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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

            CHRISTOPHER CHARLES MOLINAR, Appellant.

                             No. 1 CA-CR 16-0530
                               FILED 8-31-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-002322-001
                 The Honorable Joan M. Sinclair, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
                            STATE v. MOLINAR
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge James P. Beene and Chief Judge Samuel A. Thumma joined.


J O H N S E N, Judge:

¶1            Christopher Charles Molinar appeals his convictions and
sentences for aggravated assault, resisting arrest, shoplifting and refusing
to provide a truthful name when lawfully detained. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Two Mesa police officers responded to a call from a
department store about a belligerent and uncooperative shoplifting
suspect.1 When police arrived, they asked Molinar why he was causing
trouble, and he responded, "I am trouble." Molinar refused to give officers
his name, saying only, "I am a chief." He clenched his jaw and his fists,
glared at one of the officers, and "was flipping his hands up kind of in 'let's
fight' gesture." He refused to provide his name even after the officers told
him he was required to do so by law.

¶3            Molinar also failed to comply when the officers told him he
was under arrest and ordered him to put his hands behind his back. After
each of the officers grabbed one of his wrists, he pulled away, ran toward
the door and threw a punch. For nearly a minute and despite several strikes
to his head, Molinar continued to fail to comply with the officers'
commands to put his hands behind his back. Finally, after one of the
officers twice Tased Molinar's calf, each time for several seconds, another
officer was able to handcuff Molinar. The struggle was captured on
surveillance camera videos, which were admitted at trial.

¶4            At trial, the defense did not present any witnesses, but argued
Molinar acted in self-defense in the face of unreasonable and excessive use
of force by the officers. The jury convicted Molinar of reasonable
apprehension aggravated assault, resisting arrest, shoplifting and refusing
to give a truthful name to officers when lawfully detained, but found him


1     We view the evidence in the light most favorable to supporting the
conviction. State v. Boozer, 221 Ariz. 601, 601, ¶ 2 (App. 2009).


                                      2
                           STATE v. MOLINAR
                           Decision of the Court

not guilty of touching aggravated assault. The jury also found the State had
not proven aggravating circumstances of infliction or threatened infliction
of serious physical injury and causing physical, emotional or financial harm
to the victims. The court found Molinar had three historical prior felony
convictions and sentenced him as a repetitive offender to concurrent
presumptive prison terms, the longest of which was five years. Molinar
filed a timely delayed notice of appeal. This court has jurisdiction pursuant
to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2017), 13-
4031 (2017) and -4033(A) (2017).2

                               DISCUSSION

A.     Expert Witness Disclosure.

¶5             Before trial, Molinar moved to compel disclosure of various
contacts with two police officers the State had identified as testifying
experts "regarding their opinions related to this case." One of these experts
ultimately did not testify at trial; the other did. With respect to the expert
who did not testify at trial, Molinar sought an email from the prosecutor
asking the expert to create a supplemental report on use of force, an email
from one of the officers involved in Molinar's arrest asking for the expert's
opinion on use of force, and an email from the Mesa police legal department
asking the expert to review videos of the encounter. With respect to the
expert who did testify at trial, Molinar sought an email from a police
lieutenant asking the expert to review the case and another email from
police to the expert asking him to prepare a supplemental report. Molinar
sought all of the referenced emails, along with any recordings or notes of a
meeting between the two experts and their supervisor and the prosecutor.

¶6             At the final trial management conference, the superior court
asked the prosecutor to respond orally to the motion, which had been filed
that morning. The prosecutor noted she had not fully reviewed the motion
but that it appeared to seek "work product." After an ensuing unrecorded
bench conference, the court denied the motion with respect to "recordings
and e-mails between [the prosecutor] and [the State's] expert witnesses" on
the basis that they were "not subject to disclosure as work product."

¶7            On appeal, Molinar does not present argument concerning
the emails to the two experts, nor does he argue the State failed to produce
any reports created by the experts. Instead, he argues the court abused its


2      Absent material revision after the date of the offense, we cite a
statute's current version.


                                      3
                             STATE v. MOLINAR
                             Decision of the Court

discretion in declining to order the State to produce recordings or
statements by the experts. He asserts that once the State elects to call an
expert as a witness, any material related to the expert's testimony is no
longer protected under the work product doctrine. Alternatively, Molinar
argues that pursuant to Arizona Criminal Procedure Rules 15.4(b)(1) and
15.5(b), the court should have ordered the materials produced in redacted
form.

