State v. Horak
| Decision Date | 19 May 2022 |
| Docket Number | 1 CA-CR 21-0238 |
| Parties | STATE OF ARIZONA, Appellee, v. EDWIN ANTON HORAK, Appellant. |
| Court | Arizona Court of Appeals |
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Apache County No. S0100CR201800331 The Honorable Michael D. Latham, Judge
Arizona Attorney General's Office, Phoenix By Michael Valenzuela Counsel for Appellee
Law Office Of Elizabeth M. Hale, Lakeside By Elizabeth M. Hale Counsel for Appellant
Vice Chief Judge David B. Gass delivered the decision of the court, in which Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined.
¶1 Edwin Anton Horak appeals his convictions and sentences for two counts of aggravated assault and one count of disorderly conduct. We affirm.
¶2 This court reviews the facts in the light most favorable to sustaining the verdicts, resolving all reasonable inferences against Horak. See State v. Felix, 237 Ariz. 280 283, ¶ 2 (App. 2015).
¶3 On January 12, 2018, Horak's 13-year-old child (S.H.) and S.H.'s friends (A.S. and F.F.) had a slumber party at Horak's home. During the party, Horak became angry with the group and began yelling at them because they refused to wash their hands before dinner. Horak eventually grabbed S.H.'s hair and threw S.H. onto the couch, leaving a red mark on S.H.'s forehead. When A.S. attempted to intervene, Horak yelled obscenities at A.S. A.S.'s sibling (D.S.) soon arrived to pick up the group, and Horak continued yelling at them as D.S. drove away.
¶4 On January 17, 2018, Horak became irritated with S.H. because he was displeased with the dinner S.H. brought home. In the ensuing argument, Horak "got on top of [S.H]" and "grabbed [S.H.] by the throat." S.H. escaped Horak's grasp by kicking him in the stomach, then left the home and called A.S. for help.
¶5 A few days later, a police officer investigated a third-party report of the incidents between Horak and S.H. The officer arrested Horak after obtaining written statements from S.H A.S., and D.S. Following Miranda warnings, Horak admitted to some of the events during the slumber party, but he denied hitting S.H. and said he was entitled to "discipline [S.H.] whenever he wants."
¶6 The State charged Horak with eight crimes stemming from the two incidents. From the slumber party incident, the State charged him with one count each of aggravated assault for knowingly touching S.H. with the intent to injure, insult, or provoke S.H., a Class 6 felony (count 3); aggravated assault for knowingly touching A.S. with the intent to injure, insult, or provoke A.S., a Class 6 felony (count 4); disorderly conduct, a Class 1 misdemeanor (count 7); and child abuse, a Class 4 felony (count 8). From the dinner incident, the State charged Horak with one count of aggravated assault for causing physical injury to S.H., a Class 6 felony (count 1); one count of aggravated assault for knowingly touching S.H. with the intent to injure, insult, or provoke S.H., a Class 6 felony (count 2); and two counts of disorderly conduct, each a Class 1 misdemeanor (counts 5 and 6).
¶7 At trial, S.H. repeatedly testified S.H. had difficulty remembering the two incidents, after which the State refreshed S.H.'s recollection using S.H.'s written statement to the police. Ultimately, the State submitted the written statements from S.H., A.S., and D.S. without objection.
¶8 Throughout the proceedings, Horak asserted a justification defense under A.R.S. § 13-403.1, which provides "[a] parent . . . entrusted with the care and supervision of a minor . . . may use reasonable and appropriate physical force upon the minor . . . when and to the extent reasonably necessary and appropriate to maintain discipline." At trial, Horak explained his defense in his opening statement:
Now Arizona law allows a parent to exercise reasonable physical force on a child, if it's reasonable and if it is a matter of discipline. And I think you are going to find at the end of this, after you hear from [Horak's father] and from what you have already heard, I think you are going to find that a dad . . . was exercising discipline.
As part of his defense, Horak had his father testify to show Horak was not a violent person and had never-and would never-hurt S.H., even when disciplining S.H. In the closing argument, Horak urged the jurors to find his conduct was justified:
This is a case of a father trying to discipline his child. And he may not do it the way that you have done it, the way that I have done it, or anybody else. He's allowed to [use] . . . physical force against [S.H.], exercise it against [S.H.] if it's reasonable and if it's for discipline. That is the justified . . . conduct.
