State v. Lohmeier ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 GARY LOHMEIER, Appellant.
No. 1 CA-CR 21-0561
FILED 4-18-2023
Appeal from the Superior Court in Yavapai County
No. P1300CR201801262
The Honorable Debra R. Phelan, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee
Attorneys for Freedom Law Firm, Chandler
By Rachel A. Moss
Counsel for Appellant
STATE v. LOHMEIER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Angela K. Paton and Judge D. Steven Williams joined.
P E R K I N S, Judge:
¶1 Daniel Gary Lohmeier appeals his conviction and sentence for
disorderly conduct. He argues the superior court incorrectly refused to
dismiss the indictment based on the State’s failure to preserve a 911 call and
alleged prosecutorial vindictiveness. He also challenges (1) the court’s
denial of his motion for a directed verdict on the charged offense of
aggravated assault, (2) the sufficiency of the evidence to support his
conviction on the lesser-included offense of disorderly conduct, and (3) the
court’s decision to give the lesser-included offense jury instruction. Finally,
he asserts the court erred in denying his motion for a new trial. For reasons
that follow, we affirm his conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to upholding the
verdict, resolving all inferences against Lohmeier. See State v. Reaves, 252
Ariz. 553, 558, ¶ 2 (App. 2022). Victim was driving to an animal hospital
when he became involved in a road-rage incident with Lohmeier, who was
driving an SUV and traveling with his wife Theresa. After Lohmeier began
tailgating Victim, Victim tapped his breaks a few times to get Lohmeier to
“back off a little bit.” Moments later, Lohmeier suddenly pulled in front of
Victim and stopped, causing Victim to “slam on [his] brakes.” Lohmeier
brandished a firearm. “[S]taring down the barrel of [Lohmeier’s] gun,”
Victim was “scared to death” and “shaking like a leaf.”
¶3 Lohmeier soon lowered his weapon, drove away, and
stopped at a nearby red light. At that point, Victim took a photograph of
Lohmeier’s SUV and its license plate. Victim arrived at the animal hospital
about five minutes later and called 911 to report the incident. He told the
dispatcher that Lohmeier had pointed a gun at him.
¶4 A police officer interviewed Victim that day about the
incident. Based on the SUV’s description and license-plate number, the
officer learned that Lohmeier owned the SUV and called him the next day.
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Lohmeier immediately asked the officer if he was following up on the 911
call that Theresa had made during the encounter. In recounting the incident
to the officer, Lohmeier said that Victim had been “trying to run him off the
road,” so he pulled in front of Victim’s truck and “raised a firearm” to warn
Victim “that he was going to defend himself.” He denied pointing his gun
at Victim.
¶5 The Prescott City Prosecutor’s office initially filed
misdemeanor charges against Lohmeier but later dismissed its case after
the Yavapai County Attorney’s Office elected to pursue felony charges.
Following the dismissal, a grand jury indicted Lohmeier with aggravated
assault, a class three dangerous felony, for intentionally placing Victim in
reasonable apprehension of imminent physical injury by using a deadly
weapon or dangerous instrument in violation of A.R.S. §§ 13-1203 and
13-1204(A)(2). In the interim, the State destroyed the recording of Theresa’s
911 call consistent with department policy.
¶6 Before trial, Lohmeier moved to dismiss the indictment on
two grounds at issue here: (1) the State’s failure to preserve Theresa’s 911
call constituted a due-process violation; and (2) the county attorney’s
prosecutorial vindictiveness by initiating felony charges after Lohmeier
refused to plead guilty in the misdemeanor case.
¶7 The superior court denied Lohmeier’s dismissal motions. On
the lost 911 call issue, the court found no evidence of bad faith and that
Lohmeier failed to demonstrate actual prejudice from the destruction of the
recording.
