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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                             No. 1 CA-CR 16-0020
                              FILED 6-29-2017


           Appeal from the Superior Court in Maricopa County
                      No. CR2013-002591-001 DT
                 The Honorable Jay R. Adleman, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Ballecer & Segal, LLP, Phoenix
By Natalee E. Segal
Counsel for Appellant
                          STATE v. CHEVALIER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.


W I N T H R O P, Judge:

¶1           Christopher W. Chevalier appeals his convictions and
sentences for negligent homicide and leaving the scene of a fatal injury
accident. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           A grand jury indicted Chevalier for manslaughter and leaving
the scene of a fatal injury accident. At trial, the State presented the
following facts:1 On March 3, 2013, Chevalier drove his Alfa Romeo
convertible onto a sidewalk in Phoenix, and hit and killed the victim, who
was walking to a store with a friend.

¶3             The collision bent the car’s windshield frame down toward
the passenger seat and shattered the passenger-side windshield. The
passenger-side mirror snapped off during the collision. After hitting the
victim, Chevalier swerved back onto the street, crossed several lanes of
traffic, stopped at a red light, and then drove away, ignoring the victim’s
friend running down the sidewalk toward him.

¶4           Chevalier contacted police the following morning and
informed them that his car might have been involved in an accident the day
before. When police arrived, they found the windshield of the Alfa Romeo
in the garbage can, and the car appeared to have been wiped down or
cleaned.

¶5             The jury acquitted Chevalier of manslaughter, but convicted
him of the lesser-included offense of negligent homicide and of leaving the
scene of a fatal injury accident. The jury also found the negligent homicide


1      We view the evidence in the light most favorable to supporting the
convictions. State v. Boozer, 221 Ariz. 601, 601, ¶ 2, 212 P.3d 939, 939 (App.
2009) (citation omitted).



                                      2
                          STATE v. CHEVALIER
                           Decision of the Court

was a dangerous offense. The court sentenced Chevalier to a mitigated
term of five years in prison, followed by five years’ supervised probation.

¶6            Chevalier filed a timely notice of appeal. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1)
(2016), 13-4031 (2010), and 13-4033(A) (2010).2

                                 ANALYSIS

       I.     Preclusion of Late-Disclosed Expert

¶7            Chevalier argues the trial court abused its discretion and
violated his due process rights in refusing to extend the discovery deadline
to allow appointment of a biomechanical engineer to testify at trial.

¶8             Chevalier first disclosed the biomechanical engineer as an
expert witness six days before the firm trial date. Chevalier requested leave
from the court to submit the late disclosure, arguing that in a re-interview
of the medical examiner after receiving an amended report approximately
two months earlier, defense counsel had learned the medical examiner
believed a downward or direct force fractured the victim’s right tibia and
fibula, and that “a biomechanical engineer would be better suited to
address the location, type and aspect of the force.” The State opposed the
motion, arguing that the medical examiner had only amended her report to
correct a typographical error, Chevalier had known for nearly a year about
the medical examiner’s conclusions “regarding the direction of force that
caused the victim’s leg fractures,” and Chevalier’s late disclosure was “the
result of dilatory conduct and neglect, and merit[ed] preclusion.”

¶9              At a hearing the day before trial was set to begin, the court
denied the motion to allow the late-disclosed biomechanical engineer to
testify, and denied funding for the expert. The court reasoned that
Chevalier had failed to comply with the rules providing a mechanism for
disclosure after the final disclosure date. The court also reasoned that the
accident reconstruction expert Chevalier had hired could testify to the same
effect; that is, “as to the manner how the decedent was struck, where she
was struck, and the speed at the time of the collision.” The court noted that,
two months earlier, Chevalier had asked for a continuance to allow his
accident reconstruction expert to submit a supplemental report.



2      We cite the current version of all applicable statutes because no
revisions material to our analysis have occurred since the incident.


                                      3
                           STATE v. CHEVALIER
                            Decision of the Court

¶10           We review the trial court’s ruling for an abuse of discretion.
Jones v. Sterling, 210 Ariz. 308, 315, ¶ 29, 110 P.3d 1271, 1278 (2005)
(recognizing that the trial court’s denial of an appointment of an expert is
reviewed for an abuse of discretion); State v. Moody, 208 Ariz. 424, 454,
¶ 114, 94 P.3d 1119, 1149 (2004) (stating that sanctions imposed for late
disclosure “are discretionary decisions left to the trial court”).

¶11            The court acted within its discretion in denying on procedural
grounds the motion to allow the late disclosure and appoint the expert.
Given the timing of his motion, Chevalier was required to support his
motion “by affidavit, to extend the time for disclosure and use [of] the
material or information.” Ariz. R. Crim. P. 15.6(d). Chevalier did not
support his motion for leave to disclose after the final deadline with an
affidavit attesting to his diligence in discovery and disclosure. See id.

