                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                        v.

                       RUBEN NAVARRO, JR., Appellant.

                             No. 1 CA-CR 13-0413
                               FILED 4-3-2014


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201200374
            The Honorable Stephen J. Rouff, Judge Pro Tempore

                        REVERSED AND REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By William Scott Simon

Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Edward F. McGee

Counsel for Appellant
                          STATE v. NAVARRO
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Maurice Portley joined.


N O R R I S, Judge:

¶1             Ruben Navarro, Jr. appeals his conviction and imposition of
supervised probation for aggravated assault, a class 4 felony, arguing the
superior court violated his rights under the Confrontation Clause of the
Sixth Amendment by prohibiting him from cross-examining the alleged
victim about a deferred prosecution agreement. For the following
reasons, we agree with Navarro, reverse his conviction and imposition of
supervised probation, and remand for further proceedings consistent with
this decision.

¶2            On October 11, 2011, Navarro and Fernando O. were
involved in a physical altercation at the home of Fernando O.’s cousin,
Andres B. Fernando O. called police to report he had been assaulted.
Police arrived and spoke to Fernando O., Andres B., and a third person.
Based on their statements, police then went to Navarro’s home and cited
him for aggravated assault.

¶3           At the time of the altercation, Fernando O. was a party to a
deferred prosecution agreement. Under that agreement, the State agreed
to defer prosecution of unrelated assault and disorderly conduct charges
(“deferred charges”) against Fernando O. in exchange for his agreement to
remain a law-abiding citizen for 36 months. Prior to trial, Navarro
disclosed he intended to raise a justification defense under Arizona
Revised Statutes section 13-404 (2010) (self-defense). Defense counsel
requested permission to use evidence of the deferred prosecution
agreement at trial to impeach Fernando O., asserting:

             The reality is [Fernando O.] had an interest in
             being the victim. If [he] had not first reached
             out to law enforcement or if he had not
             continued to put himself forward as the victim
             in this offense, he may have had criminal --
             had criminal liability in the municipal court
             because he was on deferred prosecution.


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                           STATE v. NAVARRO
                           Decision of the Court

                     So, essentially, he had an incentive to
              lie. He has a bias. He has a prejudice. And we
              believe we should be able to go through that
              during the cross-examination.

The superior court excluded evidence of the agreement, finding there was
not “much relevance at all” and “the very small amount of arguable
relevance is outweighed by the misleading nature and prejudicial effect of
the testimony.”

¶4             On appeal, Navarro argues the superior court deprived him
of his right to confront and cross-examine Fernando O. in violation of the
Confrontation Clause of the Sixth Amendment when it precluded him
from mentioning the deferred prosecution agreement. We review
superior court rulings that implicate the Confrontation Clause de novo.
State v. Almaguer, 232 Ariz. 190, 198, ¶ 22, 303 P.3d 84, 92 (App. 2013).

¶5              The Confrontation Clause “protects a defendant’s ability to
prove a witness’s motive or bias,” id., and “guarantees an opportunity for
effective cross-examination,” Delaware v. Fensterer, 474 U.S. 15, 20, 106
S. Ct. 292, 294, 88 L. Ed. 2d 15 (1985) (emphasis omitted). The right to
cross-examine, however, is not absolute; “trial judges retain wide latitude
insofar as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness’ safety,
or interrogation that is repetitive or only marginally relevant.” Delaware v.
Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986).
Nevertheless, the Supreme Court has distinguished between the
imposition of “reasonable limits on” cross-examination and the
prohibition of “all inquiry into” specific areas of possible motive or bias.
See id. (although reasonable limits on cross-examination is acceptable,
“cutting off all questioning” about event jury could find furnished witness
with motive to testify favorably for prosecution violated Confrontation
Clause). When a court prohibits a defendant “from engaging in otherwise
appropriate cross-examination designed to show a prototypical form of
bias on the part of the witness, and thereby ‘to expose to the jury the facts
from which jurors . . . could appropriately draw inferences relating to the
reliability of the witness,’” it violates the Confrontation Clause. Id. at 680,
106 S. Ct. at 1436 (alteration in original) (quoting Davis v. Alaska, 415 U.S.
308, 318, 94 S. Ct. 1105, 1111, 39 L. Ed. 2d 347 (1974)).




