effec t of encou raging law enforcem ent officers promptly to investigate suspected crimina l activities”).
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III. Burden and standard of proof
¶14 We first note that neither § 13-107 nor Arizona case law specifically addresses the questions of whether the state or the defendant bears the burden of proof or what the standard of proof is when a limitation issue is raised. For example, under § 13-107(B)(1), must a defend ant establish that the prosecution is time barred because the state either discovered or reasonably should have discovered the offense more th an seven years before the charges were filed? Or, rather, does the state have the burden of essentially proving a negative—that it nei ther actu ally no r con struc tivel y discovered the offense outside the limitation period? And what is the appropriate standard of proof that should apply to the discovery issues under § 13 -107(B)?
¶15 Gen erall y, the state bears the ultimate burden of persuasion on a statute-of- limitation issue. See Paul H. R obinson, Criminal Law Defenses § 202(a), at 464 (1984) (citing cases). 6 At oral argument, analogizing to motions relating to speedy trial rights, the state conceded that, if a defendant initially produces some reasonab le evidence to support a
6 See also Bonel v. Sta te, 651 So. 2d 774, 775 (Fla. Dist. Ct. App. 1995) (once issue is raised, “the State has the burden to establish that the offense is not barred by the statute of limitations”); State v. Lester, 317 S.E.2d 29 5, 297 (G a. Ct. App . 1984) (ev en whe n issue is raised before trial, “[t]he burden unquestionably is upon the State to prove that a crime occurred within the sta tute of limitation or to prove that the case p roperly falls wit hin an exception”); State v. Nuss, 454 N.W.2d 482, 487 (Neb. 1990) (state bears burden of proving crime charged was committed within time fixed by law ); but see People v. Lopez, 60 Cal. Rptr. 2d 511, 522-23 (Ct. App. 1997) (at hearing on defendant’s p retrial motion to dismiss prosecution as time barred, “the defendant bears the burden of proving that the statute of lim itatio ns ha s run as a m atter of la w,” and court sho uld d eny motion if “the evidence is in conflict”); cf. People v. Wright, 411 N.W.2d 826, 828 (Mich. C t. App. 1987) (when factual issues relevant to statute-of-limitation defense are disputed, resolution of conflic t is for trie r of fac t).
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statute-of-limitation argument, the burden of persuasion then shifts to the state to show the prosecution is not tim e barred . Cf. Humble v. Superior Court, 179 Ariz. 409, 413, 880 P.2d 629, 633 (App. 1993) (“Once a defenda nt has estab lished a prim a facie viola tion of the R ule 8[, Ariz. R. Crim. P., 16A A.R.S.,] time limit and the state seeks exclusion of time under Rule 8.4, the state bears the burden of establishing the grounds for exclusion of the delay.”). We agree.
¶16 The state argued, however, that the burden of persuasion had neve r shifted to it because J ackson f ailed to prod uce any reaso nable evid ence to support his statute-of- limitation contention. We disagree. Based on the time that elapsed between the initial allegations against Jackson in 1994 and the 2002 indictment, the 1994 police report, and the limited testim ony below, we conclude that Jackson made a sufficient, prima facie showing on that issu e to shif t the bur den to th e state. Cf. State v. Hyde, 186 Ariz. 252, 266, 921 P.2d 655, 669 (199 6) (party who bears burden of going forward must “produce sufficient preliminary evidence before the party with the b urden of persuasion must proc eed with its evidence”); Rodriguez v. Arellano, 194 Ariz. 211, ¶ 12, 979 P.2d 539, 543 (App. 1999) (defendant who establishes that evidence was seized pursuant to warrantless search has satisfied burden of going forward and has triggered state’s burden of proving lawfulness of acquisition of challenged evidence).
¶17 The state also argued tha t its standard of proof on the limitation issue should be something less than be yond a reaso nable doubt and suggested that failure to p rove a time ly prosecution does not necessarily divest a trial court of jurisdiction. In contrast, citing State
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v. Willoughby, 181 Ariz. 530, 892 P.2d 1319 (19 95); Escobar-Mendez; and several out-of- state cases,7 Jackson a rgues that a criminal statute of limitation is jurisdictional and that the state bears the burden of proving beyond a reasonable doubt that the prosecution is not time barred.
¶18 In Willoughby, our supreme court announced that, “[i]n the very rare case in which jurisdiction is legitimately in issue because of contradicting jurisdictional facts, Arizona’s territorial jurisdiction must be established beyond a reasonable doubt by the jury.” 8 181 Ariz. at 538, 892 P.2d at 1327. In Escobar-Mendez, the court noted that “[s]tatutes of limitations in criminal ca ses are jurisdic tional” and, therefore, that they “limit the power of the sovereign to act agains t the accuse d.” 195 A riz. 194, ¶ 13 , 986 P.2d at 230; see also Fogel, 16 Ariz. App. at 248, 492 P.2d at 744. Our supreme court also has recognized that principle. See Price v. Maxw ell, 140 Ariz. 232, 234, 681 P.2d 3 84, 386 (1984). Thus, controlling Arizona authority clearly supports Jackson’s assertion that a statute of limitation
7 See United States v. Owens, 965 F. Supp. 158, 162-63 (D. Mass. 1997) (government bears burden o f proof “b eyond a reaso nable doubt just like any other element of the case” on whether statute of limitation was tolled by defendant’s “fleeing from justice”); Comm onwea lth v. Cogsw ell, 583 N.E.2d 266, 269 (Mass. App. Ct. 1 991); State v. Pierce, 782 P.2d 194, 196 (Utah Ct. App. 1989) (noting government’s burden of presenting some evidence that prosecu tion is not time barred but finding that “burden of proof for establishing that the statute has not run is be yond a reaso nable dou bt”); see also Lopez, 60 Cal. Rptr. 2d at 518 (“In California, the statute of limitations in criminal cases is jurisdictional.”); Paul H. Robinson, Criminal Law Defenses § 202(a), at 4 64 (1984 ) (“The bu rden of p ersuasion is nearly alw ays on the state, beyo nd a rea sonab le doub t.”).
