State v. Hamilton

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

RICHARD THOMAS HAMILTON, Petitioner.

No. 1 CA-CR 25-0504 PRPC
FILED 07-13-2026

Appeal from the Superior Court in Maricopa County
No. CR2016-158498-001
The Honorable Daniel G. Martin, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Richard Thomas Hamilton, Buckeye
Petitioner

Maricopa County Attorney’s Office, Phoenix
By Philip D. Garrow
Counsel for Respondent

MEMORANDUM DECISION

Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which
Judge D. Steven Williams and Judge Kent E. Cattani joined.
 STATE v. HAMILTON
Decision of the Court

K I L E Y, Judge:

¶1 Richard Thomas Hamilton petitions for review of the superior
court’s dismissal of his petition for post-conviction relief (“PCR”). For the
following reasons, we grant review but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In November 2016, 11-year-old M.C. disclosed to her father
that Hamilton, her step-grandfather, had sexually abused her. M.C.’s
parents called the police. During a subsequent forensic interview, M.C.’s 7-
year-old sister, A.C., disclosed that Hamilton had sexually abused her, too.
Hamilton was indicted on two counts of sexual conduct with a minor and
six counts of molestation of a child, all of which are class 2 felonies and
dangerous crimes against children. See A.R.S. §§ 13-705, -1405, -1410.

¶3 The State moved under Arizona Rule of Evidence (“Rule”)
404(c) to admit evidence of Hamilton’s sexual misconduct with three
teenagers whom he had met as a youth martial arts instructor. At a hearing
on the motion, the State presented the testimony of an expert psychologist,
Dr. Tina Garby, that the incidents showed Hamilton had a propensity for
“sexual behavior towards minors[.]”

¶4 After Dr. Garby completed her testimony, Hamilton’s counsel
asked that the hearing be adjourned so that he could present the testimony
of a defense expert, Dr. Phillip Elspin. The court granted the request and
adjourned the hearing. After consulting with Dr. Elspin, however,
Hamilton’s counsel decided not to call him as a witness. When the hearing
reconvened, Hamilton presented no evidence. After oral argument, the
superior court granted the State’s 404(c) motion and allowed the State to
present the testimony of the three witnesses with whom Hamilton had
sexual contact when they were minors.

¶5 Hamilton was tried in April and May 2018. A.C. and M.C.
testified at trial, as did the three 404(c) witnesses. The State also called the
investigating detectives and forensic experts who worked on the case.

¶6 After the State rested, the court granted the State’s unopposed
motion to dismiss two of the molestation counts. Hamilton moved for
judgment of acquittal on the remaining charges, see Ariz. R. Crim. P.
20(a)(1), but the court denied his motion.

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¶7 Hamilton testified on his own behalf, and presented the
testimony of three other family members.

¶8 The jury convicted Hamilton of both counts of sexual conduct
with a minor and all four molestation counts. In August 2018, the court
sentenced Hamilton to consecutive life terms on the sexual conduct with a
minor counts and consecutive 28-year terms on each of the molestation
counts.

¶9 Hamilton appealed. We affirmed his convictions and
sentences. See State v. Hamilton, 249 Ariz. 303 (App. 2020); State v. Hamilton,
No. 1 CA-CR 18-0593, 2020 WL 3469032 (Ariz. App. June 25, 2020) (mem.
decision).

¶10 Hamilton filed a PCR notice in July 2021, and the court
appointed counsel for him. PCR counsel filed a notice indicating that after
reviewing the file, counsel was “unable to find any claims for relief to
raise[.]” Hamilton was given an opportunity to file a PCR petition in propria
persona. He filed a 77-page petition in September 2024. Because his filing
exceeded applicable page limits, the court ordered his filing stricken and
set a deadline for Hamilton to file a petition of no more than 33 pages.1

¶11 Hamilton then filed a Motion to Appoint Expert Witness,
asking the court to appoint an expert “in the field of forensic psychology
and psychosexual disorders” to enable him “to obtain an affidavit” to
support an IAC claim. He explained that he sought an expert to “possibly
provide testimony” that a defense expert witness “would have rebutted
[Dr. Garby’s] testimony” at the Rule 404(c) hearing, thereby “chang[ing] the
outcome” of the hearing. The court denied Hamilton’s motion.

