                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          STATE OF ARIZONA,
                              Appellee,

                                   v.

                       SOPHIA LEEANN RICHTER,
                              Appellant.

                          No. CR-17-0452-PR
                         Filed August 24, 2018

            Appeal from the Superior Court in Pima County
                 The Honorable Paul E. Tang, Judge
                        No. CR20135144-002
                   REVERSED AND REMANDED

             Opinion of the Court of Appeals, Division Two
                       243 Ariz. 131 (App. 2017)
                         VACATED IN PART

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Amy
M. Thorson, Assistant Attorney General, Tucson, Michael T. O’Toole
(argued), Phoenix, for State of Arizona

James L. Fullin, Pima County Legal Defender, Robb P. Holmes, Assistant
Legal Defender (argued), Tucson, for Sophia Leeann Richter

David J. Euchner, Pima County Public Defender’s Office, Tucson; and
Nathan S. Benedict, Salt River Pima-Maricopa Indian Community Defense
Advocate Office, Scottsdale, for Amicus Curiae Arizona Attorneys for
Criminal Justice

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE BRUTINEL and JUSTICES TIMMER and BOLICK joined.
JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD, dissented
in part.
                            STATE V. RICHTER
                            Opinion of the Court


CHIEF JUSTICE BALES, opinion of the Court:

¶1            We consider whether an abuser’s ongoing threats of harm
over a three-month period may constitute a “threat or use of immediate
physical force” under A.R.S. § 13-412(A) sufficient to permit the defendant
to raise a duress defense to charges of abusing her children. We hold that
such evidence can establish a threat supporting a duress defense. We also
consider whether expert testimony regarding the psychological effects of
an abuser’s ongoing threats of harm may constitute observation evidence
permissible under Clark v. Arizona, 548 U.S. 735 (2006), and State v. Mott, 187
Ariz. 536 (1997). We hold that, based on the limited record before us, the
expert testimony proffered does not constitute permissible observation
evidence.
                                      I.

¶2            Early one morning in November 2013, two sisters, ages twelve
and thirteen, escaped out the window of their bedroom and fled to their
neighbors’ house, shouting that their stepfather had broken down their
bedroom door and threatened them with a knife. The neighbors, who did
not know the two girls lived in the neighborhood, let them in and called
911. The neighbors described the girls as disheveled, with matted hair and
body odor.

¶3            Police went to the girls’ house, where they found the parents,
Sophia and Fernando Richter. Inside the house, police found Sophia’s
seventeen-year-old daughter locked inside a separate bedroom. They
confirmed that the younger sisters’ bedroom door was kicked in and the
doorknob damaged. During their search, they found video cameras and
covered air-conditioning vents in the girls’ rooms, an internal alarm system,
a knife near the master bedroom, and a five-gallon bucket containing pasta
mixed with meat and food scraps in the refrigerator.

¶4             The three girls described horrible living conditions. They
were always confined to their rooms and were monitored by video camera.
They had to ask permission to use the bathroom and occasionally were not
let out in time. They ate their meals, which mostly consisted of the pasta
mix, in their rooms. They had piles of soiled clothing and bedding in their
closets. They rarely brushed their teeth or bathed, and they described being
spanked and hit with various objects. Recorded music was continually

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                           Opinion of the Court

played in their rooms to mask any noise they made. After being removed
from school years earlier, they never returned. The younger sisters had not
seen their older sister in over a year despite living in the same house.

¶5             A grand jury indicted Sophia and Fernando on separate
counts of kidnapping and child abuse for each of the three girls (six counts
total) alleged to have occurred between September 1, 2013, and November
26, 2013, the dates they lived in Pima County. Fernando was also charged
with two counts of aggravated assault for his attacks on the younger sisters.

¶6             Before trial, Sophia gave notice that she intended to raise a
duress defense. She and Fernando filed separate motions to sever their
trials. The State opposed the motions and characterized Sophia’s proposed
duress defense and supporting expert testimony from psychologist Dr.
Perrin as “diminished capacity” evidence that is prohibited by Mott, 187 at
540-41. Additionally, the State argued that Sophia’s proposed evidence
failed to demonstrate a threat of immediate physical force as required by
A.R.S. § 13-412(A). Agreeing with the State, the trial court ruled that Dr.
Perrin’s proposed testimony “was essentially that Sophia was a battered
woman” and was prohibited by Mott. The court also found that Sophia
failed to offer evidence in support of a duress defense and denied the
request to sever her trial.

¶7            During trial, the State moved in limine to preclude Sophia
from presenting evidence that Fernando physically or emotionally abused
her. The State repeated its arguments that Sophia could not establish
immediacy of threat as required by § 13-412(A) and that “battered woman”
evidence was impermissible under Mott. The court granted the State’s
motion and again precluded the duress defense, finding no immediacy of
threat when the dates for the alleged offenses spanned eighty-six days from
September through November 2013. Sophia objected to the court’s ruling
and, near the close of trial, again sought to testify about Fernando’s abuse,
making an offer of proof through counsel’s avowal of proposed testimony
and photographs showing numerous scars from knife wounds inflicted by
Fernando. The trial court found her proffer insufficient and again
precluded her from testifying about Fernando’s abuse and introducing the
photographs.

¶8          Fernando and Sophia were ultimately convicted as charged.
Fernando’s convictions and sentences were affirmed on appeal in State v.

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                            Opinion of the Court

Richter, 2 CA-CR 2016-0112, 2017 WL 491137, at *1 ¶ 3 (Ariz. App. Jan. 24,
2017) (mem. decision).

¶9            Sophia appealed, arguing that the trial court erred by
restricting her trial testimony, precluding her duress defense, and
preventing her expert from testifying. The court of appeals agreed,
determining that the proposed testimony of Sophia and her expert was
“admissible to show that she committed the charged offenses under
duress.” State v. Richter, 243 Ariz. 131, 137 ¶ 19 (App. 2017). Furthermore,
the court concluded that “to the extent that Perrin’s proposed testimony
addressed mens rea, . . . it would be properly characterized as ‘observation
evidence,’ which is not precluded by Mott.” Id. ¶ 20. The court explained
that such evidence is admissible under Clark, 548 U.S. at 770-71. Richter, 243
Ariz. at 137 ¶ 20. Finally, the court concluded that Sophia and Perrin’s
proposed testimony provided a legal basis for the duress defense. Id. at 139
¶ 29.

