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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

SCOTT ROBERT HAGEE,

Appellant.

No. 1 CA-CR 15-0417

Appeal from the Superior Court in Maricopa County

No. CR2013-004709-002

The Honorable Warren J. Granville, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By David D. Weinzweig

Counsel for Appellee

Law Office of Brent E. Graham, PLLC, Glendale

By Brent E. Graham

Counsel for Appellant
STATE v. HAGEE

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Kent E. Cattani and Judge Donn Kessler joined.

D O W N I E, Judge:

¶1 Scott Robert Hagee appeals his convictions and sentences for 

first-degree murder, attempted armed robbery, conspiracy to commit 

armed robbery, and burglary in the third degree. For the reasons that 

follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On June 20, 2013, Officer Whaley was working in an 

undercover capacity as part of a neighborhood enforcement team. At 12:47

p.m., he received an emergency call from dispatch and responded to Lone 

Cactus Restoration — a vehicle restoration business. Officer Whaley and 

his partner arrived in separate vehicles and approached the building from 

the south and north sides. Additional patrol units arrived soon thereafter, 

and officers gathered just outside the building. 

¶3 From his position, Officer Mayfield had an unobstructed view 

of the shop’s interior and saw a masked individual. Officer Mayfield

ordered that person to make his hands visible; the man dropped a gun from 

his right hand and a bag from his left hand, placed his left hand in the air, 

and removed a black ski mask from his head. That individual — Hagee —

was taken into custody. A search incident to arrest revealed a bag of dog 

treats, tape, and zip ties in Hagee’s pants pockets. 

¶4 After Hagee was removed from the building, other officers 

entered and discovered the victim lying on the floor. He had been shot in 

the chest, and his face was injured and bloody. 

¶5 When the victim arrived at the hospital, he was in critical 

condition and suffering severe hemorrhagic shock, having lost more than 

forty percent of his total blood volume. He had extensive injuries to his 

stomach, pancreas, liver, and several large blood vessels — most notably,

the vena cava, which was the source of most of the blood loss. The victim 

died that evening. 
STATE v. HAGEE

Decision of the Court

3

¶6 The State charged Hagee with one count of first-degree 

murder, one count of attempted armed robbery, one count of conspiracy to 

commit armed robbery, and one count of burglary in the third degree. The 

State also alleged numerous aggravating circumstances. 

¶7 At trial, Hagee’s former girlfriend, J.F., testified that Hagee 

and his friend, Jamell Bradley, discussed a plan to rob the victim. Hagee 

stated that Bradley and the victim had a disagreement over “a business 

transaction [that] had not gone well” and that Bradley had enlisted Hagee’s

help to get “retribution.” Because the victim allegedly owed Bradley 

money, Hagee and Bradley “were going to rob him,” believing the victim 

kept $20,000-$30,000 in a safe at his business. 

¶8 J.F. testified that she was with Hagee when he purchased ski 

masks and zip ties for the robbery, and she saw him put dog treats in a 

plastic bag in case he needed to distract the victim’s dogs. In the week 

preceding the shooting, Hagee told J.F. he was “staking out” the victim. J.F. 

also overheard a telephone conversation in which Hagee scheduled an 

appointment with the victim under the pretense of purchasing a vehicle. 

Hagee told J.F. that he believed the ruse would offer an opportunity to learn 

the layout of the building and possibly locate valuables. Hagee also 

informed J.F. he was considering abducting the victim from his home and 

taking him to the business to unlock the safe. 

¶9 On the morning of June 20, 2013, J.F. noticed that Hagee was 

wearing multiple layers of clothing when he left her home, notwithstanding 

the summer heat. Hagee had his gun holstered and carried a duffel bag 

containing tools, zip ties, and dog treats. Bradley and Hagee departed in

J.F.’s car, and when J.F. expressed concern that she would be linked to the 

crimes through her vehicle, Hagee assured her they would replace the 

license plate. 

¶10 Hours later, Bradley drove J.F.’s car back to her house. At the 

crime scene, Bradley had been stopped in J.F.’s vehicle and unwittingly let 

go by police officers, so J.F. drove her roommate’s car to the crime scene to 

check on Hagee. When she arrived, J.F. saw numerous police cars and 

crime scene tape. She then picked up Bradley and drove him home. 