¶12 Hamilton filed a new PCR petition in May 2025, asserting that
his trial counsel was ineffective at the Rule 404(c) hearing by failing to call
a defense expert to rebut Dr. Garby’s testimony, and was ineffective at trial
by failing to offer certain pieces of evidence. He also argued that the court

1 In his briefing on appeal, Hamilton poses the question, “Did the court

[a]buse its discretion by limiting Petitioner’s Petition for Post-Conviction
Relief to 33 pages?” He offers no argument on this point, however, and so
has abandoned any claim for relief on this basis. See State v. Moody, 208 Ariz.
424, 452, ¶ 101 n.9 (2004) (declining to address issue that appellant
“mentioned” in his opening brief because he “made no argument regarding
it”; “Merely mentioning an argument is not enough.”).

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made some erroneous evidentiary rulings at trial, and that the cumulative
effect of all of these purported errors warranted a new trial.

¶13 In response, the State submitted the affidavit of Hamilton’s
trial counsel. In his affidavit, counsel stated, inter alia, that he decided
against calling Dr. Esplin to testify at the Rule 404(c) hearing in part because
the favorable testimony that Dr. Esplin was expected to offer had already
been elicited from Dr. Garby on cross-examination. Among other things,
Dr. Garby acknowledged on cross-examination that “there is a vast
difference” between “postpubescent and prepubescent children[,]” a
concession which, trial counsel asserted, “bolstered” the defense argument
that the prior-act evidence should be disallowed because the acts Hamilton
committed against the teenaged Rule 404(c) witnesses were “dissimilar”
from the charged crimes against the preteen victims. Counsel explained
that because he had “elicit[ed] testimony” from Dr. Garby “that
undermined the State’s contention that the prior acts were admissible under
Rule 404(c),” a “reasonable probabilit[y]” existed that the court “would
deny the State’s Rule 404(c) motion” even without Dr. Esplin’s testimony.
Trial counsel also expressed the concern that Dr. Esplin’s testimony might
prove “more detrimental than beneficial” because “Dr. Esplin agreed with
at least several aspects of Dr. Garby’s testimony,” a fact that “the State could
exploit” to enhance Dr. Garby’s credibility and add to the impact of her
testimony. Presenting Dr. Esplin’s testimony at the Rule 404(c) hearing,
counsel concluded, “risked snatching defeat from the jaws of victory.”

¶14 After further briefing and argument, the superior court
dismissed Hamilton’s PCR petition. The court held that Hamilton’s IAC
claims were “conclusory and speculative.” The court found that Hamilton’s
evidentiary arguments were precluded because they were raised and
rejected on direct appeal, and finally rejected Hamilton’s “cumulative
error” claim because Hamilton had not shown any error at all.

¶15 Hamilton timely petitioned for review. We have jurisdiction
under A.R.S. §§ 13-4031, -4239(C), and Arizona Rule of Criminal Procedure
32.16(a)(1).

DISCUSSION

¶16 We review a court’s dismissal of a PCR petition for abuse of
discretion while reviewing its legal conclusions de novo. See State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021).

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I. Ineffective Assistance of Counsel

¶17 Hamilton asserts that the court erred in dismissing his IAC
claim because, he alleges, his trial counsel was ineffective both at the Rule
404(c) hearing and at trial.

¶18 A court properly dismisses an IAC claim without an
evidentiary hearing if the PCR petition fails to allege a colorable claim for
relief. Ariz. R. Crim. P. 32.11. “A colorable claim is one that, if the allegations
are true, might have changed the outcome.” State v. Bennett, 213 Ariz. 562,
567, ¶ 21 (2006) (citation modified). To state a colorable IAC claim, a
defendant must demonstrate both that (1) counsel’s performance fell below
objectively reasonable standards and (2) counsel’s deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-88
(1984); State v. Nash, 143 Ariz. 392, 397 (1985). To establish prejudice, a
defendant must show a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. A defendant who seeks to make such
a showing must overcome a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance[.]” Id. at
689 (citation omitted). A court may not grant relief on an IAC claim absent
a showing that “counsel took an approach that no competent lawyer would
have chosen.” Dunn v. Reeves, 594 U.S. 731, 739 (2021) (citation omitted). “In
short, reviewing courts must be very cautious in deeming trial counsel’s
assistance ineffective when counsel’s challenged acts or omissions might
have a reasonable explanation.” State v. Pandeli, 242 Ariz. 175, 181, ¶ 7
(2017). Whether counsel was ineffective “is a mixed question of fact and
law,” and so we “defer to the trial court’s factual findings but review de
novo the ultimate conclusion.” State v. Denz, 232 Ariz. 441, 444, ¶ 6 (App.
2013) (citation omitted).

