State v. Schmitga

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 05/15/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) LISA ANN SCHMITGAL, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0317 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-007630-001DT The Honorable Pamela Hearn Svoboda, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 Lisa Ann Schmitgal ( Defendant ) assault, a class 1 misdemeanor. in allowing the prosecutor to was convicted of She argues that the court erred raise an argument based on A.R.S. § 13-407 during the closing argument at the bench trial. We find no error and affirm Defendant s conviction and probation. FACTS AND PROCEDURAL HISTORY ¶2 C.B. boarded horses at a ranch she owned with her husband, D.B., in Laveen, Arizona. at C.B. s ranch. Defendant boarded her horse C.B. required Defendant to board her horse away from the other boarders because, in C.B. s words, Defendant had a lot of conflict with them. C.B. and D.B. allowed Defendant to store her tack in an office in their house. They permitted her to enter the house to retrieve the tack whenever she came to the ranch to ride her horse. She was also permitted to hang out in the house when there was no one other than C.B. and D.B. there. ¶3 On the weekend of January 16, 2010, C.B. and D.B. allowed Defendant to spend the night at the ranch and stay in the guest room. D.B. later testified, however, that C.B. was not okay with the decision to let Defendant stay. On Sunday, January 17, after both C.B. and Defendant had been drinking, C.B. asked Defendant several times to leave the ranch.1 1 At Defendant testified that C.B. s reason for making her leave was that Gail is coming over and you can t be around Gail. According to Defendant, [D.B.] intervened and said, [ C.B.], we told her she could stay.[ ] Defendant testified that D.B. told C.B., [Y]ou can go meet Gail somewhere else. 2 about 3:00 p.m., C.B. told D.B. to drive Defendant home.2 D.B. and Defendant left in D.B. s truck, and C.B. assumed he had taken Defendant home. ¶4 At about 7:30 p.m. that night, C.B. walked into her kitchen. Defendant was sitting at the kitchen table. asked her, [W]hat are you doing back here[?] home[.] I thought you went home. talk to C.B. simply C.B. I told you to go Defendant said she wanted to C.B. replied, [T]here s nothing to talk about, I wanted you out several times to leave. of the house. She asked Defendant Defendant refused, saying, I don t have to leave[,] your husband said I could be in th[is] house. C.B. replied, I don t care who gave you permission[,] I m telling you right now you ve been here long enough[,] you need to go home. I don t want you in the house. Defendant replied, [D.B.] said I can be in this house. ¶5 Following this exchange, C.B. tilted the chair in which Defendant was sitting, and Defendant fell onto the floor. Defendant stood up, and C.B. pushed her on the shoulder little bit[,] trying to prod her to go out the door. then grabbed C.B., and they both fell to the floor. a Defendant On the floor, Defendant started punching and wailing [sic] on C.B. Defendant scratched C.B., punched her, and pulled gobs of 2 Defendant needed D.B. to drive her because she had been drinking alcohol, and her car had an ignition interlock device. 3 her hair out. and pulled D.B. heard C.B. screaming, ran into the kitchen, Defendant off of her. C.B. told D.B. to get [Defendant] off the property now. ¶6 On October 20, 2010, the state filed an indictment charging Defendant with one count of criminal trespass in the first degree, a class 6 felony (Count 1), and one count of assault, a class 1 misdemeanor (Count 2). On March 28, 2011, Count 1 was redesignated a misdemeanor, and Defendant waived her right to a trial by jury. ¶7 A bench trial, at which Defendant testified, was held on March 28 and 29. prosecutor argued During the state s closing argument, the that C.B. s tilting of the chair was an attempt to get Defendant off of the property and that it was justifiable under A.R.S. § 13-407. Defendant objected to the argument as improper, explaining that a justification defense is a defense for the defendant. The court read the relevant portion of the statute, A.R.S. § 13-407(A): A person or his agent in lawful possession or control of premises is justified in threatening to use deadly physical force or in threatening or using physical force against another when and to the extent that a reasonable person would believe it immediately necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises. 4 The court interpreted the statute s use of the term person to mean that A.R.S. § 13-407 was not restricted to criminal defendants, and it overruled Defendant s objection. ¶8 guilty At close of arguments, the court found Defendant not on the criminal Defendant of assault. trespass charge, but it convicted The court found that although Defendant was justified in using some physical force to defend herself against C.B., she used more force necessary under the circumstances. trial court Defendant on suspended imposition 18 of months than appeared reasonably On April 15, 2011, the of supervised sentence probation. and placed Defendant timely appeals. ¶9 On appeal, Defendant argues that the court erred in allowing the state to present evidence and argument that the victim in this matter was justified under statute to use force against the appellant. We have jurisdiction under A.R.S. §§ 12 120.21(A)(1), 13 4031, and 13-4033(A). DISCUSSION ¶10 In her opening brief, Defendant claims that the court erred in allowing the state to present evidence that C.B. was justified in using force. Her discussion, though, focuses only on the objection that was raised to the state s reference to A.R.S. § 13-407 during the closing argument. The issue before us on appeal, therefore, is not an evidentiary issue, but an 5 issue regarding the trial court s ruling on the scope of the closing argument. Because Defendant objected to the prosecutor s reference to the statute, we review the court s decision for an abuse of discretion. State v. Pandeli, 215 Ariz. 514, 525, ¶ 30, 161 P.3d 557, 568 (2007) (in banc). ¶11 After Defendant s objection, the court heard argument from counsel, read the disputed statute s text, and interpreted it according to its plain meaning. Defendant argues that State v. Abdi, 226 Ariz. 361, 248 P.3d 209 (App. 2011), shows that the court s reading of A.R.S. § 13-407 and its decision to allow the state errors to argue amounting that to C.B. an was abuse justified of in using discretion. force But were Abdi was decided under A.R.S. § 13 419, and the trial court in that case erred because it instructed the jury to presume the victim had acted reasonably in defense of his residence. Id. at 363, ¶ 1, 248 P.3d at 211. ¶12 Here, improper Defendant s the record inferences in guilt. With reflects reaching the that its court s the court made conclusions permission, the no about state developed its argument that because C.B. had asked Defendant to leave, Defendant was criminally trespassing and therefore that under 13-407 [C.B.] was fully justified in using physical force to try to get [Defendant] off the property. Yet the court ultimately found that Defendant was not given much opportunity 6 to leave and concluded that she was not guilty of criminal trespass. It also found that because it was C.B. that began the physical interaction by pushing [Defendant], Defendant was justified in using some force to defend herself. But the court, noting the gash in C.B. s face and the large clump of hair that Defendant had torn out, found that Defendant used more force than appeared reasonably necessary circumstances and was guilty of assault. under the On this record, even assuming that it was error to allow the state to mention the statute, we discern no prejudice. CONCLUSION ¶13 error We conclude that the court did not commit prejudicial in reference overruling to A.R.S. Defendant s § 13-407 objection during the to the closing state s argument. Defendant s conviction and probation are affirmed. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ ____________________________________ LAWRENCE F. WINTHROP, Judge 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.