ALJDEC decisions subject to certification as final

16A-021-POST · Peace Officers Standards and Training · 2018-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Hearing Regarding the Peace Officer Certification of:

Ricardo F. Ugarte,

Respondent

No. 16A-021-POST

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 27, 2018; February 28, 2018; April 12, 2018; and May 4, 2018, with the record held open.

APPEARANCES: Respondent Ricardo F. Ugarte was represented by Richard Martinez. The Arizona Peace Officer Standards and Training Board was represented by Assistant Attorney General Seth T. Hargraves.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Ricardo F. Ugarte (Respondent) completed peace officer training and received certification from the Arizona Peace Officer Standards and Training Board (POST). Respondent worked for the Nogales Police Department from November 15, 1999, to January 8, 2003; for the Patagonia Police Department from March 20, 2004, to March 11, 2005; and for the Santa Cruz County Sheriff’s Office (SCCSO) from March 16, 2005, to August 10, 2015.

On December 7, 2006, Deputy O. Mesta responded to the Child Protective Services Office in Nogales, Arizona in reference to a reported child molestation incident. Deputy Mesta spoke to the reporting party, Marie Montenegro, who stated that a child molestation incident had been reported to Child Protective Services by Southeastern Arizona Behavioral Health Services, Inc. (SEABHS).

Ms. Montenegro indicated that Victim, age 16 years old, had reported to her that Father had touched her private parts when she was approximately 6 or 7 years old. Ms. Montenegro stated that Victim was afraid of the dark and would sleep in her parents’ bed, which was when the abuse took place. Victim did not know how many times it occurred, but reported it ended when she was old enough to stop being afraid of the dark and slept in her own room. Victim told Mother about the incidents in August 2006, and Mother confronted Father who did not deny the incidents, but said he did not remember touching Victim. Deputy Mesta’s report was forwarded to the SCCSO Criminal Investigation Division.

On December 7, 2006, Respondent was informed of Victim’s allegations. That day, Respondent spoke to Mother on the phone and made arrangements to speak with her at the SCCSO the following day to obtain additional information.

On December 8, 2006, Respondent met with Mother at the SCCSO. Mother reported that approximately a week or two prior, Victim told her that Father had touched her inappropriately. Mother stated that she already had an appointment set up for Victim with SEABHS regarding a different situation. Mother said that during the counseling session, the counselor asked Victim if she had been sexually assaulted and Victim replied by saying that she had only been touched by Father. Mother explained that after the session, she approached Father and asked him if the allegations were true. Father acknowledged to having touched Victim on one occasion and apologized. When asked if Victim had ever said how and where she was touched, Mother reported that Victim told her she had only been touched by Father on her “private parts.” Respondent asked Mother if she wanted to file criminal charges against Father and if she would be available to testify in court. Mother stated she did not want to pursue any legal action against Father and was most interested in obtaining counseling/assistance for Victim. Mother told Respondent that she would let Victim decide if she wanted to proceed with formal charges and she would support Victim’s decision. Mother denied knowing Father’s location as he had left the home several days prior. Mother stated that Father may have rented a room at the Arroyo Motel, but had no other information.

On December 14, 2006, Respondent attempted to interview Victim, but noted that Victim was not very expressive or communicative. Therefore, Respondent decided to have Victim interviewed at the Southern Arizona Children’s Advocacy Center in Tucson, Arizona.

On December 18, 2006, Victim was interviewed at the Southern Arizona Children’s Advocacy Center. During the interview, Victim made numerous statements relevant to the report she had made. Following are some excerpts from the transcript of the interview:

VICTIM: [The counselor] asked me if I have been abused, and (unintelligible), and I said I used to, and he asked me how, and I told him that, uhm my dad....is hard to say...I don’t know why. He, uhm...(sigh). He sexually abused me,,,well, he asked me how so, and I told him. In different ways, I guess ‘cause....yeah. I wasn’t really specific cause I..I was afraid of say, or afraid to tell cause I also...really didn’t remember how specific it was you know...

. . . .