8 The parties neither briefed nor argued (below or on appeal) the issue of whether the trier of fact, rather than the trial court in a pretrial setting, should resolve statute-of- limitation issues when the facts bearing on such issues are conflicting. Therefore, we do not address or d ecide that po int.
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does implicate a trial court’s jurisdiction in criminal cases.9 See Price; Escobar-Mendez; Fogel; but see State v. Rodriguez, 205 Ariz. 392, n.1, 71 P.3d 919, 922 n.1 (App. 2003) (superior court gene rally has subject matter jurisdiction “over any criminal case in which the defendant is charge d by indictment or information with a felony”).
¶19 For several reaso ns, howe ver, we dis agree with Jackson’s contention that the state must prov e beyond a re asonable d oubt, at least at the pretrial stage, that a prosecution is not time ba rred. First, Willoughby, the only Arizo na authority cited for his p osition, did not involve any statute-of-limitation issues and, therefore, did not address the standard-of- proof issue raised here. Second, the statute at issue in Willoughby, A.R.S. § 1 3-108(A ), is clearly a jurisdiction statute (governing “[t]his state[’s] . . . jurisdiction over an of fense”), whereas § 13-107 relates only to time limitations and says nothing about jurisdiction. Third, Willoughby merely anno unced a ru le that applies to “those rare cases . . . where controverted jurisdictional facts cannot be resolved without reaching the merits of the case.” 181 Ariz. at 537 n.5, 89 2 P.2d at 13 26 n.5; see also id. at 539, 892 P.2d at 1328 (noting that “a substantive issue of this case w as inex tricably bo und w ith the ju risdiction al issue” ). Based on the limited record before us, we do not view this as a case in which any “controverted
9 This appea rs to be a minorit y view. See, e.g., Cowan v. Superior Court, 926 P.2d 438, 452 (Cal. 1996) (Brown, J., concurring and dissenting) (citing numerous cases and noting that, “[w]ith near uniformity, [other state and federal] courts have held that the statute of limitations in criminal cases does not go to the jurisdiction of the court but rather is an affirmative defense” ); People v. Burns, 647 N.W.2d 515, 518 (Mich. Ct. App. 2002) (statute- of-limitation defense in criminal case is nonjurisdictional, waivable aff irmative defense); State v. Boyd, 543 S.E.2d 647, 650 (W. Va. 2000) (expiration of statute of limitation does not terminate court’s subject matter jurisdiction).
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jurisdictional facts” bearing on the limitation and discovery issue “are intertwined with the substantive issues in the case.” Id. at 537 n.5, 8 92 P.2d a t 1326 n.5; see also id. at 536, 892 P.2d at 1325 (resolution of jurisdictional facts in Willoughby was “intertwined with proof of elements of the crime” ).
¶20 We acknowledge the court’s statements in Willoughby that “jurisdiction al facts must be established beyond a reasonable doubt in all cases in which jurisdictional facts are questio ned,” id. at 538, 892 P.2d at 1327, and that that standard even applies when, in the absence of any conflicting evidence, a trial judge determines before trial “whether the facts support[] the state’s authority to prosecute th[e] case.” Id. at 540, 892 P.2d at 1329. But we do not necessarily equate a statute-of-limitation issue with the type of pure, territorial jurisdiction issue addressed in Willoughby. Nor do we equate the issue of whethe r a prosecution was timely commenced with elements of the offense, which, of course, must be proved beyond a rea sonable d oubt. 10 See id. at 538, 892 P.2d at 132 7 (declining to “equate jurisdiction with elem ents of the o ffense”); People v. Smith, 120 Ca l. Rptr. 2d 18 5, 189 (C t. App. 20 02) (“[T]h e statute of lim itations is not an element o f the offe nse.”); see also Sta te v. Jensen, 153 Ariz. 171, 176, 735 P.2d 781, 786 (1987) (“The due process clause places the
10 The America n Law I nstitute’s (ALI) Model Penal Code (MPC) treats jurisdiction and limitation issues as elemen ts of an off ense that m ust be prov ed beyond a reasonab le doubt. MPC §§ 1.12(1), 1.13(9)(d), (e) (1985). Bu t, just as the court in State v. Willoughby, 181 Ariz. 530, 5 38, 892 P .2d 1319 , 1327 (19 95), was “ not required to follow the ALI’s recommended procedure for deciding jurisdiction” in the absence of a legislative ma ndate to do so, we do not subscribe to the MPC’s approach on the limitation issue here.
