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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

EDWIN ANTON HORAK, Appellant. 

No. 1 CA-CR 21-0238 

Appeal 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 

Law Office Of Elizabeth M. Hale, Lakeside

By Elizabeth M. Hale

Counsel for Appellant

FILED 5-19-2022
STATE v. HORAK

Decision of the Court

2

MEMORANDUM DECISION

Vice Chief Judge David B. Gass delivered the decision of the court, 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 of 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 forehead. When A.S. attempted to intervene, Horak yelled 

obscenities at A.S. A.S.’s sibling (D.S.) soon arrived to pick up the group, 

and Horak continued yelling at them as D.S. drove away.

¶4 On January 17, 2018, Horak became irritated with S.H. 

because he was displeased 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 

report of the incidents between Horak and S.H. The officer arrested Horak 

after obtaining 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 said he was 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, the State charged him
STATE v. HORAK

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with one count each of aggravated assault for knowingly touching S.H.

with the intent to injure, insult, or provoke S.H., a Class 6 felony (count 3);

aggravated assault for knowingly touching A.S. with the intent to injure, 

insult, or provoke A.S., a Class 6 felony (count 4); disorderly conduct, a 

Class 1 misdemeanor (count 7); and child abuse, a Class 4 felony (count 8).

From the dinner incident, the State charged Horak with one count of 

aggravated assault for causing physical injury to S.H., a Class 6 felony

(count 1); one count of aggravated assault for knowingly touching S.H. with 

the intent to injure, insult, or provoke S.H., a Class 6 felony (count 2); and 

two counts of disorderly conduct, each a Class 1 misdemeanor (counts 5

and 6).

¶7 At trial, S.H. repeatedly testified S.H. had difficulty

remembering the two incidents, after which the 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 provides “[a] parent . . . entrusted 

with the care and supervision of a minor . . . may use reasonable and 

appropriate physical force upon the minor . . . when and to the extent 

reasonably necessary and appropriate to maintain discipline.” At trial, 

Horak 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 never—hurt S.H., even when 

disciplining S.H. In the closing argument, Horak urged the jurors to find 

his conduct was justified:

This is a case of a father trying to discipline his child. 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

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¶9 The jury found Horak guilty on counts 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 counts 2 and 3, followed by six

months’ jail on count 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 admitting 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 

and threw S.H. against a wall, and S.H. otherwise generally alleged he had 

grabbed 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 confrontational with A.S.

¶12 Because Horak did not object to the evidence, we review its 

admission for fundamental, prejudicial error. See State v. Henderson, 210 

Ariz. 561, 567, ¶ 19 (2005). To obtain relief under fundamental-error review, 

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

prejudice. See State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). Error is 

fundamental when it (1) goes to the foundation of the case, (2) deprives the 

defendant of an 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 prejudice, Horak must 

establish “a reasonable jury could have plausibly and intelligently returned

a different verdict” absent the error. Id. at 144, ¶ 31. In applying the 

objective “could have” standard, this court examines the entire record, 

including the parties’ theories and arguments, as well as the evidence. Id.

The “could have” inquiry “necessarily excludes imaginative guesswork.” 

Id.

¶13 We address some preliminary matters to clarify Horak’s

arguments. Because Horak does not argue the error was fundamental 
STATE v. HORAK

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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. Instead, Horak bases his 

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

statements. To the extent Horak argues the written statements were 

cumulative to the testimony—such as his challenge to D.S.’s written 

statement—his argument fails. See State v. Moody, 208 Ariz. 424, 455, ¶ 121 

(2004) (holding no fundamental error when the challenged evidence was 

merely cumulative). As a final preliminary matter, though Horak mentions 

A.S.’s written statement, he presents no meaningful argument to suggest 

the superior court fundamentally erred when it admitted that document.

We, therefore, conclude he waived his claim of error with respect to A.S.’s 

statement. See Carver, 160 Ariz. at 175; see also Ariz. R. Crim. P. 31.10(a)(7).

¶14 We 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, absent an applicable exception, Arizona Rule of 

Evidence (Rule) 404(a) bars the introduction of character evidence to show

a person acted in conformity. But Rule 404(a)(1) contains a key exception,

allowing a defendant to offer evidence of a pertinent character trait to 

establish conformity with it. Rule 404(a)(2) also authorizes the prosecution 

to introduce evidence to rebut the asserted trait. Admissible character 

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, claim, or defense”. 

¶16 Applying those principles, Horak introduced evidence he

was both generally nonviolent and a nonviolent parental disciplinarian. 

Under those 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. See

A.R.S. § 13-205.A; State v. Hausner, 230 Ariz. 60, 78–79, ¶¶ 72–73 (2012) (no 

error in admitting evidence of the defendant’s prior violent acts when the 

defendant opened the door to the evidence by testifying 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 than on cross-examination or 

rebuttal. See Escalante, 245 Ariz. at 142, ¶ 21 (requiring courts to consider 
STATE v. HORAK

Decision of the Court

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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 error does 

not require reversal.”). Accordingly, Horak does not establish the jurors 

here might have convicted him simply for being a “bad man.” And any 

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 constitutionally guaranteed procedures).

¶19 Horak does not explain how his justification defense was 

damaged by admitting 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 Clause 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 had 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”) (citation omitted); State v. Real, 214 

Ariz. 232, 235, ¶ 10 (App. 2007) (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 on 
STATE v. HORAK

Decision of the Court

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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 defendants “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 charge 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 defendant 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 losing his temper and arguing

with S.H. after he consumes alcohol and (2) over Horak’s objection, the 

arresting officer’s testimony about Horak exhibiting physical signs

consistent with alcohol consumption when the arrest occurred and

admitting he had consumed “a couple of beers” earlier that day. This court 

reviews the first instance for fundamental error and applies a harmlesserror 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 instances do not provide a basis to disturb the 

verdicts. First, similar to our reasoning supra ¶¶ 19–21, Horak offers mere 

speculation when arguing the admission of S.H.’s testimony resulted in

prejudice. Second, the jury’s acquittals refute the notion the officer’s brief 

testimony unduly inflamed the jurors. See State v. Stuard, 176 Ariz. 589, 600 

(1993) (explaining acquittals on certain charges “demonstrate[s] the jury’s 

careful and proper consideration of the evidence”); State v. Rushing, 156 

Ariz. 1, 3 (1988) (concluding an acquittal on one charge and a lesserincluded 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 were 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

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CONCLUSION

¶24 We affirm.