from the Superior Court in Pima County The Honorable Paul E.
Tang, Judge No. CR20135144-002
of the Court of Appeals, Division Two 243 Ariz. 131 (App.
Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals
Section, Amy M. Thorson, Assistant Attorney General, Tucson,
Michael T. O'Toole (argued), Phoenix, for State of
L. Fullin, Pima County Legal Defender, Robb P. Holmes,
Assistant Legal Defender (argued), Tucson, for Sophia Leeann
J. Euchner, Pima County Public Defender's Office, Tucson;
and Nathan S. Benedict, Salt River Pima-Maricopa Indian
Community Defense Advocate Office, Scottsdale, for Amicus
Curiae Arizona Attorneys for Criminal Justice CHIEF JUSTICE
BALES authored the opinion of the Court, in which VICE CHIEF
JUSTICE BRUTINEL and JUSTICES TIMMER and BOLICK joined.
JUSTICE LOPEZ, joined by JUSTICES PELANDER and GOULD,
dissented in part.
We consider whether an abuser's ongoing threats of harm
over a three-month period may constitute a "threat or
use of immediate physical force" under A.R.S. §
13-412(A) sufficient to permit the defendant to raise a
duress defense to charges of abusing her children. We hold
that such evidence can establish a threat supporting a duress
defense. We also consider whether expert testimony regarding
the psychological effects of an abuser's ongoing threats
of harm may constitute observation evidence permissible under
Clark v. Arizona, 548 U.S. 735 (2006), and State
v. Mott, 187 Ariz. 536 (1997). We hold that, based on
the limited record before us, the expert testimony proffered
does not constitute permissible observation evidence.
Early one morning in November 2013, two sisters, ages twelve
and thirteen, escaped out the window of their bedroom and
fled to their neighbors' house, shouting that their
stepfather had broken down their bedroom door and threatened
them with a knife. The neighbors, who did not know the two
girls lived in the neighborhood, let them in and called 911.
The neighbors described the girls as disheveled, with matted
hair and body odor.
Police went to the girls' house, where they found the
parents, Sophia and Fernando Richter. Inside the house,
police found Sophia's seventeen-year-old daughter locked
inside a separate bedroom. They confirmed that the younger
sisters' bedroom door was kicked in and the doorknob
damaged. During their search, they found video cameras and
covered air-conditioning vents in the girls' rooms, an
internal alarm system, a knife near the master bedroom, and a
five-gallon bucket containing pasta mixed with meat and food
scraps in the refrigerator.
The three girls described horrible living conditions. They
were always confined to their rooms and were monitored by
video camera. They had to ask permission to use the bathroom
and occasionally were not let out in time. They ate their
meals, which mostly consisted of the pasta mix, in their
rooms. They had piles of soiled clothing and bedding in their
closets. They rarely brushed their teeth or bathed, and they
described being spanked and hit with various objects.
Recorded music was continually played in their rooms to mask
any noise they made. After being removed from school years
earlier, they never returned. The younger sisters had not
seen their older sister in over a year despite living in the
A grand jury indicted Sophia and Fernando on separate counts
of kidnapping and child abuse for each of the three girls
(six counts total) alleged to have occurred between September
1, 2013, and November 26, 2013, the dates they lived in Pima
County. Fernando was also charged with two counts of
aggravated assault for his attacks on the younger sisters.
Before trial, Sophia gave notice that she intended to raise a
duress defense. She and Fernando filed separate motions to
sever their trials. The State opposed the motions and
characterized Sophia's proposed duress defense and
supporting expert testimony from psychologist Dr. Perrin as
"diminished capacity" evidence that is prohibited
by Mott, 187 at 540-41. Additionally, the State
argued that Sophia's proposed evidence failed to
demonstrate a threat of immediate physical force as required
by A.R.S. § 13-412(A). Agreeing with the State, the
trial court ruled that Dr. Perrin's proposed testimony
"was essentially that Sophia was a battered woman"
and was prohibited by Mott. The court also found
that Sophia failed to offer evidence in support of a duress
defense and denied the request to sever her trial.
During trial, the State moved in limine to preclude Sophia
from presenting evidence that Fernando physically or
emotionally abused her. The State repeated its arguments that
Sophia could not establish immediacy of threat as required by
§ 13-412(A) and that "battered woman" evidence
was impermissible under Mott. The court granted the
State's motion and again precluded the duress defense,
finding no immediacy of threat when the dates for the alleged
offenses spanned eighty-six days from September through
November 2013. Sophia objected to the court's ruling and,
near the close of trial, again sought to testify about
Fernando's abuse, making an offer of proof through
counsel's avowal of proposed testimony and photographs
showing numerous scars from knife wounds inflicted by
Fernando. The trial court found her proffer insufficient and
again precluded her from testifying about Fernando's
abuse and introducing the photographs.
