State v. Lopez

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JOSE LOPEZ, Appellant. No. 1 CA-CR 25-0437 FILED 11-10-2026 Appeal from the Superior Court in Yuma County No. S1400CR202300575 The Honorable Claudia Maria Gonzalez Jimenez, Judge AFFIRMED COUNSEL Zachary Law Group, PLC, Mesa By Jessica Zachary Counsel for Appellant Arizona Attorney General’s Office, Phoenix By Joshua C. Smith Counsel for Appellee  STATE v. LOPEZ Decision of the Court MEMORANDUM DECISION Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge D. Andrew Gaona joined. F U R U Y A, Judge: ¶1 Jose Lopez appeals from his convictions and sentences, arguing insufficient evidence supported one of his aggravated assault convictions. Lopez also argues the superior court erred in aggravating his sentence and providing a transferred intent jury instruction on all counts. We disagree and affirm. FACTS AND PROCEDURAL HISTORY ¶2 In May 2023, Lopez, his cousin, Duke, and friends Jerry and Chris all attended a party.1 The entire group was armed. ¶3 Shortly after their arrival at the party, Lopez and his group began arguing with a person later identified as Adam. The argument quickly escalated to a fight. The fight became a shoot-out. Chris fired a rifle wildly. One partygoer recorded the shooting and saw Lopez firing in two directions. ¶4 The shooting eventually stopped and Lopez’s group left the party together in the same car. They went to a hospital to seek medical treatment. Chris had a gunshot wound to his leg and Duke had a fatal wound to his armpit that could have been from either a rifle or handgun. Four other victims injured during the shooting appeared at that hospital (the “Bystanders 1–4”), one within minutes of Lopez’s group, all with varying gunshot injuries. ¶5 Meanwhile, a partygoer and neighbors rendered first aid to Adam’s many gunshot wounds before first responders arrived. Although Adam was also taken to the hospital, he died from his wounds. 1 Pursuant to Rule 31.10(f) of the Arizona Rules of Criminal Procedure, we use pseudonyms to protect victims’ privacy. 2  STATE v. LOPEZ Decision of the Court ¶6 A grand jury indicted Lopez on two counts of first-degree murder and five counts of aggravated assault. Lopez pled not guilty to all counts. A jury found Lopez guilty as charged following trial. ¶7 The superior court sentenced Lopez to consecutive natural life sentences on the two murder convictions. It also sentenced him to concurrent and consecutive terms totaling an additional 45 years for his aggravated assault convictions, to be served after his life sentences. The court credited Lopez 785 days of pre-sentence incarceration. With the court’s leave, Lopez filed a delayed notice of appeal. Ariz. R. Crim. P. 31.2(a)(3); Ariz. R. Crim. P. 32.1(f). We have jurisdiction under Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) