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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JAMES THOMAS SCHMITT, Appellant.

                             No. 1 CA-CR 16-0352
                               FILED 8-3-2017


          Appeal from the Superior Court in Maricopa County
                      No. CR2015-001645-001 DT
        The Honorable Carolyn K. Passamonte, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence Blieden
Counsel for Appellant
                            STATE v. SCHMITT
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Margaret H. Downie joined.


C R U Z, Judge:

¶1           James Thomas Schmitt appeals his convictions and sentences
imposed after a jury found him guilty of aggravated assault and disturbing
the peace. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2           In July 2014, Schmitt and victim, G.A., were involved in a
road-rage incident. Schmitt’s son was driving the truck that cut off G.A.
Schmitt was seated in the front passenger seat. G.A. followed Schmitt’s son
until the two vehicles were beside each other and an argument ensued
between the drivers.

¶3            While still at the light, Schmitt leaned over his son, pointed a
handgun at G.A. and said “back the f— up, mother f—er, before I kill you.”
After the light turned green, G.A. followed the truck and called 9-1-1,
providing a description of the truck and its license plate number. Goodyear
police located and stopped the Schmitt vehicle.

¶4            Police found Schmitt’s gun under the backseat of the truck,
and it matched the description given by G.A. Schmitt admitted he was in
the passenger seat of the truck when it cut off G.A., there was a verbal
altercation, and he told G.A. to “back the f— off.” Schmitt denied ever
pointing the gun at G.A. and insisted he only pointed his finger.

¶5           G.A. testified in the State’s case-in-chief at the first trial. The
jury was unable to reach a unanimous decision, resulting in a mistrial. Prior
to the second trial, the State filed its motion to declare G.A. unavailable
because the State was unable to locate him. While the motion to declare
G.A. unavailable was pending, Detective Leske served G.A. with a
subpoena directing him to appear for trial. As a result, the court denied the
pending motion as moot.

¶6            G.A. did not appear to testify in the State’s case-in-chief
during the second trial and a bench warrant was issued for his arrest. At


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                           STATE v. SCHMITT
                           Decision of the Court

the State’s request, the superior court found G.A. unavailable pursuant to
Arizona Rules of Evidence (“Rule”) 804(a)(5) and ordered redacted
transcripts of G.A.’s testimony from the first trial to be read to the jurors.

¶7             Over objection, the superior court allowed Schmitt to elicit
testimony from witnesses involved in locating G.A. to “attack the
credibility of [G.A.],” pursuant to Rule 806. Unexpectedly, G.A. appeared
during Schmitt’s case-in-chief and was called in the defense’s case-in-chief
and as a rebuttal witness for the State. The court limited the scope of G.A.’s
testimony to matters not included in his previously read testimony.

¶8            While examining G.A., Schmitt attempted to impeach him
with a conversation between G.A. and Officer Benker wherein G.A.
expressed he was angry at the prosecution for forcing him to testify and
that it was “messed up” that the prosecutor insisted on moving forward
with the case. G.A. denied being angry at anyone. The superior court
sustained the State’s objection to this line of questioning, ruling it was a
collateral matter.

¶9           After the close of evidence, Schmitt requested the superior
court provide a self-defense jury instruction. The court denied this request,
finding no evidence to support the instruction.

¶10           The jury found Schmitt guilty of aggravated assault and
disorderly conduct. Schmitt timely appealed. We have jurisdiction under
Arizona Constitution Article VI, Section 9, and Arizona Revised Statutes
sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).1

                               DISCUSSION

¶11           Schmitt argues he was denied his Sixth Amendment right of
confrontation because the superior court allowed limited live testimony
from G.A. after his previous testimony had been read into the record, and
unduly emphasized G.A.’s live testimony. Schmitt also claims the court
erred in allowing a juror question as to whether G.A. still believed he was
threatened with a gun. Lastly, Schmitt argues the court abused its
discretion in denying his request for a self-defense jury instruction.




1     We cite the current version of the relevant statute unless revisions
material to this decision have occurred since the events in question.


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                            STATE v. SCHMITT
                            Decision of the Court

I.     Evidentiary Issues

¶12           Generally, evidentiary rulings are reviewed for an abuse of
discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006).
However, evidentiary rulings that implicate the Confrontation Clause are
reviewed de novo. Id.

       A.     G.A.’s Live Testimony

¶13           Schmitt argues his right to confront G.A. under the Sixth
Amendment was violated because of the superior court’s restrictions on
G.A.’s testimony. We disagree.

¶14          A criminal defendant has a constitutional right to confront the
witnesses against him. State v. Dunlap, 125 Ariz. 104, 105, 608 P.2d 41, 42
(1980). However, even when the Confrontation Clause is concerned, trial
judges may impose reasonable limits on cross-examination of repetitive
issues. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A court may
exclude relevant evidence “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Ariz. R. Evid. 403.

¶15             Here, the superior court restricted the scope of G.A.’s live
testimony to issues not previously presented to the jury. See id. During the
first trial, Schmitt was represented by counsel and G.A. was subjected to
cross-examination. Allowing re-examination regarding the same issues
already on the record would have introduced needless cumulative
evidence, placed emphasis on the evidence already presented, and caused
undue delay. The court gave Schmitt ample opportunity to examine G.A.
on any other relevant matter. In doing so, the court satisfied his right to
confront G.A. and gave jurors the opportunity to observe G.A.’s demeanor.
See U.S. Const. amends. IV, VI.