Fernando and Sophia were ultimately convicted as charged.
Fernando's convictions and sentences were affirmed on
appeal in State v. Richter, 2 CA-CR
2016-0112, 2017 WL 491137, at *1 ¶ 3 (Ariz. App. Jan.
24, 2017) (mem. decision).
Sophia appealed, arguing that the trial court erred by
restricting her trial testimony, precluding her duress
defense, and preventing her expert from testifying. The court
of appeals agreed, determining that the proposed testimony of
Sophia and her expert was "admissible to show that she
committed the charged offenses under duress." State
v. Richter, 243 Ariz. 131, 137 ¶ 19 (App. 2017).
Furthermore, the court concluded that "to the extent
that Perrin's proposed testimony addressed mens rea, ...
it would be properly characterized as 'observation
evidence/ which is not precluded by Mott." Id.
¶ 20. The court explained that such evidence is
admissible under Clark, 548 U.S. at 770-71.
Richter, 243 Ariz, at 137 ¶ 20. Finally, the
court concluded that Sophia and Perrin's proposed
testimony provided a legal basis for the duress defense.
Id. at 139 ¶29.
We granted review to consider whether Fernando's threats
and abuse of Sophia created a threat of immediate harm
sufficient to support a duress defense and whether the
proposed expert testimony was admissible as observation
evidence. We have jurisdiction under article 6, section 5(3)
of the Arizona Constitution and A.R.S. § 12-120.24.
We review a trial court's decision regarding the
admissibility of evidence for abuse of discretion, State
v. Aguilar, 209 Ariz. 40, 50 ¶ 29 (2004), and
likewise review a trial court's decision to withhold a
jury instruction, State v. Bolton, 182 Ariz. 290,
309 (1995). We review questions of law de novo. In re
Johnson, 231 Ariz. 556, 557 ¶ 1 (2013).
At trial, Sophia sought to introduce photographic and
testimonial evidence regarding specific abusive events and
the pattern of abuse that she experienced. She would have
used such evidence to establish that she was "compelled
to engage in the proscribed conduct by the threat or use of
immediate physical force against" her or her children.
See § 13-412(A). However, the trial court
precluded her from introducing the evidence, concluding it
constituted prohibited diminished capacity evidence under
In Mott, a defendant sought to introduce
"expert psychological testimony that as a battered
woman, she was unable to form the requisite mental state
necessary for the commission of the charged offenses."
187 Ariz, at 538. This Court barred the expert testimony,
holding that "Arizona does not allow evidence of a
defendant's mental disorder short of insanity either as
an affirmative defense or to negate the mens rea
element of a crime." Id. at 541. The Court
noted that it previously "considered and rejected the
defense of diminished capacity" and recognized that
"the legislature is responsible for promulgating the
criminal law." Id.; see State v. Schantz, 98
Ariz. 200, 212 (1965). Because the legislature has not
provided an affirmative defense of diminished capacity,
courts in our state are barred from considering diminished
capacity evidence as an affirmative defense or to negate the
mens rea element of a crime. See A.R.S. §
13-502(A); see also State v. Leteve, 237 Ariz. 516,
524 ¶ 20 (2015).
But Sophia did not seek to negate the mens rea of the charged
crimes. Instead, she sought to argue that her intentional
illegal conduct was justified because she was compelled to
abuse her children by the threat or use of immediate physical
force against her or her children. The Arizona Legislature
has codified duress as a justification defense in §
Conduct which would otherwise constitute an offense is
justified if a reasonable person would believe that he was
compelled to engage in the proscribed conduct by the threat
or use of immediate physical force against his person or the
person of another which resulted or could result in serious
physical injury which a reasonable person in the situation
would not have resisted.
legislature has clarified the nature of justification
defenses: "Justification defenses under chapter 4 of
[title 13] are not affirmative defenses. Justification
defenses describe conduct that, if not justified, would
constitute an offense but, if justified, does not constitute
criminal or wrongful conduct." A.R.S. § 13-205(A).
Once a defendant produces evidence supporting a justification
defense, the state has the burden to "prove beyond a
reasonable doubt that the defendant did not act with
justification." Id. (We note that the trial
court here erroneously held Sophia to a higher standard