                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   DANIEL VERNON SCOTT, Appellant.

                             No. 1 CA-CR 15-0382
                              FILED 12-22-2016


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201400436
                 The Honorable Tina R. Ainley, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee

Yavapai County Public Defender’s Office, Prescott
By John Napper, Andrew R. Falick
Counsel for Appellant
                            STATE v. SCOTT
                           Decision of the Court



                      MEMORANDUM DECISION

Judge John C. Gemmill1 delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined.


G E M M I L L, Judge:

¶1           Daniel Vernon Scott appeals his conviction and sentence for
one count of disorderly conduct with a deadly weapon, domestic violence
related. Scott argues the superior court erred in denying his pretrial
motions to compel production of ten years of the victim’s mental health
records for an in camera inspection. He also contends the court erred by
limiting use of evidence of the victim’s past interactions with law
enforcement. For the following reasons, we affirm.

                             BACKGROUND

¶2             We view the facts and all reasonable inferences therefrom in
the light most favorable to upholding the verdict. State v. Harm, 236 Ariz.
402, 404 n.2, ¶2 (App. 2015).

¶3            Scott and J.S. (“Victim”), a married couple, were involved in
a physical altercation on or about May 3, 2014. The State indicted Scott on
two counts of aggravated assault, domestic violence related, each a Class 3
felony, and two counts of misconduct involving weapons, each a Class 4
felony.

¶4             Scott acknowledges Victim was injured and that he
discharged a firearm during the incident. It is undisputed that Victim
suffers from paranoid schizophrenia and takes medication to subdue the
effects, including “auditory hallucinations.” On cross examination, Victim
admitted to a prior arrest for aggravated assault against Scott, a diagnosis
of paranoid schizophrenia, a prior commitment to a mental institution, and
a susceptibility toward confusion and memory loss. Scott claimed Victim
attacked him and his reaction was in self-defense. He was permitted to
testify to prior attacks by Victim, her descriptions of the violent content of


1      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.


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                             STATE v. SCOTT
                            Decision of the Court

the voices in her head, and his knowledge of her past diagnoses and
prescriptions.

¶5            The jury found Scott guilty of a single count of the lesser
included offense of disorderly conduct with a deadly weapon, domestic
violence related.2 The superior court imposed a sentence of two years’
imprisonment with 389 days of presentence incarceration credit. Scott
timely appeals. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                                 ANALYSIS

I.     Denial of Request for Victim’s Mental Health Records

¶6          Scott argues the court erred in denying his pretrial motion to
compel discovery of Victim’s mental health records for an in camera review.
He contends the records were crucial to his defense and relevant for
impeachment purposes. We disagree.

¶7            Whether a criminal defendant is entitled to discovery of
certain evidence, including mental health records, is a matter entrusted to
the superior court’s sound discretion. State v. Tyler, 149 Ariz. 312, 314 (App.
1986). This court will not disturb a ruling on a discovery request absent an
abuse of that discretion. State v. Fields, 196 Ariz. 580, 582, ¶ 4 (App. 1999).
“To the extent [Scott] sets forth a constitutional claim in which he asserts
that the information is necessary to his defense, however, we will conduct
a de novo review.” State v. Connor, 215 Ariz. 553, 557, ¶ 6 (App. 2007).

¶8              It is well-established that there is no general federal or state
constitutional right to pretrial discovery. State v. O’Neil, 172 Ariz. 180, 182
(App. 1991). Additionally, a victim of a crime generally “has the right to
refuse to hand over medical records, pursuant to Arizona’s Victims’ Bill of
Rights.” State v. Sarullo, 219 Ariz. 431, 437, ¶ 20 (App. 2008); see also Ariz.
Const. art. 2, § 2.1(A)(5). This right is not absolute, and in some cases a
victim’s rights may be outweighed by a defendant’s due process rights. See
State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232, 240 (App. 1992).

¶9          To the extent a victim’s rights restrict a defendant’s access to
information “essential to preparation for effective, reasonable cross-
examination or impeachment of the victim,” such restrictions “must be

2      Upon pretrial motion by the State, the superior court dismissed the
two allegations of misconduct involving weapons, Counts 3 and 4 of the
indictment.