¶12           The court also acted within its discretion in denying his
motion—filed more than two years after his indictment and on the eve of
trial—because it was untimely. The court must allow an untimely disclosed
witness to testify only “[i]f the court finds that the material or information
could not have been discovered or disclosed earlier even with due diligence
and the material or information was disclosed immediately upon its
discovery.” Id. The court did not abuse its discretion in crediting the State’s
avowal that the medical examiner had discussed the direction of force that
caused the victim’s leg fractures in an interview a year earlier, which should
have provided Chevalier notice that he should seek out a biomechanical
engineer. Accordingly, the court was permitted to deny for lack of
diligence Chevalier’s motion for late disclosure and appointment of a
biomechanical expert—and any resultant continuance required to prepare
for trial.

¶13            Finally, the court acted within its discretion in denying the
motion on the ground Chevalier already had an accident reconstructionist
to testify on the direction of force that caused the leg fractures. When an
untimely disclosure occurs, the opposing party may move for sanctions, in
which case the trial court “shall impose any sanction it finds appropriate,”
including preclusion of the witness. Ariz. R. Crim. P. 15.7(a). When
selecting a remedy for late disclosure, “courts should consider ‘the vitality
of the evidence to the proponent’s case; the degree to which the evidence or
the sanctionable conduct has been prejudicial to the opposing party;
whether the sanctionable conduct was willful or motivated by bad faith;
and whether a less stringent sanction would suffice.’” State v. Ramos, 239
Ariz. 501, 504, ¶ 9, 372 P.3d 1025, 1028 (App. 2016) (citations omitted). In
this case, as the court noted, the biomechanical engineer was not essential


                                      4
                           STATE v. CHEVALIER
                            Decision of the Court

to Chevalier’s theory of the case. The appointment of a biomechanical
engineer would have required a continuance of months to allow the expert
to prepare a report and the State to retain a rebuttal expert of its own. The
case had already been pending for two years, and had most recently been
continued at Chevalier’s request to allow his accident reconstructionist
more time to prepare for trial. Under these circumstances, the court did not
abuse its discretion in denying the motion for late disclosure and
appointment of a biomechanical engineer.

¶14            Moreover, even assuming Chevalier has not waived his due
process argument, the court did not violate Chevalier’s due process rights
in refusing to appoint the biomechanical engineer. The appointment of an
expert witness is required when “such assistance is reasonably necessary to
present a defense adequately at trial or sentencing.” Ariz. R. Crim. P.
15.9(a). “A defendant has a due process right to such assistance upon a
similar showing of necessity.” State v. Apelt, 176 Ariz. 369, 375, 861 P.2d
654, 660 (1993) (citations omitted). “Absent substantial prejudice, we will
not disturb the trial court’s refusal to appoint experts.” State v. Gonzales,
181 Ariz. 502, 511, 892 P.2d 838, 847 (1995) (citation omitted). Given
Chevalier’s accident reconstructionist’s testimony on the direction of force,
the trial court could properly conclude the appointment of a biomechanical
expert was not reasonably necessary for Chevalier to adequately present his
defense.

       II.    Denial of Rule 20 Motion on Manslaughter

¶15          Chevalier also argues the court erred in denying his motion
for judgment of acquittal on the manslaughter charge, in the absence of
evidence that he acted recklessly.

¶16            As an initial matter, the jury acquitted Chevalier of the
charged offense of manslaughter. Had the court granted a motion for
judgment of acquittal on the manslaughter charge, it would nevertheless
have instructed the jury on negligent homicide, as a lesser-included offense
of reckless manslaughter. See Ariz. R. Crim. P. 13.2(c) (”Specification of an
offense in an indictment, information, or complaint shall constitute a charge
of that offense and of all offenses necessarily included therein.”); Ariz. R.
Crim. P. 23.3 (“Forms of verdicts shall be submitted to the jury for all
offenses necessarily included in the offense charged . . . .”); see also State v.
Montoya, 125 Ariz. 155, 157, 608 P.2d 92, 94 (App. 1980) (recognizing that
negligent homicide is a lesser-included offense of reckless manslaughter).




                                       5
                           STATE v. CHEVALIER
                            Decision of the Court

¶17            Under these circumstances, Chevalier’s challenge to the
sufficiency of the evidence to support manslaughter is moot. Because the
court’s denial of the Rule 20 motion on manslaughter does not present any
issue of public importance or an issue likely to reoccur, we decline to
address it. See State v. Henderson, 210 Ariz. 561, 565 n.2, ¶ 10, 115 P.3d 601,
605 n.2 (2005) (recognizing that a reviewing court generally does not
address moot issues); see also Moore v. People, 925 P.2d 264, 267 (Colo. 1996)
(declining to review the denial of a motion for acquittal as moot because the
jury acquitted on the charge).