¶8 The court granted Lohmeier’s alternative request to instruct
the jury that, if it found the State’s explanation inadequate, it could draw
an adverse inference against the State based on its failure to preserve the
911 recording (“Willits instruction”). See State v. Willits, 96 Ariz. 184 (1964).
Regarding the vindictive-prosecution claim, the court found that Lohmeier
had failed to make “the prima facie showing of vindictiveness[.]”
¶9 At trial, Lohmeier called Theresa to the stand, and she
testified that Victim repeatedly cut them off and “brake checked” them.
During the encounter, she handed Lohmeier his gun and called 911.
Lohmeier took the gun and “placed it on top of the steering wheel up
towards the ceiling of the car” to convey that they “were willing to defend
[them]selves and to deescalate the situation.” Theresa maintained that
Lohmeier did not point the gun at Victim. She also explained that in the 911
call, she reported that they “were involved in a road rage incident where a
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yellow truck has come to a complete stop in the middle of traffic and that
[they] were scared for [their] lives. [And they] were trapped at a red light
with [Victim].” She confirmed that the dispatch log of her call—which had
been admitted into evidence—accurately described her report.
¶10 The superior court granted the State’s unopposed request to
instruct the jury on the lesser-included offense of disorderly conduct under
A.R.S. § 13-2904(A)(6). The final jury instructions included the disorderly-
conduct instruction and the Willits instruction.
¶11 The jury acquitted Lohmeier of aggravated assault but found
him guilty of disorderly conduct. The jury separately found the offense was
“dangerous” because it involved “the use or threatening exhibition of a
deadly weapon or dangerous instrument.”
¶12 Following the verdict, Lohmeier moved for a new trial under
Arizona Rule of Criminal Procedure (“Rule”) 24.1(c)(1), arguing the verdict
was contrary to Arizona law and the weight of the evidence. To support his
request, he submitted an affidavit from the jury foreperson, which included
comments that the jury determined (1) he had placed the gun “against the
steering wheel with the barrel pointed toward the roof of his vehicle[,]” (2)
he had not pointed his gun at Victim, and (3) he had not “placed his finger
on the trigger” or “cocked the handgun.” The superior court denied the
motion, explaining that after it “considered the evidence presented during
the trial, the applicable law, and the Jury’s verdict[,]” it found no reason to
upset the verdict.
¶13 The superior court sentenced Lohmeier to the minimum term
of 1.5 years’ imprisonment. We have jurisdiction over Lohmeier’s timely
appeal. See Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-
4033(A).
DISCUSSION
I. Motions to Dismiss
¶14 Lohmeier argues the superior court erred by denying his
motions to dismiss the indictment. We review such rulings for an abuse of
discretion. State v. Hulsey, 243 Ariz. 367, 377, ¶ 17 (2018) (failure to preserve
evidence); State v. Mieg, 225 Ariz. 445, 447, ¶ 9 (App. 2010) (prosecutorial
vindictiveness). “We defer to a trial court’s findings of fact when they are
supported by the record and not clearly erroneous, but review legal
conclusions de novo.” Hulsey, 243 Ariz. at 377, ¶ 17 (citation omitted).
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A. Failure to Preserve Theresa’s 911 Call
¶15 To protect a criminal defendant’s due process right to present
a complete defense, “the Supreme Court has developed what might loosely
be called the area of constitutionally guaranteed access to evidence.” State
v. Goudeau, 239 Ariz. 421, 441–42, ¶ 43 (2016) (quotation omitted). In
deciding whether the State’s failure to preserve evidence violates due
process, the “critical distinction . . . is between material exculpatory
evidence and potentially useful evidence.” State v. Speer, 221 Ariz. 449, 457,
¶ 37 (2009) (quotation omitted).
¶16 Evidence is constitutionally material when it possesses “an
exculpatory value that was apparent before [it] was destroyed, and [is] of
such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.” State v. Dunlap, 187 Ariz.
