State v. Schoenhardt

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JONATHAN MICHAEL SCHOENHARDT, Appellant.

No. 1 CA-CR 21-0546
FILED 7-5-2022

Appeal from the Superior Court in Yavapai County
No. V1300CR201980631
The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant
 STATE v. SCHOENHARDT
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

F U R U Y A, Judge:

¶1 Jonathan Schoenhardt appeals his conviction and sentence for
aggravated assault, arguing the superior court violated his constitutional
right to present a complete defense by excluding his expert witness
testimony. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On appeal from a criminal conviction, we view the evidence
in the light most favorable to upholding the jury’s verdict and resolve all
inferences against the defendant, State v. Klokic, 219 Ariz. 241, 242, ¶ 2 n.1
(App. 2008) (citation omitted), but we review precluded evidence in a light
most favorable to its proponent, State v. Castro, 163 Ariz. 465, 473 (App.
1989).

¶3 Around lunchtime on October 2, 2019, the victim and his Son
drove to pick up their truck from an auto mechanic’s shop, Automotive
Technical Services (“ATS”). The victim parked between two other parked
vehicles. The victim and his Son then walked into the office, paid the bill,
and left. Returning to his car, the victim discovered it was boxed in.

¶4 The victim walked back into the ATS office asking if anyone
knew whose vehicle had parked behind him. Present in the office were ATS’
owner, the owner’s son, and the owner’s minor granddaughter. ATS’ owner
spoke with Schoenhardt, an ATS worker, and asked him to move his vehicle
because it was blocking a customer’s vehicle. Schoenhardt was eating lunch
at the time and said the customer could wait until he was done eating.

¶5 The victim walked back out, got into his vehicle, and began
attempting to back out. The victim stopped when he saw Schoenhardt walk
out of ATS towards him. Schoenhardt opened the door of his own vehicle,
grabbed a pistol, walked to the passenger side window of the victim’s
vehicle, and pointed the pistol at the victim stating that he would shoot if
the victim moved—at some point “chamber[ing] a round,” making the gun
“ready to be fired.”

2
 STATE v. SCHOENHARDT
Decision of the Court

¶6 The victim said he was not going to move, and Schoenhardt
put the pistol down, walked back and got into to his own vehicle with the
pistol, and moved his vehicle. The victim and Son drove back to their office
and the victim called the police. A patrol officer with the Cottonwood Police
Department arrived at ATS around 1:53 p.m. The officer first spoke with
Schoenhardt, who showed the officer the pistol in his vehicle, which the
officer subsequently “cleared” to make safe—the pistol had a loaded
magazine and a round in the chamber. While walking away from
Schoenhardt’s vehicle, the officer located a round of ammunition in the dirt,
which matched the pistol he had just looked at.

¶7 The officer then walked the ATS property looking for other
witnesses. He found a group of roofers who had been working at the
property. The officer spoke to one individual who claimed to have observed
some of the event. Schoenhardt also told the officer a staff member who had
witnessed the incident would be returning shortly. Based on his
communications with Schoenhardt and the roofing-worker, the officer
thought he had enough information to believe a crime had been committed.
The officer later retrieved the pistol from Schoenhardt’s vehicle. After
speaking with the victim and Son at their business later that same day, the
officer arrested Schoenhardt at ATS for aggravated assault. The officer also
spoke to ATS’ owner and his son, who described the interaction between
the victim and Schoenhardt while in the ATS office. The officer did not
interview the owner’s granddaughter.

¶8 After a four-day trial, a jury found Schoenhardt guilty of
aggravated assault, a class 3 felony, and the court sentenced him to five-
years’ imprisonment. Schoenhardt testified at trial, arguing self-defense.
The court precluded the admission of Schoenhardt’s “use-of-force” expert
witness testimony, deeming it irrelevant and otherwise a waste of time.
Schoenhardt timely appealed, and we have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶9 Schoenhardt argues the court erred in excluding the
admission of testimony from his use-of-force expert, a former police officer
with 20 years law-enforcement experience, which he contends violated his
constitutional right to present a complete defense. Schoenhardt’s expert
would have testified that: (1) Schoenhardt’s pistol-display was an
appropriate use of force given the situation and thus justified under
Arizona law; (2) the victim was actually the aggressor and committed
aggravated assault against Schoenhardt; and (3) the patrol officer

3
 STATE v. SCHOENHARDT
Decision of the Court

conducted a substandard investigation by failing to speak with the
granddaughter of ATS’ owner who was present when the victim entered
ATS’ office, and also failing to interview witnesses separately.

¶10 We review the superior court’s preclusion of expert testimony
for an abuse of discretion; an “error of law” in reaching a discretionary
conclusion may constitute an abuse of discretion. State v. Malone, 247 Ariz.
29, 31, ¶ 7 (2019); see State v. Jacobson, 244 Ariz. 187, 190, ¶ 6 (App. 2017)
(citation omitted). We review constitutional issues de novo. Jacobson, 244
Ariz. at 190, ¶ 6 (citation omitted). Because Schoenhardt raises this
constitutional claim for the first time on appeal, we review for fundamental
error only. See State v. Abdi, 226 Ariz. 361, 367, ¶ 26 (App. 2011); State v.
Wright, 214 Ariz. 540, 542, ¶¶ 5, 13–14 (App. 2007); State v. Escalante, 245
Ariz. 135, 140–42 , ¶¶ 12–21 (2018). Schoenhardt therefore bears the burden
of establishing that an error occurred, that the error was fundamental, and
that the error caused him prejudice. Escalante, 245 Ariz. at 142, ¶ 21.