¶8            Under Rule 15.1, the State must disclose all "relevant written
or recorded statements" of its witnesses and "[a]ny completed written
reports [and] statements" made by its expert witnesses. Rule 15.4(a)(1)
defines "statement" as a "writing signed or otherwise adopted or approved
by a person," a recording, or a "writing containing a verbatim record or a
summary of a person's oral communications." We review rulings on
discovery issues for abuse of discretion. State v. Connor, 215 Ariz. 553, 557,
¶ 6 (App. 2007).

¶9             Before the superior court, the State argued that the material
sought—which it described as its unrecorded "discussion with the
officers"—was covered by the work product doctrine. The work product
doctrine, codified as applicable here in Rule 15.4(b)(1), provides: "(1) Work
Product. Disclosure shall not be required of legal research or of records,
correspondence, reports or memoranda to the extent that they contain the
opinions, theories or conclusions of the prosecutor, members of the
prosecutor's legal or investigative staff or law enforcement officers . . . ." See
also Ariz. R. Crim. P. 15.4(b)(1) cmt. The work product doctrine, however,
"is not absolute"; among other things, a party "may waive all or part of the
protection by electing to present the expert as a witness." State ex rel. Corbin
v. Ybarra, 161 Ariz. 188, 193 (1989).

¶10           The court ruled on Molinar's motion at an unrecorded bench
conference, and clarified on the record only that it was denying the motion
"as far as these recordings and e-mails between you and your expert
witnesses." The prosecutor had previously stated on the record, however,
that the prosecutor's meeting with the expert witnesses was not recorded.

¶11           Based on the record before us, we are unable to conclude that
the court erred. Recordings aside, the record does not show whether any
writings existed memorializing the prosecutor's meeting with the experts.
Assuming the existence of notes or other writings concerning the meeting,
even if the State had waived the protection of the work product doctrine
with respect to the experts, see Emergency Care Dynamics, Ltd. v. Superior
Court, 188 Ariz. 32, 35-36 (App. 1997), the court later precluded expert


                                        4
                             STATE v. MOLINAR
                             Decision of the Court

testimony concerning use of force by the officers who arrested Molinar. For
that reason, statements by the experts concerning use of force by officers
involved in Molinar's arrest were no longer material to their testimony. See
generally United States v. Nobles, 422 U.S. 225, 239-40 (1975).3 Accordingly,
Molinar has not shown that the superior court abused its discretion in
denying the motion to compel.4

B.     Denial of Disclosure of "Blue Team" Reports.

¶12          Molinar next argues the superior court erred in denying his
motion to compel disclosure of use-of-force reports compiled by the Mesa
Police Department's "Blue Team," as relevant to the victim officers'
purported bias and motivation to secure a conviction in this case.5

¶13            In denying the motion to compel, the superior court
concluded that State v. Superior Court (Cook), 132 Ariz. 374 (App. 1982), was
dispositive. Cook held that prior complaints concerning assaultive conduct
on the part of the arresting officers were inadmissible under Arizona Rule
of Evidence 404(b) to show propensity, under Rule 405(a) to show a
character trait that is an essential element of a defense, or under Rule 608(b)
to impeach the credibility of the officers. Id. at 376.

¶14         The court did not abuse its discretion in denying Molinar's
motion to compel the "Blue Team" reports. Molinar contends Cook did not


3      The State chose to call only one of its two experts to testify, and that
expert was not permitted to give an opinion about use-of-force by the
officers who arrested Molinar.

4      Moreover, the record fails to affirmatively show whether any of the
material sought by the defense actually existed and what specific material
the court concluded was protected by the work product doctrine and why,
with the result that we have no basis on which to find that the court abused
its discretion. Because the discussion at the bench conference was not
recorded, and the defense failed to memorialize it afterward or seek an in
camera review of the material that was the subject of the motion to compel,
we presume the record supports the court's ruling. State v. Zuck, 134 Ariz.
509, 512-13 (1982).

5      The prosecutor stated that the "Blue Team report is simply a records
database management used by Mesa Police Department to record use of
force reports. It is unclear if they're by DR number, if it's just a tally system,
what all would be in that report system that they use to—as a database."


                                        5
                            STATE v. MOLINAR
                            Decision of the Court

address his argument that the use-of-force reports were relevant to the
officers' bias and motivation to secure a conviction. We are not persuaded,
however, that the reports would have been probative to any bias or
motivation of the officers in this case. Whether those officers had prior use-
of-force incidents memorialized in the Blue Team reports did not make it
more or less likely that either of them had a bias or motive to secure a
conviction in this case.