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burden on the prosecution to prove beyond a reasonable doubt every element of a criminal offense.”).
¶21 Perhaps most imp ortantly, the territorial jurisdiction issue addressed in Willoughby related solely to the defendant’s contention “that Arizona lacked subject matter jurisdiction to try him for crimes committed in Mexico.” 181 Ariz. at 535, 892 P.2d at 1324 (emphas is added). As the court noted, “[s]ubject matter jurisdiction . . . may not be waived or changed.” Id. at 537-38 n.7, 892 P.2d at 132 6-27 n.7; see also State v. Marks, 186 Ariz. 139, 141, 920 P.2d 19, 21 (App. 1996) (“Personal jurisdiction may be waived; subject matter jurisdiction may not.”). Indeed, in People v . McLau ghlin, 591 N.Y.S.2d 9 66, 968 (1992), cited with approval in Willoughby, the court stated that territorial jurisdiction “goes to the very essence of the State’s power to prosecute and . . . may never be waived.” See also S tate v. Shrum, 455 N.E.2d 531, 532-33 (Ohio Ct. App. 1982) (territorial jurisdiction cannot be waived); State v. Dudley, 581 S.E.2d 171, 180 (S.C. Ct. App. 2003) (territorial jurisdiction is aspect of subject matter jurisdiction that cannot be waived) ; but see People v . Tamble , 7 Cal. Rptr. 2d 44 6, 449 (C t. App. 199 2) (territorial jurisdic tion is nonf undame ntal, waivab le aspect of jurisdiction ); Gordo n v. Com monw ealth, 568 S.E.2d 452, 454 (Va. Ct. App. 2002) (territorial jurisdiction may be waive d); State v. Ran dle, 647 N.W .2d 324, 32 9 n.4 (Wis . Ct. App. 2002) (territo rial jurisdiction is “an incident of personal jurisdiction that can be waived”).
¶22 In contrast, our supreme court has noted, albeit in dicta, that a “statute of limitations defense must be raised or it is waived.” State v. King, 158 Ariz. 419, 425 n.6, 763
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P.2d 239, 245 n.6 (1988), citing Unite d States v. W ild, 551 F.2d 418 (D .C. Cir. 1977). Similarly, a pletho ra of co urts has conclu ded tha t, at least u nder ce rtain circ umstan ces, a criminal defen dant m ay waive or forf eit a statu te-of-lim itation b ar. See, e.g., Cowan v. Superior Court, 926 P.2d 438, 441 (C al. 1996); People v . Stanfill, 90 Cal. Rptr. 2d 885, 895 (Ct. App. 19 99); State v. Timoteo, 952 P .2d 865, 870 (Haw . 1997); People v. Burns, 647 N.W.2d 515, 518 (Mich. C t. App. 200 2); State v. Johnson, 422 N.W.2d 14, 16 (Minn. C t. App. 1988) (citing cases); Conerly v . State, 607 So. 2 d 1153, 1 158 (M iss. 1992); State v. Wiemer, 533 N.W .2d 122, 132-33 (N eb. Ct. App. 1995 ); Hubbard v. State, 920 P.2d 991, 993 (Nev. 1996); State v. Lam brechts, 585 A.2d 645, 646 (R.I. 1991) ; State v. Boyd, 543 S.E.2d 647, 650 (W. Va . 2000). Moreov er, the United States Sup reme Court also has im plicitly condoned waiver o f a criminal s tatute of limitation in som e situatio ns. See Spaziano v. Florida, 468 U.S. 447, 454-57, 104 S. Ct. 3154, 3158-60, 82 L. Ed. 2d 340, 348-50 (1984); Biddinger v. Comm’r of Police, 245 U.S. 128, 135, 38 S. Ct. 41, 43, 62 L. Ed. 193, 199 (1917).
¶23 In short, although Arizona cases have characteri zed a criminal statute of limitation as “jurisdic tional,” 11 see ¶ 18 an d n.9, supra, it is distinctly different from the type
11 That characterization apparently emanated from State v. Fogel, 16 Ariz. App. 246, 248, 492 P.2d 742, 744 (197 2), w hich cited as su pporting auth ority Waters v. United States, 328 F.2d 739 (10th Cir. 1964), and People v. Rehman, 396 P.2d 913 (Cal. 1964). We note, however, that Waters represents “ a distinct minority view in the federal courts,” State v. Noah, 788 P.2d 257, 261 (Kan. 1990) (citing cases), and “has been questioned by other courts.” United States v. Cooper, 956 F.2d 960, 961 (10th Cir. 19 92). And the Califor nia Supreme Court more recently has rejected its prior view that “a court lacks fundamental subject matter jurisdiction over a time-barred criminal action.” Cowan, 926 P.2d at 442 (defendant may expressly waive statute of limitation when waiver is for his or her benefit);
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of territorial jurisdiction addressed in Willoughby. In our v iew, the refore, Willoughby does not mandate that the state pro ve beyond a reasonab le doubt tha t the prosecu tion was tim ely commence d under § 13-10 7(B).