¶19 In support of his IAC claim, Hamilton argues, first, that his
counsel was ineffective by failing to call an expert witness to rebut Dr.
Garby’s testimony at the 404(c) hearing.

¶20 “Calling an expert witness is a matter of trial strategy[.]” State
v. Sammons, 156 Ariz. 51, 56 (1988). Because “[m]atters of trial strategy and
tactics are committed to defense counsel’s judgment[,]” they “generally
cannot serve as the basis for an IAC claim.” Bigger, 251 Ariz. at 408, ¶ 12
(citation modified). Whether a strategic decision was reasonable is not
determined by reference to whether the decision ultimately proved
successful. See State v. Varela, 245 Ariz. 91, 94, ¶ 8 (App. 2018)
(“[D]isagreements about trial strategy will not support an ineffective

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assistance claim if the challenged conduct has some reasoned basis, even if
the tactics counsel adopts are unsuccessful.” (citation modified)); see also
State v. Gerlaugh, 144 Ariz. 449, 455 (1985) (“Disagreements in trial strategy
will not support a claim of ineffective assistance so long as the challenged
conduct has some reasoned basis.”). A defense attorney’s decision not to
call a witness to testify will thus support an IAC claim only if the decision
had no reasoned basis but, instead, resulted from “ineptitude, inexperience
or lack of preparation[.]” State v. Goswick, 142 Ariz. 582, 586 (1984).

¶21 The record shows that in preparation for the Rule 404(c)
hearing, trial counsel retained and consulted with Dr. Esplin, a qualified
expert (or, at least, an expert whose qualifications Hamilton does not
challenge). Ultimately, after consulting with Dr. Esplin, counsel decided
against calling him as a witness. In his affidavit, counsel explained that he
reached this decision after concluding that, in light of the concessions Dr.
Garby made on cross-examination, presenting Dr. Esplin’s testimony
presented risk to the defense case with little corresponding benefit.
Although Hamilton now disputes the wisdom of trial counsel’s decision not
to present Dr. Esplin’s testimony, Hamilton does not even allege, much less
establish, that counsel’s decision lacked a reasoned basis. Absent such an
allegation, Hamilton has not alleged a colorable IAC claim. Gerlaugh, 144
Ariz. at 455.

¶22 Hamilton argues that his counsel should have obtained and
introduced into evidence a written report from Dr. Esplin in lieu of
presenting his live testimony. In trial counsel’s affidavit, however, counsel
stated that “Dr. Esplin did not author any such report” and that, if he had,
“the State would have objected” on hearsay grounds and “demanded an
opportunity to cross-examine” Dr. Esplin. Hamilton offers nothing to rebut
this explanation, nor does he identify any information that Dr. Esplin could
have included in a written report that counsel had not already elicited from
Dr. Garby on cross-examination. In effect, Hamilton simply asserts that
defense counsel should have secured some unidentified helpful written
statement from Dr. Esplin in the hope that the court would consider it while
denying the State the opportunity to cross-examine Dr. Esplin about it. This
speculation does not state a colorable IAC claim. See, e.g., Grisby v. Blodgett,
130 F.3d 365, 373 (9th Cir. 1997) (rejecting IAC claim based on “[s]peculation
about what an expert could have said”).

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Decision of the Court

¶23 Hamilton next argues that trial counsel was ineffective at trial.
He does not support his argument, however, with any specific examples of
counsel’s purported ineffectiveness. Instead, he asserts that he submitted
“over 2200 pages” of documentary evidence to the superior court to
support his IAC claim, and asks us to “conduct a de novo review” of this
evidence.

¶24 Appellants are required to present, in their briefing,
substantive arguments supported by citations to the record. See State v.
Carver, 160 Ariz. 167, 175 (1989). Hamilton has made no attempt to do so
here, instead asking us to comb through over two thousand pages of
documents in search of evidence to support his claim. Because Hamilton
has not identified any facts or articulated any argument in support of his
contention that his counsel was ineffective at trial, he has waived any claim
for relief on that basis. See Carver, 160 Ariz. at 175 (“Failure to argue a claim
usually constitutes abandonment and waiver of that claim.”); see also State
v. Ramirez, No. 2 CA-CR 2021-0101-PR, 2022 WL 703665 at *1, ¶ 5 (Ariz.
App. March 9, 2022) (mem. decision) (holding that appellant waived
challenge to trial court’s evidentiary rulings by failing to “direct us to
specific testimony or rulings”). Because Hamilton alleged no colorable IAC
claim, the superior court did not abuse its discretion in dismissing his claim
without an evidentiary hearing.