¶11 “[T]he Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation marks and citations omitted).
The right to offer the testimony of witnesses is engrained in the right to
present a defense. Washington v. Texas, 388 U.S. 14, 19 (1967). But a
defendant’s right to present testimony, as relevant here, is subject to
restriction by application of reasonable evidentiary rules. See U.S. v. Scheffer, 523 U.S. 303, 308 (1998); Taylor v. Illinois, 484 U.S. 400, 410 (1988) (explaining
a criminal defendant does not have an unfettered right to offer testimony
that is otherwise inadmissible under standard rules of evidence). Our
supreme court has implemented these principles in the Arizona Rules of
Evidence.

¶12 Relevance is one such limitation on testimony. Evidence is
relevant if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence. Ariz. R. Evid. 401. Such
evidence is generally admissible. Ariz. R. Evid. 402. But even relevant
evidence may be excluded “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. And, of
course, no litigant has the right to admission of irrelevant evidence. Ariz. R.
Evid. 402.

4
 STATE v. SCHOENHARDT
Decision of the Court

¶13 Although parties may offer expert witnesses—who are
permitted to express opinions that embrace ultimate issues of fact—such
experts are not allowed to opine as to their belief of guilt or innocence. See
Ariz. R. Evid. 704 and cmt. to original 1977 rule; State v. Lindsey, 149 Ariz.
472, 475 (1986) (“The law does not permit expert testimony on how the jury
should decide the case.”).

¶14 Here, the question presented to the jury was whether
Schoenhardt intentionally placed the victim in reasonable apprehension of
imminent physical injury while using a deadly weapon or dangerous
instrument as charged, and, even so, whether Schoenhardt acted in self-
defense. See A.R.S. §§ 13-1203(A)(2), -1204(A)(2), and -404. Schoenhardt
sought to introduce his expert’s opinions, based on his 20 years of law
enforcement experience and training, concluding that Schoenhardt’s use of
force was justified, and that the victim was the aggressor in the conflict. See
supra ¶ 9. The court found this testimony irrelevant in assisting the jury in
resolving whether the use-of-force by a lay-person against another lay-
person was justified. See A.R.S. § 13-404; State v. Salazar, 182 Ariz. 604, 610–
11 (App. 1995) (“Because jurors are capable of determining whether the use
of force in self-defense is reasonable, expert testimony bearing on that issue
is generally inadmissible.”). We agree.

¶15 Neither Schoenhardt nor the victim was a law enforcement
officer. Any insight on how a highly trained and experienced law
enforcement officer reacts under the same facts was irrelevant and
inadmissible. See Ariz. R. Evid. 401, 402. Also impermissible was the
expert’s opinion on how the jury should decide the case. See Lindsey, 149
Ariz. at 475. The court did not err in excluding the expert’s first two
irrelevant, impermissible opinions.

¶16 The court also found that the proffered expert testimony as to
opinion three, see supra ¶ 9, “might be relevant to some degree” but would
nonetheless be a “waste of time.” Because this testimony would have been
needlessly cumulative, the court properly excluded it. See Ariz. R. Evid. 403;
State v. Kennedy, 122 Ariz. 22, 26 (App. 1979) (explaining cumulative
evidence “merely augments or tends to establish a point already proved by
other evidence”) (citation omitted); State v. Banda, 232 Ariz. 582, 585, ¶ 13
n.2 (App. 2013) (“We can affirm the trial court’s ruling for any reason
supported by the record.”).

¶17 At trial, the jury heard argument about the quality of the
patrol officer’s investigation. The officer also acknowledged he did not
interview the minor granddaughter of ATS’ owner who was present when

5
 STATE v. SCHOENHARDT
Decision of the Court

the victim entered ATS’ office. The superior court properly excluded
opinion three, as it was cumulative. The jury had heard testimony from the
officer on good investigative practices, including that it was “good police
practice” to separate witnesses during questioning to “corroborate their
stories” and that in doing a “good job with an investigation,” he would
“want to talk to all the witnesses.” See Ariz. R. Evid. 403; State v. Soto-Fong,
187 Ariz. 186, 199 (1996) (“The trial judge is afforded discretion to determine
whether the probative value of relevant evidence is substantially
outweighed by . . . considerations of . . . waste of time, or needless
presentation of cumulative evidence.”) (internal quotation marks omitted).
Defense counsel also criticized the officer for not following these practices.

¶18 Schoenhardt shows no abuse of discretion or error in the
court’s preclusion of his expert witness testimony. See Escalante, 245 Ariz.
at 142, ¶ 21 (explaining “the first step in fundamental error review is
determining whether trial error exists”); Malone, 247 Ariz. at 31, ¶ 7.
Moreover, Schoenhardt was not prevented from presenting a complete
defense. The jury heard Schoenhardt’s evidence and argument, including
his alternative self-defense narrative. The jury ultimately found
Schoenhardt guilty of aggravated assault against the victim. See State v.
Acuna Valenzuela, 245 Ariz. 197, 216, ¶ 71 (2018) (“Any conflicting evidence
is for the jury, as the finder of fact, to resolve.”).

CONCLUSION

¶19 For the foregoing reasons, we affirm.

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

6