State v. Schmitz

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GLENN ANTHONY SCHMITZ, Appellant.

No. 1 CA-CR 21-0443
FILED 10-27-2022

Appeal from the Superior Court in Maricopa County
No. CR2020-001846-001
The Honorable Timothy J. Ryan, Judge

AFFIRMED AS MODIFIED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
 STATE v. SCHMITZ
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass
joined.

B A I L E Y, Judge:

¶1 Defendant Glenn Schmitz appeals his convictions and
sentences for multiple sex crimes against five minors. For the following
reasons, we affirm as modified to correct some technical portions of the
sentencing order the parties agree should be corrected.

FACTS AND PROCEDURAL HISTORY

¶2 Between 1999 and 2004, Schmitz lived with his wife and their
three children—two sons and a younger daughter. Friends and
acquaintances of the Schmitz children often visited the Schmitz house
during that time. Schmitz and his wife separated in 2006 and divorced in
2007, when their children were approximately 15 to 19 years old.

¶3 In 2018, Dawn,1 who had grown up in the area, reported to
law enforcement that Schmitz had touched her inappropriately at the
Schmitz home years before. After police interviewed Dawn, they contacted
other women who had frequented the Schmitz house around the same time
frame—including Yaria and Sarah, who had been close friends with
Schmitz’s daughter, and Caroline, a close friend of Schmitz’s older son.
Another woman, Claire, contacted the police about Schmitz after seeing a
news report on his arrest.

¶4 The State charged Schmitz with 25 counts of sexual conduct
with a minor, sexual abuse, and molestation of a child committed on
various dates ranging between May 1999 through August 2004. Eight
counts pertained to Dawn, four to Yaria, four to Caroline, six to Sarah, and
three to Claire. All five of those victims, as well as Schmitz’s three children
and ex-wife, testified at his trial. A sixth victim, Stacey, was not a subject

1 We use pseudonyms to protect the victims’ privacy. See generally
Ariz. R. Crim. P. 31.10(f).

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of charged conduct but testified at trial under Arizona Rule of Evidence
(“Rule”) 404(b) and (c).

¶5 Dawn and Claire testified that Schmitz inserted his fingers
into their vaginas and touched their breasts under the guise of throwing the
girls into the pool or playing water games. Caroline and Sarah testified that
Schmitz touched their breasts and vaginas by the pool and inside the
Schmitz home. Yaria testified that Schmitz touched her breasts and vagina
while she was riding in his truck. Stacey, the Rule 404 witness, testified that
Schmitz grabbed her breasts while tossing her into a lake during an outing
in 2002. That incident was reported to law enforcement at the time, but no
charges were filed.

¶6 After the State presented its case at trial, it moved to amend
the indictment by altering the offense date for one count and dismissing
three others. The court granted the motion, which led to the dismissal of
three counts pertaining to Dawn. The jury found Schmitz guilty of four
counts of sexual conduct with a minor, thirteen counts of sexual abuse,
three counts of child molestation, and one count of contributing to the
delinquency of a minor (a lesser-included offense). The jury found Schmitz
not guilty of one sexual abuse charge. The superior court sentenced him to
consecutive terms totaling two life sentences plus 129.5 years’
imprisonment.

¶7 We have jurisdiction over Schmitz’s appeal under Article 6,
Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A).

DISCUSSION

I. Prior Consistent Statements

¶8 Schmitz argues the superior court improperly admitted prior
consistent statements in violation of the rule against hearsay. Although we
generally review evidentiary rulings for an abuse of discretion, Schmitz did
not object to this testimony, meaning he must establish the admission was
fundamental, prejudicial error. State v. Boggs, 218 Ariz. 325, 334, ¶ 38 (2008);
State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018).

¶9 Out-of-court statements offered to prove the truth of the
matter asserted are generally inadmissible under the rule against hearsay.
Ariz. R. Evid. 801(c), 802. But Rule 801(d)(1)(B) provides that a declarant-
witness’s prior out-of-court statement is not hearsay if “[t]he declarant
testifies and is subject to cross-examination about [the] prior statement,” the

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statement “is consistent with the declarant’s testimony,” and the statement
is offered “(i) to rebut an express or implied charge that the declarant
recently fabricated it or acted from a recent improper influence or motive
in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness
when attacked on another ground.” The Arizona Supreme Court has found
that a statement is admissible under subsection (i) only if the witness
“make[s] the prior consistent statement before the existence of facts that
indicate a bias arises.” State v. Martin, 135 Ariz. 552, 554 (1983).

