424 P.3d 402 (Ariz. 2018)
245 Ariz. 1
STATE of Arizona, Appellee,
Sophia Leeann RICHTER, Appellant.
Supreme Court of Arizona
August 24, 2018
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, 402
P.3d 1016 (App. 2017). VACATED IN PART
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. OToole (argued), Phoenix, for State of Arizona
L. Fullin, Pima County Legal Defender, Robb P. Holmes,
Assistant Legal Defender (argued), Tucson, for Sophia Leeann
J. Euchner, Pima County Public Defenders Office, Tucson; and
Nathan S. Benedict, Salt River Pima-Maricopa Indian Community
Defense Advocate Office, Scottsdale, for Amicus Curiae
Arizona Attorneys for Criminal Justice
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 abusers 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 abusers ongoing threats of harm
may constitute observation evidence permissible
under Clark v. Arizona, 548 U.S. 735, 126 S.Ct.
2709, 165 L.Ed.2d 842 (2006), and State v. Mott, 187
Ariz. 536, 931 P.2d 1046 (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 Sophias 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 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 Sophias proposed duress defense and supporting
expert testimony from psychologist Dr. Perrin as
"diminished capacity" evidence that is prohibited
by Mott, 187 Ariz. at 540-41, 931 P.2d at 1050-51.
Additionally, the State argued that Sophias 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. Perrins 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
States 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 courts ruling and,
near the close of trial, again sought to testify about
Fernandos abuse, making an offer of proof through counsels
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 Fernandos abuse and introducing the
Fernando and Sophia were ultimately convicted as charged.
Fernandos convictions and sentences were affirmed on appeal
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, 402 P.3d 1016, 1022
(App. 2017). Furthermore, the court concluded that "to
the extent that Perrins 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, 126
S.Ct. 2709. Richter, 243 Ariz. at 137 ¶ 20, 402 P.3d
at 1022. Finally, the court concluded that Sophia and
Perrins proposed testimony provided a legal basis for the
duress defense. Id. at 139 ¶ 29, 402 P.3d at 1024.
We granted review to consider whether Fernandos 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 courts decision regarding the
admissibility of evidence for abuse of discretion, State
v. Aguilar, 209 Ariz. 40, 50 ¶ 29, 97 P.3d 865, 875
(2004), and likewise review a trial courts decision to
withhold a jury instruction, State v. Bolton, 182
Ariz. 290, 309, 896 P.2d 830, 849 (1995). We review questions
of law de novo. In re Johnson, 231 Ariz. 556, 557 ¶
1, 298 P.3d 904, 905 (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 Mott .
In Mott, a defendant sought to introduce...