¶24 Jackson’s argumen t for that high er standard also does not comport with the requisite standard of proof that applies to various o ther, pretrial criminal procedure matters. For example, under Rule 16.2(b), Ariz. R. Crim. P., 16A A.R.S., once a defendant has “establish[ed] a prima facie case that the evidence taken should be suppressed,” the state then has “the burden of proving, by a prepon derance o f the evide nce, the law fulness in a ll respects of the acq uisition o f all evid ence” the state plans to use at tria l. See also State v. Jimenez, 165 Ariz. 444, 448-49, 799 P.2d 785, 789-90 (1990) (to rebut presumption that confessions resulting from custodial interrogation are inherently involuntary, “the state mus t sho w by a preponderance of the evidence that the confession was free ly and volunta rily made”); State v. Mohr, 150 Ariz. 564, 566, 724 P.2d 1233, 1235 (App. 1986) (holding that “proof of venue need only b e by a preponderance of the evidence, not proof beyond a rea sonable d oubt”); cf. Ariz. R. Crim. P. 7.2(c), 16A A.R.S. (state bears burden of establishing factual issues relating to defendant’s release be fore or after conviction “b y the preponderance of the evidence”).
¶25 Because a preponderanc e-of-the-evidence standard ap plies even to constitutional issues raised in pretrial motions to supp ress evidence, w e see no rea son to impose on the state a highe r standard o f proof fo r pretrial motio ns to dismiss on limitation
see also People v. Stanfill, 90 Cal. Rptr. 2d 885, 89 5 (Ct. App. 1999 ) (noting California’s “now-abrogated rule that the statu te of limitation s is jurisdictional in the fundamental sense”).
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grounds, even if the latter are deemed “jurisdic tional.” Cf. People v. Frazer, 88 Cal. Rptr. 2d 312, 335 (199 9) (“No p rovision of the United States Constitution explicitly confers upon criminal defendants a ‘right to repose’ by virtue of the length of time between commission of the crime and commencement of the prosecutio n.”); Timoteo, 952 P.2d at 870 (criminal statute of limitation not based on fundamental, constitutional right, but rather, is “mere statutory act of grace that the sovere ign state has con ferred in ord er to limit its right to prosecute criminal offe nders”).
¶26 Accordingly, we hold that, once a defendant raises a limitation issue and, as here, presents some reasonable evidence to support it, the state bears the burden of establishing by a preponderance of the evidence that the prosecution is not time barred. We find persuasive the cases that have so held.12 For purposes of § 13-107(B), the state must show that it timely commenced the prosecution within seven yea rs of whe n it actually discovered or through the exercise of reasonable diligence should have discovered the offense. Imposing that burden on the state is consistent with Arizona’s other, pretrial
12 See People v. Zamora, 557 P.2d 75, 93 n.27 (Cal. 1976) (preponderance-of-evidence standard of proof applies to state’s burden on limitation issues, including discovery question); Lopez, 60 Cal. Rptr. 2d at 521 (prosecution bears burden of proving by preponderance of evidence at trial that charged offense w as committed w ithin applicable limitation period); Walstrom v. State, 752 P .2d 225 , 227-2 8 (Nev . 1988) , overruled in part on other grounds by Hubbard v. State, 920 P.2d 991 (Nev. 1996) (state bears burden of proving by preponderance of evidence that crime was committed in secret manner, thereby tolling statute of limitation; “lesser standard is appropriate because proving the application of the exc eption to the statute is not the same as proving an elemen t of the crim e”); State v. Tibor, 373 N.W.2d 877, 883 (N.D. 1985) (“[B]ecause a statute of limitation does not go to the guilt or innocence of the accused . . . the State must prove compliance with the statute of limitation by a preponderance of the evidence.”).
17
criminal procedure rules, the view of most courts, and the rule requiring us to liberally construe criminal statutes of limitation in favor of defendants. IV. Meaning and application of § 13-107(B)
¶27 We next turn to interpretation and application of § 13-1 07(B). O ur attempt to determine and effect the legislature’s intent is hindered by some ambiguity in the statute. Under § 13-1 07(B)(1), the seven-year limitation period is triggered by the state’s actual or constructive “discovery.” But, unfortunately, the statute does not prescribe “what” must actually or constructively be discovered for the limitation clock to start ticking. Nor does the statute state the degree of certainty with which the discovery must be made. For example, does the limitation period begin when the state discovers or reasonably should have discovered that a suspe ct possibly committed an offense, o r rather, that he o r she proba bly or definitely did so?
¶28 Because the statute does not clearly address or answer those questions, we must look beyond its wording an d consider other relevan t factors in determining its meaning and application here. In granting Jackson’s motion to dismiss, the trial court correctly noted that “Arizona criminal statutes of limitations d o not begin to run until the State actually discovers or should have discovered that the offense occurred.” 13 (Emphasis add ed.) See Escobar-
13 In his supplem ental brief an d at oral argu ment, Jackson conceded that the object of the actual or constructive discovery to which § 13-107(B) refers is “the offense.” Under Arizona criminal law, an “offense,” inter alia, “means cond uct for which a sen tence to a term of imprisonment or of a fine is provided by any law of the state.” A.R.S . § 13-1 05(23 ). And “‘[c]ondu ct’ means an act or omission and its accompanying culpable mental state.” § 13- 105(5).