¶10 The essence of Schmitz’s defense at trial was that, after the
victims heard rumors or accusations about him sexually assaulting others,
the victims recharacterized, in their own minds, his innocent or accidental
conduct as intentionally sinister acts. Schmitz suggested that his children
came to believe the victims’ accounts of abuse over time because they
resented his poor treatment of them after he and their mother divorced.
Schmitz now contends that the admission of certain prior statements by his
daughter violated Rule 801(d)(1)(B)(i) because the superior court did not
first determine, on its own motion, that she made the statements before
developing a bias against Schmitz. See id. at 555.

¶11 The first challenged statement—which was to the effect of
“dad molested all my friends”—was repeated, in different variations, by
multiple witnesses. Schmitz’s older son testified that, when he was in his
mid-20s and his sister was approximately 18 to 20 years old, she “start[ed]
to just kind of flippantly talk about how my dad touched all of her friends.”
The older son recalled that his sister specifically mentioned Yaria and Sarah
but also “just kind of worked with the general sense of he touched all my
friends.” Based on his sister’s statements, Schmitz’s older son asked
Caroline—who had been his best friend since childhood—whether Schmitz
had done anything to her. The older son testified that Caroline confirmed
Schmitz had done so, without providing details. Caroline also testified
about that same conversation with Schmitz’s older son—who was the first
person to whom she disclosed Schmitz’s conduct. She testified that he
asked about Schmitz because “at that point [his sister] . . . had talked to
[him] before about like, you know, some of my friends they say that, you
know, dad touched them inappropriately, or dad molested them, and that
wasn’t something that [the older son] wanted to believe.”

¶12 Schmitz’s daughter also testified about making a similar
statement to a detective investigating the case. On cross-examination,
defense counsel asked the daughter whether she told the detective that
Schmitz “probably molested all [her] friends while they were teenagers.”
The daughter answered, “Yes.” The State referred to that testimony on

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redirect, and the daughter confirmed that when the detective asked her if
she knew why he was contacting her, she told him it was “probably [her]
creepy dad that molested all [her] friends.”2

¶13 Schmitz also challenges testimony by Yaria. She stated that at
some point after Schmitz molested her, she “got a call from [his daughter]
saying that [Sarah] and [another girl around the same age] might know
something about Mr. Schmitz touching people.” Yaria contacted the other
girls, and they decided to call Schmitz’s wife. But Yaria said when she was
making that call, her mother came in and Yaria explained to her mother that
the other girls were planning to tell Schmitz’s wife “that Mr. Schmitz had
been touching us, and [Yaria’s] mother took over the call from there.” Yaria
testified that her mother did not proceed with the call or otherwise do
anything in response to Yaria’s disclosure about Schmitz.

¶14 Although the State and Schmitz exchange arguments over
whether the challenged testimony was admissible under Rule 801(d)(1)(B),
most of the statements appear to fall outside the rule against hearsay
entirely because they were not offered “to prove the truth of the matter
asserted in the statement.” Ariz. R. Evid. 801(c)(2). Caroline and Schmitz’s
older son each testified about the daughter’s prior statement not to prove
that Schmitz molested all his daughter’s friends but to provide context for
the older son’s conversation with Caroline about Schmitz’s prior acts
against her. See, e.g., State v. Hernandez, 170 Ariz. 301, 306 (App. 1991)
(“Words offered to prove the effect on the hearer are admissible when they
are offered to show their effect on one whose conduct is at issue.” (citation
omitted)). Similarly, Yaria’s testimony was offered not to prove that
Schmitz molested other girls, but to explain what Yaria knew and told
others about Schmitz’s conduct at the time.

¶15 Nonetheless, even if we assume the statements attributed to
Schmitz’s daughter were “prior consistent statements” subject to Rule 801,
we reject Schmitz’s claims of reversible error because he does not establish
prejudice—which requires him to show that a reasonable jury could have

2 Because Schmitz’s daughter’s statement to the detective was first
elicited by the defense on cross-examination, Schmitz waived any challenge
to the same statement being elicited on redirect. See State v. Maggard, 104
Ariz. 462, 465 (1969) (observing that inadmissible testimony is invited error
when elicited by defense counsel); cf. United States v. Anderson, 532 F.2d
1218, 1229 (9th Cir. 1976) (finding that the defendant waived an objection
to hearsay evidence where he opened the door by being the first to offer the
evidence).