¶10            We granted review to consider whether Fernando’s threats
and abuse of Sophia created a threat of immediate harm sufficient to
support a duress defense and whether the proposed expert testimony was
admissible as observation evidence. We have jurisdiction under article 6,
section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

                                     II.

¶11           We review a trial court’s decision regarding the admissibility
of evidence for abuse of discretion, State v. Aguilar, 209 Ariz. 40, 50 ¶ 29
(2004), and likewise review a trial court’s decision to withhold a jury
instruction, State v. Bolton, 182 Ariz. 290, 309 (1995). We review questions
of law de novo. In re Johnson, 231 Ariz. 556, 557 ¶ 1 (2013).

                                     III.

¶12           At trial, Sophia sought to introduce photographic and
testimonial evidence regarding specific abusive events and the pattern of
abuse that she experienced. She would have used such evidence to
establish that she was “compelled to engage in the proscribed conduct by
the threat or use of immediate physical force against” her or her children.
See § 13-412(A). However, the trial court precluded her from introducing


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                            Opinion of the Court

the evidence, concluding it constituted prohibited diminished capacity
evidence under Mott.

¶13           In Mott, a defendant sought to introduce “expert
psychological testimony that as a battered woman, she was unable to form
the requisite mental state necessary for the commission of the charged
offenses.” 187 Ariz. at 538. This Court barred the expert testimony, holding
that “Arizona does not allow evidence of a defendant’s mental disorder
short of insanity either as an affirmative defense or to negate the mens rea
element of a crime.” Id. at 541. The Court noted that it previously
“considered and rejected the defense of diminished capacity” and
recognized that “the legislature is responsible for promulgating the
criminal law.” Id.; see State v. Schantz, 98 Ariz. 200, 212 (1965). Because the
legislature has not provided an affirmative defense of diminished capacity,
courts in our state are barred from considering diminished capacity
evidence as an affirmative defense or to negate the mens rea element of a
crime. See A.R.S. § 13-502(A); see also State v. Leteve, 237 Ariz. 516, 524 ¶ 20
(2015).

¶14           But Sophia did not seek to negate the mens rea of the charged
crimes. Instead, she sought to argue that her intentional illegal conduct was
justified because she was compelled to abuse her children by the threat or
use of immediate physical force against her or her children. The Arizona
Legislature has codified duress as a justification defense in § 13-412(A):

       Conduct which would otherwise constitute an offense is
       justified if a reasonable person would believe that he was
       compelled to engage in the proscribed conduct by the threat
       or use of immediate physical force against his person or the
       person of another which resulted or could result in serious
       physical injury which a reasonable person in the situation
       would not have resisted.

The legislature has clarified the nature of justification defenses:
“Justification defenses under chapter 4 of [title 13] are not affirmative
defenses. Justification defenses describe conduct that, if not justified,
would constitute an offense but, if justified, does not constitute criminal or
wrongful conduct.” A.R.S. § 13-205(A). Once a defendant produces
evidence supporting a justification defense, the state has the burden to
“prove beyond a reasonable doubt that the defendant did not act with

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                            Opinion of the Court

justification.” Id. (We note that the trial court here erroneously held Sophia
to a higher standard inconsistent with § 13-205 when it concluded that she
“carrie[d] the burden of proving that she acted under duress by a
preponderance of evidence.”)

¶15           Because Sophia sought to assert a justification defense, the
evidence of duress she would have introduced in support of that defense
did not constitute “diminished capacity” evidence and was not prohibited
by Mott. The trial court therefore erred by ruling that Mott precluded
Sophia from presenting evidence in support of her duress defense to the
jury.
                                   IV.

¶16             Regardless of the admissibility of Sophia’s testimony under
Mott, the State urges us to affirm the trial court’s determination that
Sophia’s proffered evidence failed to establish the requisite immediacy
under § 13-412(A), which provides that illegal conduct committed under
duress is justified only when the harm threatened is immediate. We have
previously characterized immediate threatened harm as “present,
imminent and impending.” State v. Kinslow, 165 Ariz. 503, 505-06 (1990); see
also State v. Jones, 119 Ariz. 555, 558 (App. 1978).

¶17            Although we have had few opportunities to consider what
constitutes “present, imminent, and impending,” other courts have found
that an ongoing threat can satisfy that description for purposes of a duress
defense. For example, a New Mexico trial court refused to give a duress
jury instruction in the trial of a defendant charged with escape from prison.
Esquibel v. State, 576 P.2d 1129, 1130 (N.M. 1978), overruled on other grounds
by State v. Wilson, 867 P.2d 1175 (N.M. 1994). The New Mexico Supreme
Court reversed, finding that “evidence of a prolonged history of beatings
and serious threats toward [the] defendant by certain guards and prison
personnel,” the most recent of which occurred forty-eight to seventy-two
hours before the defendant’s escape, warranted a duress instruction.
Esquibel, 576 P.2d at 1132. The court stated that “the passage of two to three
days between threat and escape does not suffice to remove the defense of
duress from the consideration of the jury.” Id. at 1132-33. Furthermore, the
court remarked that “[w]hat constitutes present, immediate and impending
compulsion depends on the circumstances of each case.” Id. at 1133.
Compare Kinslow, 165 Ariz. at 506 (finding that defendant presented no
evidence to show present, imminent, and impending threat despite “shoot

                                      6
                           STATE V. RICHTER
                           Opinion of the Court

to kill” order when three weeks passed between defendant’s escape from
prison and alleged crimes, defendant knew that one of the escaped inmates
had been captured nonviolently, and a police officer recognized defendant
but did not draw weapon), with Esquibel, 576 P.2d at 1133.

¶18            The Ninth Circuit reached a similar conclusion in United
States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984). There, a defendant
appealed a trial court’s ruling precluding him from raising a duress defense
to drug-trafficking charges. Id. at 693. Drug traffickers had approached the
defendant in Colombia, proposing that he swallow cocaine-filled balloons
and transport them to the United States. Id. The defendant initially refused
but ultimately relented after the drug traffickers mentioned facts about his
personal life and told him that “his failure to cooperate would result in the
death of his wife and three year-old child.” Id. The Ninth Circuit reversed,
finding that the defendant presented sufficient evidence to present a triable
issue of fact to the jury as to whether the threat of injury was present,
immediate, or impending. Id. at 694.

