                        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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                    EDWARD JOE CONNATSER,1 Appellant.

                                No. 1 CA-CR 15-0446
                                  FILED 10-25-2016


              Appeal from the Superior Court in Maricopa County
                           No. CR2014-111108-001
                 The Honorable Erin Otis, Judge Pro Tempore

                                     AFFIRMED


                                      COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant




1     The record reflects this is the correct spelling of Defendant’s last
name. We amend the caption accordingly.
                          STATE v. CONNATSER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1            Edward Joe Connatser (Defendant) appeals his convictions
and sentences imposed after a jury found him guilty of assault, threatening
or intimidating, and aggravated assault, all domestic violence offenses. For
the following reasons, we affirm.

                FACTS2 AND PROCEDURAL HISTORY

¶2            When Defendant’s fiancée, MG, returned to the home they
shared, she confronted him in the garage about her suspicions that he was
pursuing a romantic relationship with another woman. MG told Defendant
to leave the home immediately and Defendant demanded she return her
engagement ring to him. MG refused, and Defendant spit in her face and
“head butted” her. MG ran into the house and locked the door behind her.

¶3          Defendant began banging on the locked door; fearing the
door would break open, MG ran to a bedroom and locked the bedroom
door. Meanwhile, Defendant had broken through the garage door and
proceeded to the bedroom, where he found MG. He broke down the
bedroom door, entered the room, and he and MG scuffled.

¶4           MG fell to the floor on her back, and, while straddling her
with his knees and pinning her arms down, Defendant pulled MG’s hair
with one hand, choked her with the other, and yelled at her. MG could not
breathe. Defendant stopped choking MG and, while still gripping her hair,
pushed the side of her face against the floor. Defendant then got up and
“pulled [MG] around the room” by her hair. MG again fell on her back,
Defendant straddled her, choked her with both hands, and threatened to


2      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State v.
Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).



                                      2
                         STATE v. CONNATSER
                          Decision of the Court

kill her. MG could not breathe, and she thought she was going to die until
Defendant eventually let go and left the room.

¶5            MG called 9-1-1, but Defendant returned to the bedroom and
MG hung up before completing the call. When the 9-1-1 operator returned
the call, Defendant answered the phone. Realizing the police would be on
their way, Defendant instructed MG to change her clothes and “put
something on that . . . would cover [her] arms.” Gilbert police officers
responded and subsequently arrested Defendant. A medical examination
revealed MG sustained multiple physical injuries resulting from
Defendant’s straddling her, pushing her face and pinning her arms to the
floor.

¶6            The State charged Defendant with assault, a class one
misdemeanor (Count 1), threatening or intimidating, a class one
misdemeanor (Count 2), and two counts of aggravated assault, class four
felonies (Counts 3 and 4), which related respectively to the first and second
choking incidents. At trial, Defendant testified that MG physically
confronted him about his purported infidelity, and they fell during a
struggle for his car keys, which were in MG’s pocket. Defendant testified
he pinned MG to the floor “to restrain her, prevent her from hitting me, and
prevent her from hurting herself.” He denied intentionally pulling MG’s
hair and head-butting or choking her.

¶7            The jury returned a not guilty verdict for Count 3. The jury
found Defendant guilty on the remaining counts, finding they constituted
domestic violence offenses. The trial court imposed a suspended sentence
and placed Defendant on concurrent three-year terms of supervised
probation, including sixty days of incarceration in the county jail.
Defendant timely appealed and we have jurisdiction pursuant to Arizona
Revised Statutes (A.R.S.) sections 12-120.21.A.1, 13-4031, and -4033.A.1
(West 2016).3

                              DISCUSSION

I.    Preclusion of Evidence Demonstrating MG’s Bias and Motive

¶8             The day before trial, Defendant disclosed a City of Tempe
police report that indicated MG, who was anticipated to testify, was issued
a citation a year earlier for false reporting to law enforcement. According

3     Absent material changes from the relevant date, we cite a statute’s
current version.



                                     3
                         STATE v. CONNATSER
                          Decision of the Court

to the police report, MG had noticed the Defendant’s car at a hotel and
drove it away, because she believed Defendant was at the hotel with
another woman. MG reported the car stolen in order “to punish him.”

¶9             Defendant moved to dismiss the current charges if it were
discovered MG was convicted of the false reporting offense, arguing the
State failed to abide by its disclosure obligations. See Ariz. R. Crim. P.
15.1.d.(1). In the event MG was not convicted, Defendant requested an in
limine ruling permitting admission of MG’s “motive, bias testimony.” See
Ariz. R. Evid. 404(b).