II. Denial of motion for expert witness

¶25 Hamilton asserts that the superior court abused its discretion
in denying his motion for the appointment of an expert witness.

¶26 The superior court may appoint an expert witness for an
indigent defendant if it determines that the assistance of an expert is
“reasonably necessary[.]” Ariz. R. Crim. P. 32.5(c). The appointment of
experts is within the sound discretion of the trial court, and “[a]bsent
substantial prejudice, we will not disturb the trial court's refusal to appoint
experts.” State v. Gonzales, 181 Ariz. 502, 511 (1995).

¶27 In support of his argument, Hamilton explains that his
request for an appointed expert “was specifically related to the issues
surrounding” Dr. Garby’s testimony at the Rule 404(c) hearing. He needed
the opinion of an expert, he contends, to demonstrate “that, but for
counsel’s failure to call an expert at the [Rule 404(c)] hearing, the outcome
would have in fact been different.”

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Decision of the Court

¶28 Hamilton’s argument is premised on his belief that he could
establish his trial counsel’s ineffectiveness by presenting evidence that
another expert witness was available who might have rebutted Dr. Garby’s
testimony more effectively than Dr. Esplin would have. But to prevail on
his IAC claim, Hamilton needed to show that trial counsel had no reasoned
basis for his decision not to call Dr. Esplin as a witness. See Gerlaugh, 144
Ariz. at 455. Hamilton does not even attempt to make such a showing. That
alone is fatal to his claim.

¶29 Hamilton’s argument asks us to indulge in speculation that,
had the superior court granted his request for the appointment of a new
expert, that expert would have offered opinions that were more favorable
to his defense than Dr. Esplin’s opinions. Such speculation cannot support
an IAC claim. Grisby, 130 F.3d at 373. But even if we were to indulge the
assumption that a new expert would have offered opinions more favorable
than Dr. Esplin’s, Hamilton would not be entitled to relief on his IAC claim.
As long as a defense attorney consults with a qualified expert, the attorney’s
failure to consult with additional experts cannot, as a matter of law,
constitute ineffective assistance. See Lee v. Thornell, 118 F.4th 969, 985 (9th
Cir. 2024) (“Counsel’s failure to consult with additional experts is not
unreasonable when counsel did retain medical experts whom he thought
well-qualified.” (citation modified)). Hamilton does not challenge Dr.
Esplin’s qualifications. In the absence of any cause to question Dr. Esplin’s
qualifications, evidence that his trial counsel could have retained a different
expert instead of Dr. Esplin does not allege a colorable IAC claim. See
Payton v. Cullen, 658 F.3d 890, 896 (9th Cir. 2011) (rejecting murder
defendant’s IAC claim based on counsel’s failure to present “a PTSD
defense”; “Having retained qualified experts” who examined defendant
and found no basis for such a defense, “it was not objectively unreasonable
for [counsel] not to seek others.”). The court did not abuse its discretion in
denying Hamilton’s request for the appointment of another expert.

III. Evidentiary rulings

¶30 Hamilton asserts that the superior court made “numerous
erroneous rulings” at trial. He does not identify any specific ruling that he
disputes. In his direct appeal, Hamilton had the opportunity to, and did in
fact, raise challenges to the court’s evidentiary rulings. See Hamilton, 2020
WL 3469032 at *5-7, ¶¶ 19, 25, 30. All of Hamilton’s challenges were
resolved against him on direct appeal, and so cannot properly be re-
litigated in PCR proceedings. Ariz. R. Crim. P. 32.2(a)(2). Indeed, Hamilton
admits that these evidentiary challenges “have been adjudicated on the
merits” and states that he raises them now merely “for the purposes of

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habeas review.” The superior court properly dismissed, as precluded,
Hamilton’s challenges to evidentiary rulings made at trial.

IV. Cumulative error

¶31 Hamilton argues that the superior court erred in refusing to
consider his claim of cumulative error. We need not address his
cumulative-error argument, however, because he has shown no error at all.

CONCLUSION

¶32 We grant review but deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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