¶19          Similarly, in United States v. Chi Tong Kuok, 671 F.3d 931 (9th
Cir. 2012), a defendant accused of illegally exporting military
communications equipment sought to raise a duress defense. Although the
defendant’s illegal conduct began in about 2000, the government’s case
focused on evidence that, “over the course of a two-and-a-half-year period
between 2006 and 2009, [the defendant] tried to purchase from vendors in
the United States various types of communication equipment commonly
used by the U.S. military.” Id. at 935. In his opening statement, the
defendant enumerated threats to his family dating to before 2002. Id.
Nevertheless, the trial court precluded him from raising a duress defense.
Id. Again, the Ninth Circuit reversed, concluding that the threats to his
family were “immediate and serious” and thus sufficient to support a
duress defense. Id. at 947-48.

¶20            These cases persuade us that an ongoing threat of harm can
be sufficiently immediate and present for purposes of a duress defense even
when the threat precedes the illegal conduct by several days (Esquibel), the
coercing party is physically removed from the defendant (Contento-Pachon),
or the threat is initiated and then repeatedly renewed over several years
(Chi Tong Kuok).



                                     7
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                            Opinion of the Court

¶21           To be sure, the “present, imminent, and impending” standard
includes only conduct that would compel a “reasonable person in the
situation,” § 13-412(A), to act in duress. Therefore, a threat may not be
vague or undetailed, see Chi Tong Kuok, 671 F.3d at 948, and generalized fear
does not suffice, see United States v. Sixty Acres in Etowah Cty., 930 F.2d 857,
860-61 (11th Cir. 1991) (concluding that defendant’s generalized fear of
husband insufficient to support duress defense even when husband’s
“presence induced fear, anxiety and fierce discomfort in the members of his
household”).

¶22           The State concedes that, in theory, a continuing threat over a
three-month period could serve as the basis for a duress defense. It argues
that here, however, Sophia has merely asserted that she had a generalized
fear of her husband. Accordingly, the State reasons, although evidence of
Sophia’s abuse may be relevant to sentencing as a mitigating factor under
A.R.S. § 13-701(E)(3), it does not support a duress defense. We disagree.

¶23            Through counsel, Sophia proffered that “she was under
immediate threat of physical harm to herself and/or to her children,” and
that this threat was ongoing. She stated that even when she went grocery
shopping, she was accompanied by Fernando’s mother and “[Sophia’s]
phone was required to be on at all times in order that he could hear what
was going on.” She further proffered that “she believed that if she resisted,
that she would either be seriously harmed or killed, or that her children
would as well.” She submitted evidence of wounds and blood on her body
that police documented on the day of her arrest. She also would have
introduced evidence that, when she stood up to Fernando on a family trip,
he threw her out of the hotel room by her hair. (Although the court of
appeals considered Dr. Perrin’s report as part of Sophia’s proffer of duress
evidence, we decline to do so. Sophia did not refer to Dr. Perrin’s report or
his potential testimony during her proffer of duress at trial and only did so
during her earlier motion to sever.)

¶24           “[A] defendant is entitled to an instruction on any theory of
the case reasonably supported by the evidence.” State v. Lujan, 136 Ariz.
102, 104 (1983). In the context of justification, we have articulated a low
threshold for evidentiary sufficiency: a justification instruction is warranted
“if the record contains the ‘slightest evidence’” of justification. State v.
Carson, 243 Ariz. 463, 465 ¶ 9 (2018) (quoting State v. King, 225 Ariz. 87, 90
¶ 14 (2010)); see also Lujan, 136 Ariz. at 104 (reasoning that a defendant is

                                       8
                            STATE V. RICHTER
                            Opinion of the Court

entitled to a jury instruction if there is the “slightest evidence of
justification”). Here, Sophia supported her claim that she and her children
were under the threat of immediate physical harm with proffered evidence
of specific injuries and abuse. In so doing, she provided the slightest
evidence of duress, and her proffer was therefore sufficient to support a
duress defense. Thus, the trial court erred when it precluded her from
raising a duress defense and from introducing evidence in support of that
defense.

¶25           The dissent would affirm the trial court, arguing that our
decision does not give effect to § 13-412(A)’s limitation of duress to
circumstances involving threats of “immediate physical force.” Infra ¶ 43.
Essentially, the dissent would shift to Sophia the burden of proving her
defense before trial, in direct contradiction of § 13-205. Far from “rendering
superfluous” the immediacy requirement for duress, we give full effect to
§ 13-412(A) when we allow the jury to determine if a reasonable person, in
Sophia’s situation, would have believed that Fernando was threatening
immediate physical force against her or her children, and would not have
resisted.

¶26           The dissent would also deny Sophia the opportunity to
introduce evidence in support of a duress defense because she failed to
prove, before trial, that she had no “reasonable legal alternative” to her
otherwise illegal conduct. Infra ¶¶ 53-56. Whereas “no reasonable
alternative” is a statutory element of necessity, it is not a statutory element
of duress. Compare A.R.S. § 13-417(A), with A.R.S. § 13-412(A). Although
evidence of whether a “reasonable alternative” was available to Sophia
considering her circumstances may be relevant to the jury’s assessment of
whether her conduct was ultimately reasonable, she has no statutory
burden to prove the dissent’s additional element. (The dissent relies on
Kinslow, but that decision preceded the enactment of current § 13-205 and
our decision in Carson.)

¶27            The State argues that admitting evidence of Fernando’s
abusive acts would transform the duress defense from an objective
standard to a subjective standard. Sophia responds that evidence of abuse
is relevant to informing the inquiry of whether a reasonable person in her
situation would have likewise felt compelled to act under duress. See A.R.S.
§ 13-412(A). Amicus agrees, positing that an objective standard still


                                      9
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                            Opinion of the Court

requires consideration of the defendant’s circumstances when determining
the reasonableness of his or her conduct.

¶28            Justification defenses in Arizona “use objective standards that
depend on the beliefs of a ‘reasonable person’ in the defendant’s
circumstances rather than the defendant’s subjective beliefs.” Carson, 243
Ariz. at 465 ¶ 9; see A.R.S. § 13-412(A). As an example, “Arizona courts have
long held that a murder defendant who defends on the basis of justification
should be permitted to introduce evidence of specific acts of violence by the
deceased if the defendant either observed the acts himself or was informed
of the acts before the homicide.” State v. Taylor, 169 Ariz. 121, 124 (1991).
This evidence demonstrates the defendant’s knowledge of the victim’s
violent tendencies and shows that the defendant was “justifiably
apprehensive” of the victim. Id.