¶10          The State avowed that it had searched MG’s criminal
background and discovered no convictions. The State sought to preclude
evidence of MG’s citation, arguing Defendant’s disclosure of the police
report was untimely, and, because MG was not convicted of false reporting,
the citation was not admissible for impeachment purposes. The State
further argued the citation was inadmissible other act evidence.

¶11           The trial court ordered the police report itself precluded, but
determined Defendant, pursuant to Arizona Rule of Evidence (Rule) 608,
could ask MG whether she had in the past been cited for false reporting.
The trial court prohibited any questions regarding the circumstances of the
false statements, including that they were made in connection with
Defendant’s past philandering. Accordingly, MG testified as follows
during direct examination by the State:

      Q. Have you ever been cited for lying or providing false
      information to the police?

      A. Yeah, I did.

      Q. And did you complete classes to resolve that citation?

      A. Yes.

¶12          During cross-examination of MG, the following transpired:

      Q. You’re not always a truth teller, are you?

      A. I -- yeah, I like to -- I mean, I guess I’m not perfect, no. I
      know I’ve lied at times, yes.

      Q. You lie at times, correct?

      A. Right.


                                      4
                   STATE v. CONNATSER
                    Decision of the Court

Q. So when I say you’re not always a truth teller, I’m correct,
right?

A. I’m not lying today. I mean -- just --

Q. I’ll say it again. If I make the statement, you’re not always
a truth teller, am I correct?

A. Correct. I’ve lied at times in my --

Q. With not always being a truth teller, is it fair for me to say
that you haven’t always told the whole story or the whole
truth?

A. I guess you could say that.

Q. I can say that, or you guess I can say that? I want to be
specific when you talk to the jurors.

A. I’m sorry. Repeat the question.

Q. Withdrawn. You have lied to police officers in the past,
correct?

A. Yeah. I -- yeah.

Q. You shake your head as if you’re confused. I want to --
have you lied to police officers in the past?

A. Yes.

Q. Do you feel that I’m harassing you into saying that?

A. No.

Q. Is that of your own free will?

A. Yes.

Q. Is there type [sic] of holding something over your head?

A. No.

Q. When I ask you that question?

A. No.


                               5
                  STATE v. CONNATSER
                   Decision of the Court

Q. Are you in fear of [Defendant] as I ask you that question?

A. No.

Q. Is there some type of punishment or threat physically
against you as you answer that question?

A. No.

Q. With regard to lying to police officers in the past, [the]
prosecutor touched upon it and said that you were actually
cited for that, correct?

A. Correct.

Q. So this is something that was cited by law enforcement,
correct?

A. Right.

Q. Is that something that you disputed and said, hey, I’m
innocent of that? Was that a false charge against you?

A. I - I’m not sure how --

Q. When the police cited you for lying, was that a false charge
or was that a true charge?

A. It was a true charge.

Q. It was a true charge. Did you dispute that with police, that
you lied?

A. With the police, no.

Q. With the police, with the courts, with anyone?

A. There -- I did a diversion program which I did not plead
guilty to.

Q. You did a diversion?

A. Yes.

Q. Fair for me to say a diversion is to avoid prosecution or
divert away from prosecution, you took classes, correct?


                              6
                           STATE v. CONNATSER
                            Decision of the Court

       A. Correct.

       Q. Because you don’t want that on your record, right?

       A. Right.

       ...

       Q. Okay. Fair for me to say that you were pretty hot when
       you were speaking with that officer?

       A. Yes.

       Q. And when I say “hot,” I mean angry, hurt, disappointed,
       all of those type of emotions; is that fair for me to say?

       A. Yes, it is.

       Q. And for whatever you felt [Defendant] had did, [sic] you
       wanted him to take responsibility for that; fair for me to say?

       A. Yes.

¶13           Defendant argues the trial court improperly limited his cross-
examination of MG by denying him the opportunity to establish that she
falsely reported the car theft because she was angry at Defendant for
cheating on her. Defendant asserts the precluded evidence was admissible
under Rule 404(b) to establish MG’s “motive and bias,” and that MG
wanted “to punish Defendant for being unfaithful.”

¶14            We review a trial court’s evidentiary rulings for an abuse of
discretion. State v. McGill, 213 Ariz. 147, 156, ¶ 40 (2006); State v. Sucharew,
205 Ariz. 16, 21, ¶ 9 (App. 2003). An abuse of discretion occurs when “the
reasons given by the court for its action are clearly untenable, legally
incorrect, or amount to a denial of justice.” State v. Chapple, 135 Ariz. 281,
297 n.18 (1983), superseded on other grounds by statute, A.R.S. § 13-756, as
recognized in State v. Goudeau, 239 Ariz. 421, ___, ¶ 154 (2016).