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                             STATE v. SCOTT
                            Decision of the Court

proportionate to the interest of protecting the victim as balanced against the
defendant’s due process right to a fundamentally fair trial.” Roper, 172 Ariz.
at 240. Further, the defendant has to demonstrate a “substantial need” for
the information that “would, at least potentially, amount to one of
constitutional dimension.” Connor, 215 Ariz. at 561, ¶ 22. As such, the
superior court must weigh a defendant’s proffered need with a victim’s
established rights.

¶10            Before trial, Scott filed motions and offers of proof requesting
that the court order Victim to disclose all of her mental health records from
the previous ten years for an in camera review. He argued that the mental
health records might contain exculpatory evidence and would support his
claim of self-defense. In response, the State argued that Scott failed to meet
his burden of establishing the necessity of the records because his
incriminating statements to police on the night of the incident contradicted
his theory of self-defense, rendering Victim’s mental health issues
irrelevant.

¶11            After an evidentiary hearing on December 3, 2014, the court
denied Scott’s motion for the following reasons: 1) Victim had not waived
her physician-patient privilege; 2) Scott’s offer of proof fell short of a
“constitutional” need as described in Connor; and 3) the court had no
authority to order the records from the Veterans Administration (“VA”), a
federal agency. We need not address each of the superior court’s reasons
for denying the motion because we may affirm such a ruling if the result is
legally correct on any basis. See State v. Carlson, 237 Ariz. 381, 387, ¶ 7
(2015). Scott argues on appeal that his rights to present a complete defense
and to cross-examine witnesses outweigh Victim’s constitutional
protections. We conclude that the superior court did not err in denying
Scott’s request for Victim’s mental health records on the basis of the
Victims’ Bill of Rights. Because of our resolution of this issue, we need not
address Victim’s statutory privileges, nor the potential waiver thereof. 3

¶12           Scott speculates that the “records contain information that
would call into question the victim’s ability to perceive events and would
have provided impeachment of her testimony.” However, Scott provides
no basis for the court to conclude that the mental health records he sought
contained impeachment evidence beyond what he already knew, or beyond

3     The State asserts that the records sought were protected by the
physician-patient privilege, A.R.S. § 13-4062(4), and perhaps also by the
psychologist-client privilege, A.R.S. § 32-2085.



                                      4
                             STATE v. SCOTT
                            Decision of the Court

that which Victim admitted in her pretrial interview with the State’s
investigator, or beyond that which Scott developed during an extensive
cross-examination of Victim. “[M]ere conjecture without more that certain
information might be useful as exculpatory evidence is not sufficient to
reverse a trial court’s denial of a request for disclosure.” State v. Hatton, 116
Ariz. 142, 150 (1977). Further, the jury received ample evidence from which
it could infer Victim’s perception and memory of the assault were affected;
thus, mental health records and prescriptions issued years before the
assault, offered for impeachment, could properly be excluded as collateral
and cumulative. See Tyler, 149 Ariz. at 314 (no abuse of discretion in
denying discovery of medical records where effect of witness’s illness and
medication on his memory was already known by defendant). Scott was
permitted to cross-examine Victim without restriction regarding her
mental-health condition and medications, and we therefore discern no error
in the superior court declining to order an in camera review of her mental
health records for the past ten years.

¶13             Additionally, the record demonstrates the court’s efforts to
strike a proper balance between Scott’s rights and Victim’s rights. On April
4, 2015, the court reconsidered the request for Victim’s mental health
records after learning she had divulged certain mental health issues during
an interview with a State investigator. Without specifically addressing
whether the interview constituted a waiver of privilege, the court ruled that
it did not affect its decision to deny Scott’s request for an order compelling
production of the VA mental health records.4 Nevertheless, the court stated
that it “could see some relevance” in medical information from two months
prior to and including the date of the incident, and the court therefore
ordered Victim to disclose to Scott any medical records in her possession,
including prescriptions.5 Further, the superior court considered an
additional offer of proof on this matter on April 24, 2015, the third day of
trial, after the State rested its case. The record demonstrates that the court
considered and weighed the evidence presented in Scott’s offers of proof
and at the evidentiary hearings before denying the request to compel



4      We express no opinion regarding whether a defendant’s due process
rights may override statutory privileges because, as noted previously, we
resolve this issue on the basis of the Victims’ Bill of Rights.

