                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                            STATE OF ARIZONA,
                                  Appellee,

                                        v.

                          SCOTT ROBERT HAGEE,
                                Appellant.

                             No. 1 CA-CR 15-0417
                              FILED 6-7-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-004709-002
               The Honorable Warren J. Granville, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By David D. Weinzweig
Counsel for Appellee

Law Office of Brent E. Graham, PLLC, Glendale
By Brent E. Graham
Counsel for Appellant
                            STATE v. HAGEE
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Donn Kessler joined.


D O W N I E, Judge:

¶1            Scott Robert Hagee appeals his convictions and sentences for
first-degree murder, attempted armed robbery, conspiracy to commit
armed robbery, and burglary in the third degree. For the reasons that
follow, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            On June 20, 2013, Officer Whaley was working in an
undercover capacity as part of a neighborhood enforcement team. At 12:47
p.m., he received an emergency call from dispatch and responded to Lone
Cactus Restoration — a vehicle restoration business. Officer Whaley and
his partner arrived in separate vehicles and approached the building from
the south and north sides. Additional patrol units arrived soon thereafter,
and officers gathered just outside the building.

¶3             From his position, Officer Mayfield had an unobstructed view
of the shop’s interior and saw a masked individual. Officer Mayfield
ordered that person to make his hands visible; the man dropped a gun from
his right hand and a bag from his left hand, placed his left hand in the air,
and removed a black ski mask from his head. That individual — Hagee —
was taken into custody. A search incident to arrest revealed a bag of dog
treats, tape, and zip ties in Hagee’s pants pockets.

¶4            After Hagee was removed from the building, other officers
entered and discovered the victim lying on the floor. He had been shot in
the chest, and his face was injured and bloody.

¶5            When the victim arrived at the hospital, he was in critical
condition and suffering severe hemorrhagic shock, having lost more than
forty percent of his total blood volume. He had extensive injuries to his
stomach, pancreas, liver, and several large blood vessels — most notably,
the vena cava, which was the source of most of the blood loss. The victim
died that evening.



                                     2
                            STATE v. HAGEE
                           Decision of the Court

¶6             The State charged Hagee with one count of first-degree
murder, one count of attempted armed robbery, one count of conspiracy to
commit armed robbery, and one count of burglary in the third degree. The
State also alleged numerous aggravating circumstances.

¶7            At trial, Hagee’s former girlfriend, J.F., testified that Hagee
and his friend, Jamell Bradley, discussed a plan to rob the victim. Hagee
stated that Bradley and the victim had a disagreement over “a business
transaction [that] had not gone well” and that Bradley had enlisted Hagee’s
help to get “retribution.” Because the victim allegedly owed Bradley
money, Hagee and Bradley “were going to rob him,” believing the victim
kept $20,000-$30,000 in a safe at his business.

¶8            J.F. testified that she was with Hagee when he purchased ski
masks and zip ties for the robbery, and she saw him put dog treats in a
plastic bag in case he needed to distract the victim’s dogs. In the week
preceding the shooting, Hagee told J.F. he was “staking out” the victim. J.F.
also overheard a telephone conversation in which Hagee scheduled an
appointment with the victim under the pretense of purchasing a vehicle.
Hagee told J.F. that he believed the ruse would offer an opportunity to learn
the layout of the building and possibly locate valuables. Hagee also
informed J.F. he was considering abducting the victim from his home and
taking him to the business to unlock the safe.

¶9             On the morning of June 20, 2013, J.F. noticed that Hagee was
wearing multiple layers of clothing when he left her home, notwithstanding
the summer heat. Hagee had his gun holstered and carried a duffel bag
containing tools, zip ties, and dog treats. Bradley and Hagee departed in
J.F.’s car, and when J.F. expressed concern that she would be linked to the
crimes through her vehicle, Hagee assured her they would replace the
license plate.

¶10           Hours later, Bradley drove J.F.’s car back to her house. At the
crime scene, Bradley had been stopped in J.F.’s vehicle and unwittingly let
go by police officers, so J.F. drove her roommate’s car to the crime scene to
check on Hagee. When she arrived, J.F. saw numerous police cars and
crime scene tape. She then picked up Bradley and drove him home.