¶29          This same logic applies to establishing a duress defense.
Knowledge of the circumstances under which the defendant committed the
alleged crimes is essential to the jury’s determination of whether the
defendant’s actions were reasonable. See United States v. Nwoye, 824 F.3d
1129, 1137 (D.C. Cir. 2016) (“Reasonableness . . . is not assessed in the
abstract. Rather, any assessment of the reasonableness of a defendant’s
actions must take into account the defendant’s ‘particular circumstances,’”
which include “facts known to the defendant at the time in question, such
as the defendant’s knowledge of an assailant’s violent reputation.”). Just as
the jury in Esquibel should have considered the prolonged history of
beatings and threats the defendant suffered, so too the jury here should
have been permitted to consider the specific instances and pattern of abuse
that Fernando inflicted on Sophia. Indeed, the plain language of
§ 13-412(A) itself requires that a duress claim be evaluated from the
perspective of a reasonable person in the defendant’s situation.

¶30           To be sure, the introduction of evidence of past incidents of
abuse should not transform the duress defense into a subjective inquiry of
whether a specific defendant was unusually susceptible to succumbing to
otherwise implausible threats. Therefore, the proper inquiry for the jury
here is whether a reasonable person subjected to the same threats and
pattern of abuse would have believed he or she was compelled to engage
in the same illegal conduct.



                                     10
                            STATE V. RICHTER
                            Opinion of the Court

¶31           Noting that A.R.S. § 13-415 provides for the admission of
evidence of past acts of domestic abuse for other justification defenses (self-
defense, defense of a third party, defense of property), but not for duress,
the State argues that the legislature intended to preclude such evidence
from duress cases. The State’s argument is unpersuasive. Section 13-415
concerns only defenses in which the perpetrator of domestic violence is the
crime victim. See State v. Vogel, 207 Ariz. 280, 285 ¶ 28 n.4 (App. 2004)
(noting that § 13-415 codifies “case law holding that prior acts of violence
by the deceased are generally admissible as evidence of defendant’s state of
mind”). It is therefore unsurprising that § 13-415 does not refer to the
duress defense, which applies only when third parties are the victims.
Consequently, we decline to construe this statute’s codification of the
admissibility of domestic violence evidence for self-defense as implicitly
barring the admission of such evidence for duress. Cf. Ariz. R. Evid. 402
(noting general admissibility of relevant evidence absent contrary
provision in constitution, statute, or rule).

                                      V.

¶32              Just as the trial court precluded Sophia from presenting her
own testimony regarding Fernando’s abuse, it also determined that
testimony from her expert, Dr. Perrin, would be inadmissible under Mott
as so-called “psychological evidence.” The court of appeals concluded,
however, that “to the extent that Perrin’s proposed testimony addressed
mens rea, . . . it would be properly characterized as ‘observation evidence.’”
Richter, 243 Ariz. at 137 ¶ 20.

¶33           In Clark, the United States Supreme Court concluded that
Mott does not prohibit the introduction of “observation evidence” “to rebut
the prosecution’s evidence of mens rea.” 548 U.S. at 760. The Court framed
its definition of observation evidence in the context of the defendant’s
alleged crime of homicide of a police officer:

       [T]here is “observation evidence” in the everyday sense,
       testimony from those who observed what [the defendant] did
       and heard what he said; this category would also include
       testimony that an expert witness might give about [the
       defendant’s] tendency to think in a certain way and his
       behavioral characteristics. This evidence may support a
       professional diagnosis of mental disease and in any event is

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                            Opinion of the Court

       the kind of evidence that can be relevant to show what in fact
       was on [the defendant’s] mind when he fired the gun.

Id. at 757. The Court gave several examples of observation evidence in
Clark: “[the defendant’s] behavior at home and with friends, his expressions
of belief around the time of the killing that ‘aliens’ were inhabiting the
bodies of local people . . . , [and] his driving around the neighborhood
before the police arrived.” Id. The Court clarified that “observation
evidence can be presented by either lay or expert witnesses,” explaining
that “an expert witness might offer . . . descriptions of a defendant’s
tendency to think in a certain way or his behavioral characteristics.” Id. at
757-58, 760. The Court admitted, however, that its broad definitions of the
evidentiary categories discussed in Mott did not delineate the margins of
those categories. Instead, it left that task for Arizona courts. See id. at 759.

¶34           This Court has permitted a defendant to introduce
observation “evidence about his [or her] behavioral tendencies to show that
he [or she] possessed a character trait of acting reflexively in response to
stress.” Leteve, 237 Ariz. at 524 ¶ 21 (quoting State v. Mott, 187 Ariz. at 544)
(internal quotation marks omitted); see also id. ¶ 24 (holding that it was error
to preclude expert evidence regarding a defendant’s character trait for
impulsivity to rebut premeditation); State v. Christensen, 129 Ariz. 32, 34-35
(1981) (holding that it was error to preclude expert evidence that defendant
“had difficulty dealing with stress and in stressful situations his actions
were more reflexive than reflective” to establish that he “acted impulsively”
and to allow the jury to infer that a homicide was not premeditated).

¶35           The record does not clearly identify what testimony Sophia
would have elicited from Dr. Perrin. He prepared an abbreviated initial
report of his psychological examinations of Sophia for the limited purpose
of Sophia’s motion to sever. The report detailed a horrific pattern of
physical and psychological abuse that was, in a word, devastating.
However, because the trial judge ruled before trial that this expert
testimony was precluded by Mott, Sophia failed to further develop at trial
what her expert would have testified to.

¶36          Based on the limited record before us, Dr. Perrin’s report does
not match the reflexive or impulsive observation evidence that this Court
concluded was admissible in Leteve or Christensen. Although observation
evidence is broader than testimony about impulsivity, Dr. Perrin’s

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                             Opinion of the Court

testimony, as proffered, would not have been admissible as “observation
evidence.” We add that, even if his expert testimony were admissible, Dr.
Perrin could not present hearsay testimony on direct examination about
what Sophia told him months after being charged. That is, Dr. Perrin
should not, under the guise of observation evidence, be permitted to serve
as a mere conduit for otherwise inadmissible testimony. See State v. Carlson,
237 Ariz. 381, 391-92 ¶¶ 26-29 (2015) (upholding exclusion of expert’s
testimony that defendant said he falsely confessed).