C.     Use of Term "Victim" at Trial.

¶15            Molinar argues the superior court violated his right to a
presumption of innocence by allowing the prosecutor to refer during trial
to the arresting officers as "victims." The court denied Molinar's motion in
limine to preclude use of the term "victim" at trial, but added, "Certainly
they're not going to be—doesn't need to be an overuse of the word victim,
but I'm not going to preclude the State from using the word victim if it
should come up during the trial."

¶16           Although we ordinarily review evidentiary rulings for abuse
of discretion, we review evidentiary rulings that implicate a defendant's
constitutional rights de novo. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006).

¶17            The Arizona Constitution's Victims' Bill of Rights guarantees
crime victims a number of rights, including the right to be present at all
criminal proceedings and the right to refuse a defendant's request for an
interview. Ariz. Const. art. 2, § 2.1(A)(3), (5). Among the statutes enacted
in support of those rights is A.R.S. § 13-4433(F) (2017), which states, "If the
defendant or the defendant's attorney comments at trial on the victim's
refusal to be interviewed, the court shall instruct the jury that the victim has
the right to refuse an interview under the Arizona Constitution." Here,
defense counsel asked each of the officers on cross-examination if he had
talked to the prosecutor multiple times before trial, but did not speak to
defense counsel. On re-direct, the prosecutor in turn confirmed with the
officers that they were victims in this case, and that they were aware that
one of their rights as victims under state law was the right to refuse a
defense interview.

¶18           Although the court had agreed before trial to consider any
curative instruction offered by Molinar on the victim issue, defense counsel
did not offer any such instruction. The court gave a final instruction at the
State's request that "[t]he law affords a victim the right to refuse an
interview or other discovery requests by the defendant, the defendant's
attorney, or other person acting on behalf of the defendant." The court,



                                       6
                            STATE v. MOLINAR
                            Decision of the Court

however, also instructed the jury that Molinar was presumed innocent, and
the State had the burden of proving his guilt beyond a reasonable doubt.
The jury is presumed to have followed these instructions. State v. Newell,
212 Ariz. 389, 403, ¶ 68 (2006).

¶19            Molinar cites no authority supporting his argument that
limited reference by the prosecution to a complaining witness as a "victim"
during trial may violate a defendant's due-process rights. Nor is this a
situation in which the superior court repeatedly characterized the officers
as victims in a manner that might have presupposed that a crime occurred.
On this record, the superior court did not err.

D.     Reference to Officer's Military Service.

¶20            Molinar argues the superior court erred by allowing the
prosecutor to elicit testimony that one of the police officers had ten years of
military service, arguing it was not relevant to any issue at trial. The court
denied Molinar's motion in limine to preclude any reference to the prior
military experience, cautioning, however, that any such reference should be
"just . . . real brief." At trial, the State asked the officer if he had an
occupation before becoming a police officer, and the officer responded that
he had served four years in the United States Marine Corps, and after that,
had served six years in the military reserves.

¶21           Evidence is relevant if "it has any tendency to make a fact
more or less probable than it would be without the evidence" and "the fact
is of consequence in determining the action." Ariz. R. Evid. 401. Rule 403
permits the superior court to exclude relevant evidence if its probative
value is substantially outweighed by the danger of unfair prejudice. The
court has considerable discretion in determining the relevance and
admissibility of evidence, and we will not disturb its ruling "absent a clear
abuse of that discretion." State v. Amaya-Ruiz, 166 Ariz. 152, 167 (1990). In
reviewing a superior court's ruling, we "must look at the evidence in the
light most favorable to the proponent, maximizing its probative value and
minimizing its prejudicial effect." State v. Kiper, 181 Ariz. 62, 66 (App. 1994).

¶22           The court did not abuse its discretion in allowing the brief
reference to the officer's military career. The officer's prior career was
relevant background to introduce the officer to the jury and to show what
experience and training he might have brought to the events that day.
Moreover, the court instructed the jury that it must consider the testimony
of law enforcement officers the same as it judged the testimony of other
witnesses. The jury ultimately acquitted Molinar of one of the counts of



                                       7
                            STATE v. MOLINAR
                            Decision of the Court

aggravated assault against this victim, demonstrating its careful and proper
consideration of the evidence. See State v. Stuard, 176 Ariz. 589, 600 (1993).
We decline to reverse on this basis.

E.     Expert Testimony on Use of Force.

¶23            Molinar argues the superior court abused its discretion in
allowing expert testimony on police training in use of force, because it was
not helpful or relevant and effectively allowed the expert to convey to the
jury that the officers' use of force was reasonable even though the court's
pretrial ruling precluded the State from offering an expert opinion on that
issue.