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reached a different verdict if the statements had been excluded. Escalante,
245 Ariz. at 144, ¶ 30. First, none of the statements operated as a
replacement for, or supplement to, the victims’ trial testimony about
Schmitz’s conduct. Second, Schmitz’s daughter was thoroughly cross-
examined and admitted she (1) did not witness any of the charged acts, (2)
recalled only one instance during her childhood of a victim telling her that
Schmitz touched her inappropriately, and (3) had a strained relationship
with Schmitz. Any error in admitting the statements, even if fundamental,
did not prejudice Schmitz on this record. See State v. Hoskins, 199 Ariz. 127,
144, ¶ 66 (2000) (concluding that any error in admitting a prior consistent
statement was harmless where the statement was cumulative of other
evidence and the declarant “was subjected to thorough cross-
examination”), abrogation on other grounds recognized by McKinney v. Ryan,
813 F.3d 798, 815 (9th Cir. 2015).

II. Comments on Witness Credibility

¶16 Schmitz next contends that three witnesses made statements
during the State’s examination that impermissibly vouched for witness
credibility. Again, because Schmitz did not object at trial, he must establish
that the statements’ admission was fundamental, prejudicial error. See
Escalante, 245 Ariz. at 138, ¶ 1.

¶17 Schmitz first challenges Caroline’s statements that referred to
Stacey, the State’s Rule 404 witness who had reported inappropriate
conduct by Schmitz in 2002. Caroline was Stacey’s friend and testified that
she heard about Stacey’s accusation when it happened from Schmitz’s older
son. Caroline testified that Schmitz’s older son defended his father at the
time and that Caroline, too, went along with the story that Stacey had made
up the accusation even though “I think at that time I knew she wasn’t lying
because it had been happening to me.” Caroline elaborated that the
incident brought out “a lot of mixed emotions” and conflicting motivations
that led her to go “along with the narrative that I knew wasn’t true.” She
added, “It’s like I knew [Stacey] was telling the truth, [but] I didn’t want to
lose my stability.” When the incident with Stacey was raised again on
redirect, Caroline testified that hearing about Stacey’s accusation “was that
first moment that I couldn’t—I couldn’t excuse what [Schmitz] was doing
anymore. . . . I couldn’t from that point on continue convincing myself that
it was just an accident . . . .”

¶18 Schmitz also challenges Claire’s statements. The State elicited
evidence that Claire had been convicted of a felony several years earlier and
had told a presentence report writer that she was sexually abused by a

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family friend when she was 11 years old. When the State asked whether
she told the report writer “the truth,” Claire answered, “Yes.”

¶19 Finally, Schmitz challenges his daughter’s statement. On
redirect, the State referred to the daughter being cross-examined about not
remembering certain things from years back. The State asked the daughter
whether the fact that she did not recall seeing certain victims, such as Dawn
and Claire, at the house meant they were never there. The daughter
responded by saying she could not remember, she was “not saying that [the
victim] wasn’t there at all.” She added, “Oh, I guarantee you, if they’re
saying it happened, it happened.”

¶20 A witness may not testify about another witness’s
truthfulness. Boggs, 218 Ariz. at 335, ¶ 39. “Determining veracity and
credibility lies within the province of the jury, and opinions about witness
credibility are ‘nothing more than advice to jurors on how to decide the
case.’” Id. (quoting State v. Moran, 151 Ariz. 378, 383 (1986)).

¶21 Even so, Schmitz does not establish fundamental, prejudicial
error. First, he shows no error as to Claire’s statement because her
testimony commented on her own truthfulness—not that of another
witness. Cf. United States v. Freitag, 230 F.3d 1019, 1024 (7th Cir. 2000)
(observing that counsel may ask “a witness to remark on the truthfulness
of her own testimony [without invading the province of the jury] because
the witness’s reaction and response are proper fodder for the jury’s
credibility determinations”). Nor does Schmitz show reversible error as to
Caroline’s statements. Caroline’s testimony was not offered to bolster or
comment on the truthfulness of Stacey’s testimony, but to explain how
hearing about Stacey’s accusation affected Caroline’s own conduct and
interpretation of Schmitz’s behavior toward her. Cf. State v. Doerr, 193 Ariz.
56, 63, ¶ 26 (1998) (determining that a witness’s opinion about another’s
truthfulness is admissible if the opinion is not intended to comment on the
other’s credibility, is rationally based on the witness’s perception, and
could help the jury understand the witness’s testimony or determine a fact
in issue).

¶22 Even if the statement by Schmitz’s daughter crossed the line
by commenting on other witnesses’ truthfulness, Schmitz fails to establish
that the challenged statement—or those of Claire and Caroline for that
matter—prejudiced him. In determining whether a reasonable jury could
have reached a different verdict without the challenged testimony, we
“examine the entire record, including the parties’ theories and arguments
as well as the trial evidence.” Escalante, 245 Ariz. at 144, ¶ 31 (citations

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omitted). Here, the challenged statements were largely immaterial because
Schmitz’s defense was not that the victims were lying but that they suffered
from “a mistaken but genuine belief that something [inappropriate]
happened.” In addition, after the court sustained a defense objection to
testimony by Schmitz’s older son about his belief in the victims’ accounts,
the court also instructed the jury that “we do not have witnesses testify as
to the credibility or vouch for other witnesses,” such testimony is “not
appropriate,” and jurors should not give it “any consideration.” The court
also instructed the jurors that it was up to them to decide “what testimony
to accept and what to reject.” We presume that jurors complied with these
instructions. See State v. Martinez, 230 Ariz. 382, 385, ¶ 14 (App. 2012).