441, 452 (App. 1996) (quotation omitted). Materiality also requires a
defendant to demonstrate a reasonable probability that the result of the trial
would have been different had the lost evidence been properly disclosed,
meaning the error necessarily had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Kyles v. Whitley, 514 U.S. 419,
435–36 (1995) (quotation omitted). “The mere possibility that an item of
undisclosed information might have helped the defense, or might have
affected the outcome of the trial, does not establish ‘materiality’ in the
constitutional sense.” United States v. Agurs, 427 U.S. 97, 109–10 (1976).
¶17 The loss of material exculpatory evidence violates due
process regardless of whether the State acted in bad faith. Arizona v.
Youngblood, 488 U.S. 55, 57 (1988). “The [S]tate’s duty to preserve is limited
to material evidence that might be expected to play a significant role in the
suspect’s defense.” Dunlap, 187 Ariz. at 452 (quotation omitted).
¶18 The failure to preserve potentially useful evidence, on the
other hand, “does not constitute a denial of due process of law unless the
defendant can show bad faith on the part of the police.” State v. Lehr, 227
Ariz. 140, 150, ¶ 41 (2011) (quotation omitted). “Absent bad faith, the
inference that the evidence may be exculpatory is not strong enough to
dismiss the case. It is enough to let the jury decide whether to draw such an
inference.” Id. (quotation omitted). Whether the prosecution acted in bad
faith “necessarily turn[s] on the police’s knowledge of the exculpatory
value of the evidence at the time it was lost or destroyed.” Dunlap, 187 Ariz.
at 452 (quotation omitted).
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¶19 Lohmeier has satisfied none of the applicable criteria to
establish a due process violation based on constitutional materiality. He
contends the 911 call constituted material evidence because it would have
bolstered Theresa’s trial testimony, alleging its “evidentiary value was
apparent before the police destroyed it.” (Emphasis added.) But Theresa’s
911 call does not establish an exculpatory fact given her ability to testify to
the same facts she asserted during the call. Similarly, the recording was not
irreplaceable in light of Theresa’s testimony combined with the available
dispatch log. We agree with the superior court that, although Theresa’s
testimony at trial “may not be as impactful as the 911 call, the lack of
recording does not rise to the level of a due process violation requiring
dismissal of the charges.”
¶20 Lohmeier asserts that even if the evidence lacked
constitutional materiality, the 911 call was potentially useful to his defense,
and the superior court “should have inferred bad faith from the fact that
the Prescott Police Department destroyed [Theresa’s] 911 call but
consciously chose to retain [Victim’s] 911 call.” We disagree.
¶21 Assuming the 911 call might have aided Lohmeier’s defense,
the destruction of evidence according to an established procedure generally
precludes a bad-faith finding. See California v. Trombetta, 467 U.S. 479, 488
(1984) (finding the police’s destruction of potentially exculpatory evidence
according to “normal practice” did not amount to bad faith). Here, the State
established that destruction of the recording occurred consistent with its
preservation policy.
¶22 Lohmeier contends that preserving Victim’s 911 call and not
Theresa’s shows bad faith. But the police still retained the dispatch log of
Theresa’s 911 call. The court admitted the dispatch log and the contents
matched Theresa’s testimony at trial. The State also claimed the police did
not discover the calls were related to the same incident to preserve the call.
Lohmeier failed to prove the intentional or malicious intent required to
sustain a bad-faith showing. See State v. Youngblood, 173 Ariz. 502, 506 (1993)
(explaining bad faith means “a conscious, intentional or malicious failure
to preserve evidence”); cf. Arizona v. Youngblood, 488 U.S. at 58–59 (losing
evidence negligently is insufficient to show bad faith).
¶23 Under these circumstances, the Willits instruction sufficiently
addressed the destroyed evidence. Youngblood, 173 Ariz. at 507. The
superior court did not abuse its discretion in declining to dismiss the
indictment based on the loss of the 911 call.
