Opinion
No. 1 CA-CR 14-0784
11-10-2015
STATE OF ARIZONA, Appellee, v. MATTHEW JAY FOGEL, Appellant.
COUNSEL Law Office of Nicole Farnum, Phoenix By Nicole Farnum Counsel for Appellant Arizona Attorney General's Office, Phoenix By Myles A. Braccio Counsel for Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2014-105771-001
The Honorable Virginia L. Richter, Judge Pro Tempore
AFFIRMED
COUNSEL Law Office of Nicole Farnum, Phoenix
By Nicole Farnum
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Myles A. Braccio
Counsel for Appellee
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined. PORTLEY, Judge:
¶1 Defendant Matthew Jay Fogel challenges his conviction and sentence for aggravated assault with a deadly weapon. He argues the trial court deprived him of the right to present a meaningful defense by excluding evidence of the victim's violent behavior towards the victim's ex-girlfriend. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
We view the facts and all reasonable inferences drawn from those facts in the light most favorable to upholding the verdict. State v. Tamplin, 195 Ariz. 246, 246, ¶ 2, 986 P.2d 914, 914 (App. 1999).
¶2 Fogel was visiting W.J.'s two roommates, when W.J. arrived after work. The four of them drank beer, played poker, and grilled food. Fogel and W.J. talked and joked during the poker game, but as the evening progressed, their comments escalated to bickering and trash talking. Eventually, the poker game ended and the group started cleaning up.
¶3 Believing the tension between W.J. and Fogel was about to escalate into a fight, one of the roommates stepped out of the kitchen to alert the other. While they were alone in the kitchen, Fogel made a derogatory statement and W.J. asked him to leave. Fogel then walked over to the cutting board, picked up the butcher knife, and said, "Why don't you make me leave?" W.J. told Fogel to put the knife down, and again asked him to leave the house. Fogel lunged at W.J., cutting W.J.'s hand and severing the tendons when W.J. tried to block the knife. As W.J. tried to get the knife away from Fogel, Fogel stabbed him in the chest and twice in the abdomen. When the two roommates came into the kitchen, Fogel dropped the butcher knife and ran. And when the roommates realized that W.J.'s intestines were falling out, they helped lie him down and called 9-1-1. A couple of hours later, Fogel surrendered to the police.
¶4 Fogel was indicted for aggravated assault, a class three dangerous felony. The case went to trial and after presentation of the prosecution's evidence, Fogel unsuccessfully moved for judgment of acquittal under Arizona Rule of Criminal Procedure ("Rule") 20. After the defense presented its evidence, closing arguments, and jury instructions, the jury deliberated and convicted Fogel as charged. The jury subsequently found beyond a reasonable doubt that the offense involved the infliction or threatened infliction of serious physical injury, and was a dangerous offense involving the use or threatening exhibition of a dangerous weapon. Fogel was later sentenced to six years in prison and given 42 days of presentence incarceration credit.
¶5 We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A).
We cite the current version of the applicable statutes unless otherwise noted. --------
DISCUSSION
¶6 Fogel argues the trial court erred in precluding evidence that W.J. had a fight with his ex-girlfriend because that evidence was relevant and admissible. He also contends the court's ruling violated his due process right to present a complete defense. Although he did not raise the due process argument to the trial court, we may consider a constitutional argument raised for the first time on appeal, see State v. Gilfillan, 196 Ariz. 396, 401 n.4, 998 P.2d 1069, 1074 n.4 (App. 2000), but will only review it for fundamental prejudicial error, see State v. Abdi, 226 Ariz. 361, 367, ¶ 26, 248 P.3d 209, 215 (App. 2011). We review the ruling excluding evidence for an abuse of discretion. State v. Vandever, 211 Ariz. 206, 209, ¶ 10, 119 P.3d 473, 476 (App. 2005) (citation omitted). An abuse of discretion occurs when the court's ruling is "clearly untenable, legally incorrect, or amount[s] to a denial of justice." State v. Fish, 222 Ariz. 109, 114, ¶ 8, 213 P.3d 258, 263 (App. 2009) (citation omitted).
¶7 The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a criminal defendant the right to "be afforded a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485 (1984). This right is not unlimited, but is subject to evidentiary rules. As a result, the "right to present evidence in one's defense is limited to evidence which is relevant and not unduly prejudicial." Abdi, 226 Ariz. at 368, ¶ 32, 248 P.3d at 216 (citation omitted).
¶8 The State filed a motion in limine to exclude testimony of a specific act of violence between W.J. and his ex-girlfriend that allegedly occurred several days before his altercation with Fogel. The court held a hearing and received offers of proof about the testimony the court would hear. The court concluded that although evidence of the victim's general reputation for violence was admissible, testimony about the victim's fight with his ex-girlfriend was not relevant, and any probative value was substantially outweighed by prejudice. The court explained that the incident was not relevant because Fogel did not have "actual knowledge" of the fight, but only heard about it from W.J.'s two roommates, who were at home when the fight occurred in W.J.'s bedroom.
¶9 Generally, evidence to prove that a person acted in conformity with a character trait is not admissible, but a defendant may offer evidence of a victim's pertinent character trait. Ariz. R. Evid. 404(a)(2). Character evidence is generally established by reputation and opinion testimony, not through evidence of specific acts. Ariz. R. Evid. 405(a), (b). An exception to that general rule exists when (1) the victim's character is an essential element of a defense, Ariz. R. Evid. 405(b), or (2) the evidence is otherwise admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," Ariz. R. Evid. 404(b); Fish, 222 Ariz. at 117, ¶ 21, 213 P.3d at 266.