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                           Decision of the Court

¶6             Here, evidence Fernando O. was a party to a deferred
prosecution agreement would have shown “a prototypical form of bias on
the part of [Fernando O.],” see id., because a reasonable jury could believe
the agreement provided him with a motive to lie about the circumstances
of the altercation to avoid the risk of prosecution on the deferred charges.
Accordingly, contrary to the superior court’s assessment, the evidence
was highly relevant. Moreover, the superior court prohibited Navarro
from all cross-examination relating to Fernando O.’s deferred prosecution
agreement, citing concerns over misleading the jury and danger of
prejudice. The superior court could have, instead, imposed “reasonable
limits on [Navarro’s] cross-examination” of Fernando O. by allowing him
to introduce evidence of the agreement but excluding evidence of the
nature of the deferred charges, thereby eliminating its concerns. See id. at
679, 106 S. Ct. at 1435. By excluding all evidence of the deferred
prosecution agreement on cross-examination, the superior court violated
Navarro’s rights under the Confrontation Clause of the Sixth Amendment.

¶7              Further, we cannot say the superior court’s exclusion of the
evidence was “harmless beyond a reasonable doubt.” Id. at 684, 106 S. Ct.
at 1438 (“[T]he constitutionally improper denial of a defendant’s
opportunity to impeach a witness for bias . . . is subject to . . . harmless-
error analysis.”). The Supreme Court has identified several factors a court
should consider in determining whether a Confrontation Clause error is
harmless, including “the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the prosecution’s case.”
Id. (citations omitted).

¶8             We applied those factors in Almaguer, a case involving a
manslaughter conviction. 232 Ariz. at 192, 197-99, ¶¶ 1, 22-26, 303 P.3d at
86, 91-94. In that case, the superior court barred the defendant from cross-
examining the victim’s father -- a witness to the murder -- about a civil
case the father had filed against the defendant over his son’s death. Id. at
197-98, ¶¶ 21, 23, 303 P.3d at 91-92. On appeal, we agreed with the
defendant that the evidence was relevant to motive and bias, but
concluded any error in excluding the evidence was harmless because the
defendant “was faced with strong, if not overwhelming, evidence of
guilt,” and two other eyewitnesses -- the victim’s brother and the co-
defendant -- testified consistently with the father. Id. at 198, ¶ 26, 303 P.3d
at 92. In addition, the court allowed the defendant to impeach the father



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                           Decision of the Court

on cross-examination using prior statements made in connection with the
civil suit and noted that evidence of the civil suit was cumulative because
“that evidence of bias pale[d] in comparison to [the father]’s testimony
about his son dying in his arms.” Id.

¶9           Here, the State argues any theoretical error was harmless.
We disagree. Unlike Almaguer, only one other eyewitness offered
corroborating testimony; that witness was Andres B., Fernando O.’s
cousin. And, the evidence against Navarro was hardly “overwhelming.”
See id.

¶10            Although there is no question Navarro punched Fernando
O. first, Navarro claimed self-defense at trial, and the record contains
evidence to support that defense. Fernando O. testified that before the
altercation, Navarro stuck his fingers in Fernando O.’s face and told him
to “smell this.” Fernando O. testified he was angry because he found
Navarro’s actions “disrespectful” and he “smacked [Navarro’s] hand out
the way and told him that if he did that [again], I would hit him.”
Fernando O. agreed that when he threatened to hit Navarro, he “meant
it.” During Navarro’s testimony, Navarro acknowledged sticking his
fingers in Fernando O.’s face but insisted it was a joke. He testified that he
did it a second time and Fernando O. “got mad,” asked Navarro “who did
[he] think [he] was,” and “closed his fist and . . . took a step back, kind of
like if he was going to do something to me.” Navarro further testified he
felt threatened and believed Fernando O. was going to hit him and so he
“reacted and . . . hit first.”

¶11             Because of this evidence, Fernando O.’s testimony was
extremely important to the State’s case against Navarro, and his
credibility -- indeed, the credibility of all the witnesses -- was the pivotal
issue before the jury. Where, as here, “the defendant was denied the
opportunity to present evidence relevant to . . . the witness’ credibility,”
we cannot say the exclusion of that evidence was harmless beyond a
reasonable doubt, and we must therefore reverse. State v. Canez, 202 Ariz.
133, 153, ¶ 62, 42 P.3d 564, 584 (2002) (citation omitted); see also State v.
Lehr, 201 Ariz. 509, 517, ¶ 29, 38 P.3d 1172, 1180 (2002) (“Credibility and
weight are for determination by the jury unassisted by the judge.”
(quoting State v. Sanchez, 400 S.E.2d 421, 424 (N.C. 1991))).




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                        STATE v. NAVARRO
                        Decision of the Court

¶12           Accordingly, we reverse Navarro’s conviction and
imposition of supervised probation and remand for further proceedings
consistent with this decision.




                                  :MJT




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