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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

## A RIZONA 

## C OURT OF 

## A PPEALS
D IVISION O NE

S TATE OF ARIZONA , Appellee
,

v.

ED WIN ANTON HORAK , Appellant

.
No. 1 CA-CR 21-0238

A ppeal from the Superior Court in Apache County No. S0100CR201800331 The Honorable Michael D. Latham, Judge

AFFIRMED

COUNSEL
Arizona Attorney General ’ s Office
, Phoenix By Michael Valenzuela Counsel for Appellee

La w Office Of Elizabeth M. Hale
, Lakeside By Elizabeth M. Hale C ounsel for Appellant FILED 5-19-2022STATE v. HORAK Decision of the Court

2 MEMORANDUM DECISION

Vice Chief Judge David B. Gass delivered the decision of the c ourt, in which Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined.

G A S S , Vice Chief Judge:

¶1 Edwin Anton Horak appeals his convictions and sentences for two counts of aggravated assault and one count o f disorderly conduct. We affirm

.
FACTUAL AND PROCEDURAL HISTORY

¶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 forehea d

. When A.S. attempted to intervene , Horak yelled obscenities at A.S

. A.S.’s si bling ( D .S. ) soon arrived to pick up the group
, and Horak continued yelling at the m as D.S. drove away

. ¶4 O n January 17, 2018 , Hor ak became irritated with S.H. because he was d ispleased 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 repor t of the incident s between Horak and S.H

. T he officer arrested Horak after obtain ing 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 s aid he wa s 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
, t he State charged himSTATE v. HORAK Decision of the Court

3 with one count each of aggravated assault for knowingly tou ching S.H. with the intent to injur e , insult, or provoke S.H. , a C lass 6 felony ( c ount 3 ) ; aggravated assault for knowingly touching A .S. with the intent to injur e , insult, or provoke A.S. , a C lass 6 felony ( c ount 4 ) ; disorderly conduct, a C lass 1 misdemeanor ( c ount 7) ; and child abuse, a C lass 4 felony ( c ount 8)

. From the dinner incident
, the State charged Horak with one count of aggravated assault for causing physical injury to S.H., a C lass 6 felony ( c ount 1 ) ; one count of aggravated assault for knowingly touching S. H. with the intent to injur e , insult, or provoke S.H. , a C lass 6 felony ( c ount 2 ) ; and
two count s of disorderly conduct, each a C lass 1 misdemeanor ( c ount s 5 and 6 )

. ¶7 At trial, S.H. repeatedly testified S.H. had difficulty remember ing the two incidents , after which t he 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 provide s “[a] parent

. . . entrusted with the care and supervision of a minor

. . . may use reasonable and appropriate physical force upon the mino r . . . when and to the extent reasonably ne cessary and appropriate to maintain disciplin e.” At trial, H orak 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 n ever

— hurt S.H

. , even when disciplining S.H

. I n the closing argument, Horak urged the jurors to find his conduct was justified : This is a case of a father trying to discipline his chi ld. 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

.STATE v. HORAK Decision of the Court

4 ¶9 T he jury found Horak guilty on c ounts 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 c ounts 2 and 3, followed by six months’ jail on c ount 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

.
ANALYSIS

I. Admission of the Written Statements

¶11 Horak first argues the superior court violated his due process rights by erroneously admitt ing 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

a nd threw S.H. against a wall , and S.H. otherwise generally alleged he had grabbe d 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 confrontation al with A.S.