¶15           Rule 404(b) prohibits evidence of other acts “to prove the
character of a person in order to show action in conformity therewith,” but
allows such evidence “for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Ariz. R. Evid. 404(b); see State v. Jeffers, 135 Ariz. 404,
417 (1983) (“The list of ‘other purposes’ in Rule 404(b) . . . is not exclusive;
if evidence is relevant for any purpose other than that of showing [a


                                       7
                            STATE v. CONNATSER
                             Decision of the Court

person’s] criminal propensities, it is admissible even though it refers to his
prior bad acts.”). Rule 608 provides, in pertinent part:

       Except for a criminal conviction under Rule 609, extrinsic
       evidence is not admissible to prove specific instances of a
       witness’s conduct in order to attack or support the witness’s
       character for truthfulness. But the court may, on cross-
       examination, allow them to be inquired into if they are
       probative of the character for truthfulness or untruthfulness
       of . . . the witness.

Ariz. R. Evid. 608(b)(1).

¶16            The evidence tying the false reporting citation to Defendant’s
prior infidelity was properly precluded under Rule 404(b), because the jury,
upon considering such evidence, could have impermissibly inferred MG
untruthfully testified for purposes of punishing Defendant, just as she was
untruthful a year earlier in response to finding Defendant’s car parked at a
hotel. This “proclivity” evidence is precisely what Rule 404(b) seeks to
avoid. Furthermore, the precluded evidence was not necessary for
Defendant to argue that MG had a motive to falsely accuse Defendant in
this case. The trial evidence established that she was angry about
Defendant’s phone conversation with another woman and wanted him to
leave the home immediately.             Moreover, additional evidence of
Defendant’s infidelity a year earlier would have been prejudicial to him in
this case, as Defendant conceded when the parties discussed the citation
evidence with the court. Finally, pursuant to Rule 608, the trial court
properly tailored the admission of MG’s character trait for untruthfulness
by precluding the police report itself, yet allowing Defendant to inquire into
the fact that MG was cited for false reporting. Consequently, the court did
not abuse its discretion in limiting the evidence relating to MG’s previous
citation for false reporting.

¶17          Defendant also contends that the State, by failing to disclose
the police report regarding MG’s false reporting, violated its disclosure
obligations under Arizona Rule of Criminal Procedure (Criminal Rule) 15
and Brady v. Md., 373 U.S. 83 (1963).

¶18            We disagree. First, Criminal Rule 15.1.b.(1) does not apply to
witnesses’ arrest records; rather, it requires the prosecutor to disclose felony
convictions of witnesses whom the State intends to call at trial. Ariz. R. Crim.
P. 15.1.b.(1). Second, nothing in the record indicates the prosecutor was
aware of the police report, which was generated by a law enforcement



                                       8
                         STATE v. CONNATSER
                          Decision of the Court

agency different from the one that investigated this case. See Ariz. R. Crim.
P. 15.1.b (“[T]he prosecutor shall make available to the defendant . . .
material and information within the prosecutor’s possession or control.”);
Ariz. R. Crim. P. 15.1.f.(2) (prosecutor’s disclosure obligations extend to
material and information in the control of “[a]ny law enforcement agency
which has participated in the investigation of the case and that is under the
prosecutor’s direction or control”). Indeed, Defendant admitted in superior
court that “the prosecutor didn’t see [the police report] because [MG] had
to have participated in some type of diversion program that allowed her to
escape having an actual conviction on her record.” The prosecutor,
therefore, did not have possession or control of the Tempe police report,
and, consequently, was not obligated to disclose it. Cf. State v. Briggs, 112
Ariz. 379, 383 (1975) (addressing defendant’s assertion of a Brady violation
and concluding trial court properly did not require the State to obtain
victim’s FBI “rap sheet” because FBI “is not under the control of the
prosecutor”).

¶19           Finally, Defendant cursorily mentions a purported
Confrontation Clause and due process violation, but he makes no
meaningful substantive argument that the court’s evidentiary ruling
violated either of these constitutional rights. As his cross-examination of
MG illustrates, see supra ¶ 12, Defendant impeached MG with her false
reporting citation and elicited testimony that MG was angry about
Defendant’s telephone call with another woman. Therefore, Defendant
introduced evidence supporting his argument that MG had a motive to
testify untruthfully about her physical altercation with Defendant.
Defendant’s constitutional rights to confront MG and to due process were
not violated. State v. Bracy, 145 Ariz. 520, 533 (1985) (in determining
whether a limitation on cross-examination requires reversal, we consider
whether the “jury is otherwise in possession of sufficient information to
assess the bias and motives of the witness”) (citation omitted).