¶11            The victim’s girlfriend, M.G., testified that on the morning of
June 18, 2013, she awoke and saw “dog bones laid out like a railroad tie
right in front of the doggie door.” Neither M.G. nor the victim had placed
the bones there, and when they checked their vehicles, they discovered that
“a lot of money” had been stolen. Later that evening, M.G. held a party at



                                      3
                             STATE v. HAGEE
                            Decision of the Court

the victim’s shop to celebrate his birthday and met Hagee, who had
ostensibly stopped by to discuss purchasing one of the victim’s vehicles.
M.G. also testified that, during the weeks preceding the victim’s death, a
young man came to the victim’s home and business a few times, and the
victim expressed anger that the man had “burned [him] out of $1,500.”
When presented with a photo line-up, M.G. identified the male as Bradley.

¶12            Dr. Poulos, a county medical examiner, testified about the
victim’s injuries and cause of death. He described the torso injuries caused
by the gunshot wound and also numerous blunt force injuries to the
victim’s head. He opined that the blunt force injuries could be consistent
with the victim having been struck by a firearm, slammed into a metal safe,
and kicked with steel-toed boots. Although Dr. Poulos opined that the
gunshot was a fatal injury in itself, he concluded the victim’s death was
caused by both the head and torso injuries.

¶13           A jury found Hagee guilty as charged. The trial court
sentenced him to life without the possibility of parole for the murder
conviction, a concurrent, aggravated term of fifteen years’ imprisonment
for attempted armed robbery, a concurrent, presumptive term of five years’
imprisonment for conspiracy to commit armed robbery, and a concurrent,
presumptive term of two and one-half years’ imprisonment for burglary in
the third degree.

¶14          Hagee timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
-4033(A)(1).

                               DISCUSSION

I.     Prior Acts/Character Evidence

¶15             Hagee argues the trial court erred by excluding evidence that
the victim was involved in illegal drug transactions. He contends the
evidence was admissible under Arizona Rules of Evidence (“Rule”)
404(a)(2), (b), and 405(a), (b). Without this evidence, Hagee asserts, the jury
was permitted “to hear a skewed, inaccurate version of the facts” that
showed the “victim had a good character.” Hagee further argues the ruling
prevented him from showing that he “did not go to the victim’s business to
rob him, but to confront him over problems with the drug sales.”

¶16            Approximately two weeks before trial, the State filed a motion
in limine to preclude evidence that the victim had purchased or sold drugs
and had a stolen firearm in his safe, arguing such information was


                                      4
                            STATE v. HAGEE
                           Decision of the Court

inadmissible as other act/character evidence under Rule 404(b) and was
unfairly prejudicial under Rule 403. After hearing argument, the court
granted the State’s motion “pursuant to Rule 401, 402, and 403,” concluding
the character of the victim was not relevant. The court advised defense
counsel that he could argue Hagee confronted the victim to resolve a
“disagreement,” not to rob him, but the argument would be sanitized to
prevent any reference to the victim’s “character as a drug dealer.”

¶17           We review a trial court’s ruling on a motion in limine for an
abuse of discretion. State v. Gamez, 227 Ariz. 445, 449, ¶ 25 (App. 2011).
“Absent a clear abuse of discretion, we will not second-guess a trial court’s
ruling on the admissibility or relevance of evidence.” State v. Rodriguez, 186
Ariz. 240, 250 (1996).

¶18           Relevant evidence is generally admissible unless it is
otherwise precluded by the federal or state constitution, an applicable
statute, or rule. Ariz. R. Evid. 402. Evidence is relevant if it has “any
tendency” to make a fact of consequence in determining the action “more
or less probable than it would be without the evidence.” Ariz. R. Evid. 401.
Relevant evidence may be excluded, though, if its probative value “is
substantially outweighed” by a danger of unfair prejudice. Ariz. R. Evid.
403.

