State of Arizona v. Hon. Browning

                                IN THE
              ARIZONA COURT OF APPEALS
                             DIVISION TWO


                        THE STATE OF ARIZONA,
                              Petitioner,

                                   v.

HON. CHRISTOPHER BROWNING, JUDGE OF THE SUPERIOR COURT OF THE STATE
            OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,
                            Respondent,

                                  and

                      ADRIEL GUEVARA ENRIQUEZ,
                         Real Party in Interest.

                        No. 2 CA-SA 2023-0096
                        Filed December 29, 2023


                      Special Action Proceeding
                Pima County Cause No. CR20191616001

           JURISDICTION ACCEPTED; RELIEF GRANTED


                              COUNSEL

Laura Conover, Pima County Attorney
By Tai Summers, Deputy County Attorney, Tucson
Counsel for Petitioner

Megan Page, Pima County Public Defender
By David J. Euchner and Jenna L. Johnson, Assistant Public Defenders, Tucson
Counsel for Real Party in Interest
                       STATE v. HON. BROWNING
                          Opinion of the Court



                                  OPINION

Chief Judge Vásquez authored the opinion of the Court, in which Presiding
Judge Eppich and Judge Gard concurred.


V Á S Q U E Z, Chief Judge:

¶1            The state seeks special action review of the respondent
judge’s ruling that a facility dog could not accompany a minor victim to the
witness stand during her testimony. We accept jurisdiction and grant relief.

¶2             Real-party-in-interest Adriel Enriquez is charged with two
counts of sexual conduct with a nine-year-old minor. The victim will be
under the age of eighteen at the time of trial. The state filed a notice stating
its intent to have a facility dog accompany the victim during her testimony
pursuant to A.R.S. § 13-4442(A).

¶3             The respondent judge denied the state’s motion for the facility
dog to accompany the victim to the witness stand. Instead, he ordered the
victim would have “complete and unfettered access to the dog[] in a private
area . . . immediately before and immediately after her testimony” but the
dog would “remain in the rear of the courtroom” in the victim’s line of sight
“but outside the view of the jury.” The respondent affirmed that the parties
could “request a brief recess” if the victim became “emotionally upset or
distraught during her testimony,” so she could be with the dog “in a private
room outside the presence of the jury.” The state filed this petition seeking
review of that order. Because this case involves a victim’s rights that
“would not be capable of protection if the matter were reviewed post-trial,”
we accept special action jurisdiction. Romley v. Schneider, 

(App. 2002).

¶4             In 2016, the legislature enacted § 13-4442(A), which requires a
trial court to “allow a victim who is under eighteen years of age to have a
facility dog, if available, accompany the victim while testifying in court”
provided the court receives sufficient notice.1 2016 Ariz. Sess. Laws, ch. 135,


       1Specifically, the party “must file a notice with the court that includes

the certification of the facility dog, the name of the person or entity who
certified the dog and evidence that the facility dog is insured.”
§ 13-4442(A). The statute also permits a trial court to allow a “victim who


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                       STATE v. HON. BROWNING
                          Opinion of the Court


§ 2. A “facility dog” is “a dog that is a graduate of an assistance dog
organization.” § 13-4442(D). If a facility dog accompanies a victim, the
court must “instruct the jury on the role of the facility dog and that the
facility dog is a trained animal” to “ensure that the presence of a facility dog
assisting a victim or a witness does not influence the jury or is not a
reflection on the truthfulness of any testimony that is offered by the victim
or witness.” § 13-4442(C). To implement this statute, the supreme court
adopted Rule 39(b)(9), Ariz. R. Crim. P., adding “the right to the assistance
of a facility dog when testifying as provided in A.R.S. § 13-4442 to the list
of enumerated victims’ rights.”2 Ariz. Sup. Ct. Order R-17-0002 (Aug. 31,
2017).

¶5             The state argues that, under § 13-4442, the facility dog must
be allowed to accompany the child victim to the witness stand and not, as
the respondent determined, be merely present in the courtroom within the
victim’s line of sight. We review issues of statutory interpretation de novo.
State v. Hernandez, 

 (App. 2019). “When the statute’s plain
language is clear, we will not resort to other methods of statutory
interpretation, ‘such as the context of the statute, its historical background,
its effects and consequences, and the spirit and purpose of the law.’” 

¶ 12 (quoting State v. Gray, 

 (App. 2011)).