¶11 The victim’s girlfriend, M.G., testified that on the morning of 

June 18, 2013, she awoke and saw “dog bones laid out like a railroad tie 

right in front of the doggie door.” Neither M.G. nor the victim had placed 

the bones there, and when they checked their vehicles, they discovered that 

“a lot of money” had been stolen. Later that evening, M.G. held a party at 
STATE v. HAGEE

Decision of the Court

4

the victim’s shop to celebrate his birthday and met Hagee, who had 

ostensibly stopped by to discuss purchasing one of the victim’s vehicles. 

M.G. also testified that, during the weeks preceding the victim’s death, a 

young man came to the victim’s home and business a few times, and the 

victim expressed anger that the man had “burned [him] out of $1,500.” 

When presented with a photo line-up, M.G. identified the male as Bradley. 

¶12 Dr. Poulos, a county medical examiner, testified about the 

victim’s injuries and cause of death. He described the torso injuries caused 

by the gunshot wound and also numerous blunt force injuries to the 

victim’s head. He opined that the blunt force injuries could be consistent 

with the victim having been struck by a firearm, slammed into a metal safe, 

and kicked with steel-toed boots. Although Dr. Poulos opined that the 

gunshot was a fatal injury in itself, he concluded the victim’s death was 

caused by both the head and torso injuries.

¶13 A jury found Hagee guilty as charged. The trial court 

sentenced him to life without the possibility of parole for the murder 

conviction, a concurrent, aggravated term of fifteen years’ imprisonment 

for attempted armed robbery, a concurrent, presumptive term of five years’ 

imprisonment for conspiracy to commit armed robbery, and a concurrent, 

presumptive term of two and one-half years’ imprisonment for burglary in 

the third degree. 

¶14 Hagee timely appealed. We have jurisdiction pursuant to 

Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 

-4033(A)(1).

DISCUSSION

I. Prior Acts/Character Evidence

¶15 Hagee argues the trial court erred by excluding evidence that 

the victim was involved in illegal drug transactions. He contends the 

evidence was admissible under Arizona Rules of Evidence (“Rule”) 

404(a)(2), (b), and 405(a), (b). Without this evidence, Hagee asserts, the jury 

was permitted “to hear a skewed, inaccurate version of the facts” that 

showed the “victim had a good character.” Hagee further argues the ruling 

prevented him from showing that he “did not go to the victim’s business to 

rob him, but to confront him over problems with the drug sales.” 

¶16 Approximately two weeks before trial, the State filed a motion 

in limine to preclude evidence that the victim had purchased or sold drugs 

and had a stolen firearm in his safe, arguing such information was 
STATE v. HAGEE

Decision of the Court

5

inadmissible as other act/character evidence under Rule 404(b) and was 

unfairly prejudicial under Rule 403. After hearing argument, the court 

granted the State’s motion “pursuant to Rule 401, 402, and 403,” concluding 

the character of the victim was not relevant. The court advised defense 

counsel that he could argue Hagee confronted the victim to resolve a 

“disagreement,” not to rob him, but the argument would be sanitized to 

prevent any reference to the victim’s “character as a drug dealer.” 

¶17 We review a trial court’s ruling on a motion in limine for an 

abuse of discretion. State v. Gamez, 227 Ariz. 445, 449, ¶ 25 (App. 2011). 

“Absent a clear abuse of discretion, we will not second-guess a trial court’s 

ruling on the admissibility or relevance of evidence.” State v. Rodriguez, 186 

Ariz. 240, 250 (1996).

¶18 Relevant evidence is generally admissible unless it is 

otherwise precluded by the federal or state constitution, an applicable 

statute, or rule. Ariz. R. Evid. 402. Evidence is relevant if it has “any 

tendency” to make a fact of consequence in determining the action “more 

or less probable than it would be without the evidence.” Ariz. R. Evid. 401. 

Relevant evidence may be excluded, though, if its probative value “is 

substantially outweighed” by a danger of unfair prejudice. Ariz. R. Evid. 

403.

¶19 Hagee contends the victim’s alleged drug-related activity 

with Bradley offered a defense to the armed robbery charges and, by 

extension, the felony murder for which armed robbery was the predicate 

offense. Applying Rule 401 to these facts, though, whether the victim 

engaged in illegal drug transactions was not a fact of consequence for the 

jury to consider in determining whether Hagee (1) conspired with Bradley 

to take money from the victim by force, (2) attempted to take money from

the victim by force, and (3) ultimately shot and killed the victim. Contrary 

to Hagee’s argument, an assertion that he was simply confronting the 

victim “to get back the money Bradley felt he was owed” and acting “as the 

muscle to get Bradley’s money” provided no defense to armed robbery.

