*1
tion,
exclusively
relied
finding
petitioner’s
defense
on
its discretion “in
that the
¶27.
¶27,
theory.”
alibi
at
Id.
961 P.2d at
sentences should not have been ordered con-
circumstances,
Under these
the court con-
Gordon[,
secutive under
161 Ariz.
cluded, “[g]iven the lack
overwhelming
(1989)].”
308,
alibi infirm instruction was suffi- “lack[ed] magnitude”
cient constitutional to avoid the
preclusive
of Rule
effect
32.2. 185 Ariz. at
Consequently,
cannot Rule 32 counsel’s failure to raise
this claim of ineffective assistance of trial egregious
counsel so that the trial court was. precluded. in finding erred the claim In re PAUL M. review, petition 8 In his French fo- No. 2 CA-JV 99-0064. primarily cuses on trial counsel’s failure request an only alibi instruction. He sum- of Arizona, Appeals Court of marily the other mentions failures encom- 2, Department Division A. passed in his claim ineffective assistance trial counsel: failure to cease direct examina- witness, elderly tion of an an rehabilitate witness,
alibi to tell French he could submit sentencing, at object
letters of instruction, timely
the “other bad act” and to Romero,
request a list. Romero See State v. P.2d 954 None of
these omissions constitutes ineffectiveness so
egregious and of such constitutional dimen- precluded.
sions that it not be Conse-
quently, although the trial grant court did
petitioner partial evidentiary hearing and performance,
did conclude counsel’s instruction, respect prior
least with to the act prejudicial,
had not been the court was cor-
rect that the claims of ineffective assistance
of trial to these counsel as issues could have post-conviction
been pro- raised in the first
ceeding precluded. and are therefore equal pro 9 French also raises an respect
tection claim with 41-
1604.10 and contends trial court abused *2 Roll, Attorney County
Chris M. Cochise Sherman, Bisb, Attorneys for By E. James State. Macartney, County
Margaret L. Cochise Larson, Bisbee, Legal By A. Defender Joel Attorneys Minor.
OPINION FLÓREZ, Judge. minor, 20, February born
1985,
adjudicated delinquent for violat
was
by knowingly abusing
ing
§ 15-507
a
engaged in
teacher or other
duties,
performance of her
a class three
the
placed
the
misdemeanor. The
probation until he had
unsupervised
minor on
apology
had either
written two letters of
“community work
completed forty hours of
fine in lieu of work
paid
service” or
a $200
adjudication,
appeals
ing. The minor
vulgar
arguing that his
words and defiant
teacher’s aide did
behavior toward a
of a school
with
amount to “abuse”
interpre
meaning
15-507. “The
law,
question
which
is a
tation of
statute
Newspapers,
Phoenix
we review de novo.”
Sec.,
Ariz.
Dept. Econ.
Inc. v. Arizona
450,
(1996);
In
P.2d
re
County
No. JD-
Maricopa
Juvenile Action
P.2d 1006
¶2
adjudication hearing
Evidence at the
January
a teacher’s
established
monitoring
was
aide at Benson Middle School
during the lunch hour when
playground
then-thirteen-year-old mi-
she
overheard
saying
group of
or five other
to a
four
somebody’s
boys
going to kick
“that he was
might
ing
that there
ass.” Concerned
f—
aide,
five
fight,
approximately
who was
time, told the
the minor at the
feet behind
any-
going
kick
“that he wasn’t
minor
this,
stopped,
body’s
At
the minor
butt.”
aide,
“aggressively” to face
turned
“[f]—
loud tone to
off.”
told her
accompany
needed to
told the minor he
office,
replied
subjective
her to the
to which the minor
meaning
of that term “varies
going
ing anywhere
that “he wasn’t
wildly
culture,
[so]
culture to
class to
f—
repeated
request
class,
[her].” When she
her
arguably
and era to era” as to
render
office,
accompany
he
her to the
unconstitutionally vague
the statute
or over-
around,
walking away,
“turned
started
view,
In
broad.
the state’s
“most words or
*3
again.”
[her]
told
to f— off
testi-
people might regard
actions which
as insult-
— n
fied the minor told her to
off’ four
“[f]
abusive,
ing will also be
those that are
in
times
all before she “went to the office and
not do not need to be criminalized.” In
got
principal].”
[the
effect,
the state contends that
the 1989
change
scope
amendment made no real
in the
question presented by
3 The sole
this
of the statute
insulting
because “most”
be-
whether,
appeal
by repeatedly telling
is
agree
havior is also abusive.
do not
that
teacher’s aide to “[f]—
essentially synonymous
the terms are
knowingly
employee
abused a
in
viola-
necessarily
that “to insult” is
also “to abuse.”