¶37            We note that Clark, Leteve, and Christensen all uphold the
admissibility of observation evidence to rebut mens rea, which is
necessarily a subjective element. Because duress requires an objective
inquiry, and because evidence of “a defendant’s tendency to think in a
certain way or his [or her] behavioral characteristics,” Clark, 548 Ariz. at 760,
is inherently subjective, we conclude that observation evidence is likely not
admissible to support a duress defense. Cf. State v. Stark, 122 Ariz. 531, 533-
34 (1979) (holding, under former duress statute, that psychiatric testimony
“delved into the defendant’s subjective mental state and was therefore
properly excluded”). If Dr. Perrin’s testimony is again proffered, we leave
it to the trial court on remand to decide, consistent with this opinion,
whether he can offer any admissible evidence.

                                      VI.

¶38          For the foregoing reasons, we vacate paragraphs 6-32 of the
court of appeals’ opinion, reverse Sophia Richter’s convictions and
sentences, and remand this case for a new trial.




                                       13
                         STATE V. RICHTER
     JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD,
                          Dissenting in Part

LOPEZ, J., joined by PELANDER, J. and GOULD, J., dissenting in part.

¶39           The majority holds that Sophia was entitled to raise a duress
defense under A.R.S. § 13-412(A) to charges of kidnapping and abusing her
three minor children for three months because “ongoing threats of harm”
by her abusive husband, Fernando, constituted a “threat or use of
immediate physical force” under the statute. Supra ¶¶ 1, 15. I respectfully
dissent because Sophia failed to satisfy the duress statute’s requirement that
she demonstrate she acted in response to a “threat or use of immediate
physical force” (the “immediacy requirement”). See § 13-412(A). Thus, I
would uphold the trial court’s denial of Sophia’s duress defense and affirm
her convictions and sentences. 1

              I.     The Duress Defense

¶40            The majority expands the availability of the duress defense in
contravention of the statute’s text, our case law interpreting it, the
justification defense statutory scheme, and the law’s underlying policy and
reasoning which narrow the defense’s application. These limitations on the
duress defense exist because, unlike other justification defenses, it excuses
crimes against innocent victims. See e.g., A.R.S. § 13-404(A) (explaining that
a person is justified in using or threatening force in defense of himself).

¶41             The rationale for the duress defense is that “even though [the
defendant] has done the act the crime requires and has the mental state
which the crime requires, his conduct which violates the literal language of
the criminal law is justified because he has thereby avoided a harm of
greater magnitude.” State v. Jeffrey, 203 Ariz. 111, 114 ¶ 10 (App. 2002)
(quoting 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law
§ 5.3, at 614 (2d ed. 1986)). For this reason, the use of the duress defense to
justify infliction of physical harm against an innocent person is
circumscribed. For example, the duress defense is unavailable for offenses


1 I concur in the majority’s holding, supra ¶ 15, that “[b]ecause Sophia
sought to assert a justification defense, the evidence of duress she would
have introduced in support of that defense did not constitute ‘diminished
capacity’ evidence and was not prohibited by Mott,” contrary to the trial
court’s ruling.

                                      14
                         STATE V. RICHTER
     JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD,
                          Dissenting in Part

involving “homicide or serious physical injury.” § 13-412(C). The
paramount interest in protecting innocent third parties even precludes self-
defense in certain circumstances involving harm to innocent victims. See,
e.g., A.R.S. § 13-401(A) (barring applicability of self-defense theory in
prosecution for reckless injury of an innocent third party). Consequently,
even if a person’s life is immediately threatened, he is not entitled to kill or
seriously physically injure another innocent person as an act of self-
preservation. If a person’s only recourse for self-preservation is to inflict
such harm, his options are to retreat, to seek assistance from law
enforcement, to engage in self-defense, or to do nothing.

¶42             Here, § 13-412(C) does not preclude Sophia’s duress defense
because she was not charged with inflicting serious physical injury on her
children, but her conduct skews precariously close to the line. After
Sophia’s arrest, medical professionals determined that her children
suffered from severe neglect, had scars consistent with strikes from “belts
or wires,” “lacked muscle development,” suffered “skin irritation caused
by poor hygiene” and dental problems, and one child suffered from a
speech impediment resulting from forced isolation. All the children
suffered psychological trauma. This case, where the defendant’s conduct
harmed innocent victims directly or through acquiescence, perfectly
illustrates the reason for narrow application of the duress defense. See, e.g.,
State v. Riker, 869 P.2d 43, 51 (Wash. 1994) (noting that evidence of battered
woman syndrome is permitted to support self-defense, but refusing to
allow it to support a duress defense because it involves harm to an innocent
third party and “[t]he more stringent requirements for the duress defense
are a result of the more socially harmful outcome allowed by this defense,
and reflect society’s conclusion that . . . the defense should be limited”).

¶43            The duress statute’s text, and our case law interpreting it,
impose a strict temporal threat requirement on the duress defense. Arizona
did not adopt the Model Penal Code’s (“MPC”) duress language wholesale,
but instead included the requirement of a “threat or use of immediate
physical force.” § 13-412(A) (emphasis added). By adding this immediacy
requirement in § 13-412(A), an intentional deviation from the MPC on
which the statute was otherwise based, the legislature intended to narrow
its application. The Court must give meaning to every word in the statute,
including “immediate.” See Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 174 (2012) (discussing the “surplusage

                                      15
                         STATE V. RICHTER
     JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD,
                          Dissenting in Part

canon,” which provides that “[i]f possible, every word and every provision
is to be given effect . . . None should be ignored. None should needlessly
be given an interpretation that causes it to duplicate another provision or
to have no consequence”). But under the majority’s view, in which
immediacy is stretched beyond its plain meaning without clear parameters,
it is difficult to imagine a scenario in which a proffered duress defense
would qualify under the MPC but not under Arizona’s more restrictive
statute, effectively rendering superfluous our statute’s immediacy
requirement.

¶44            The majority acknowledges that we have previously
characterized an immediate threat warranting a duress instruction as
“present, imminent and impending.” Supra ¶ 16 (quoting State v. Kinslow,
165 Ariz. 503, 505–06 (1990)). That prior description of “immediate” in the
duress statute is consistent with its common usage and legal definitions.
See Immediate, Webster’s Second New International Dictionary 1245 (1949)
(defining “immediate” as “occurring without delay; made or done at once;
instant”); see also Immediate, Black’s Law Dictionary 866 (10th ed. 2014)
(defining “immediate” as (1) “[o]curring without delay; instant,” (2) “[n]ot
separated by other persons or things,” or (3) “[h]aving a direct impact;
without an intervening agency”).