¶24            Before trial, Molinar moved pursuant to Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993), and Rule 702 to determine whether
the State's expert witnesses were properly qualified, whether their opinions
were based on sufficient facts and data, and whether their testimony would
help the jury understand the evidence. At the hearing on the motion,
Molinar argued that expert testimony on police training in use of force was
not relevant "because we're not seeking to attack the training of the officers"
and because the jurors could review the video showing the struggle and
determine whether the use of force was reasonable without help from an
expert. The State argued that the expert opinions would be relevant to the
anticipated defenses of self-defense and excessive use of force. The superior
court ruled the experts could testify on police training in use of force but
precluded the experts from testifying on the ultimate issue of the
reasonableness of the officers' use of force in this incident.

¶25            The State's expert testified police were trained to assess
nonverbal cues to determine whether they should expect resistance, and to
assess the "totality of the circumstances" in determining whether and what
type of force was necessary. He described when strikes to the head or face
might be advisable and why, testified that an officer should not get
"physical" with a suspect without backup "unless it's an emergency dictated
by [the suspect]," and "when it is time to go hands-on, you need to be
committed. You need to expect that they will possibly resist, and be ready
to escalate very quickly, and deescalate very quickly when—if you gain
compliance and/or control." He testified the purpose of a strike by an
officer is "[t]o gain control" and "to end the confrontation as quickly as
possible," not to injure the person.

¶26          We review a "trial court's ruling on the admissibility of expert
testimony for an abuse of discretion, viewing the evidence in the light most



                                      8
                            STATE v. MOLINAR
                            Decision of the Court

favorable to its proponent, maximizing its probative value and minimizing
its prejudicial effect." State v. Ortiz, 238 Ariz. 329, 333, ¶ 5 (App. 2015)
(citations and internal punctuation omitted).

¶27           The superior court acted well within its discretion in finding
that the expert's testimony would be relevant and would "help the trier of
fact to understand the evidence or to determine a fact in issue." Ariz. R.
Evid. 702(a). Whether the officers' use of force was reasonable was relevant
to Molinar's justification defense, because a person is not justified in using
physical force to resist an arrest "unless the physical force used by the peace
officer exceeds that allowed by law," A.R.S. § 13-404(B)(2) (2017), and an
officer's use of force is unlawful if it is "unnecessary or unreasonable."
A.R.S. § 13-3881(B) (2017).

¶28           The expert's testimony on the factors officers are trained to
evaluate in determining what type of force to use and when was helpful to
the jury in evaluating the officers' use of force in this case, as depicted on
the videos and as described by the officers themselves. In context,
moreover, the expert's testimony did not violate the court's ruling
precluding him from offering an opinion on the use of force in this instance.

¶29           Moreover, the court instructed the jury that "[e]xpert opinion
testimony should be judged just as any other testimony," and the jurors
"should give it as much credibility as you think it deserves considering the
witness's qualifications and experience, the reasons given for the opinions,
and all the other evidence in this case." For all these reasons, the court did
not abuse its discretion in allowing the expert to testify.

¶30            Molinar also argues summarily that the court abused its
discretion in denying his motion for mistrial during this expert's testimony.
A declaration of mistrial is "the most dramatic remedy for trial error and
should be granted only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted." State v. Dann, 205 Ariz. 557,
570, ¶ 43 (2003). In determining whether to grant a mistrial based on a
witness's testimony, the superior court should consider whether the
testimony called the jurors' attention to matters that they would not be
justified in considering in reaching a verdict and the probability under the
circumstances that the testimony influenced the jurors. State v. Bailey, 160
Ariz. 277, 279 (1989). "We will not overturn a trial judge's decision to deny
a motion for mistrial unless we find an abuse of discretion. And because
the trial judge is in the best position to assess the impact of a witness's
statements on the jury, we defer to the trial judge's discretionary
determination." Dann, 205 Ariz. at 570, ¶ 43 (citations omitted).


                                      9
                            STATE v. MOLINAR
                            Decision of the Court

¶31            Molinar initially moved for a mistrial after the State asked its
expert whether he felt it was "necessary" to talk to the officers about the
incident. The court denied the motion, reasoning that the State had not
used the word "necessary" in the context of use of necessary force. Molinar
later renewed his motion for mistrial on the ground that the expert had
testified he had an opinion about whether the officers' use of force was
reasonable. Molinar argued that even though the expert was not permitted
to state that opinion, the jury would infer the expert's opinion was that the
officers had not used unreasonable force. The court denied the mistrial,
explaining that "everyone in this room has an opinion." The court did not
abuse its discretion in denying a mistrial on either basis.