III. Jury Finding of Victim’s Age

¶23 Dawn testified that Schmitz digitally penetrated her in the
summer of her seventh or eighth grade year—when she would have been
13 or 14 years old. The superior court sentenced Schmitz to 20 years’
imprisonment for that offense (Count One)—the presumptive term for
sexual conduct with a minor when the victim is 13 or 14 years old. See
A.R.S. § 13-604.01(C) (1999-2000). Schmitz now argues he must be
resentenced as though Dawn were 15 or older because the jury did not
make a specific finding of her age when it rendered the verdict. Because
Schmitz did not object at the time of sentencing, he must establish
fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, 563, ¶ 1
(2005).

¶24 Schmitz’s claim fails because the jury implicitly found Dawn
to be under 15 at the time of the offense when it found him guilty and no
“reasonable jury” could have found otherwise on this record. See id. at 569,
¶¶ 27–28. The jury found Schmitz guilty of five charges pertaining to
Dawn—the single count of sexual conduct with a minor and four counts of
sexual abuse. The indictment alleged that all five offenses took place when
Dawn was “a minor under fifteen years of age.” Dawn testified that all the
conduct occurred during the same period, the court instructed the jury that
the sexual abuse counts required the State to prove Dawn was under 15,
and the verdicts for those four counts specified that the offenses occurred
in Dawn’s “7th grade summer” and “8th grade summer.” Considering the
indictment, trial evidence, instructions, and verdicts in this case, the jury
verdict on Count One implicitly encompassed a finding that Dawn was
under 15 when Schmitz committed the crime. Cf. State v. Ring, 204 Ariz.
534, 559–60, ¶ 74 (2003) (“[T]he age of the victim can be implicit in the
verdict, if the jury simultaneously convicts the defendant of an offense that

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includes the age of the [] victim as an element of the crime.”). No reasonable
jury could have found Dawn to be 15 or older on this record.

IV. Errors in Sentencing Order

¶25 Schmitz asks this court to correct three alleged errors in the
sentencing order: (1) the offense date for Count One; (2) that he waived the
right to be present at some future restitution hearings, and (3) not
specifying that his “life” sentences are release-eligible after 35 years. The
State agreed with Schmitz’s argument.

¶26 We can correct clerical and similar errors in sentencing orders
on appeal. See State v. Vandever, 211 Ariz. 206, 210, ¶ 16 (App. 2005),
disapproved on other grounds by State v. Aragon ex rel. Pima Cnty., 252 Ariz.
525, 531, ¶ 20 (2022). We address each alleged error in turn.

¶27 First, the original indictment specified that Count One
occurred “on or between May 1, 1999 and August 31, 1999”—which is the
same date range provided in the sentencing order. During trial, however,
the superior court amended the indictment by extending the date range on
Count One to August 31, 2000. We agree with Schmitz and modify the
sentencing order to show that the offense date for his conviction on Count
One runs from May 1, 1999, to August 31, 2000.

¶28 Second, when Schmitz was sentenced, he expressly requested
to be present at any future restitution hearing. Accordingly, the sentencing
order is modified to reflect that he did not waive his presence as to any
counts.

¶29 Third, the jury found that Schmitz committed two counts of
sexual conduct with a minor against Claire when she was 12 years old or
younger. Based on that age finding and the underlying facts of the offense,
A.R.S. § 13-604.01(A) (2000) required the superior court to sentence Schmitz
to two terms of “life imprisonment” with no “eligib[ility] for suspension of
sentence, probation, pardon or release from confinement on any basis
except as specifically authorized by section 31-233, subsection A or B until
the person has served thirty-five years or the sentence is commuted.” At
the sentencing hearing, the court orally imposed “life in prison” for each
conviction, and the sentencing order described each sentence as a “term of
life” without reference to the applicable sentencing statute or any possible
release after he serves thirty-five years. Thus, we modify the sentencing
order to reflect that each of Schmitz’s life sentences is pursuant to A.R.S.
§ 13-604.01(A) (2000).

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CONCLUSION

¶30 We modify the sentencing order as set forth above and
otherwise affirm Schmitz’s convictions and sentences.

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

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