¶12 Because Horak did not object to the evidence , w e review it s admission for fundamental, prejudicial error. S ee S tate v. Henderson , 210 Ariz. 561, 567, ¶ 19 ( 2005 )

. To obtain relief u nder fundamental

- error review, Horak must show error exists , the error was fundamental, and he suffered prejudice

. S ee S tate v. Escalante , 245 Ariz. 135, 142, ¶ 21 (2018). E rror is fundamental when it (1) goes to the foundation of the case, (2) deprives the defendant of a n 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 prej udice, Horak must establish “a reasonable jury could have plausibly and intelligently re turned a different verdict” absent the error. Id

. at 144, ¶ 31

. In applying the objective “could have” standard, this court examine s the entire record, including the parties’ theories and arguments, as well as the evidence. Id

. T he “could have” inquiry “ necessarily excludes imaginative guesswork. ” Id

. ¶13 We address some preliminary matter s to clarify Horak’s arguments. Because Horak does not argue the error was fundamentalSTATE v. HORAK Decision of the Court

5 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. I nstead, Horak bases his fundamental

- error claim solely on the admission of the three written
statements

. T o the extent Horak argues the written statements were cumulative to th e testimony

— such as his challenge to D.S.’s written
statement

— his argument fails

. See State v. Moody , 208 Ariz. 424, 455, ¶ 121 (2004) ( hol ding no fundamental error when the challenged evidence was merely cumulative )

. As a final preliminary matter, though Horak mentions A.S.’s written statement, he present s no meaningful argument to suggest the superior court fundamentally erred when it admitt ed that document

. W e , therefore, conclude he waived his claim of error with re spect to A.S.’s
statement

. See Carver , 1 60 Ariz. at 175 ; see also Ariz. R. Crim. P. 31.10( a )( 7).

¶14 W e 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, a bsent an applicable exception, Arizona Rule of Evidence (Rule) 404(a) bar s the introduction of character evidence to show a person acted in conformit y

. But Rule 404(a)( 1 ) contains a key exception , allow ing a defendant to offer evidence of a pertinent character trait to establish conformity with it

. Rule 404(a)( 2 ) also authorizes t he prosecution
to introduce evidence to rebut the asserted trait

. Admissible c haracter 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, c laim, or defense”

. ¶16 Applying those principles , Horak introduced evidence he

was both generally nonviolent and a non violen t parental disc iplin arian

. Under th o se 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

. S ee A.R.S. § 13

- 205

. A; S tate v. Hausner , 230 Ariz. 60, 78

– 79, ¶ ¶ 7 2

– 7 3 (2012) (no error in admitting evidence of the defendant’s prior violent acts when the defendant opened the door to the evidence by test ifying he was nonviolent and “would never harm anything ”)

. ¶17 Our conclusion stands even though the State offered S.H.’s written statement in its case

- in

- chief rather tha n on cross

- exam ina tion or rebuttal

. See E scalante , 245 Ariz. at 142, ¶ 21 ( requiring courts to considerSTATE v. HORAK Decision of the Court

6 the entire record in determining whether an error is fundamental) ; see also State v. Henry , 176 Ariz. 569, 580 (1993) (“[T]he state should not have elicited the [challenged] testimony in its case

- in

- chief. Since it could have done so

on cross

- examination, however, and did do so on rebuttal, the erro r does not require reversal.” ). Accordingly
, Horak does not establish the jurors here might have convicted him simply for being a “bad man

. ” And a ny

error in admitting S.H.’s written statement did not lessen the State’ s burden to prove its case

. See State v. Wassenaar , 215 Ariz. 565, 577, ¶ 50 (App. 2007) (“We may affirm on any basis supported by the record.”).

¶18 Assuming the superior court improperly admitted S.H.’s written statement, Horak has not demonstrated the error went to the foundation of his case. See Escalante , 245 Ariz. at 141, ¶ 18 (explaining errors go to a case’s foundation when they relieve the prosecution of its burden to prove an offense, directly impact a key factual dispute, or deprive the defendant of c onstitutionally guaranteed procedures ).

¶19 Horak does not explain how his justification defense was damaged by admi tting S.H.’s written statement

. S.H. was reluctant to testify against Horak . S.H. repeatedly said Horak was a good father
, S.H. wanted to live with Horak
, S.H. was not afraid of Horak , and S.H. was

aware Horak was only disciplining S.H. Indeed, Horak relied on S.H.’s testimony in his closing argument, reminding the jurors S.H. said the aggravated assaults against S.H. “didn’t happen” and “he did it to discipline [S.H.] ” Given these circumstances, Horak has not shown a reasonable jury could have returned different verdicts if S.H.’s written statement been excluded.