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STATE v. LOHMEIER
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B. Prosecutorial Vindictiveness
¶24 A prosecutor’s charging decision is vindictive when it is
designed to penalize a defendant for exercising a legally protected right.
State v. Brun, 190 Ariz. 505, 506 (App. 1997). Defendants may demonstrate
prosecutorial vindictiveness in two ways. Mieg, 225 Ariz. at 447, ¶ 11. First,
they may prove actual vindictiveness based on objective evidence that a
prosecutor acted to punish them for asserting their rights. Id. Lohmeier has
never alleged that the State acted with actual vindictiveness in his case.
Second, as applicable here, defendants “may rely on a presumption of
vindictiveness if the circumstances establish a realistic likelihood of
vindictiveness.” Id. at 448, ¶ 11 (quotation omitted). If a defendant makes a
prima facie showing that the charging decision was more likely than not
attributable to prosecutorial vindictiveness, the burden shifts to the State to
overcome that presumption. Id. at ¶ 12.
¶25 “To make the requisite prima facie showing in the pretrial
context, a defendant must do more than prove that the [S]tate increased
charges after the defendant exercised a legal right.” State v. Dansdill, 246
Ariz. 593, 598, ¶ 8 (App. 2019) (quotations omitted). Additional facts must
exist, besides the increased charges, to show the State’s action was meant to
punish the defendant for asserting legal rights. Id. (citation omitted). “[A]
prosecutor can legitimately re-charge a defendant in the pretrial context for
various reasons, including when in the course of preparing a case for trial
. . . he simply . . . realize[s] that information possessed by the [S]tate has a
broader significance.” Id. at 599, ¶ 12 (quotation omitted).
¶26 Although Lohmeier maintains “the prosecutor’s actions and
statements support[] a presumption of vindictiveness,” he does not identify
any “[a]dditional facts” supporting his contention. See id. at 598, ¶ 8. His
failure to do so disposes of his conclusory argument. See id.¶27 The superior court implicitly accepted the State’s explanation
for its charging decision, and we defer to that credibility determination. See
id. at ¶ 11 (“[T]he question of the prosecutor’s credibility regarding his
motivation was one for the trial judge, not for this court.”). Even if we were
to assume his refusal to plead guilty in the misdemeanor case motivated the
county’s charging decision, his claim would still fail. See id. at ¶ 9 n.3 (“Just
as a prosecutor may forgo legitimate charges already brought in an effort
to save the time and expense of trial, a prosecutor may file additional
charges if an initial expectation that a defendant would plead guilty to
lesser charges proves unfounded.”) (quotation omitted). The superior court
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Decision of the Court
did not err in denying Lohmeier’s motion to dismiss based on prosecutorial
vindictiveness.
II. Motion for a Judgment of Acquittal, Sufficiency of the Evidence,
and Lesser-Included Offense Instruction
A. Motion for a Judgment of Acquittal
¶28 After the State’s case-in-chief, Lohmeier moved for a
judgment of acquittal on the charged offense of aggravated assault. He
argues the superior court incorrectly denied his motion, a ruling we
generally review de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011).
Because the jury acquitted him of aggravated assault, the issue is moot and
he may not raise it on appeal. See State v. Linden, 136 Ariz. 129, 136 (App.
1983) (precluding the defendant from challenging the denial of a directed-
verdict motion on an acquitted charge). Thus, we do not address his claim.
B. Sufficiency of the Evidence
¶29 Lohmeier contests the sufficiency of the evidence to support
his disorderly-conduct conviction. We review his claim de novo. State v.
Pena, 235 Ariz. 277, 279, ¶ 5 (2014). To obtain relief, Lohmeier must show
the record lacks “substantial evidence” supporting his conviction. Id.“Substantial evidence is evidence that reasonable persons could accept as
sufficient to support a guilty verdict beyond a reasonable doubt.” Id.(quotation omitted).