18
Mendez, 195 Ariz . 194, ¶ 14, 9 86 P.2d a t 230. To the ex tent that statem ent sugge sts that, under § 13-107(B), the limitation period commences when the govern ment has a ctually discovered or through the exercise of reasonable diligence should have discovered that the suspect probably committed the offense in question, we agree.14
¶29 We find support for that conclusion in State v. Wilson, 573 N.W.2d 248 (Iowa 1998). There, the trial court granted the defendants’ motion to dismiss a theft-by-deception charge as time barred under Iowa’s general statute of limitation, which required initiation of felony charges (except murder and sexual abuse of a minor) within three years after commission of the crime. Another statute, however, Iowa Code § 802.5, permitted commencement of prosec ution for ce rtain fraud-re lated crimes “‘with in one year after discovery of the offense.’” Wilson, 573 N.W.2d at 251. On app eal, the Iowa Suprem e Court reversed the trial court’s ruling and remanded the case for a factual determination on when the state had discovered the defendants’ fraud for purposes of the latter statute. In providing guidance for that task on remand, the court stated:
We are satisfied that the discove ry rule here sho uld include a probable cause elem ent and a d ue or reaso nable diligence requirement. We the refore hold that “discovery” for purposes of section 802.5 occurs when the authorities know or should know in the exercise of reasonable diligence that there is
14 Citing California case law, Jack son contends § 1 3-107(B) only requires “disco very of an offense, and not discovery of the offender.” See, e.g ., People v. Crossman, 258 Cal. Rptr. 370, 372 (Ct. App. 1989) (“The identity of the perpetrator of the crime is not an element of the discovery issue.”). We do not add ress that poin t, howeve r, because id entity is not an issue in this c ase, and the tolling provisio n in current § 13-107(E ) now co ntrols cases in which serious offenses have been committe d by unid entified person s. See n.3, supra.
19
probable cause to believe a criminal fraud has been committed.
The probable cause requirement fits well with the language of section 802.5, which requires “discovery of the offense.” The due or reasonable diligence requirement is in harmony with our civil discov ery rule. It also promotes one of the purposes of a criminal statute of limitations: to discourage inefficient or dilatory law en forceme nt.
573 N.W.2d at 254.
¶30 Finding that reasoning persuasive, we likewise adopt “a probable cause element” in construing and applying § 13-1 07(B) . Id. Therefore, the seven-year limitation period under that statute begins “when the authorities know or should know in the exercise of reasonable diligence that there is probable cause to believe a criminal [offense] has been committed.” Id.
¶31 Probable caus e exi sts “w hen reas onably tru stwo rthy information and circumstance would lea d a person of reason able caution to believe that a suspect has committed an offense.” State v. Hoskins, 199 A riz. 127 , ¶ 30, 14 P.3d 997, 1007-08 (200 0). Applying that standard in this contex t is consistent with the probable-cause standard required for arrest or ind ictmen t in Ariz ona. See A.R.S. §§ 13-107(C) (“For the purposes of subsection B of this section, a prosecution is commenced when an indictment, information or complaint is filed.”); 13-3883 (A) (peac e officer w ithout warr ant may arrest p erson if officer has probable cause to believe certain facts); 13-4201(1) (defining “accused” as person who has been arrested for felony and lawfully indicted or subjected to probable-cause determination); 21-413 (grand jury shall return indictment if convinced from all evidence that probable c ause exists to believe accused is guilty of offen se); Ariz. R. Crim. P. 12.1(d)(4),
20
16A A.R.S. (sa me); see also Ariz. R. Crim. P. 5.4, 16A A .R.S. (determ ination of p robable cause in preliminary hearing).
¶32 In addition, considering such factors as the statute’s spirit, purpose, consequences, and effects, we have no reason to believe the legislature intended to require the state to commence a prosecutio n before it p ossesses ad equate inf ormation to legally initiate charges. In other words, the legislature presumably did not contemplate the limitation period beginning even before the state has actu ally or constructively discovered that an offense probably has been committed.15
¶33 Jackson argues, however, that applying a probable-cause standard to the discovery issue under § 13-107(B) “would defeat the recognized purposes of the statute of limitations and effe ctively render it a n ullity.” Accordin g to him, to d esignate the point at which the police have established “probable cause to believe a particular person committed an offense” as the triggerin g event tha t starts the limitation period “turns th e statute on its head, as it removes the time that the police are actually investigating the offense from the limitations period, contrary to the purposes of the statute.” Instead, Jackson argues, the limitation period should begin when police “have reasonab le suspicion that a crime has occurred,” even if the identity of the perpetrator or suspect is unknown.
15 Through statutory amendments or new enactments, many states have lengthened, created special commencement rules for, or made more flexible the limitation periods that specifically apply to charge s of sex ual misc onduc t comm itted aga inst min ors. See Robinson, supra n.7, § 202(a), at 99 -101 n.1 (2 003-04 S upp.) (citing sta tutes); see also id. § 202(c), at 103 n.20.