INTERVIEWER: Uhm, this is something that your dad did one time or more than one time.

VICTIM: He’s been doing ....he did it for a while, I don’t know how much, how many times (mumbles, unintelligible) until...he hasn’t been doing it right now, but like he did it for a while.

. . . .

INTERVIEWER: [T]ell me about the last time it happened.

. . . .

VICTIM: I was asleep, I think. Yeah, I was watching TV with him, and I fell asleep and that’s when I felt him, I don’t know how...

INTERVIEWER: What, what did you feel him....

VICTIM: (silence, sigh)

INTERVIEWER: Tell, tell me from beginning to end, what, what happened then....

VICTIM: (silence) He just...I don’t know, he just touched me there in different places....I felt a little uncomfortable, so I moved like a little, so he would leave me alone, and he would not stop.

. . . .

INTERVIEWER: And, uhm..tell me about him touching you in different places.

VICTIM: Hm...like, what you mean?

INTERVIEWER: Well, you, you said that he touched you in different places and that you felt uncomfortable..

VICTIM: Uhu.

INTERVIEWER: And you said you tried to move away, and..and..and you said he would not stop.

VICTIM: Uhum.

INTERVIEWER: Is that...is that..I think I understood you to say that.

VICTIM: Uhu.

INTERVIEWER: And so, I wanted to, to...I ..if you tell me where the different places he touched you?

VICTIM: (silence) do I have really have to say? Is...I don’t know why I feel uncomfortable.

INTERVIEWER: You don’t get in trouble with me for anything that you say..

VICTIM: (mumbles) just touched me down there.

INTERVIEWER: And when you said down there, would you be just more specific please?

VICTIM: (sigh)

INTERVIEWER: Or,,or tell me a work that you call it, or...

VICTIM: (Laugh) I don’t really...I don’t know. Oh...(laughs) I don’t know.

INTERVIEWER: Did he kept touching you on top of your clothing or inside your clothes?

VICTIM: (mumbles) on top.

. . . .

INTERVIEWER: And, and how did that feel to you?

VICTIM: Really uncomfortable.

INTERVIEWER: (silence) A, a few minutes ago you said he touched..I understood you to say in more than one place, and that you mentioned he touched you,..uhm....and what did you call it again?

VICTIM: I didn’t call it anything.

INTERVIEWER: Ok. Uhm..did..did he touch you on some place else on your body? That time..

VICTIM: was just there...

. . . .

INTERVIEWER: Ok. Uhm, that it, that..that you said that he, he touched you, and that uhm...in a part of your body..could you, uhm...tell me again in what part of your body he touched you.

VICTIM: Yeah. It was between my legs.

INTERVIEWER: Ok, between your legs, but what do you call that part of your body?

VICTIM: I ..I don’t know.

. . . .

INTERVIEWER: ...you said that were some other times, and on those other times, uhm, did he touch you the same way as this time or a diff..different way?

VICTIM: (silence) in the same.......(silence).

INTERVIEWER: Was there, was there a diff...a different way with your clothes, or was always the same way with you...

VICTIM: Always the same way.

POST Exhibit 12.

After the interview, Respondent spoke to the interviewer, who stated that something may have happened to Victim, but that she was unable to obtain any details of the incident or incidents.

Respondent also met with Mother and Victim following the interview. Respondent again asked if they wished to file a formal complaint and charges against Father. Victim stated that she did not want to file charges, but just wanted Father out of her life for the moment. Mother and Victim both reported that Father was not living with them that time.

In late December 2006 or early January 2007, Respondent considered the investigation closed. However, Respondent did not complete his Deputy Report relating to the matter until March 26, 2013, more than six years after the initial report was made.

Respondent’s report concluded with the following statement:

I attempted to contact [Father] on numerous occasions, but was unsuccessful. The victim and parent were unavailable and unwilling to testify. No additional contact was made. This investigation and report will be closed. Any and all field notes taken by me in this investigation have been destroyed as they are incorporated and authored into this report.

POST Exhibit 8.

Respondent’s report did not include any reference to evidence collected or submitted.