¶16            Schmitt argues he was denied the opportunity to confront
G.A. when the superior court prohibited his attempt to impeach G.A. with
prior testimony regarding exaggeration of his statements. However,
Schmitt impeached G.A. on the exaggeration issue during the first trial, and
this testimony was read to the jury at the second trial. The court did not err
in prohibiting Schmitt from attempting to impeach G.A. again at the second
trial on the same issue.

¶17         Schmitt was not denied the opportunity to confront G.A.
when the superior court prohibited him from examining G.A. about the


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                           STATE v. SCHMITT
                           Decision of the Court

statement he made to Officer Benker regarding G.A.’s desire to see the
matter dismissed. According to Schmitt, establishing that G.A. thought it
was “messed up” that the prosecution insisted on going forward with this
case was a statement in contradiction to G.A.’s testimony that the reason for
his failure to appear and give testimony revolved around his health issues
and, as such, was probative of G.A.’s character for untruthfulness.

¶18            Where a witness denies making a prior inconsistent statement
that relates to a matter collateral to the issues being tried, the impeaching
party is bound by the witness’ answer and may not produce extrinsic
evidence to contradict the witness. State v. Lopez, 234 Ariz. 465, 470, ¶ 25,
323 P.3d 748, 753 (App. 2014). A hallway conversation where G.A. may
have expressed frustration that the prosecution was going forward with the
case was a collateral matter not related to the issues in the instant case and
G.A. denied making the statement. The court did not err in preventing the
introduction of extrinsic evidence related to G.A.’s purported
untruthfulness by prohibiting Schmitt from impeaching G.A. on the
collateral matter. See Ariz. R. Evid. 608(b). Even assuming the hallway
conversation was not a collateral matter, the two statements were not in
contradiction. That is, G.A. could have absented himself from the
proceedings due to health issues while simultaneously having negative
feelings about the ongoing prosecution.            Therefore, the statement
purportedly made to Officer Benker was not probative of a character for
untruthfulness and the superior court’s limitation of further examination in
this regard was appropriate.

       B.     Juror Question

¶19          Schmitt argues the superior court erred when it allowed a
juror question that exceeded the scope of G.A.’s allowed testimony. We
review a court’s rulings with respect to answering jury questions for an
abuse of discretion. State v. Manuel, 229 Ariz. 1, 8, ¶ 35, 270 P.3d 828, 835
(2011).

¶20          In Arizona, jurors may submit written questions to the court
so they may be asked of the witnesses. Rule 18.6(e) of the Arizona Rules of
Criminal Procedure provides that:

             [j]urors shall be instructed that they are permitted
             to submit to the court written questions directed
             to witnesses or to the court; and that opportunity
             will be given to counsel to object to such
             questions out of the presence of the jury.



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                            STATE v. SCHMITT
                            Decision of the Court

             Notwithstanding the foregoing, for good cause
             the court may prohibit or limit the submission of
             questions to witnesses.

¶21            In this case a juror asked, “Do you still believe you were
threatened with a gun?” Schmitt asserts this question violated the superior
court’s order limiting G.A.’s testimony to matters not already on the record.
However, the question included the time up until the day the question was
asked, which could not have been included in G.A.’s examination at the
first trial. The court did not abuse its discretion in allowing the question.

II.    Self-Defense Jury Instruction

¶22            We review a superior court’s denial of self-defense jury
instructions for abuse of discretion. State v. King, 225 Ariz. 87, 90, ¶ 13, 235
P.3d 240, 243 (2010). “A defendant is entitled to a self-defense instruction
if the record contains the slightest evidence that he acted in self-defense.”
Id. at ¶ 14 (internal quotations omitted). If a defendant disclaims any
assaultive behavior, then he is not entitled to a self-defense instruction even
if he would have been justified in defending himself under the
circumstances. State v. Miller, 129 Ariz. 42, 43, 628 P.2d 590, 591 (App. 1981).
Additionally, for a justification instruction to be required, there must be
more than mere speculation. There must be an act, a showing of evidence
“upon which the jury could rationally sustain the defense.” State v.
Strayhand, 184 Ariz. 571, 587-88, 911 P.2d 577, 593–94 (App. 1995).

¶23           Schmitt presented evidence that G.A. was swerving his
vehicle into the Schmitt truck, forcing Schmitt’s son to take evasive action.
Additionally, Schmitt argued the State’s introduction of evidence that
Schmitt stated if he had pointed a gun, he would have been justified, also
entitles him to a self-defense instruction. Schmitt declared unequivocally
that self-defense was not his theory of the case and claimed to have only
pointed one or two fingers at G.A. Since Schmitt completely denied
committing a defensive act, he was not entitled to a self-defense instruction.
See State v. Ruggiero, 211 Ariz. 262, 264-65, ¶¶ 10-13, 120 P.3d 690, 692-93
(App. 2005).




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                   STATE v. SCHMITT
                   Decision of the Court

                      CONCLUSION

¶24   For the forgoing reasons, we affirm.




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




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