21
¶34 Jackson relies on several California case s to support that proposition. In People v. Zamora, 557 P.2d 75 (Cal. 1976), the court addressed complicated facts concerning two fires intentionally set to collect insurance proceeds and ultimately concluded that the resulting criminal charges were barred by the applicable statute of limitation that, like Arizona’s, included a discovery-based trigger. In so holding, the court alluded to the following rule that applied to civil cases in California: “‘The statute commences to run . . . after one has knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud, thus putting him on inquiry.’” Id. at 91, quoting Hobart v. Hobart Estate Co., 159 P.2d 958, 972 (Cal. 1945). Nonetheless, the court in Zamora did not expressly adopt a reasonable-suspicion, or inquiry-notice, standard for determining the point at which the limitation period for criminal charges would commence. Rather, the court merely held “as a matter of law the uncontradicted evidence produced at trial show[ed] that with the exercise of reasonable diligence the facts constituting the acts of grand theft could have been discovered at an earlier time.” Id. at 94. In addition, the court later noted that “[o]nce there is sufficient k nowled ge (judged by the standard s we hav e set forth he rein) that a theft has been committed the limitation period will begin to run.” Id. at 98 n.33 (empha sis added).
¶35 Subsequent California cases also c ast doubt o n wheth er the reason able suspicion or “inquiry” standard mentioned in Zamora is actually applied in practice. For example, in People v. Crossman, 258 Cal. Rptr. 370, 372 (Ct. App. 1989), the court quoted that standard but then state d: “The q uestion is w hether there is sufficient k nowled ge that a crime has been committed.” (Emphasis added.) In addition, the Crossman court noted that,
22
generall y, “‘[f]or the purposes of triggering the statute of limitations . . . , a discovery [i]s held not to have occurred e ven thoug h officials lea rned subs tantial facts which w ould have only created a suspicion of w rongdoing.’” Id. at 373, quoting People v. Kronemyer, 234 Cal. Rptr. 442, 454 (Ct. App . 1987); see also People v. Lopez, 60 Ca l. Rptr. 2 d 511, 5 19 n.4 (reciting Zamora’s standard for when limitation period commences, but also noting that “it is the discovery of the crime, and n ot just a loss, that triggers the running of the statute”).
¶36 Moreover, in Commonwealth v. Hawkins, 439 A.2d 748 (Pa. Super. Ct. 1982), to which th e court in Crossman cited, the Pennsylvania court stated that “discovery of the offense” for purposes of triggering the limitatio n period had not o ccur red w hen “only a suspicion existed ” that a c rime ha d been comm itted. Id. at 750, 751 ; see also People v. McGreal, 278 N.E.2d 504, 510 (Ill. App. Ct. 1971) (“‘discovery of the offense’” for purposes of triggering limitation period “mean[s] gaining knowledge of or finding out that a penal statute has been violated”) (emp hasis ad ded), quoting Ill. Rev. State. ch. 38 par. 3-6(b) (1969). In short, to the extent the out-of-s tate authorities on which Ja ckson relies support his argumen t, we do not find them persuasive and, therefore, decline to apply a reasonable- suspicion or inquiry-notice standard to § 13-107(B).
¶37 Applying a probable-cause standard to § 13-10 7(B) will n ot necessar ily produce the drastic, ill-advised consequences Jackson postula tes. See ¶ 33, supra. Contrary to Jackson’s assumption, commencement of the limitation period will not depend on law enforcement officers actually establishing probable cause to arrest or ch arge a susp ect. Rather, absent actual discovery, the limitation period will commence when th e govern ment,
23
through the exercise of reasonable diligence, “should have” discovered probable ca use to believe an offense has been committed, even though probable c ause is only later a ctually established. § 13-107(B ).
¶38 In addition, a probable-cause standard is not unwork able in practice, as Jackson apparently suggests. Once probab le cause is establis hed an d charg es have been f iled, a defendant’s statute-of-limitation contention and its related discovery issues under § 13- 107(B) can be viewed through the lens of all facts k nown at the later time. In other words, the facts ultimately discovered and used to support pro bable cau se will be hig hly relevant in determining whether , with reasonable diligence, the state should have discovered such facts more th an seve n years be fore the prosec ution co mmen ced.
¶39 Adoption of a probable-cause standard also is consistent with Arizona’s statute-of-limitation jurisprudence in the civil context. Under the co mmon law “discovery rule,” a cause of actio n accru es for p urpose s of A .R.S. § 12-542, and the limitation period then begin s, when “ the plaintiff k nows o r with reaso nable diligen ce should know th e facts underlying the cau se.” Doe v. Roe, 191 A riz. 313 , ¶ 29, 955 P .2d 951, 96 0 (1998); see also Walk v. Ring, 202 A riz. 310 , ¶ 22, 44 P .3d 990, 99 6 (2002) (f or limitation pe riod to commence, “it is not enough that a plaintiff comprehends a ‘what’; there must also be reason to connect the ‘wha t’ to a particular ‘who’ in such a way that a reasonable person would be on notice to investigate whether the injury might resu lt from fau lt”); Nolde v. F rankie, 192 Ariz. 276, ¶ 31, 964 P .2d 477, 48 4 (1998) (“ [A] cau se of action based on sexual abuse accrues when th e plaintiff be comes aw are of the ‘w hat’ and the ‘who’ elements of the claim,
24
i.e., the condu ct constituting the sexual abuse and the identity of the abuser.”) (citation omitted); Sato v. Van Denburgh, 123 Ariz. 225, 227, 599 P.2d 181, 183 (1979) (cause of action accr ues w hen plain tiff k now s or reaso nably should know of “defendant’s negligent conduct” or “whe n the plaintiff is first able to su e”); Logerqu ist v. Danfor th, 188 Ariz. 16, 19, 932 P.2d 2 81, 284 (App . 1996) .