¶19           Hagee contends the victim’s alleged drug-related activity
with Bradley offered a defense to the armed robbery charges and, by
extension, the felony murder for which armed robbery was the predicate
offense. Applying Rule 401 to these facts, though, whether the victim
engaged in illegal drug transactions was not a fact of consequence for the
jury to consider in determining whether Hagee (1) conspired with Bradley
to take money from the victim by force, (2) attempted to take money from
the victim by force, and (3) ultimately shot and killed the victim. Contrary
to Hagee’s argument, an assertion that he was simply confronting the
victim “to get back the money Bradley felt he was owed” and acting “as the
muscle to get Bradley’s money” provided no defense to armed robbery.
Stated differently, even accepting Hagee’s theory of defense, he
intentionally used a deadly weapon to extract money from the victim
against his will. Under the relevant statutes, such conduct constitutes
armed robbery, and it is of no consequence that Bradley may have been
“owed” the money as part of an illegal drug transaction. See A.R.S. § 13-
1902(A) (“A person commits robbery if in the course of taking any property
of another from his person or immediate presence and against his will, such
person threatens or uses force against any person with intent either to
coerce surrender of property or to prevent resistance to such person taking


                                      5
                            STATE v. HAGEE
                           Decision of the Court

or retaining property.”); A.R.S. 13-1904(A)(2) (“A person commits armed
robbery if, in the course of committing robbery . . . such person or an
accomplice uses or threatens to use a deadly weapon.”). Indeed, a person
can be criminally charged for forcibly taking his “own property” and the
relevant statutes do not recognize “a claim of right” as a defense to armed
robbery. State v. Schaefer, 163 Ariz. 626, 629 (App. 1990). Furthermore, the
trial court permitted Hagee to argue that the catalyst for the confrontation
was a dispute over a business transaction, which allowed him to place the
substance of his claimed defense before the jury.

¶20           Relying on Rules 404 and 405, Hagee argues the other
act/character evidence was nonetheless admissible. We disagree. Under
Rule 404(a)(2), a defendant may introduce evidence of a “pertinent trait” of
the victim to show that the victim acted in conformity with this trait on a
particular occasion. As explained above, though, the victim’s alleged
character trait of dealing in illegal drugs was simply not relevant to the
disputed issues before the jury. Pursuant to Rule 404(b), evidence of other
crimes “is not admissible to prove the character of a person,” but may “be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
Because Hagee was not attempting to introduce the prior acts for any of the
enumerated exceptions, but instead to disabuse the jury of the “erroneous
view” that the victim “had a good character,” the evidence was not
admissible under Rule 404(b).

¶21           Likewise, Rule 405(a) permits character evidence only when
“evidence of a person’s character or character trait is admissible.” Because
“[e]vidence of a person’s character or a trait of character is not admissible”
unless an exception applies, Rule 404(a), and Hagee has demonstrated no
applicable exception, Rule 405(a) is inapposite. Finally, Rule 405(b) permits
evidence of “a person’s character or character trait” when it is “an essential
element of a charge, claim, or defense.” “To be an essential element, the
character trait must be an operative fact which, under substantive law,
determines the rights and liabilities of the parties.” State v. Williams, 141
Ariz. 127, 129 (App. 1984). The victim’s alleged involvement in prior drug
transactions did not provide a defense to the charged offenses. Under these
circumstances, the trial court did not abuse its discretion by excluding
evidence that the victim engaged in illegal drug transactions.

II.    Testimony of Medical Examiner

¶22            Hagee contends the court erred by allowing Dr. Poulos to
testify about the victim’s autopsy in lieu of Dr. Enstice, who performed the


                                      6
                             STATE v. HAGEE
                            Decision of the Court

autopsy, but was no longer employed by the medical examiner’s office at
the time of trial. Specifically, Hagee argues he was denied his constitutional
right to confront a witness against him when the contents of Dr. Enstice’s
report were introduced through Dr. Poulos.

¶23            We review interpretations of the Confrontation Clause de
novo. State v. Medina, 232 Ariz. 391, 405, ¶ 53 (2013). Hagee, however, did
not object on this basis in the trial court, so we review his claim for
fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19
(2005); see also State v. Dixon, 226 Ariz. 545, 553, ¶ 34 (2011). “To prevail
under this standard of review, a defendant must establish both that
fundamental error exists and that the error in his case caused him
prejudice.” Henderson, 210 Ariz. at 567, ¶ 20.