II.   Duplicitous Charge

¶20            Count 1 charged Defendant with intentionally or knowingly
causing physical injury to MG. Because the State presented evidence of
numerous physical injuries resulting from the altercation between
Defendant and MG, Defendant argues the guilty verdict for Count 1 could
have been non-unanimous. That is, according to Defendant, any one or
more of the jurors could have based his or her individual determination of
guilt by relying on a physical injury different from those relied upon by one
or more of the other jurors.



                                     9
                          STATE v. CONNATSER
                           Decision of the Court

¶21            A criminal defendant is entitled to a unanimous jury verdict.
Ariz. Const. art. 2, § 23. To this end, “Arizona law requires that each
separate offense be charged in a separate count, [and] an indictment which
charges more than one crime within a single count may be dismissed as
duplicitous.” State v. Schroeder, 167 Ariz. 47, 51 (App. 1990). A duplicitous
charge, on the other hand, results when a charging document refers to only
one criminal act, but the State introduces more than one criminal act to
prove the charged offense. State v. Klokic, 219 Ariz. 241, 244, ¶ 12 (App.
2008). A duplicitous charge may be similarly problematic as a duplicitous
indictment in that both “can deprive the defendant of ‘adequate notice of
the charge to be defended,’ create the ‘hazard of a non-unanimous jury
verdict,’ or make it impossible to precisely plead ‘prior jeopardy [ ] in the
event of a later prosecution.’” Id. (quoting State v. Davis, 206 Ariz. 377, 389,
¶ 54 (2003)).

¶22            When the State introduces evidence of multiple criminal acts
to prove an individual charge, a trial court generally must undertake one of
two remedial measures to ensure unanimity in a potential guilty verdict.
Id. at ¶ 14. The court “must either require ‘the state to elect the act which it
alleges constitutes the crime, or instruct the jury that they must agree
unanimously on a specific act that constitutes the crime before the
defendant can be found guilty.’” Id. (quoting State. v. Schroeder, 167 Ariz. at
54. (Kleinschmidt, J., concurring)).

¶23            As Defendant correctly concedes, we review for fundamental
error because he did not request the trial court remedy the potential
duplicitous charge in Count 1. See State v. Henderson, 210 Ariz. 561, 567, ¶
19 (2005). To obtain relief under fundamental error review, Defendant has
the burden to show that error occurred, the error was fundamental and that
he was prejudiced thereby. See id. at 567-68, ¶¶ 20-22. Fundamental error
is error that “goes to the foundation of his case, takes away a right that is
essential to his defense, and is of such magnitude that he could not have
received a fair trial.” Id. at ¶ 24. We will not presume prejudice where none
appears affirmatively in the record. See State v. Trostle, 191 Ariz. 4, 13-14
(1997). “Before we may engage in a fundamental error analysis, however,
we must first find that the trial court committed some error.” State v. Lavers,
168 Ariz. 376, 385 (1991).

¶24          Here, the trial court was not obligated to sua sponte “remedy”
the potential of a non-unanimous jury verdict because, based on
Defendant’s justification defense to the separate criminal acts of straddling
MG and pinning her arms and face to the floor, these acts were “part of a



                                      10
                         STATE v. CONNATSER
                          Decision of the Court

single criminal transaction” that caused MG’s physical injuries.4 See Klokic,
219 Ariz. at 245, ¶ 18 (“[M]ultiple acts may be considered part of the same
criminal transaction ‘when the defendant offers essentially the same
defense to each of the acts and there is no reasonable basis for the jury to
distinguish between them.’”) (quoting People v. Stankewitz, 51 Cal.3d 72, 100
(1990)). No error, fundamental or otherwise, occurred.

                              CONCLUSION

¶25          Defendant’s convictions and sentences are affirmed.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




4      The State did not assert that the head-butt amounted to assault;
indeed, the State conceded during its initial closing argument that the head-
butt was unintentional. And, although MG’s scalp was sore from having
her hair pulled, the record does not reflect that MG was injured by
Defendant pulling her hair or spitting on her. In any event, the State did
not argue that MG sustained injuries from the head-butt or the hair pulling.




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