¶40 Regardless of the level or timing of R .’s awaren ess that Jack son had se xually abused her during the 1989-1992 time fra me or b eyond, see Nolde, 192 Ariz. 276, ¶ 32, 964 P.2d at 484, the record reflects that she did not convey that information to law enforcement authorities until 2000 a nd that the sta te did not ob tain inform ation from any other sou rce to substantiate the charges before the n. Construing § 13 -107(B) “in harm ony with our civil discovery rule,” Wilson, 573 N.W.2d at 254, we cannot say that the state, more than seven years before ob taining the ind ictment, disco vered or re asonably sho uld have discovered “the facts underlying the [charges].” Doe, 191 Ariz . 313 , ¶ 29 , 955 P.2d at 96 0. Th at is to say, the record does not support a finding as a matter of law that the state knew o r reasonab ly should have known that Jackson probably had engaged in criminal “conduct constituting the sexual abuse” agains t R. Nolde, 192 Ariz. 276, ¶ 31, 964 P.2d at 484.
¶41 Having concluded that § 13-107(B) implicitly requ ires the state to show by a preponderance of the evidence that reasonable diligence would not have led to discovery of the crime, we further conclude that the state’s fa ilure to adequately investigate or otherwise
25
exercise reasonable diligence, in and of itself, does not bar a prosecution.16 Rather, the actual or constructive discovery addressed in § 13-107(B) must relate to facts tha t show tha t a particular offen se prob ably was comm itted. See Zamora, 557 P.2d at 98 n.33. Mere suspicion or conjectu re that a susp ect might h ave com mitted an o ffense is in sufficient to trigger the limitation period. See Crossman; Hawkins. Notwithstanding our duty to libera lly construe § 13-107(B) most favorably to a defendant, to conclude otherwise would require an unreason able constru ction of the statu te. See State v. Wood, 198 Ariz. 275, ¶ 7, 8 P.3d 1189, 1191 (App. 2000) (“In construing criminal statutes we apply practical, common sense constructions, not hyper-technical ones that would tend to frustrate legislative intent.”); see also State v. Rodriguez, 205 Ariz. 392, ¶ 11, 71 P.3d 919, 923 (App. 2003). For the foregoing reasons, w e apply a common -sense, probable-cause stan dard to § 13-107(B ). V. Review of trial court’s ruling
¶42 In reviewing a trial court’s ruling, we will not disturb its factual findings unless they are c learl y erroneous or unsu pported by any reasonable evidence, but we review any legal conclu sions d e novo . State v. O’D ell, 202 Ariz. 453, ¶ 8, 46 P.3d 1074, 1077-78 (App. 2002); Escobar-Mendez, 195 A riz. 194 , ¶ 15, 986 P.2d at 230. W e cannot say the trial court clearly erred in finding that the state had “failed to take reasonable steps to pursue the matter and to follow-up on significant leads” in 1994. But, on the other hand, applying the
16 At oral argument, Jackson contende d that, even if the police h ad exercise d all due diligence by fully investigating the allegations against him in 1994 an d finding n o basis to file charges, this prosecution initiated in 2002 would still be untimely. In our view, neither § 13-107 (B) nor co mmon sense sup ports that argu ment.
26
probable-cause standard, w e cannot sa y the state would o r should ha ve discov ered prob able cause to charge Jackson by 2001 (i.e., within seven years of the 1994 report) had it exercised reasonable diligence by further investigating the unconfirmed reports of his alleged sexual misconduct in 1994.17 The reco rd suppor ts no such f inding, and the trial court did not so find. Indeed, the trial court recognized the lack of evidence that reasonable diligence would or should have led to discovery of the crimes by noting in its ruling: “It is speculative whether an out-of-home interview would have resulted in the victim’s cooperatio n with sex crime investigators. It is also uncertain what, if anything, CPS might have learned had the referra l been e xecute d.”
¶43 As noted above, the state bore the burden of proving by a preponderance of the evidence that it neither actually nor constructively discovered, more than seven years before the indictment against Jackson was filed, that the offenses against R. probably had been committed. The scant record before us leaves open the question of whether the state met or can meet that burden. The record is devoid of any evidence that, had the police interviewed R. at school or reported the case to CPS,18 either Jackson or R. probably would have admitted that the sex ual abu se had o ccurred . Indeed, R. waited until she was eighteen years old be fore she finally made the accusations against her father. Nor does the record reflect that, had the
17 As for the failure of Tucson police to follow up in 2000, the state had seven years from that date to file charges. Its filing in 2002 was well within that time period.