¶18           Chevalier did not move at the close of the State’s case for
judgment of acquittal on negligent homicide. In a post-verdict motion
under Rule 20(b), however, Chevalier argued orally that the evidence had
not been sufficient to convict him of negligent homicide. The court denied
the Rule 20(b) motion, reasoning that under the totality of the
circumstances, including the clear weather, the lack of obstructions on the
road, the evidence that Chevalier’s car went onto the sidewalk a second
time, and Chevalier’s conduct afterward, “the jury was more than entitled
to make the determination it did.”

¶19            We review de novo the sufficiency of the evidence to support
a conviction. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191
(2011). “[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
Id. at ¶ 16 (citations omitted). “[W]hen reasonable minds may differ on
inferences drawn from the facts, the case must be submitted to the jury, and
the trial judge has no discretion to enter a judgment of acquittal.” Id. at 563,
¶ 18, 250 P.3d at 1192 (citations omitted).

¶20          Chevalier was convicted of negligent homicide for causing
the death of another person with criminal negligence. See A.R.S. § 13-
1102(A) (2010).

              “Criminal negligence” means, with respect to a result
       or to a circumstance described by a statute defining an
       offense, that a person fails to perceive a substantial and
       unjustifiable risk that the result will occur or that the
       circumstance exists. The risk must be of such nature and
       degree that the failure to perceive it constitutes a gross
       deviation from the standard of care that a reasonable person
       would observe in the situation.




                                       6
                          STATE v. CHEVALIER
                           Decision of the Court

A.R.S. § 13-105(10)(d) (Supp. 2016). Substantial evidence supported the
conviction. The evidence demonstrated that Chevalier drove onto the
sidewalk at approximately forty miles per hour and hit the victim with force
sufficient to kill her. A reasonable juror could believe that driving on the
sidewalk at such a speed created a substantial and unjustifiable risk that
grossly deviated from what a reasonable driver would do. See Sawyer v.
People’s Freight Lines, Inc., 42 Ariz. 145, 151, 22 P.2d 1080, 1082 (1933)
(“Sidewalks being in fact safety zones, an injury to a pedestrian thereon by
a motor vehicle has been held to be prima facie evidence of negligence on
the part of the driver.”).

¶21            Although Chevalier’s expert opined that the victim was
walking in the roadway at the time of impact, substantial evidence was
presented that, instead, the victim was on the sidewalk: (1) the victim’s
friend testified she and the victim were on the sidewalk at the moment of
impact; and (2) the physical evidence—including the scuff mark from the
victim’s shoe, the blood/hair spot where the victim landed, a linear trail of
fiber and body scuff along the sidewalk, Chevalier’s broken car mirror that
travelled down the sidewalk, and a cone of debris away from the street—
demonstrated the victim was struck on the sidewalk. Both detectives
concluded the victim was on the sidewalk at impact and it was not possible
for her to have been struck in the street. A reasonable juror could have
believed the victim was struck on the sidewalk, and accordingly, that her
death was caused by Chevalier’s criminal negligence. The trial court did
not err in denying the post-verdict motion for judgment of acquittal.

       III.   Jury Instruction on Causation

¶22           Chevalier next argues the trial court erred in instructing the
jury during deliberations on a civil rather than a criminal definition of
causation. During deliberations, the jury asked for a definition of
“caused”—a term used in the manslaughter and negligent homicide
instructions, and in a special interrogatory on the verdict form for leaving
the scene of a fatal injury accident.

¶23            Chevalier initially objected to the court giving any definition
of cause. Chevalier, however, suggested that if the court were to instruct
on cause, it should state that “to establish legal cause, there must be some
evidence that but for defendant’s conduct, the accident and resulting death
would not have occurred.” Over Chevalier’s objection, the court instructed
the jury: “A defendant’s act causes an injury if it produces the injury, and
if the injury would not have happened without the defendant’s act.”




                                      7
                           STATE v. CHEVALIER
                            Decision of the Court

¶24            Courts have broad discretion in determining whether and
how to respond to jury questions. State v. Ramirez, 178 Ariz. 116, 126, 871
P.2d 237, 247 (1994). We review de novo whether a given instruction
correctly states the law. State v. Solis, 236 Ariz. 285, 286, ¶ 6, 339 P.3d 668,
669 (App. 2014). We review jury instructions in their entirety to determine
if they accurately reflect the law. State v. Hoskins, 199 Ariz. 127, 145, ¶ 75,
14 P.3d 997, 1015 (2000), abrogation on other grounds recognized by McKinney
v. Ryan, 813 F.3d 798, 815-17 (9th Cir. 2015).