§
provides:
tion of A.R.S.
which
“A
Nor, parenthetically, do we believe the defi-
person
knowingly
who
abuses a teacher or
enjoys any
nition of “abuse”
wider consensus
employee
other school
grounds
on school
than the definition of “insult.”
while the teacher or
engaged
in
performance
guilty
of his duties is
of a
accept
argument
6 To
the state’s
class 3 misdemeanor.” The term “abuses” is
“abusing”
that
“insulting”
includes
would
15,
not defined Title
and we have found no
legislature’s
mean that
amendment of
§
(formerly
cases decided under
15-507
formal,
§
purely
15-507 was
without substan
15-201)
guide
interpretation.
our
significance
practical
tive
effect. Such a
However,
that,
we note
until the statute was
statutory
conclusion violates the rule of
con
1989,
amended
the offense could
com-
presume
struction that
tous
that
by “insult[ing]
abus[ing]”
mitted
a teacher.
legislature
language
“when the
alters the
of a
Laws,
201, §
1978 Ariz. Sess.
ch.
255. The
statute[,]
change
it intended to create a
expressly
1989 amendment
deleted “insults”
existing
Bridgeforth,
law.”
v.
State
156
statute,
adding
while
“other school
60, 63,
3,
(1988) (holding
Ariz.
750 P.2d
6
employee[s]”
protected
to the class of those
intentionally”
phrase
deletion of “and
engaged
perfor-
from abuse while
in the
“knowingly
intentionally”
in A.R.S.
13-
grounds.
mance of their duties on school
changed necessary
require
2310
mens rea to
Laws,
124, §
1989Ariz. Sess.
ch.
knowledge only). We conclude that
goal
construing
4
Our
a statute
§of
legisla
amendment
15-507 reflects the
give
is to discern and
effect to the intent of
insulting
intention
ture’s
words alone
legislature.
Mail Boxes v. Industrial
longer qualify
should no
as criminal abuse
Comm’n,
(1995).
119,
181 Ariz.
and to “denounce” in turn is defined as to misdemeanor. She had class one censure!;] principal’s openly “condemn ... accuse been summoned to the office [t]o Id. at 381. formally.” disagreement between herself and discuss a another student. ¶8 Here, the teacher’s aide testified the *4 principal] [the] After assistant asked names, [the “flip
minor did not call her did not planning fight if this Juvenile she was her; rather, [her] and did not intimidate student, out” at other Juvenile “lashed attitude, vulgarity, he used had a rude said, I have “F[ ] him. She this. don’t Although talked back to her. the minor’s — offensive, s[ ].” to take this When Juvenile stood behavior was insolent and his — door, “attack,” up and walked towards the the assis- “injure,” “disparage,” words did not “revile,” principal stop. tant asked her to Juvenile personally. or “denounce” the aide said, you. earlier, era, then I don’t have to do “F[ ] genteel In an more the senti- — me,” you opened what tell and she the door by ment communicated this minor’s words office, slamming and left the door the be- might expressed “go away,” have been as alone,” hind her. “get my “leave me or out of face.” crude, disrespectful, His words were ¶ C., Rep. Adv.
wholly they inappropriate, but were not a juvenile the Division One reversed court’s disparaging or hurtful attack on the aide adjudication delinquency, finding of were, personally. We believe the comments speech the minor’s and conduct were “of- most, insulting authority. at to the aide’s ¶8, id. at unacceptable,” fensive and but insolence, “Insult” means “to treat in- with fighting did not constitute words or seri- dignity, contempt by word or action: af- ¶ Id. at ously disruptive 11. behavior. Webster’s Third New In- wantonly.” front “speech The court noted that the minor’s Dictionary ternational at 1173. likely provoke ordinary an citi- was reaction, zen to a violent and it was less appears transcript 9 It that the likely provoke response from a such juvenile court likewise found the minor’s official, alleged school the victim in this insulting adjudication words and based its on extension, case.” Id. at By if one dictionary an unnamed source in which the this[;] student’s I don’t have to “F[ ] definition of “abusive” included treat- — “[i]ll ],” you[;] I “F[ ] take this don’t s[ by insulting ment — coarse or words.” The — me,” you punctuated have to do what tell stated, given by “the reference defense by disorderly door-slamming, are not con- counsel!,] ‘abusive,’ under the term it does 13-2904(A)(1) (A)(3), duct under it about, by talk ‘111treatment coarse insult- inconsistent, least, seems at the that anoth- So, ing very words.’ it seems to me consis- go er student’s off’ and refusal to “[f]— tent with the definition held Webster’s.” principal’s to the office should rise to the Thus, juvenile ruling appears the court’s employ- level of criminal abuse of a school having equated rest on its “coarse or insult- ee. ing” with “abusive.” above, however, noted 11 In likewise As “abuse” con- the minor was serious, purposeful- charged disorderly
notes conduct more with conduct in violation more injurious, ly potentially engaging “seriously and more harmful for disrespectful disruptive ignoring than words or behav- behavior.” After three tangential support requests by principal speak ior. We find for this con- his school classroom, minor, by clusion in the decision Division of this her outside the One students, adjudication directly vacate its orders of presence of other looked at therefore her, you,” disposition. “F— then kicked over a said plastic Holding that behavior molded chair. conduct, did not rise to the level of DRUKE, WILLIAM E. CONCURRING: supreme court observed: Judge. type do not condone the of behavior We PELANDER, Presiding Judge, dissenting.