¶9 The jury found Horak guilty on counts 2, 3, and 7 but acquitted him on the remaining counts. The superior court sentenced him to consecutive prison terms of 2.75 years on counts 2 and 3, followed by six months' jail on count 7.
¶10 Horak timely appealed. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-4033.A.1.
¶11 Horak first argues the superior court violated his due process rights by erroneously admitting the written statements from S.H., A.S., and D.S. Specifically, Horak asserts the documents contained impermissible other-act evidence and, as a result, "there is no way to know if [he] was convicted because the jury thought he was a 'bad man' and deserved some sort of punishment or if he was convicted on less evidence than usually required[.]" Horak cites the following allegations found in the documents to support his claim: (1) S.H. twice said Horak grabbed S.H. by the throat and threw S.H. against a wall, and S.H. otherwise generally alleged he had grabbed S.H. and yelled at S.H.; and (2) D.S. claimed D.S. regularly picked up S.H. from Horak's residence in the middle of the night "because of [S.H.'s] dad" and had observed Horak become confrontational with A.S.
¶12 Because Horak did not object to the evidence, we review its admission for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). To obtain relief under fundamental-error review, Horak must show error exists, the error was fundamental, and he suffered prejudice. See State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). Error is fundamental when it (1) goes to the foundation of the case, (2) deprives the defendant of an essential right, or (3) is so egregious the defendant could not have received a fair trial. Id. Defendants must make a separate showing of prejudice under prongs one and two. Id. To prove prejudice, Horak must establish "a reasonable jury could have plausibly and intelligently returned a different verdict" absent the error. Id. at 144, ¶ 31. In applying the objective "could have" standard, this court examines the entire record, including the parties' theories and arguments, as well as the evidence. Id. The "could have" inquiry "necessarily excludes imaginative guesswork." Id.
¶13 We address some preliminary matters to clarify Horak's arguments. Because Horak does not argue the error was fundamental under prongs two or three, we need not consider them. See State v. Carver, 160 Ariz. 167, 175 (1989) ("Failure to argue a claim usually constitutes abandonment and waiver of that claim."). Horak also does not challenge the trial testimony from S.H., A.S., and D.S. Instead, Horak bases his fundamental-error claim solely on the admission of the three written statements. To the extent Horak argues the written statements were cumulative to the testimony-such as his challenge to D.S.'s written statement-his argument fails. See State v. Moody, 208 Ariz. 424, 455, ¶ 121 (2004) (). As a final preliminary matter, though Horak mentions A.S.'s written statement, he presents no meaningful argument to suggest the superior court fundamentally erred when it admitted that document. We, therefore, conclude he waived his claim of error with respect to A.S.'s statement. See Carver, 160 Ariz. at 175; see also Ariz. R. Crim. P. 31.10(a)(7).
¶14 We next consider Horak's only remaining cognizable challenge: the admission of S.H.'s written statement.
¶15 Horak does not establish the superior court erred in admitting S.H.'s statement. True, absent an applicable exception, Arizona Rule of Evidence (Rule) 404(a) bars the introduction of character evidence to show a person acted in conformity. But Rule 404(a)(1) contains a key exception, allowing a defendant to offer evidence of a pertinent character trait to establish conformity with it. Rule 404(a)(2) also authorizes the prosecution to introduce evidence to rebut the asserted trait. Admissible character evidence-under Rule 405(a) -"may be proved by testimony about the person's reputation or by testimony in the form of an opinion," or-under Rule 405(b) - by specific instances of conduct when the character trait is an "essential element of a charge, claim, or defense".
¶16 Applying those principles, Horak introduced evidence he was both generally nonviolent and a nonviolent parental disciplinarian. Under those circumstances, the State could introduce specific instances of his violent conduct to rebut his defense theory, particularly given the State had to prove beyond a reasonable doubt his conduct was not justified. See A.R.S. § 13-205.A; State v. Hausner, 230 Ariz. 60, 78-79, ¶¶ 72-73 (2012) (no error in admitting evidence of the defendant's prior violent acts when the defendant opened the door to the evidence by testifying he was nonviolent and "would never harm anything").
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