5     The record does not reveal whether Victim disclosed any medical
information pursuant to this order.



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                             STATE v. SCOTT
                            Decision of the Court

Victim’s mental health records for in camera review. We conclude the court
committed no abuse of discretion or constitutional or legal error.

II.    Other Act Evidence

¶14            An appellate court “will not reverse the [trial] court’s rulings
on issues of the relevance and admissibility of evidence absent a clear abuse
of its considerable discretion.” State v. Davis, 205 Ariz. 174, 178, ¶ 23 (App.
2002). A conviction will not be reversed for evidentiary error unless this
Court determines that there exists a “reasonable probability” that the jury’s
verdict would have been different had the improperly excluded evidence
been admitted. State v. Van Adams, 194 Ariz. 408, 416, ¶ 23 (1999).

¶15            When a defendant argues self-defense, specific acts of
violence by the victim are admissible if known to the defendant and offered
to prove the defendant’s state of mind. See State v. Santanna, 153 Ariz. 147,
149 (1987); see also Ariz. R. Evid. 404(b). When making a Rule 404(b)
determination, the superior court must determine whether the evidence is
“clear and convincing as to the conduct and that the person alleged to have
committed it did so, although ultimately those facts are left to the jury to
decide if the evidence is admitted.” State v. Fish, 222 Ariz. 109, 123, ¶ 43
(App. 2009). Next, the superior court must determine whether the
evidence: 1) is offered for a proper purpose; 2) is relevant to prove the stated
purpose; and 3) has sufficient probative value that is not outweighed by
undue prejudice under Rule 403. Id.

¶16          Specific acts by the victim that influence the defendant’s state
of mind are admissible

       only if the defendant knew of them . . . or if they are directed
       toward third persons relating to or growing out of the same
       transaction, or so proximate in time and place and
       circumstances as would legitimately reflect upon the conduct
       or motives of the parties at the time of the affray.

Connor, 215 Ariz. at 559, ¶ 13 (quoting State v. Zamora, 140 Ariz. 338, 341
(App. 1984)). Evidence of an alleged act may be precluded if it relates to a
single act and could potentially distract jurors and unfairly prejudice the
victim. Fish, 222 Ariz. at 121, ¶ 34.

¶17          Scott sought to admit specific instances of Victim’s
interactions with law enforcement, including complaints, arrests, and




                                       6
                              STATE v. SCOTT
                             Decision of the Court

booking photos from 2006-2013.6 The superior court denied Scott’s initial
motion, finding the acts referenced were not “relevant to prove the issue of
self-defense, per Rule 403.” Scott filed a motion to reconsider, and, after
hearing further argument by both parties, the superior court permitted, as
relevant regarding self-defense, testimony and evidence of Victim’s prior
arrest for aggravated assault directed toward Scott. The court excluded the
other instances of other act evidence as irrelevant, explaining:

       Now, that doesn’t mean the defendant can’t testify that he
       knew about these other potential incidences, should he
       choose to testify, but I think in purpose of the case-in-chief,
       they’re too old; they’re disorderly, but I don’t find them to be
       aggressive behavior. And you don’t get to act out against
       someone because they’re disrupting the peace. That’s what
       she was charged with, and those issues do not rise to the level
       of 404(b). I don’t think they’re relevant. I think they’re just
       being used to try and muddy the victim, and I don’t think
       that’s appropriate under 404.

The court further clarified that if Scott chose to testify, he could mention
other known instances of violence, diagnoses, medications and the like, but
in his case-in-chief, “for purposes of 404(b), to show that . . . his actions were
based on some prior fear or belief that self-defense was necessary, and
keeping it to that narrow focus, I’m only finding the [2013 aggravated
assault] case applies.”

¶18            On this record, the superior court evaluated the evidence in
accordance with the rules of evidence and acted within its broad discretion
in precluding some of Victim’s past interactions with law enforcement as
irrelevant to Scott’s claim of self-defense.




6      In support of the initial Rule 404(b) factor, the State did not dispute
that Victim was the subject of the law enforcement encounters proffered by
Scott.


                                        7
                         STATE v. SCOTT
                        Decision of the Court

                           CONCLUSION

¶19         For the forgoing reasons, we affirm Scott’s conviction and
sentence.




                      AMY M. WOOD • Clerk of the Court
                       FILED: AA




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