In re Derek D.

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) IN RE: DEREK D., ) ) ) ) ) ) ) ) ) ________________________________) 1 CA-JV 11-0011 DIVISION ONE FILED: 06/07/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT E MEMORANDUM DECISION (Not for Publication 103(G), Ariz. R.P. Juv. Ct.; Rule 28, ARCAP) Appeal from the Superior Court in Yavapai County Cause No. V1300JV820090046 The Honorable Tina R. Ainley, Judge AFFIRMED Sheila Polk, Yavapai County Attorney by Tanaaz R. Wheeler, Deputy County Attorney Attorneys for Appellee Law Office of Florence M. Bruemmer, P.C. by Florence M. Bruemmer Attorneys for Appellant Prescott Camp Verde Anthem P O R T L E Y, Judge ¶1 Derek D. appeals from his adjudication and disposition for assault and disorderly conduct. For reasons that follow, we affirm. PROCEDURAL BACKGROUND ¶2 sent Derek D. fought C.Z. in a parking lot because C.Z. had text messages to Derek s girlfriend. A bystander witnessed the fight flagged down Officer Baizel. Baizel found Derek in a vehicle that was leaving the parking lot. admitted that started Arizona assault, he Revised 1203(A)(1) (2010); 2904(A)(1) and (2010). the fight. Statutes disorderly After a was charged with ( A.R.S. ) section 13- conduct, contested § 13- he was after his hearing, disposition. We have jurisdiction pursuant to A.R.S. § 8-235(A) Rule of Procedure an A.R.S. delinquent Arizona filed Derek adjudicated (2007) and and He who for appeal the Juvenile Court 103(A). DISCUSSION ¶3 favorable On appeal, we review the evidence in the light most to sustaining the delinquency inferences against the juvenile. and resolve all In re David H., 192 Ariz. 459, 460, ¶ 3, 967 P.2d 134, 135 (App. 1998). When sufficiency of the evidence is in question, we will reverse only if there is a complete absence of probative facts to support the judgment or 2 if the judgment is contrary to any substantial evidence. In re John M., 201 Ariz. 424, 426, ¶ 7, 36 P.3d 772, 774 (App. 2001). Substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support conclusion of defendant s guilt beyond a reasonable doubt. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)) (internal quotation marks omitted). ¶4 Derek argues that his adjudication for assault and disorderly conduct was not supported by the evidence because he was justified by using self-defense pursuant to A.R.S. §§ 13-205 and -404 (2010). Justification, while a defense, is not an affirmative defense. See State v. King, 225 Ariz. 87, 89, ¶ 6, 235 P.3d 240, 242 (2010). If there is any evidence of self- defense, the State must establish that the person did not act with justification beyond a reasonable doubt. 205(A). Id.; A.R.S. § 13- Justification to use physical force against another may be appropriate if a reasonable person . . . believe[d] that physical force [was] immediately necessary to protect himself against the other s use or attempted use of unlawful physical force. ¶5 A.R.S. § 13-404(A). Although Derek testified that there was also testimony to the contrary. C.Z. hit him first, After Baizel stopped the truck, he questioned Derek who admitted that he started the 3 fight. Additionally, on cross-examination, Baizel stated that the driver of the truck confirmed Derek s account of the fight. Moreover, C.Z testified that Derek threw the first punch. ¶6 The juvenile resolve any conflict. court had to weigh the testimony Ariz. Dep t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004). court found that the State met its burden of proof. there is substantial and evidence to support the The Because delinquency adjudication, we find no error. ¶7 Derek also argues that there was insufficient evidence because of conflicting testimony and the fact that Baizel did not see the text messages, did not interview some witnesses, and did not recall seeing any injury to C.Z. The discrepancies, however, go to the weight of the evidence, not the sufficiency of the evidence. See Baroldy v. Ortho Pharm. Corp., 157 Ariz. 574, 583, 760 P.2d 574, 583 (App. 1988). Because the juvenile court was the fact-finder, it had to resolve any discrepancy. We will not re-weigh the evidence. See Oscar O., 290 Ariz. at 334, ¶ 4, 100 P.3d at 945. Consequently, we find that the adjudication was supported by substantial evidence. 4 CONCLUSION ¶8 For the above stated reasons, we affirm adjudication and disposition. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ____________________________ LAWRENCE F. WINTHROP, Judge /s/ ____________________________ SHELDON H. WEISBERG, Judge 5 the

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