F.     Jury Instruction on "Reasonable Officer" Standard.

¶32           Finally, Molinar argues the court abused its discretion in
instructing the jury as part of the self-defense instruction that the use of
force is unlawful if "a reasonable officer on the scene" would find it
inappropriate.

¶33           The court gave the jury the standard instruction on use of
physical force in self-defense, deleting all references to use of deadly
physical force, and including the following language pursuant to A.R.S. §
13-404(B)(2) (2017):

       The threat or use of physical force is not justified to resist an
       arrest that the defendant knew or should have known was
       being made by a peace officer or by a person acting in a peace
       officer's presence and at the peace officer's direction, whether
       the arrest was lawful or unlawful, unless the physical force
       used by the peace officer exceeded that allowed by law.

The court also instructed the jury pursuant to A.R.S. § 13-3881 (2017):

       An arrest is made by actual restraint of the person to be
       arrested or by [such] person's submission to the custody of
       the person making the arrest.           No unnecessary or
       unreasonable force shall be used in making the arrest, and the
       person arrested shall not be subjected to any greater restraint
       [than] necessary for the person's detention.

¶34         Over Molinar's objection, the court also added the State's
suggested instruction: "Whether or not an officer's use of force was
reasonable must be judged from the perspective of a reasonable officer on



                                      10
                            STATE v. MOLINAR
                            Decision of the Court

the scene." Molinar's objection was that the instruction would be "invading
the province of the jury."

¶35            We review a superior court's decision to give a jury
instruction for abuse of discretion. State v. Garza, 216 Ariz. 56, 66, ¶ 42
(2007). We review de novo "whether jury instructions correctly state the
law." State v. Bocharski, 218 Ariz. 476, 487, ¶ 47 (2008).

¶36            Molinar argues for the first time on appeal that the instruction
misstates the law that provides that the use of force must be viewed from
the standpoint of a "reasonable person," and alternatively, the instruction
was misleading because it was incomplete. Molinar failed to object to the
instruction at trial on these grounds, thereby limiting our review for
fundamental error only. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22; State
v. Bolton, 182 Ariz. 290, 304 (1995) (objection on one ground does not
preserve objection on another ground). On fundamental error review, the
defendant has the burden of proving that the court erred, that the error was
fundamental in nature, and that he was prejudiced thereby. Henderson, 210
Ariz. at 567, ¶ 20.

¶37           We are not persuaded that the court erred, much less
fundamentally erred, in giving the instruction at issue. First, for his
argument that the use of force must be viewed from the perspective of a
"reasonable person," Molinar relies on A.R.S. § 13-409(1) and State v.
Yoshida, 195 Ariz. 183 (App. 1998), in which this court merely reiterated the
language of A.R.S. § 13-409(1). Id. at 185, ¶ 11. Section 13-409, which
provides a justification defense for an officer's use of physical force in
arresting a suspect, is not directly at issue in this case. Moreover, even if it
were, the standard instruction on A.R.S. § 13-409 provides that the use of
force is judged from the perspective of a "reasonable person in the
situation," Rev. Ariz. Jury Instr. ("RAJI") Stat. Crim. 4 at 71, which, for all
practical purposes, is no different from "a reasonable officer at the scene."

¶38            The State cited, and the court relied on, Graham v. Connor, 490
U.S. 386, 396 (1989), in which the Court held that in a claim under 42 U.S.C.
§ 1983 that law enforcement officials used excessive force in an arrest, "[t]he
'reasonableness' of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight." The Supreme Court reasoned in that case that "[t]he
calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation." Id. at 396-97.


                                      11
                           STATE v. MOLINAR
                           Decision of the Court

¶39            We cannot say that the superior court here erred, much less
fundamentally erred to Molinar's prejudice, in applying this standard to the
use of force under A.R.S. § 13-3881. The statute on its face governs the
conduct of police officers in making an arrest. See A.R.S. § 13-3881. In
determining whether unreasonable force was used, the focus must be on a
"reasonable person in the situation," which in this case means a "reasonable
officer on the scene." Nor do we believe that the standard was misleading
simply because it did not include more specific language from Graham to
the effect that proper application of the test for reasonableness under the
Fourth Amendment "requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting
to evade arrest by flight." Graham, 490 U.S. at 396. These specifics were a
matter for argument, not instruction. We conclude the court did not err,
much less fundamentally err, in giving this instruction.

                              CONCLUSION

¶40          For the foregoing reasons, we affirm Molinar's convictions
and sentences.




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




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