¶10 A defendant asserting self-defense may present evidence to demonstrate that he or she was justified in using physical force against the victim because a reasonable person would have believed that physical force was necessary to protect himself or herself. A.R.S. § 13-404(A). We have consistently held that the victim's character is not an essential element of self-defense. See id.; Fish, 222 Ariz. at 119, ¶ 29, 213 P.3d at 268 (citation omitted); State v. Williams, 141 Ariz. 127, 130, 685 P.2d 764, 767 (App. 1984). Thus, the specific incident between W.J. and his ex-girlfriend would not be admissible as a specific element of a defense under Rule 405(b), and must otherwise fall within the parameters of Rule 404(b) to be admissible.
¶11 Under Rule 404(b), a defendant may introduce evidence of the victim's prior violent acts to demonstrate that he was apprehensive of the victim, and knew of the victim's violent tendencies. See State v. Taylor, 169 Ariz. 121, 124, 817 P.2d 488, 491 (1991). The defendant, however, must have been aware of the victim's prior acts before his altercation with the victim. Fish, 222 Ariz. at 121, ¶ 37, 213 P.3d at 270; State v. Connor, 215 Ariz. 553, 559, ¶ 13, 161 P.3d 596, 602 (App. 2007) (citation omitted); State v. Zamora, 140 Ariz. 338, 341, 681 P.2d 921, 924 (App. 1984).
¶12 Even though Fogel learned about W.J.'s fight with his ex-girlfriend from W.J.'s roommates five days before he stabbed W.J., the court ruled the evidence was not relevant. The court reasoned that Fogel did not have "actual knowledge" of specific acts between W.J. and his ex-girlfriend that would have led Fogel to believe W.J. would "act aggressively towards him."
¶13 "Actual knowledge" of the prior act, however, is not required before evidence may be admitted under Rule 404(b). Actual knowledge requires that a person have "[d]irect and clear knowledge." Black's Law Dictionary (10th ed. 2014). Ordinary knowledge, on the other hand, only requires "[a]n awareness or understanding of a fact or circumstance; a state of mind in which a person has no substantial doubt about the existence of a fact." Black's Law Dictionary (10th ed. 2014). Although a defendant is required to have knowledge of the victim's prior violent act under Rule 404(b), the rule does not require actual knowledge. Instead of personal observations, a defendant can have knowledge of a victim's prior violent act through other information he substantially believes. See Fish, 222 Ariz. at 121, ¶ 37, 213 P.3d at 270 (applying knowledge analysis used in homicide defense cases to non-homicide case where self-defense defense used); cf. State v. Young, 109 Ariz. 221, 223, 508 P.2d 51, 53 (1973) ("accused should be permitted to introduce evidence of specific acts of violence by the deceased, whether observed by the defendant himself or simply known by him prior to the homicide."); State v. Jackson, 94 Ariz. 117, 121, 382 P.2d 229, 231 (1963) ("Personal observation by a defendant is not required but only that he be informed of the acts."); Williams, 141 Ariz. at 130, 685 P.2d at 767 (homicide defendant may "introduce evidence of specific acts of violence by a deceased only when those acts were personally observed by the defendant or made known to him prior to the homicide."). Here, Fogel learned about W.J.'s fight with his ex-girlfriend from W.J.'s roommates, who were present at the time of the fight, and told him the details about what they heard and saw, including W.J. leaving his room with a bloody nose. As a result, Fogel had knowledge of the incident between W.J. and his ex-girlfriend.
¶14 Although the trial court mistakenly believed that Fogel needed "actual knowledge" of the incident, the error was not prejudicial because the court continued, and found that any probative value of the evidence was outweighed by its prejudicial effect under Rule 403. The rule provides that a court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice." Ariz. R. Evid. 403. A court is granted "considerable discretion in determining whether the probative value of the evidence is substantially outweighed by its unfairly prejudicial effect," Gilfillan, 196 Ariz. at 405, ¶ 29, 998 P.2d at 1078, and because "Rule 403 weighing is best left to the trial court," we will not disturb a trial court's finding absent an abuse of discretion, State v. Fernane, 185 Ariz. 222, 226, 914 P.2d 1314, 1318 (App. 1995) (citation omitted).
¶15 The trial court explicitly weighed the probative value of the fight against its prejudice, and made a finding based on the specific facts asserted by the attorneys and the circumstances in which the fight arose. See id. at 227 n.2, 914 P.2d at 1319 n.2. Although Fogel knew about the incident, there were differences between that incident and Fogel's fight with W.J. For example, there was no suggestion that the domestic incident involved the use of a weapon, nor was there any evidence that suggested that W.J. was likely to use deadly force. W.J. fought with his ex-girlfriend after he looked at entries on her phone and saw she had been talking with other men. His jealous argument escalated into a fight when he slammed her into the bedroom wall and, in response, she punched him in the nose, causing it to bleed. The court had sufficient information to determine that the facts of the incident were not relevant to demonstrate that Fogel had a reasonable belief that W.J. would attack him with a weapon after asking Fogel to leave the house. And given that Fogel was permitted to present other evidence of W.J.'s reputation for violence in order to present his self-defense theory, which the jury considered, the court did not abuse its discretion by determining the admission of the specific details of the incident were more likely to cause prejudice than prove Fogel's state of mind to justify his actions. Consequently, Fogel was not deprived of his right to present a complete defense, and there was no fundamental prejudicial error.
CONCLUSION
¶16 Based on the foregoing, we find that the court did not abuse its discretion by granting the motion in limine to preclude the details of the fight between W.J. and his ex-girlfriend, and affirm Fogel's conviction and sentence.