¶45           Thus, “the threat or use of immediate physical force,”
§ 13-412(A) (emphasis added), which implies a “present, imminent and
impending” action, Kinslow, 165 Ariz. at 505–06, describes an event that is
about to happen, see Present, Webster’s Second New International
Dictionary (“Webster’s Second”) 1955 (1949) (defining “present” as “now
existing, or in process”); see also Imminent, Webster’s Second 1245 (1949)
(defining “imminent” as “threatening to occur immediately; near at hand”).
Further, showing a threat of immediate harm is distinct from showing a
threat of eventual harm, as “all threats imply a risk of eventual harm,” and
“such a conclusion would functionally erase the imminence element” from
the statute. State v. Medina, 244 Ariz. 361, 364 ¶¶ 9–10 (App. 2018)
(discussing the immediacy requirement of a necessity defense under A.R.S.
§ 13-417(A) and stating that “imminence is at the heart of the defense of
necessity—without it, a necessity does not exist”).

¶46          In this case, Sophia proffered no evidence that Fernando
threatened or used physical harm which compelled her to continuously

                                    16
                         STATE V. RICHTER
     JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD,
                          Dissenting in Part

abuse her children for the entire three-month period alleged in the
indictment, if at all. Sophia argues, without specific or direct factual
support in the record, that Fernando’s “constant” and “unrelenting” threats
constitute the slightest evidence of immediacy necessary to present the
defense because she “lived in a constant state of fear.” State v. Richter, 243
Ariz. 131, 135 ¶ 8 (App. 2017) (internal quotation marks omitted). But
Sophia failed in her skeletal offer of proof or otherwise to present any
evidence of specific threats during the relevant period, and her subjective,
generalized fear of Fernando, without specific facts indicating immediacy,
does not justify a duress defense. See, e.g., United States v. Sixty Acres in
Etowah Cty., 930 F.2d 857, 860–61 (11th Cir. 1991) (“We may not substitute
. . . a vaguely-defined theory of ‘battered wife syndrome’ for the showing
of duress courts have always required to excuse otherwise criminal
conduct” because generalized fear “cannot provoke the application of a
legal standard whose essential elements are absent.”).

¶47           To shore up her claim, during trial Sophia made an extremely
limited and general offer of proof through her counsel. Sophia presented
only two incidents in which Fernando physically assaulted her. First, she
proffered evidence that on the night of her arrest, Fernando burned and
scratched her chest and arm, although she initially told police that her
injuries were self-inflicted. Second, Sophia alleged that during a family
vacation some time before the charged child abuse, Fernando threw her out
of a hotel room by her hair when she attempted to protect her children.

¶48           Sophia’s limited proffered evidence of abuse fails to establish
immediacy for two reasons. First, she offered no evidence that either
incident resulted from her refusal to follow Fernando’s command that she
abuse her children. Second, although deplorable, neither incident
constitutes a continuous threat of immediate harm sufficient to justify
Sophia’s three-month systematic abuse of her children; the first incident
occurred before the charged offenses, and the incident on the night of her
arrest occurred after the child abuse for which she was convicted.

¶49           Even if we were to consider the hotel incident (which
allegedly occurred before the relevant period of the charged offenses
resulting in Sophia’s convictions) as evidence of Fernando’s pattern of
abuse, evidence also showed that Sophia had opportunities to summon
assistance or to escape with her children from Fernando during that same

                                     17
                         STATE V. RICHTER
     JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD,
                          Dissenting in Part

period. For example, Sophia went grocery shopping alone with a neighbor
before her family moved to Tucson and, during the move, she drove her car
with her daughters while Fernando separately drove a moving truck. Thus,
the attenuated hotel incident, undermined by countervailing evidence of
reasonable alternatives to abusing her children, does not satisfy the
immediacy requirement.

¶50            The majority, recognizing Sophia’s failure to satisfy the
statute’s strict immediacy requirement, relies upon distinguishable New
Mexico and federal cases to stretch our previous description of immediate
threats to include perceived generalized ongoing threats. Supra ¶¶ 17–20.
In doing so, the majority expands the scope of an immediate threat beyond
its reasonable meaning, effectively eliminates the statute’s express
immediacy requirement, and undermines the statute’s narrow application
of the duress defense.

¶51           In Esquibel v. State, the New Mexico Supreme Court held that
a duress instruction was warranted in a prosecution for prison escape
because the defendant presented “evidence of a prolonged history of
beatings and serious threats” by certain prison personnel, the most recent
of which occurred a mere two or three days before the defendant’s escape.
576 P.2d 1129, 1132 (N.M. 1978), overruled on other grounds by State v. Wilson,
867 P.2d 1175 (N.M. 1994). Unlike the present case, Esquibel involved a
specific recent threat and the defendant arguably lacked a viable option to
report the threat to prison authorities because he had been threatened and
beaten by other personnel in the same facility. Id.

¶52            In United States v. Contento-Pachon, the defendant trafficked
narcotics in response to death threats by a drug cartel, 723 F.2d 691, 693 (9th
Cir. 1984), and in United States v. Chi Tong Kuok, the defendant attempted to
illegally import restricted military technology as a result of similar threats
and coercion by an authoritarian regime, 671 F.3d 931, 935–36 (9th Cir.
2012). Although the defendants were subjected to “ongoing threats” that
lacked temporal immediacy and emanated from remote sources, the Ninth
Circuit held that the defendants were entitled to duress instructions, in part,
because their criminal conduct was reasonable in light of the perceived




                                      18
                         STATE V. RICHTER
     JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD,
                          Dissenting in Part

futility of seeking relief from allegedly corrupt law enforcement authorities.
See Contento-Pachon, 723 F.2d at 693–94; Chi Tong Kuok, 671 F.3d at 948.

¶53            The majority relies on Esquibel, Contento-Pachon, and Chi Tong
Kuok for the proposition that ongoing threats, temporally remote from the
charged crime, can satisfy § 13-412(A)’s immediacy requirement. Supra
¶ 20. But as the majority notes, context matters. Supra ¶ 17 (“What
constitutes ‘present, immediate and impending’ compulsion depends on
the circumstances of each case.” (quoting Esquibel, 576 P.2d at 1133)). The
threats in these cases must be viewed in the context of the defendants’
inability to escape them: “[I]f there was a reasonable, legal alternative to
violating the law, ‘a chance both to refuse to do the criminal act and also to
avoid the threatened harm,’ the defenses [of duress and necessity] will fail.”
See Kinslow, 165 Ariz. at 506 (quoting United States v. Bailey, 443 U.S. 394, 410
(1980)).