question, keep in mind the differ- but must and criminal conduct. ence between civil respectfully undisput- I It is dissent. laws do not make criminals out of Our “knowingly” his ed that the minor directed they juveniles just act adults or because barrage on verbal “school offensively rudely respect or lack grounds” was “en- while control____ gaged performance [her] duties.” are, course, quite aware that the Thus, only issue is whether legal sys- need the of our schools conduct and lan- the evidence of the minor’s statutes, however, the current tem. Under finding that he had guage supported a equate acting we cannot a child’s out aide, purposes “abused” the teacher’s through angry through cursing or or defi- court found. Be- as pro- actions with conduct ant words and disturbing exists for cause no valid basis scribed the current criminal statute. *5 finding, I would affirm. attempt by stretching will not to do so We ¶ majority part 14 in on several relies punish the statute to school behavioral dictionary to definitions of the term “abuse” that, though problems type of a unfortu- support that 15-507 does not its conclusion common, injure nately or all too neither proscribe Those and the minor’s conduct. any person seriously disrupt threaten however, definitions, dictionary other any class or function. school See, e.g., contrary conclusion. The Ameri- ¶¶ L., 13,14. slip op. at Julio (definition Heritage Dictionary 70 of the can ¶ reasoning equally find the court’s includes assail with con- “[t]o verb “abuse” applicable to the different statute at issue words; coarse, temptuous, or re- legislative here. In the absence of a defini- vile”; and “ill- synonyms include “mistreat” “abuse,” tion of we believe the term should treat”; applies noting that to “[a]buse very in be reserved for conduct different by wrongful treatment deed or unreasonable kind, degree, if from the minor’s not also (7th word”); Dictionary Black’s Law vulgar words and defiant actions here. That ed.1999) (“abuse” depart from “[t]o means inappropriate behavior was the minor’s (a dealing legal or reasonable use beyond thoroughly dispute, as is offensive is thing)”); Dictionary person or Black’s Law unquestioned right impose the school’s (5th 1979) (“ wrong ed. ‘Abuse’means to disciplinary consequences as the five- such coarsely, disparage, re- speech, reproach by day suspension school mentioned from vile, malign.”). us, however, question court. The before lan- gratu- person’s conduct or impudence the brazen Whether whether depends on a case- thirteen-year-old guage consti- constitutes “abuse” vulgarity itous of a that, analysis surrounding by by-case factual We find tute abuse 15-507. statute, the minor leg- circumstances and context. removing “insults” from the profanity the teacher’s only repeatedly directed signaled islature its intent to criminalize — n “[f| by telling truly exempt know- her four times abusive conduct and to requested including specifically had “insultfing]” em- after she ingly a teacher or school office; accompany her to the school ployee scope Because him to aggressive finding responsibility minor took an stance toward juvenile court’s voice; spoke in a loud tone of insulting” nature of the aide and hinged on the “coarse or words, five other students were the court and some four to the minor’s we conclude vicinity the occurrence. finding minor the immediate a matter of law erred as context, majority’s contrary to the violating § responsible for 15-507. We Given ele- law, proof of several additional juvenile matter of conclusion as a 15-507, ments, compare 13-2904 with a matter of have found as court could well controlling not L. and Louise C. are disparag- were “a Julio fact that the minor’s words personally.” on the aide here. ing or hurtful attack Heritage Dictionary The American 8. See L., noted in “not 19 As the court Julio (“disparage” speak means of as “[t]o every public decorum or of school violation of small; belittle,” re- unimportant “[t]o adjudica gives legal cause for criminal rules rank”). duce in esteem or ¶ 7, tion,” slip op. at and there personalize minor his 16 That the did merely may be “a difference between indeed name, intimidate vulgarity, call the aide a con behavior and criminal rude or offensive language any less her does not make his legislature’s But it is the duct.” Id. at 10. “contemptuous” or “coarse.” The American role, court’s, what consti not this to state And, Heritage Dictionary reasonable Hickey, tutes a crime. See State v. conclude, juvenile as the court (1977) minds could 561 P.2d 317-18 did, “depart[ed] implicitly (“[L]egislatures possess broad discretion dealing ... use in with” the reasonable prescribe penal criminal offenses and define (7th Dictionary Law aide. Black’s therefor.”); Ramsey, 171 Ariz. ties ed.1999). “In-your-face” profanity a teen- (“The (1992) 408, 412 repeatedly a teacher age student directed at legislative department power has the to de performing duties at or aide who is her constitutes a crime and the fine what conduct certainly may go beyond mere ad- power prescribe punishment for that con disciplinary matter and cross the
ministrative duct.”). I would affirm. drawn, line, finely the line however delinquent/misdemeanor
into conduct. Con- circumstances,
sidering all the finding err in the then-thirteen- did not
year-old encompassed and minor’s behavior
proscribed by
majority unduly emphasizes
17 The
like behavior,” seriously disruptive
violent or 13-2904(A)(1), of- and use of “abusive or gestures ... in a manner language or
fensive
likely provoke physical immediate retalia- 13-2904(A)(3).
tion.” Because charge
conduct a more severe than abuse