Stated differently, even accepting Hagee’s theory of defense, he 

intentionally used a deadly weapon to extract money from the victim 

against his will. Under the relevant statutes, such conduct constitutes

armed robbery, and it is of no consequence that Bradley may have been 

“owed” the money as part of an illegal drug transaction. See A.R.S. § 13-

1902(A) (“A person commits robbery if in the course of taking any property 

of another from his person or immediate presence and against his will, such 

person threatens or uses force against any person with intent either to 

coerce surrender of property or to prevent resistance to such person taking 
STATE v. HAGEE

Decision of the Court

6

or retaining property.”); A.R.S. 13-1904(A)(2) (“A person commits armed 

robbery if, in the course of committing robbery . . . such person or an 

accomplice uses or threatens to use a deadly weapon.”). Indeed, a person 

can be criminally charged for forcibly taking his “own property” and the 

relevant statutes do not recognize “a claim of right” as a defense to armed 

robbery. State v. Schaefer, 163 Ariz. 626, 629 (App. 1990). Furthermore, the 

trial court permitted Hagee to argue that the catalyst for the confrontation 

was a dispute over a business transaction, which allowed him to place the 

substance of his claimed defense before the jury.

¶20 Relying on Rules 404 and 405, Hagee argues the other 

act/character evidence was nonetheless admissible. We disagree. Under 

Rule 404(a)(2), a defendant may introduce evidence of a “pertinent trait” of 

the victim to show that the victim acted in conformity with this trait on a 

particular occasion. As explained above, though, the victim’s alleged 

character trait of dealing in illegal drugs was simply not relevant to the 

disputed issues before the jury. Pursuant to Rule 404(b), evidence of other 

crimes “is not admissible to prove the character of a person,” but may “be 

admissible for other purposes, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident.” 

Because Hagee was not attempting to introduce the prior acts for any of the 

enumerated exceptions, but instead to disabuse the jury of the “erroneous 

view” that the victim “had a good character,” the evidence was not 

admissible under Rule 404(b).

¶21 Likewise, Rule 405(a) permits character evidence only when 

“evidence of a person’s character or character trait is admissible.” Because

“[e]vidence of a person’s character or a trait of character is not admissible”

unless an exception applies, Rule 404(a), and Hagee has demonstrated no 

applicable exception, Rule 405(a) is inapposite. Finally, Rule 405(b) permits 

evidence of “a person’s character or character trait” when it is “an essential 

element of a charge, claim, or defense.” “To be an essential element, the 

character trait must be an operative fact which, under substantive law, 

determines the rights and liabilities of the parties.” State v. Williams, 141 

Ariz. 127, 129 (App. 1984). The victim’s alleged involvement in prior drug 

transactions did not provide a defense to the charged offenses. Under these 

circumstances, the trial court did not abuse its discretion by excluding

evidence that the victim engaged in illegal drug transactions.

II. Testimony of Medical Examiner

¶22 Hagee contends the court erred by allowing Dr. Poulos to 

testify about the victim’s autopsy in lieu of Dr. Enstice, who performed the 
STATE v. HAGEE

Decision of the Court

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autopsy, but was no longer employed by the medical examiner’s office at 

the time of trial. Specifically, Hagee argues he was denied his constitutional 

right to confront a witness against him when the contents of Dr. Enstice’s 

report were introduced through Dr. Poulos.

¶23 We review interpretations of the Confrontation Clause de 

novo. State v. Medina, 232 Ariz. 391, 405, ¶ 53 (2013). Hagee, however, did 

not object on this basis in the trial court, so we review his claim for 

fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 

(2005); see also State v. Dixon, 226 Ariz. 545, 553, ¶ 34 (2011). “To prevail 

under this standard of review, a defendant must establish both that 

fundamental error exists and that the error in his case caused him 

prejudice.” Henderson, 210 Ariz. at 567, ¶ 20. 