¶54             The fact that an ongoing threat lasting over a three-month
period may constitute a threat of “immediate physical force,” § 13-412(A),—
if the threat compels the crime the entire time and reasonable legal
alternatives to committing the crime are unavailable—does not advance
Sophia’s position. Unlike the defendants in Esquibel, Contento-Pachon, or Chi
Tong Kuok, Sophia did not allege futility in reporting Fernando’s threats to
law enforcement as a reasonable alternative to abusing her children. The
majority ignores the factual differences between this case and Esquibel,
Contento-Pachon, and Chi Tong Kuok and disregards more factually
analogous cases in which other courts have denied a duress instruction. See,
e.g., State v. Lopez-Navor, 951 A.2d 508, 511–12 (R.I. 2008) (refusing a duress
instruction for a defendant who alleged that her boyfriend “threatened and
intimidated her” into neglecting and abusing her child, as failing to report
the situation did not “excuse[] her conduct”); Campbell v. State, 999 P.2d 649,
659–60 (Wyo. 2000) (finding that general evidence of years of physical abuse
by her boyfriend did not establish a “present, imminent or impending”
threat sufficient to permit defendant to raise a duress defense to a child
endangerment charge).

¶55          Although the majority and Sophia emphasize the
circumstances when it would have been difficult or impossible for her to
seek assistance, see supra ¶ 23, the evidence demonstrates that she had
opportunities during the three-month period to escape or notify law

                                       19
                         STATE V. RICHTER
     JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD,
                          Dissenting in Part

enforcement, family, neighbors, or strangers during outings from her house
where her children were confined. For example, Sophia had contact with
her mother and, as she concedes, occasionally went to the grocery store with
her mother-in-law. Despite Fernando’s alleged omnipresence, those
situations afforded Sophia an opportunity to summon help or contact the
police. Although Sophia claimed that she believed Fernando’s mother
acted as his agent in the abuse, his mother was not charged with abusing
Sophia’s children and testified that she was unaware of the abuse. In short,
the record shows that Sophia had a reasonable, legal alternative to harming
her children during the three-month period of abuse. This alone forecloses
the duress defense. See, e.g., Kinslow, 165 Ariz. at 506 (affirming trial court’s
denial of duress defense where defendant’s belief that he had no reasonable
opportunity to escape the threatened harm without committing his
subsequent crimes was “wholly implausible”).

¶56            The majority essentially argues that evidence of a reasonable
alternative to Sophia abusing her children is irrelevant as to whether she
was entitled to a duress instruction because it is not an element of the duress
defense. Supra ¶ 26. This argument is unconvincing. First, the majority
bolsters its conclusion that Sophia satisfied the immediacy requirement by
emphasizing her claim that she was constantly under Fernando’s control
and, thus, implicitly incapable of summoning assistance. Supra ¶ 23.
Second, as discussed, the out-of-state cases the majority cites to expand this
Court’s existing definition of immediacy rely, in part, on the absence of a
reasonable alternative to committing the crime. Supra ¶¶ 17–20. Third, this
Court in Kinslow affirmed a trial court’s denial of a duress defense based
upon our conclusion that the defendant’s belief “that he had no reasonable
alternative to escape the threatened harm without committing his
subsequent crimes” was “implausible.” Kinslow, 165 Ariz. at 506. The
majority’s approach represents a further departure from Kinslow as it would
entitle a defendant to raise a duress defense, as justification for harming an
innocent victim, even when the evidence shows that the defendant had a
reasonable alternative to inflicting such harm.

¶57             The majority also posits that denying Sophia’s requested
duress instruction shifts “to Sophia the burden of proving her defense
before trial, in direct contradiction of [A.R.S.] § 13-205.” Supra ¶ 25. But the
majority’s view conflates two issues: a defendant’s entitlement to raise a
duress defense, which is resolved by the trial court based on the specific

                                       20
                         STATE V. RICHTER
     JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD,
                          Dissenting in Part

evidence proffered to support the defense, and the allocation of the burden
of proof at trial once the defense is raised with sufficient supporting
evidence. Contrary to the majority’s position, as Kinslow and every case
denying a defendant’s requested duress instruction illustrates, a defendant
first must proffer sufficient evidence to warrant a justification instruction.
Only after clearing this initial hurdle does § 13-205’s burden allocation
become relevant. For this reason, the statute does not diminish Kinslow’s
relevance and application here. That the state bears the burden of
disproving justification after a defendant properly raises the defense sheds
no light on the core issue in this case—whether Sophia presented the
slightest evidence to support a duress defense and related jury instruction.
The majority’s invocation of § 13-205 to circumvent the limitations imposed
by § 13-412(A) on the duress defense is unpersuasive.

¶58           Given Sophia’s generalized, inadequate offer of proof, the
trial court correctly precluded her from presenting a duress defense and
introducing evidence thereon because she failed to satisfy the statute’s
immediacy requirement and had a reasonable legal alternative to
committing the crimes.

¶59           Having held that Sophia was entitled to raise a duress defense
because she satisfied the immediacy requirement, the majority next
addresses the scope of the evidence of abuse suffered by Sophia admissible
to support the defense. Supra ¶¶ 28–29. The majority reasons that
“[k]nowledge of the circumstances under which the defendant committed
the alleged crimes is essential to the jury’s determination of whether the
defendant’s actions were reasonable.” Supra ¶ 29. This is precisely what
the statute requires. See § 13-412(A) (determining the actions of “a
reasonable person in the situation”). But, as the majority notes, the duress
defense uses an objective standard that applies the beliefs of “a ‘reasonable
person’ in the defendant’s circumstances rather than the defendant’s
subjective beliefs.” Supra ¶ 28 (quoting State v. Carson, 243 Ariz. 463, 465 ¶
9 (2018)). As such, the majority properly clarifies that “the introduction of
evidence of past incidents of abuse should not transform the duress defense
into a subjective inquiry of whether a specific defendant was unusually
susceptible to succumbing to otherwise implausible threats.” Supra ¶ 30.