On or about March 11, 2013, Deputy County Attorney Kim Hunley requested copies of items 1RUF, 2RUF, and 3RUF described as a recording of Father, an audio/video recording of Victim, and a recording of Victim, respectively, as referenced in the chain of custody form submitted by Respondent. When the SCCSO Evidence Custodian attempted to locate those items, she discovered that 3RUF did not have any content and was blank.

In 2013, the Santa Cruz County Attorney’s Office declined prosecution.

On February 2, 2015, the SCCSO received a call for service from the Nogales Police Department regarding a delayed report of child molestation that occurred in Santa Cruz County in 2006. Respondent and Deputy R. Lopez responded to the call.

Nogales Police Department Officer Quinardo Garcia and Sergeant Eddie Alvidrez informed Respondent and Deputy Lopez that the alleged molestation occurred in 2006 and was previously reported to the SCCSO. Officer Garcia stated that Victim wanted to disclose further details regarding the incident.

Respondent and Deputy Lopez conducted an interview of Victim that was video recorded. During the interview, Victim gave a detailed account of Father’s conduct that she reported occurred from the time she was in middle school until she was 15 years old. It is undisputed that Victim’s account in 2015 included graphic facts and details that were notably absent during her report and interview in 2006.

On March 3, 2015, Deputy Lopez and Sergeant Jose Cota made contact with Father. Father was invited to the SCCSO office for an interview. During the interview, Father eventually admitted that he touched Victim inappropriately.

On or about February 29, 2016, Father was sentenced to 10 years each on two separate charges of Attempt to Commit Molestation of a Child to run consecutively. His release date was January 31, 2032, with a supervision end date of March 2, 2035.

On April 2, 2015, SCCSO opened an internal investigation of Respondent as it related to his investigation of Victim’s report in December 2006.

During the investigation, Sergeant Cota interviewed Respondent. Prior to his interview, Sergeant Cota provided Respondent a Garrity Insubordination Warning Form including the allegations raised in the internal affairs investigation. The allegations were set forth as follows:

On Wednesday, April 01, 2015, Lieutenant Roberto Morales met with Deputy County Attorney Kim Hunley of the Santa Cruz County Attorney’s Office in regards to Molestation Case No. [number redacted]. This investigation was assigned to you during your tenure as a criminal investigator with the Santa Cruz County Sheriff’s Office on December 07, 2006. Upon reviewing the case report, it was discovered the investigation was incomplete to include evidence that was submitted until March 26, 2013, seven years after its occurrence with no documentation displaying the submission of evidence. You closed this investigation on March 26, 2013 with no further follow up.

This same investigation was reopened on February 02, 2015 after the victim on the case reported the same allegations to the Nogales Police Department and a follow-up investigation was conducted by Sergeant Omar Rodriguez, Badge No. 150. A confession was later obtained from the suspect and the suspect was subsequently arrested for child molestation and booked into the Santa Cruz County Sheriff’s Office Adult Detention Center awaiting prosecution.

Deputy Santa Cruz County Attorney Kim Hunley requested follow-up investigation in this case and has expressed deep concern as to your initial handling of the case and evidence.

POST Exhibit 6.

During the interview, Respondent indicated that he was not able to find Father because there were no phone numbers provided. Respondent also stated that that he had been informed Respondent may have been in Mexico. When asked why he closed the investigation, Respondent stated that Victim and Mother were not willing to cooperate with the investigation and he was unable to locate Father. Respondent asserted that he had attempted everything he could think of at the time to locate Father. Respondent could not recall if he contacted the counselor to whom Victim made the initial disclosure.

Sergeant Cota also asked Respondent about his storage of the evidence from the time he collected it until he completed his report. Respondent stated that he had kept the evidence in his desk, but could not recall if it was under lock and key. Respondent acknowledged that he had made two building moves during the time and the evidence moved with him.

Respondent reported that he had met with his supervisor, Sergeant Abel Bustamante, in 2006 and was advised that there was nothing else he could do in relation to the case.