¶30 “Reversible error based on insufficiency of the evidence
occurs only where there is a complete absence of probative facts to support
the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (quotation
omitted). We do not assess credibility, weigh evidence, or resolve
evidentiary conflicts in our review; the jury alone decides those issues. State
v. Cox, 217 Ariz. 353, 357, ¶ 27 (2007).
¶31 Under Section 13-2904(A)(6), “[a] person commits disorderly
conduct if, with intent to disturb the peace or quiet of a neighborhood,
family or person, or with knowledge of doing so, such person . . .
[r]ecklessly handles, displays or discharges a deadly weapon or dangerous
instrument.” “Intentionally” means “a person’s objective is to cause that
result or to engage in that conduct”; “knowingly” means “a person is aware
or believes that the person’s conduct is of that nature or that the
circumstance exists.” A.R.S. § 13-105(10)(a), (b). “Recklessly” means “a
person is aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or that the circumstance
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exists.” A.R.S. § 13-105(10)(c). “The risk must be of such nature and degree
that disregard of such risk constitutes a gross deviation from the standard
of conduct that a reasonable person would observe in the situation.” Id. An
offense involving the “use or threatening exhibition of a deadly weapon or
dangerous instrument” is a “[d]angerous offense.” A.R.S. § 13-105(13).
¶32 Here, Victim testified that Lohmeier pursued him, cut him off,
and pointed a gun at him, causing him to fear for his life. That testimony
alone constitutes substantial evidence to sustain the verdict. See State v.
Montano, 121 Ariz. 147, 149 (App. 1978) (explaining one credible witness is
sufficient to support a conviction). Furthermore, Lohmeier admitted that he
pulled his SUV in front of Victim’s truck and showed his gun to Victim to
convey that he would protect himself and Theresa. Theresa also
acknowledged that Lohmeier displayed his gun to abate the conflict. The
record contains ample evidence from which a reasonable jury could infer
Lohmeier (1) recklessly displayed his gun with the intent to disturb Victim’s
peace or the knowledge that he did so, and (2) his act amounted to a
threatening exhibition of the weapon.
¶33 Nonetheless, Lohmeier cites Theresa’s testimony and the
foreperson’s affidavit to argue his act was not reckless because he allegedly
“rested the handgun against the steering wheel of his vehicle with the barrel
pointed toward the roof” and not at Victim. But his disorderly-conduct
conviction does not require proof that he pointed the firearm at Victim. Nor
does any conflict between Theresa’s and Victim’s testimony undermine the
verdict, given that settling evidentiary disputes is exclusively the jury’s
province. Finally, the foreperson’s affidavit is not trial evidence; thus, we
do not consider it.
¶34 Equally unavailing is Lohmeier’s assertion that “one’s peace
cannot be disturbed” if one is already engaged in an altercation. Our
supreme court has held that Section 13-2904(A)(6) “does not require that
one actually disturb the peace of another through certain acts”; instead, it
“requires the commission of certain acts with intent to disturb the peace . . .
or with knowledge of doing so.” State v. Miranda, 200 Ariz. 67, 69, ¶ 5 (2001)
(quotation omitted). In so concluding, the court rejected the proposition
that Section 13-2904(A)(6) “requires a finding that the victim was in fact at
peace when the conduct occurred.” Id. at 68–69, ¶¶ 4–5. Lohmeier’s
sufficiency-of-the-evidence challenge is meritless.
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C. Jury Instruction
¶35 Lohmeier further insists that because he asserted an “all or
nothing” defense, the superior court fundamentally erred by giving a
lesser-included offense instruction. To prevail under fundamental-error
review, he carries the burden to show trial error exists, the error is
fundamental, and the error resulted in prejudice. State v. Riley, 248 Ariz.
154, 170, ¶ 24 (2020).
¶36 Disorderly conduct under Section 13-2904(A)(6) is a lesser-
included offense of aggravated assault as charged in this case. State v.