¶24 “The Confrontation Clause bars admission of out of court 

testimonial evidence unless the defense has had an opportunity to crossexamine the declarant.” State v. Parker, 231 Ariz. 391, 402, ¶ 38 (2013) (citing

Crawford v. Washington, 541 U.S. 36, 38 (2004)). “Testimonial evidence is ex 

parte in-court testimony or its functional equivalent—that is, material such 

as affidavits, custodial examinations, prior testimony that the defendant 

was unable to cross-examine, or similar pretrial statements that declarants 

would reasonably expect to be used prosecutorially.” Id. at 402–03 (quoting 

Crawford, 541 U.S. at 51).

¶25 Our supreme court has repeatedly held that “a testifying 

medical examiner may, consistent with the Confrontation Clause, rely on 

information in autopsy reports prepared by others as long as he forms his 

own conclusions.” Dixon, 226 Ariz. at 553, ¶ 36; see also State v. Joseph, 230 

Ariz. 296, 298, ¶ 8 (2012) (“[A] testifying medical examiner may offer an 

opinion based on an autopsy performed by a non-testifying expert without 

violating the Confrontation Clause.”); State v. Smith, 215 Ariz. 221, 228, ¶ 23 

(2007) (“Expert testimony that discusses reports and opinions of another is 

admissible under this rule if the expert reasonably relied on these matters 

in reaching his own conclusion.”). A testifying expert may not, however, 

act as a “conduit for another non-testifying expert’s opinion.” State v. 

Lundstrom, 161 Ariz. 141, 148 (1989). 

¶26 The record does not support Hagee’s contention that 

Dr. Poulos’ testimony “was nothing but a conduit for the autopsying 

doctor’s conclusions.” The autopsy report was not admitted into evidence

at trial. Instead, Dr. Poulos testified on behalf of the medical examiner’s 

office and offered his own opinions about the circumstances and cause of 

the victim’s death. Although Dr. Poulos reviewed photographs, diagrams, 
STATE v. HAGEE

Decision of the Court

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medical records, and the autopsy report in preparing to testify, and referred 

to the autopsy report while testifying, he used this information to reach his 

own independent conclusions. After Dr. Poulos offered his opinions, 

Hagee had the opportunity to confront and cross-examine him. See State v. 

Rogovich, 188 Ariz. 38, 42 (1997) (“[T]he defendant’s confrontation right 

extends to the testifying expert witness, not to those who do not testify but 

whose findings or research merely form the basis for the witness’s 

testimony.”). 

¶27 Citing Medina, Hagee contends Dr. Poulos’ testimony was 

inadmissible because Hagee was a suspect at the time the autopsy report 

was generated. In Medina, the court addressed a Confrontation Clause 

challenge to the admission of an autopsy report when the report’s author was 

unavailable to testify. 232 Ariz. at 405, ¶ 51. In concluding the report was 

nontestimonial for purposes of the Confrontation Clause, the court 

reasoned, in part, that the autopsy was conducted “before Medina became 

a suspect” and was not performed to “gather evidence to accuse Medina.” 

Id. at 406, ¶ 62. But Medina has no application here, where the autopsy 

report was never admitted into evidence. 

¶28 Finally, Hagee’s reliance on Melendez-Diaz v. Massachusetts, 

557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), is 

unavailing. Both cases involved the admission of documents found to be 

testimonial. Melendez-Diaz, 557 U.S. at 311; Bullcoming, 564 U.S. at 663–64. 

Here, even if the autopsy report could be viewed as testimonial, it was not 

admitted into evidence, and Dr. Poulos offered his own independent 

opinions, not the conclusions set forth in the report. See Joseph, 230 Ariz. at 

298–99, ¶ 10; State v. Snelling, 225 Ariz. 182, 187, ¶ 21 (2010) (defendant’s 

confrontation rights not violated when autopsy report not admitted into 

evidence). 

¶29 No Confrontation Clause violation occurred, and the trial 

court did not err, much less fundamentally err, by permitting Dr. Poulos to 

testify.

1

 

1 Furthermore, even if he could establish fundamental error, Hagee has 

not demonstrated the requisite prejudice. He claims prejudice because the 

jury could not observe the “demeanor” of the medical examiner who 

conducted the autopsy, but he fails to explain how this prejudiced his 

defense. There was no dispute at trial regarding the cause of death, and
STATE v. HAGEE

Decision of the Court

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CONCLUSION

¶30 We affirm Hagee’s convictions and sentences.

 

Dr. Poulos’ testimony about the victim’s injuries and cause of death was 

entirely consistent with the trauma surgeon’s testimony.