Upon questioning, Respondent admitted that he did not detail in his report any attempts to contact Father or any attempts to contact the counselor. Respondent also acknowledged that he did not photograph the scene of the alleged incident.

Respondent acknowledged that if he had written the report in a timely fashion rather than waiting more than six years, the report would have included more details as to his investigation. Respondent stated that he had over 20 informational reports that he needed to complete on his own time and was under a lot of pressure at the time he wrote the report regarding Victim’s allegations.

On or about August 10, 2015, SCCSO terminated Respondent.

On or about February 4, 2016, POST received a Termination Report from SCCSO informing POST that Respondent had been terminated and SCCSO was aware of conduct that may violate A.A.C. R13-4-109(A)(1-9).

POST assigned Compliance Specialist Cathy Hawse to investigate whether the circumstances of Respondent’s termination from SCCSO provided cause to discipline his peace officer certification under POST’s administrative regulations. After review, POST determined that cause existed to discipline his certification.

Respondent requested an administrative hearing on POST’s decision. POST referred the matter to the Office of Administrative Hearings (the OAH), an independent state agency, for an evidentiary hearing.

On January 2, 2018, POST issued a Notice of Hearing. The Notice of Hearing charged Respondent with violating A.A.C. R13-4-109(A)(8) and (9) by committing the following alleged misconduct:

On December 7, 2006, Deputy Ricardo F. Ugarte failed to fully investigate the molestation of a 16 year old female by her father.

At the hearing, Respondent testified that he had only been in Criminal Investigations for approximately four months when he was assigned Victim’s complaint.

Respondent stated that, even though he heard Victim was touched in her “private parts” prior to any interviews, Victim did not make any specific reference to being so touched to either him or to the forensic interviewer. Respondent also stated that no one gave him information regarding Father’s location other than that he left the home a few days earlier and may be in a motel in Nogales or may have travelled into Mexico. Respondent testified that he was unable to give a date, time, or any specifics, but he vaguely recalled it was part of his investigation to attempt to contact Father at the motel mentioned by Mother. Respondent stated he may have attempted to contact Father the same afternoon he initially spoke to Mother or possibly the next day. Respondent also testified that if he had been provided any employment information, he would have attempted to reach Father at his place of employment, but acknowledged nothing in the report referenced Father’s employment information. Respondent did not recall putting out an “attempt to locate” on Father or communicating with federal officials to monitor the border in the event Father crossed back into the United States. Respondent stated that had Victim made the disclosures she made in 2015, he would have made a greater attempt to locate Father. Respondent testified he did not speak to the counselor to whom Victim made the initial disclosure because it would have been hearsay and because he already knew the contents of the disclosure from Mother. Respondent reported SCCSO was very “autocratic” in that people did what they were told by their supervisors. Respondent asserted that he briefed the case with Sergeant Bustamante in December 2006 or January 2007 and Sergeant Bustamante agreed there was nothing further to be done on the case. Respondent stated that the case was closed at that time, but he did not write the report because he put it on the back burner. While Respondent acknowledged that reports should be written within a week, two weeks, or thirty days, Respondent did not admit any wrongdoing in a more than six-year delay in writing the report.

SCCSO policies in effect at the time of the report relevant to this matter included the following:

When the investigation is complete, the investigator shall close the case under (and include in the file a statement giving) one of the following labels:

1. Cleared . . . .

2. Exceptional clearance . . . .

3. False Report . . . .

4. Suspended . . . .

5. Unfounded . . . .

POST Exhibit 13

Particular to child abuse matters, SCCSO policy noted, in relevant part, as follows:

Child victims have little power and depend on police officers and social service agencies to take action in whatever way is needed to lessen their victimization. The investigator shall determine whether or not criminal prosecution is the best means to achieve that end.

POST Exhibit 14.

As to report writing, SCCSO policy provided reports were to be complete in which completeness was defined as “the extent to which the record or report includes all of the necessary facts, information, and requirements for that particular type of report that are known to the reporting officer.” POST Exhibit 16. Reports were also required to be brief and concise, with the understanding that “[b]revity is not to be achieved by omitting pertinent or useful information, but by giving that information without unnecessary use of words.” Id. Completeness and clarity were not to be sacrificed to achieve brevity.

