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State v. Richter

Court of Appeals of Arizona, Second Division

August 25, 2017

The State of Arizona, Appellee,
Sophia Leeann Richter, Appellant.

         Appeal from the Superior Court in Pima County No. CR20135144002 The Honorable Paul E. Tang, Judge

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee.

          Dean Brault, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant.

          Presiding Judge Vásquez authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Howard [1] concurred.



         ¶1 Following a jury trial, Sophia Richter was convicted of three counts each of kidnapping and child abuse. On appeal, she argues the trial court erred by preventing her from presenting a complete defense. She also challenges the sufficiency of the evidence to support her kidnapping convictions, asserting that those convictions merged into her child-abuse convictions. For the reasons stated below, we vacate Sophia's convictions and remand for a new trial.[2]

         Factual and Procedural Background

         ¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining Sophia's convictions. See State v. Allen, 235 Ariz. 72, ¶ 2, 326 P.3d 339, 341 (App. 2014). Early one morning in November 2013, twelve-year-old A.A. and thirteen-year-old B.A. fled from the home they shared with their mother and stepfather, Sophia and Fernando Richter. They ran to a nearby house, frantically shouting that their "stepfather [was] after them with a knife." Neighbors, who did not even know the girls lived with Sophia and Fernando, let them in and telephoned 9-1-1. According to the neighbors, the girls looked disheveled, their hair was matted, and they had body odor.

         ¶3 When police arrived, the girls reported climbing through a window after Fernando had broken down their bedroom door wielding a knife. Officers went to the home and found both parents inside. In addition, they found seventeen-year-old M.P., Sophia's oldest daughter, locked inside a bedroom. Officers discovered another bedroom, later determined to be the one that A.A. and B.A. shared, with two beds and "very [few] belongings"; the bottom half of the door had been kicked in, and the doorknob was damaged. Officers also observed bottles filled with urine throughout the house, video cameras and covered air-conditioning vents in the girls' rooms, a knife near the master bedroom, and a five-gallon bucket with a rancid-smelling pasta mix in the refrigerator.

         ¶4 According to the girls, Sophia and Fernando confined them to their bedrooms at all times-most recently, with M.P. in her own room and A.A. and B.A. sharing a room. As a result, the day of the incident was the first time M.P. had seen her sisters in more than a year. The girls had to ask permission to leave their bedroom, even to use the bathroom, by signaling to Sophia and Fernando by means of the cameras. The girls ate their meals, which mostly consisted of the pasta mix in the refrigerator, in their rooms; they each had one plate and one bowl, which they used for every meal and would either lick clean or wipe with a shirt or towel. Sophia and Fernando had taken the girls out of school several years before, and they never returned. The girls rarely brushed their teeth or bathed. They also described being spanked and hit with various objects.

         ¶5 A grand jury indicted Sophia and Fernando with three counts each of kidnapping and child abuse-one for each girl-alleged to have occurred between September 1, 2013, and November 26, 2013. Fernando was also charged with two counts of aggravated assault, one each for A.A. and B.A. The jury convicted Sophia as charged.[3] It also found two of the kidnapping convictions, those involving A.A. and B.A., dangerous crimes against children. For those two convictions, the trial court sentenced Sophia to consecutive, ten-year prison terms. For the remaining offenses, the court suspended the imposition of sentence and placed Sophia on concurrent terms of probation, the longest of which is three years, following her release from prison. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

         Complete Defense

         ¶6 Sophia argues the trial court violated her state and federal constitutional right to present a complete defense by restricting her trial testimony, as well as that of her proposed expert, and by precluding her duress defense. Generally, we review the decision to admit or exclude evidence for an abuse of discretion. State v. Ellison, 213 Ariz. 116, ¶ 42, 140 P.3d 899, 912 (2006). However, we review legal and constitutional questions de novo. State v. Harrod, 218 Ariz. 268, ¶ 38, 183 P.3d 519, 530 (2008).

         ¶7 Before trial, Sophia gave notice that she intended to present a duress defense pursuant to A.R.S. § 13-412(A). Shortly thereafter, Fernando filed a motion to sever his case from Sophia's, arguing her proposed defense was antagonistic to his. In opposing Fernando's motion to sever, the state argued, in part, that Sophia's proposed duress defense was actually a "diminished capacity defense" because she was attempting to negate the mens rea of the offenses, which is prohibited by State v. Mott, 187 Ariz. 536, 540-41, 931 P.2d 1046, 1050-51 (1997). In addition, the state asserted that Sophia was "not entitled to a duress defense because the evidence does not in any manner support a claim that she was compelled to engage in the kidnapping and child abuse of the victims due to the threat or use of immediate physical force by [Fernando], " as required by § 13-412(A).