¶25            The jury instruction on causation was a correct statement of
the law. The instruction tracked the statutory definition under A.R.S. § 13-
203(A) (2010): “Conduct is the cause of a result when both of the following
exist: 1. But for the conduct the result in question would not have occurred.
2. The relationship between the conduct and result satisfies any additional
causal requirements imposed by the statute defining the offense.”
Accordingly, it is immaterial that the court took the instruction from the
civil jury instructions. And although Chevalier argues the instruction was
deficient because it failed to note the State must prove this element of the
offense beyond a reasonable doubt, the court had already properly
instructed the jury on the burden of proof. Finally, to the extent Chevalier
argues the court should have also instructed on proximate cause,3 he
waived all but fundamental error by failing to request such instruction at
trial, and has failed to show how the absence of such instruction prejudiced
him.

       IV.    Supervening, Intervening Cause

¶26           Chevalier also argues the trial court abused its discretion in
refusing to instruct on superseding, intervening cause based on his expert’s
opinion that the victim was walking in the roadway at the time the incident
occurred. The court denied his pretrial request for the instruction and his
renewed request at the close of evidence, finding the victim’s alleged
jaywalking did not fit the definition of superseding, intervening cause, and
at most would have amounted to contributory negligence, which is not a



3     “Proximate cause requires that the difference between the result
intended by the defendant and the harm actually suffered by the victim ‘is
not so extraordinary that it would be unfair to hold the defendant
responsible for the result.’” State v. Marty, 166 Ariz. 233, 237, 801 P.2d 468,
472 (App. 1990) (citation omitted).




                                       8
                           STATE v. CHEVALIER
                            Decision of the Court

defense in a criminal case.4 We will not disturb the trial court’s refusal to
give a requested jury instruction absent an abuse of discretion. State v.
Vandever, 211 Ariz. 206, 208, ¶ 7, 119 P.3d 473, 475 (App. 2005).

¶27          Defendants are “entitled to a jury instruction on any theory
reasonably supported by the evidence.” Id. (citation omitted). “An
intervening event is superseding, i.e., a legal excuse, only if it was
unforeseeable and, with the benefit of hindsight, may be described as
abnormal or extraordinary.” Id. at ¶ 8 (citation omitted).

¶28           The court did not abuse its discretion in refusing to instruct
on superseding, intervening cause. A pedestrian walking in the roadway
is not an unforeseeable or extraordinary event warranting such an
instruction. See State v. Slover, 220 Ariz. 239, 244, ¶ 14, 204 P.3d 1088, 1093
(App. 2009) (holding that in a prosecution for negligent homicide, the
victim’s intoxication was not a superseding, intervening cause because the
defendant’s conduct of driving while intoxicated “at the very least,
increased the foreseeable risk that the victim would die in the accident”
(citations omitted)); Vandever, 211 Ariz. at 208, ¶ 8, 119 P.3d at 475 (holding
that in a prosecution for manslaughter, the other driver’s excessive speed
was not a superseding, intervening cause because the defendant’s illegal
conduct created a foreseeable risk of collision); State v. Freeland, 176 Ariz.
544, 548, 863 P.2d 263, 267 (App. 1993) (holding that in a prosecution for
aggravated assault and DUI, the failure of the victim to wear a seatbelt was
not a superseding, intervening cause because it was reasonably
foreseeable). Because a pedestrian walking in the roadway is neither
unforeseeable nor extraordinary, the trial court did not abuse its discretion
in denying Chevalier’s request for a superseding, intervening cause
instruction.

¶29            We are not persuaded otherwise by Chevalier’s argument
that the jury’s request during deliberations for a definition of “cause”
showed he suffered prejudice from the absence of a superseding,
intervening cause instruction. The instructions for manslaughter and
negligent homicide required the jury to find Chevalier “caused the death of
another person.” The instruction on the verdict form for leaving the scene
of a fatal injury accident also had a special interrogatory asking the jury to
find whether the State “proved the defendant caused the accident.” That
the instructions did not provide a definition of causation is the most
reasonable explanation for the jury’s question. It is sheer speculation to

4     The court, however, did instruct the jury that “[i]f sidewalks are
provided, a pedestrian shall not walk along and on an adjacent roadway.”


                                      9
                         STATE v. CHEVALIER
                          Decision of the Court

suggest the jury’s inquiry had anything to do with whether the victim was
in the street or on the sidewalk at the time of the collision.

                             CONCLUSION

¶30          For the foregoing reasons, we affirm Chevalier’s convictions
and sentences.




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




                                      10