Miranda, 198 Ariz. 426, 429, ¶ 13 (App. 2000). The distinguishing element
between those offenses is “the intent to place the victim in reasonable
apprehension of imminent physical injury.” State v. Burdick, 211 Ariz. 583,
586, ¶ 9 (App. 2005). Courts must instruct the jury on a lesser-included
offense when it is “necessarily included” in the greater offense. State v. Wall,
212 Ariz. 1, 3, ¶ 14 (2006). “Necessarily included” means the offense is
“lesser included and the evidence is sufficient to support giving the
instruction.” Id. Evidence is sufficient in this context when a reasonable jury
could find (1) “the State failed to prove an element of the greater offense”
and (2) the defendant committed only the lesser offense. Id. at 4, ¶ 18.
¶37 Both conditions are met in this case. A rational juror could
conclude that, when Lohmeier brandished his gun, he did not intentionally
cause Victim reasonable apprehension of imminent physical injury but only
consciously disregarded the substantial and unjustifiable risk that he would
disturb Victim’s peace, acting with the requisite intent or knowledge to do
so. See State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16 (1998) (“A party is entitled to
an instruction on any theory reasonably supported by the evidence.”). His
assertion of an all-or-nothing defense does not compel a different
conclusion. See Wall, 212 Ariz. at 6, ¶ 28 (explaining there is no “bright-line
rule that a lesser-included offense instruction is never proper if a defendant
has asserted an all-or-nothing defense”). Lohmeier has shown no error,
fundamental or otherwise.
III. Motion for a New Trial
¶38 Lohmeier argues the superior court incorrectly denied his
new trial motion. We review the court’s decision for an abuse of discretion.
State v. Parker, 231 Ariz. 391, 408, ¶ 74 (2013).
¶39 The superior court sits as the so-called “thirteenth juror”
when deciding motions for new trial under Rule 24.1(c)(1) and may
independently weigh the evidence and determine the witnesses’ credibility.
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State v. Fischer, 242 Ariz. 44, 49–50, ¶¶ 14–17 (2017). “If, after full
consideration of the case, the court is satisfied that the verdict was contrary
to the weight of the evidence, it may set the verdict aside[.]” Id. at 49–50, ¶
17. We review only “whether, resolving every conflict in the evidence in
support of the order, substantial evidence supports the trial judge’s order.”
Id. at 52, ¶ 28. “A denial of a motion for new trial will be reversed only when
there is an affirmative showing that the trial court abused its discretion and
acted arbitrarily.” State v. Mincey, 141 Ariz. 425, 432 (1984).
¶40 Lohmeier has made no such showing here. His new trial
request relied, in relevant part, on statements contained in the foreperson’s
affidavit. But “juror affidavits in support of a motion for new trial are
admissible only on the issues of jury misconduct specified in Rule
24.1(c)(3),” which Lohmeier has never alleged. State v. Walker, 181 Ariz. 475,
483–84 (App. 1995). Even then, Rule 24.1(d) bars consideration of testimony
or an affidavit relating “to the subjective motives or mental processes
leading a juror to agree or disagree with the verdict.” State v. Nelson, 229
Ariz. 180, 190–91, ¶ 47 (2012) (citing Ariz. R. Crim. P. 24.1(d)).
¶41 The superior court properly refused to consider the affidavit’s
information in deciding the Rule 24.1(c)(1) motion. Indeed, had the superior
court granted his motion based on the foreperson’s comments, it would
have abused its discretion. See State v. Melcher, 15 Ariz. App. 157, 161 (1971)
(finding an abuse of discretion when the superior court granted a new trial
based on a juror’s affidavit impeaching the verdict).
¶42 Lohmeier presents no argument untethered to the
foreperson’s statements, and thus gives us no basis to disturb the superior
court’s denial of his motion for a new trial.
CONCLUSION
¶43 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: CC
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