¶6            When statutory terms are not defined, we apply the “usual
and commonly understood meaning unless the legislature clearly intended
a different meaning.” In re Nelson, 

 (2004) (quoting State
v. Korzep, 

 (1990)); A.R.S. § 1-213 (“Words and phrases
shall be construed according to the common and approved use of the
language.”).    Although “accompany” can have different meanings
depending on the context, in this context, it means “to go with as an

is eighteen years of age or more or a witness to use a facility dog.”
§ 13-4442(B).
       2Enriquez asserts that § 13-4442(A) violates Arizona’s constitutional

separation of powers because it “infringes on the judicial rulemaking
authority and the trial judge’s duty to manage the courtroom.” See generally
Ariz. Const. art. III, art. VI § 5(5), § 11. That argument, however, fails to
account for the supreme court’s implementation of the statute by enacting
Rule 39(b)(9). Cf. J.V. v. Blair, ___ Ariz. ___, ¶ 14, 

 (App.
2023) (“[T]he separation-of-powers lines are not always bright, and some
overlap exists, sometimes because one branch has ceded power to the
other.”).


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                        STATE v. HON. BROWNING
                           Opinion of the Court


associate      or      companion.”            Accompany,      Merriam-Webster,
https://www.merriam-webster.com (last visited Dec. 14, 2023); see also
Accompany, Webster’s Third New Int’l Dictionary (1971) (“to go with or
attend as an associate or companion”). Given this meaning, the respondent
judge’s decision that the facility dog was to be physically separated from
the victim during her testimony is incompatible with the statutory
directive. Instead, the statute requires that the facility dog must be with the
victim. See § 13-4442(A). This requirement is further demonstrated by the
statute’s directive to the trial court to instruct the jury regarding the facility
dog—meaning the jurors necessarily will know that the facility dog is
accompanying the victim.             See § 13-4442(C).        The respondent’s
interpretation, in contrast, would render the statutory provision requiring
such an instruction largely superfluous—a result we must avoid. See Mussi
v. Hobbs, 

 (2023).

¶7            Even if we were to conclude the term “accompany” was
ambiguous, an evaluation of the purpose of the statute would lead to the
same conclusion. Both the statute and the rule expressly provide that the
dog should accompany the victim “while testifying in court” or “when
testifying.” § 13-4442(A); Ariz. R. Crim. P. 39(b)(9). Whatever benefit the
dog is meant to provide, it is specifically intended to be available during the
testimony. Contrary to the respondent’s ruling, the statute simply does not
address the use of a facility dog during breaks and recesses or any other
circumstance except while the victim is testifying.3

¶8             The respondent judge expressed concern that “the presence
of a dog in sight of the jury and readily available for the witness” would
“bolster[] the victim’s credibility by invoking unnecessary sympathy for the
victim,” thus prejudicing the defendant.4 But the legislature has accounted

       3The benefits of a facility dog depend on proximity.       For example,
having a dog close by can “reduce a child’s heart rate and blood pressure,
in turn reducing stress and anxiety.” Casey Holder, All Dogs Go to Court:
The Impact of Court Facility Dogs As Comfort for Child Witnesses on a
Defendant’s Right to a Fair Trial, 

, 1180 (2013). And
“[s]trong evidence indicates that petting or holding a dog can reduce stress
and increase relaxation.” 

 For these and other reasons, best practices
require that the “dog . . . remain with the individual . . . particularly when
testifying at trial.” Ashley Englund, Canines in the Courtroom: A Witness’s
Best Friend Without Prejudice, 17 Animal & Nat. Res. L. Rev. 45, 56 (2021).
       4Whether such prejudice exists is far from certain.
                                                       Compare John J.
Ensminger, Sherri Minhinnick, James Lawrence Thomas & Itiel E. Dror, The


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                       STATE v. HON. BROWNING
                          Opinion of the Court


for the possibility of prejudice by requiring an instruction. The standard
jury instruction for the use of a facility dog states:

                     A witness may be accompanied by a dog
             while testifying in court. The dog’s presence is
             not and should not be a reflection on the
             truthfulness or credibility of any testimony that
             is offered by the witness. The dog is trained to
             assist witnesses in court proceedings. The
             presence of the dog should not influence your
             deliberations in any way.

Revised Arizona Jury Instructions (RAJI) Standard Criminal 27 (facility
dog) (6th ed. 2022). Jurors are presumed to follow instructions. See State v.
Gallardo, 

 (2010). Although this instruction is sufficient
to mitigate prejudice concerns in most cases, our decision should not be
read to suggest a trial court cannot consider other ways—short of
prohibiting the dog from accompanying the victim when she testifies—to
minimize any potential prejudice.

¶9             We accept jurisdiction and grant relief. We vacate the
respondent judge’s order declining to permit the facility dog to accompany
the victim at the witness stand when she testifies.




Use and Abuse of Dogs in the Witness Box, 

, 61-63 (2020) (describing a 2013 study based on mock jurors’ perceptions
of pictures of witnesses accompanied by dogs suggesting a slight uptick in
guilty verdicts compared to no accommodation), with Kayla A. Burd &
Dawn E. McQuiston, Facility Dogs in the Courtroom: Comfort Without
Prejudice?, 44(4) Crim. Just. Rev. 515, 515 (2019) (conducting subsequent
study and concluding that, “contrary to various legal arguments
concerning due process, facility dogs may not influence verdict, verdict
confidence, or sentencing”).


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