from the Superior Court in Pima County No. CR20161982001 The
Honorable Sean E. Brearcliffe, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Jonathan Bass, Tucson, and Michael Valenzuela,
Phoenix, Assistant Attorneys General Counsel for Appellee
Feinman, Pima County Public Defender By Sarah L. Mayhew,
Assistant Public Defender, Tucson Counsel for Appellant
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Staring and Judge Espinosa concurred.
ECKERSTROM, CHIEF JUDGE:
Porfirio Medina appeals from his conviction and sentence for
possession of a deadly weapon by a prohibited possessor,
claiming the trial court erred in precluding his asserted
necessity defense. For the following reasons, we affirm.
and Procedural Background
In April 2016, a detective with the South Tucson Police
Department saw Medina standing by a bus bench and recognized
him as a parole absconder. He approached Medina and detained
him. During that process, Medina told the detective that he
had a handgun in his waistband. At that time, Medina had been
convicted of a felony and "his right to possess or carry
a gun or firearm had not been restored." Medina was
convicted as described above and sentenced to an enhanced,
presumptive prison term of ten years. This appeal followed.
We have jurisdiction pursuant to A.R.S. §§ 13-4031
Medina claims the trial court erred in precluding his
necessity defense as a sanction for a disclosure violation.
The court disallowed the defense under Rule 15, Ariz. R.
Crim. P., finding it had not been timely disclosed.
"Absent a showing of abuse by the trial court, we will
not disturb the trial court's choice of sanction or its
decision not to impose a sanction." State v.
Towery, 186 Ariz. 168, 186 (1996).
Under Rule 15.2(b) and (d),  a defendant must notify the state
of all defenses he intends to present at trial either forty
days after arraignment or ten days after the state's Rule
15.1(b) disclosure, whichever is earlier. Medina concedes the
disclosure was untimely under this rule, but asserts
preclusion was not warranted as a sanction, particularly
given that his disclosure was of a newly discovered defense
and was provided "at least 7 days before trial, "
in accordance with Rule 15.6(c). Likewise, he claims the
trial court abused its discretion in ordering preclusion as a
sanction without appropriate consideration of the factors
discussed in State v. Smith, 123 Ariz. 243, 252
As this court has emphasized, "[t]he right to offer the
testimony of witnesses, compel their attendance, and present
a defense is guaranteed by the Sixth Amendment to the United
States Constitution and is a fundamental element of due
process of law." State v. Delgado, 174 Ariz.
252, 257 (App. 1993). And, although the compulsory process
clause is not a complete bar to the preclusion of defense
witnesses, see Taylor v. Illinois, 484 U.S. 400,
402, 414 (1988), Arizona courts have repeatedly disfavored
that sanction out of deference not only to a defendant's
Sixth Amendment interests, but to pursue the core purposes of
our rules of criminal procedure. See Smith, 123
Ariz. at 252; Delgado, 174 Ariz. at 257; cf.
State v. Machado, 224 Ariz. 343, ¶¶ 12-13
(App. 2010), aff'd, 226 Ariz. 281, ¶ 26
(2011), and abrogated in part on other grounds as
recognized by State v. Nottingham, 231 Ariz. 21, n.4
(App. 2012). Our supreme court has pointedly
observed that "[t]he trial court . . . should seek to
apply sanctions that affect the evidence at trial and the
merits of the case as little as possible, since the Rules of
Criminal Procedure are designed to implement, and not to
impede, the fair and speedy determination of cases."
Smith, 123 Ariz. at 252.
For these reasons, our supreme court has cautioned that
witnesses for either the state or the defense should be
precluded only "as a last resort." State v.
Tucker, 157 Ariz. 433, 440 (1988). To that end, the
court has endorsed preclusion as a remedy "only in those
cases where other less stringent sanctions are not applicable
to effect the ends of justice." Smith, 123
Ariz. at 252. And, it has required trial courts
determining the propriety of that sanction to first consider
(1) the importance of the precluded evidence to the case, (2)
"whether the discovery violation was motivated by bad
faith or wilfulness, " (3) "whether the opposing
party will be surprised and prejudiced" by the evidence,
and (4) "any other relevant circumstances."
Tucker, 157 Ariz. at 440, citing Smith, 123
Ariz. at 252. Our supreme court has bluntly concluded that
failure to conduct that inquiry "constitutes
error." Smith, 123 Ariz. at 252.
Here, nothing in the record demonstrates that the trial court
considered the factors listed in Smith. Nor does the
record reflect that the court considered any lesser sanction,