¶24            “The Confrontation Clause bars admission of out of court
testimonial evidence unless the defense has had an opportunity to cross-
examine the declarant.” State v. Parker, 231 Ariz. 391, 402, ¶ 38 (2013) (citing
Crawford v. Washington, 541 U.S. 36, 38 (2004)). “Testimonial evidence is ex
parte in-court testimony or its functional equivalent—that is, material such
as affidavits, custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially.” Id. at 402–03 (quoting
Crawford, 541 U.S. at 51).

¶25           Our supreme court has repeatedly held that “a testifying
medical examiner may, consistent with the Confrontation Clause, rely on
information in autopsy reports prepared by others as long as he forms his
own conclusions.” Dixon, 226 Ariz. at 553, ¶ 36; see also State v. Joseph, 230
Ariz. 296, 298, ¶ 8 (2012) (“[A] testifying medical examiner may offer an
opinion based on an autopsy performed by a non-testifying expert without
violating the Confrontation Clause.”); State v. Smith, 215 Ariz. 221, 228, ¶ 23
(2007) (“Expert testimony that discusses reports and opinions of another is
admissible under this rule if the expert reasonably relied on these matters
in reaching his own conclusion.”). A testifying expert may not, however,
act as a “conduit for another non-testifying expert’s opinion.” State v.
Lundstrom, 161 Ariz. 141, 148 (1989).

¶26            The record does not support Hagee’s contention that
Dr. Poulos’ testimony “was nothing but a conduit for the autopsying
doctor’s conclusions.” The autopsy report was not admitted into evidence
at trial. Instead, Dr. Poulos testified on behalf of the medical examiner’s
office and offered his own opinions about the circumstances and cause of
the victim’s death. Although Dr. Poulos reviewed photographs, diagrams,


                                       7
                             STATE v. HAGEE
                            Decision of the Court

medical records, and the autopsy report in preparing to testify, and referred
to the autopsy report while testifying, he used this information to reach his
own independent conclusions. After Dr. Poulos offered his opinions,
Hagee had the opportunity to confront and cross-examine him. See State v.
Rogovich, 188 Ariz. 38, 42 (1997) (“[T]he defendant’s confrontation right
extends to the testifying expert witness, not to those who do not testify but
whose findings or research merely form the basis for the witness’s
testimony.”).

¶27           Citing Medina, Hagee contends Dr. Poulos’ testimony was
inadmissible because Hagee was a suspect at the time the autopsy report
was generated. In Medina, the court addressed a Confrontation Clause
challenge to the admission of an autopsy report when the report’s author was
unavailable to testify. 232 Ariz. at 405, ¶ 51. In concluding the report was
nontestimonial for purposes of the Confrontation Clause, the court
reasoned, in part, that the autopsy was conducted “before Medina became
a suspect” and was not performed to “gather evidence to accuse Medina.”
Id. at 406, ¶ 62. But Medina has no application here, where the autopsy
report was never admitted into evidence.

¶28           Finally, Hagee’s reliance on Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), is
unavailing. Both cases involved the admission of documents found to be
testimonial. Melendez-Diaz, 557 U.S. at 311; Bullcoming, 564 U.S. at 663–64.
Here, even if the autopsy report could be viewed as testimonial, it was not
admitted into evidence, and Dr. Poulos offered his own independent
opinions, not the conclusions set forth in the report. See Joseph, 230 Ariz. at
298–99, ¶ 10; State v. Snelling, 225 Ariz. 182, 187, ¶ 21 (2010) (defendant’s
confrontation rights not violated when autopsy report not admitted into
evidence).

¶29           No Confrontation Clause violation occurred, and the trial
court did not err, much less fundamentally err, by permitting Dr. Poulos to
testify.1




1    Furthermore, even if he could establish fundamental error, Hagee has
not demonstrated the requisite prejudice. He claims prejudice because the
jury could not observe the “demeanor” of the medical examiner who
conducted the autopsy, but he fails to explain how this prejudiced his
defense. There was no dispute at trial regarding the cause of death, and



                                      8
                          STATE v. HAGEE
                         Decision of the Court

                            CONCLUSION

¶30          We affirm Hagee’s convictions and sentences.




                               :AA




Dr. Poulos’ testimony about the victim’s injuries and cause of death was
entirely consistent with the trauma surgeon’s testimony.




                                     9