         ¶8 In response, Sophia argued that Mott was inapplicable because she was "proffering a defense that she was a victim of Fernando's criminal acts, " and not a defense of diminished capacity. She explained Dr. Gary Perrin would testify that she suffers from Post-Traumatic Stress Disorder (PTSD) based on "the many months, if not years, of abuse [she] suffered . . . at the hands of Fernando" and that she would produce photographs showing "numerous scars" from knife wounds inflicted by him. As to the state's argument about Sophia's inability to show Fernando had threatened or used immediate force, she asserted that she lived in a "constant state of fear, for herself and her children."

         ¶9 In an under-advisement ruling, the trial court first concluded that Perrin's proposed testimony was essentially that "Sophia [was] . . . a battered woman, " which "amounts to psychological evidence as to diminished capacity-an approach that is expressly prohibited by Mott." The court then noted, "Sophia carries the burden of proving that she acted under duress by a preponderance of evidence when she committed [the offenses]" and that her "claim of duress . . . is unavailable through Perrin under Mott." Because "Sophia retain[ed] the Fifth Amendment constitutional right not to testify, " the court reasoned that she had "thus far offered no evidence in support of" a duress defense. Lastly, the court concluded that, in light of the lack of evidence supporting Sophia's defense, Fernando was not entitled to a separate trial.

         ¶10 During trial, the state filed a motion in limine to preclude Sophia from presenting evidence, including photographs, that Fernando physically or emotionally abused her. The state argued that such evidence was impermissible battered-woman evidence and did not support a duress defense because Sophia could not establish immediacy. The court granted the state's motion, explaining, "I just don't know how any [evidence] concerning any nature of abuse that [Sophia] may have been subjected to by [Fernando] . . . would be understood any other way other than as a battered woman's syndrome defense, whether it's testified by diagnoses by an expert witness to that effect or not." The court also precluded Sophia's duress defense, reasoning that she could not show an immediate threat because the dates for the alleged offenses spanned eighty-six days from September through November 2013.

         ¶11 Sophia repeats her arguments on appeal. She maintains the trial court erred in precluding her from presenting a duress defense because "[s]he was not trying to present a diminished capacity defense by negating a culpable mental state." She reasons that the court's characterization of her defense as diminished capacity "obscured the true relevance of the evidence." She further asserts that she "could have presented evidence of the immediacy of harm and actual threat." According to Sophia, "These errors deprived her of her state and federal constitutional rights to present a defense, due process, and a fair trial."

         ¶12 "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the [United States] Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1986), quoting California v. Trombetta, 467 U.S. 479, 485 (1984) (internal citations omitted); accord State v. Abdi, 226 Ariz. 361, ¶ 27, 248 P.3d 209, 215 (App. 2011). Our state constitution provides a similar protection. See Ariz. Const. art. II, §§ 4, 24. This fundamental right allows defendants to present their "version of the facts . . . so [the jury] may decide where the truth lies." Washington v. Texas, 388 U.S. 14, 19 (1967); see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("Few rights are more fundamental than that of an accused to present witnesses in his own defense."). However, this right "is subject to reasonable restrictions." United States v. Scheffer, 523 U.S. 303, 308 (1998); see also State v. Dickens, 187 Ariz. 1, 14, 926 P.2d 468, 481 (1996) ("Although a defendant has a fundamental constitutional right to confront witnesses and present a defense, the right is limited to the presentation of matters admissible under ordinary evidentiary rules, including relevance."), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012).

         ¶13 First, we address the trial court's decision to limit Sophia's and Perrin's testimony. [4] The court reasoned that the proposed testimony amounted to inadmissible diminished-capacity evidence under Mott. Our resolution of this issue requires a close examination of that case and the nature of a diminished-capacity defense.

         ¶14 In Mott, the defendant was convicted of first-degree murder and two counts of child abuse in connection with the death of her two-year-old daughter, Sheena. 187 Ariz. at 537-38, 931 P.2d at 1047-48. The defendant had left Sheena with her boyfriend, and, when the defendant returned, her boyfriend reported that Sheena had fallen off the toilet and hit her head. Id. at 538, 931 P.2d at 1048. Despite Sheena's fluttering eyes and unresponsiveness, the defendant waited approximately twelve hours before contacting a friend, who then called 9-1-1. Id. Sheena had suffered a brain hemorrhage and died days later. Id. Before trial, the defendant disclosed a defense that she "lacked the capacity to act due to the Battered Woman Syndrome." Id. at 539, 931 P.2d at 1049. She offered the testimony of Dr. Cheryl Karp to prove that she "was unable to form the requisite intent to have ...

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