¶60         The majority rejects the State’s argument that A.R.S. § 13-415,
which provides for the admission of past acts of domestic abuse and

                                     21
                         STATE V. RICHTER
     JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD,
                          Dissenting in Part

modifies the reasonableness standard for certain justification defenses such
as self-defense, use of deadly physical force, or defense of a third person,
evinces legislative intent, by omission, to preclude such evidence from the
duress defense. Supra ¶ 31. The statute provides that the state of mind of
a reasonable person invoking those other justification defenses “shall be
determined from the perspective of a reasonable person who has been a
victim of . . . past acts of domestic violence.” § 13-415. The majority
dismisses the statute as a limited statutory codification of Arizona “case law
holding that prior acts of violence by the deceased are generally admissible
as evidence of a defendant’s state of mind.” Supra ¶ 31 (quoting State v.
Vogel, 207 Ariz. 280, 285 ¶ 28 n.4 (App. 2004)). But Vogel did not address
whether prior acts of domestic violence are admissible in duress cases, and
the legislature’s failure to include the duress defense in § 13-415 or to
provide in § 13-412 (or otherwise) language similar to § 13-415 should not
be so casually dismissed. See, e.g., Campbell, 999 P.2d at 660 (holding that a
statute permitting evidence of battered woman syndrome does not apply
to a defense of coercion and duress where its plain language “expressly
limits its reach to the affirmative defense of self-defense”).

¶61            Because § 13-415 serves as the statutory vehicle to introduce
evidence of domestic abuse for self-defense cases and modifies the
reasonableness standard, we can infer that the absence of a statutory
counterpart demonstrates a lack of legislative intent to admit such evidence
in duress cases. To extend § 13-415’s modified reasonableness standard to
the duress defense not only rewrites that statute, but also overrides
§ 13-412(A)’s express objective reasonableness standard. If the legislature
intended to modify the reasonableness standard for defendants in duress
cases, it could have done so. See, e.g., Champlin v. Sargeant in & for Cty. of
Maricopa, 192 Ariz. 371, 374 ¶ 16 (1998) (“[T]he expression of one or more
items of a class indicates an intent to exclude omitted items of the same
class.”).

¶62            Declining to extend § 13-415’s modified reasonable person
standard to duress cases does not necessarily preclude a defendant entitled
to raise a duress defense from introducing otherwise admissible evidence
of abuse, such as percipient witness testimony, to the extent it is relevant to
the jury’s assessment under § 13-412(A) of whether the defendant acted as
a reasonable person in the situation. But § 13-415 does more than place a
juror in the defendant’s situation; it places a juror in the defendant’s mind

                                      22
                         STATE V. RICHTER
     JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD,
                          Dissenting in Part

by commanding the juror to assess a defendant’s reasonableness from the
perspective of a domestic violence victim. In other words, § 13-415
designates a defendant as a domestic violence victim and instructs the jury
to assess the case from that perspective. This is a significant departure from
§ 13-412(A)’s objective reasonableness standard. The more permissive
standard under § 13-415 is understandable because it involves justification
for violence against an alleged aggressor, whereas § 13-412(A) excuses
crimes against an innocent person. The duress defense’s limiting
reasonableness standard was the legislature’s choice and we are
duty-bound to respect it. Cf. State v. Gray, 239 Ariz. 475, 480 ¶ 21 (2016)
(stating that entrapment is a statutory defense defined and created by the
legislature and that reconsidering the defense’s limits is “within the
purview of the legislature rather than the courts”).

¶63           I concur in the majority’s conclusion, supra ¶ 23, that the court
of appeals erred in considering Dr. Perrin’s report or his potential testimony
in assessing Sophia’s proffer of duress at trial. The court of appeals’
position, which would permit expert testimony concerning Sophia’s
psychological maladies, illustrates the flaw in considering such evidence to
determine whether the immediacy requirement is satisfied. The court
reasoned that, “although the issue may be close, Sophia’s and [Dr.] Perrin’s
proposed testimony provided a legal basis for the duress defense.” Richter,
243 Ariz. at 137 ¶ 29 (emphasis added). In other words, without expert
testimony that Sophia, as a PTSD sufferer due to Fernando’s abuse, was
uniquely vulnerable to his threats and thus incapable of recognizing and
pursuing reasonable, legal alternatives to abusing her children—like calling
the police—the duress defense would be off the table. This is precisely the
type of subjective analysis and outcome § 13-412(A)’s objective standard
forbids.
              II.     Observation Evidence

¶64            The majority holds that, “[b]ased on the limited record before
us, Dr. Perrin’s report does not match the reflexive or impulsive observation
evidence that this Court concluded was admissible in Leteve or Christensen,”
and that “Dr. Perrin should not, under the guise of observation evidence,
be permitted to serve as a mere conduit for otherwise inadmissible
testimony.” Supra ¶ 36. I concur in the majority’s conclusion that, on the
record before us, Dr. Perrin’s testimony would not have been admissible.
Further, I agree with the majority that, although observation evidence is

                                      23
                         STATE V. RICHTER
     JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD,
                          Dissenting in Part

admissible to rebut evidence of mens rea, Clark v. Arizona, 548 U.S. 735, 760
(2006), it is likely not admissible to support a duress defense because it
involves subjective evidence of a defendant’s mindset and is, thus,
inconsistent with § 13-412(A)’s objective standard. Supra ¶ 37; cf. United
States v. Willis, 38 F.3d 170, 175 (5th Cir. 1994) (holding that “[e]vidence that
the defendant is suffering from the battered woman’s syndrome is
inherently subjective” because “such evidence is usually consulted to
explain why this particular defendant succumbed when a reasonable
person without a background of being battered might not have.
Specifically, battered woman’s syndrome evidence seeks to establish that,
because of her psychological condition, the defendant is unusually
susceptible to the coercion”); State v. Van Dyke, 825 A.2d 1163, 1170–72 (N.J.
App. 2003) (emphasizing the objective standard of a duress defense and
declining introduction of PTSD evidence, as it “would inevitably allow the
jury to measure defendant’s conduct by a standard other than the norm
governing the general population. Such a standard is beyond the
contemplation of the duress defense and out-of-step with accepted
principles of criminal liability”).

              III.    Conclusion

¶65           Because Sophia did not offer the slightest evidence of a
requisite threat or use of immediate physical force to justify kidnapping and
abusing her children over the three-month period, I would find that she is
precluded from presenting the duress defense. Thus, I would uphold the
trial court’s ruling to that effect and affirm Sophia’s convictions and
sentences.




                                       24