18 No evidence established whether Tucson police routinely sought CPS intervention whenever child sexual abuse was alleged or whether the police in 1994 had wanted CPS follow-up for anything other than Jackson’s dirty house and need for housekeeping advice.
27
state exercised reasonable diligence during the 1994-2001 time frame, other evidence of the offenses would or should have been uncovered.
¶44 In sum, the rec ord does n ot support a finding, even had the trial court made one, that the state should have discovered more than seven years before Jackson was indicted that he probably had committed the charged offenses. 19 See Lopez, 60 Cal. Rptr. 2d at 523 (reversing order dism issing indictm ent on statute -of-limitation grounds because evidence failed to establish that governmental victim “knew or should have known” of defendant’s illegal condu ct). Escobar-Mendez, on which the trial court relied, is d istinguishab le and does not alter our conclu sion. U nlike R ., the victim in that case immediately disclosed the defendant’s prior sexual offenses when a police officer first contacted and interviewed her, and the def endan t was in dicted te n mon ths later. Here, in contrast, R. and Ja ckson bo th veheme ntly and cons istently denied any sexual impropriety when police officers interviewed them in 1994, and no independent eviden ce corroborated the un confirmed reports by R .’s friends. In addition, the cases Division One cited in Escobar-Mendez on the issue of reasonab le diligenc e conta ined ev idence that, had reasonable diligence been used, the relevant facts at issue w ould ha ve bee n disco vered. See Snow v. Superior Court, 183 Ariz. 320, 325, 90 3 P.2d 628, 633 (App. 1995) (had sta te exercised reasonab le diligence, it probably would have located defendant outside Arizona for purposes of speedy-trial rule);
19 In the police rep ort, Office r Sueme checked “yes” in certain boxes, including boxes labeled “Addl. Reason to Invest.?” and “Prosecute?” Without any explanation or elaboration of those entries, h oweve r, we find th em insuff icient to establish that the police would have discovered probable c ause to cha rge Jackso n earlier had further inve stigation been undertaken in 1994.
28
Humb le, 179 Ariz. at 414, 880 P.2d at 634 (state a dmittedly failed to pursue f our significa nt, investigative leads that likely would have led to successful service of summons or warrant on defenda nt); State v. Armstrong, 160 Ariz. 159, 161, 771 P.2d 889, 891 (App. 1989) (dismissal on speedy-trial grounds upheld because, had state attempted to serve defendant by mail, summons would have reached defendant). Again, the record here does not necessarily support that conclusion.
CONCLUSION
¶45 The trial court misapplied the law in granting the motion to dismiss the charges and, therefo re, abus ed its dis cretion. See Gorman; Fields. Accordingly, we reverse that ruling and remand the case for further proceedings. Obviously, however, when the parties litigated and the trial court ruled on Jackson’s motion to dismiss, they lacked the benefit of our analysis and conclusion. Under the circumstances, we deem it ap propriate to remand the case for further proceedings consistent with the standards set forth in this opinion.20 See United States v. Jordan, 256 F.3d 922, 933 (9th Cir. 2001) (remanding case for trial court to
20 The state contends Jackson conceale d his crimes by lying to the police and suggesting a motive for his daughter to have fabricated any claims of abuse in 1994. Such concealm ent, the state argu es, tolled the statu te of limitation until 2002, when R.’s “unambiguous allegations were reported to and substantiated by law enforcement.” See Escobar-Mendez, 195 Ariz. 194, ¶ ¶ 19-21, 9 86 P.2d a t 231-32; cf. Logerqu ist v. Danfor th, 188 Ariz. 16, 21, 932 P.2d 281, 286 (App. 1996). Th e trial court, how ever, was “unable to find” on the record befo re it that Jackson had “attempted to conceal his actions.” Although we have no basis for overturning that ruling on the sparse record here, we do not foreclose the parties and tria l court from revisiting that issue on reman d. See Nold e v. Frank ie, 192 Ariz. 276, ¶ 21, 964 P.2d 477, 482 (1998) (when trial court had not measured plaintiffs’ allegations against equ itable estopp el standard d efined on appeal, case remande d to permit trial court to determine whether defendant’s affirmative conduct had “actually and reasonably induced the plaintiffs to delay filing suit, and w hether their delay was reasonab le”).
29
determine whether evidenc e satisfied new standard of proof an nounced on appea l); State v. McD owell, 310 S.E.2d 301, 310 (N.C. 1984) (“When findings of fact must be made in light of a preva iling leg al stand ard, a new explication of the standard justifies our remanding the case for reconsideration de novo based upon the new explication.”). On remand, the trial court, in its discretion, may conduct any further proceedings it deems appropriate or necessary to better develop the record o n the relevant, discovery-related issues und er § 13- 107(B). 21
______________________________________
JOHN PELA NDER, Presiding Judge
CONCURRING:
_______________________________________
PHILIP G. ESPINOSA, Chief Judge
_______________________________________
PETER J. ECKERST ROM, Judge
21 We note that O fficer Sueme, who was directly involved in the 1994 investigation and who authored th e report in evidence, was available but did not testify at the hearing on Jackson’s motion to dismiss. She and other relevant witnesses might be helpfu l in clarifying variou s factua l questio ns that th e curren t record leaves o pen.