CONCLUSIONS OF LAW

This matter lies within POST’s jurisdiction. See A.R.S. § 41-1821 et seq.

POST bears the burden of proof to establish cause to discipline Respondent’s peace officer certification by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). Respondent bears the burden to establish affirmative defenses by the same evidentiary standard. See A.A.C. R2-19-119(B)(2).

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Black’s Law Dictionary 1220 (8th ed. 2004).

Under A.A.C. R13-4-109(A), POST may “[d]eny, suspend, revoke or cancel the certification of an officer” who does not comply with duly promulgated rules prescribing reasonable minimum qualifications for officers. See A.R.S. § 41-1822(C)(1). POST may discipline an officer’s certification under A.A.C. R13-4-109(A)(7), (8), or (9) if it determines that he has committed acts that constitute any of the following:

8. Malfeasance, misfeasance, or nonfeasance in office; or

9. Any conduct or pattern of conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession.

Respondent argued that because the allegation set forth in the Notice of Hearing provided that “[o]n December 7, 2006, Deputy Ricardo F. Ugarte failed to fully investigate the molestation of a 16 year old female by her father” (emphasis added) and POST failed to present any evidence that Respondent failed to properly investigate the allegation on December 7, 2006, POST failed to sustain its burden in this matter.

While Respondent objected to evidence relating to the actions he took after December 7, 2006, he fully participated in cross-examination of POST witnesses and testified on his own behalf to refute POST’s case against him. Thus, Respondent was reasonably apprised of the issues in controversy and was given an adequate opportunity to meet the claims of POST and to justify his conduct during the course of the hearing. Under these circumstances, there is no fatal variance between the allegation in the complaint and the allegation set forth at the hearing. See In re Wickman, 138 Ariz. 340-41, 674 P.2d 891 (Ariz. Ct. App. 1983).

Malfeasance is defined as “[a] wrongful or illegal act.” Misfeasance is defined as “[a] lawful act performed in a wrongful manner.” Nonfeasance is defined as “[t]he failure to act when a duty to act existed.”

In the instant matter, Respondent had a duty to fully investigate the allegations presented and record the results of that investigation in a report. While Respondent maintained that he attempted to locate Father on numerous occasions, the lack of details in the report would lead one to reasonably conclude that no such efforts were made. Respondent included in his report the dates on which he made contact with Mother, on which he interviewed Mother and Victim, and on which Victim was interviewed at the Southern Arizona Children’s Advocacy Center, but had no dates, times, or locations of his attempts to locate Father. By Respondent’s own admission, he would have made greater attempts to locate Father if Victim had made the additional disclosures that she made in 2015. In so stating, Respondent appeared to place the blame for his failure to fully investigate the allegation on a minor’s reticence in sharing explicit details of her abuse with a stranger during a conversation that lasted less than an hour. Respondent also failed to contact the counselor who may have had more information than what was shared with Mother following Victim’s session, but elected to rely on Mother’s account of counselor’s account of Victim’s statement. Respondent also argued that his supervisors at SCCSO knew this report was outstanding, but he was promoted during the interim, so his delay in completing it was not problematic. While Respondent may have been promoted, that does not necessitate a finding that Respondent’s delay was not a violation of SCCSO policies.

Thus, POST established that Respondent’s actions constituted malfeasance, misfeasance, or nonfeasance.

The public expects peace officers to fully investigate reported crimes, especially involving minors as victims, and to timely complete reports, which allows prosecutors to timely determine if a matter should be prosecuted. Respondent’s failure to fully investigate the alleged molestation as set forth above and his failure to complete the report until more than six years later directly related to the county attorney’s decision to decline prosecution.

Thus, Respondent’s pattern of conduct jeopardized public trust in the law enforcement profession. Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(9).

Done this day, June 4, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jack G. Lane, Executive Director

Peace Officers Standards and Training