¶20 Horak also contends admitting the evidence violated his Confrontation Claus e rights. This contention also fails. “The Confrontation Clause bars admission of out of court testimonial evidence unless the defense has had an opportunity to cross

- examine the declarant.” State v. Parker , 231 Ariz. 391, 402, ¶ 38 (2013 ). Because Horak h ad a full and fair opportunity to cross

- examine S.H., A.S., and D.S. at trial, the evidence’s admission did not infringe on his confrontation rights. See State v. Salazar
, 216 Ariz. 316, 318, ¶ 9 (App. 2007) (confrontation rights afford only a “ full and fair opportunity to probe and expose infirmities ” in witnesses’ testimony “ through cross

- examination”) ( ci tation omitted); State v. Real , 214 Ariz. 232, 235, ¶ 10 (App. 200 7) (noting confrontation rights do not include effective cross

- examination )

. ¶21 Even if Horak could establish fundamental error, he fails to show prejudice

. Though he complains he may have been convicted onSTATE v. HORAK Decision of the Court

7 insufficient evidence, he does not point to anything in the record to support his claim, much less articulate a fact

- intensive argument proving prejudice. Instead, he speculates the challenged evidence may have affected the verdicts. See State v. Dickinson , 233 Ariz. 527, 531, ¶ 13 (App. 2013) (explaining d efendants “must affirmatively prove prejudice and may not rely upon speculation to carry [their] burden ” on fundamental

- error review ) (internal citation marks omitted)

. And the jury’s acquittals on five of the eight charges

— including the most serious charg e of child abuse

— indicate the written statements did not improperly influence the jurors. State v. Anderson , 199 Ariz. 187, 193, ¶ 33 (App. 2000) (rejecting an argument on fundamental

- error review that prejudicial evidence inflamed the jury when the defend ant was acquitted of several more serious charges ).

II. Evidence of Horak’s Intoxication

¶22 Horak next asserts the superior court erred by admitting (1) S.H. ’s unobjected

- to testimony about Horak los ing his temper and argu ing with S.H. after he consumes alcohol and (2) over Horak’s objection, the arresting officer ’s test i mony about Horak exhibit ing physical signs consistent with alcohol consumption when the arrest occurred and admitt ing he had consum ed “a couple of beers ” earlier that day

. This court review s the first instance for fundamental error and appl ies a harmless

error review to the second instance

. See Henderson
, 210 Ariz. at 567, ¶ ¶ 18

– 19

. Error is harmless if the State proves “beyond a reasonable doubt that the error did not contribute to or affect the verdict

. ” Id. at ¶ 18

. ¶23 The cited instance s do not provide a basis to disturb the verdict s

. First, similar to our reasoning supra ¶¶ 19

– 2 1 , Horak offers mere speculation when arguing the admi ssion of S.H.’s testimony resulted in prejudic e

. Second, the jury’s acquittals r efute the notion the officer’s brief testimony unduly inflamed the jurors

. S ee S tate v. Stuard , 176 Ariz. 589, 600 (1993) (explaining acquittals on certain charges “demonstrate[s] the j ury’s careful and proper consideration of the evidence” ); State v. Rushing
, 156 Ariz. 1, 3 (1988) (concluding an acquittal on one charge and a lesser

included offense conviction shows prejudicial evidence “did not so inflame the jury as to render it incapable of making critical factual determinations ”). Third , the challenged instances w ere cumulative to several other testimonial instances throughout the trial indicating Horak consumed alcohol and became aggressive when he did so

. See Moody , 208 Ariz. at 455, ¶ 121; State v. Weatherbee , 158 Ariz. 303, 305 (App. 1988) (explaining the erroneous admission of cumulative evidence is harmless ).STATE v. HORAK Decision of the Court

8 CONCLUSION

¶24 We affirm.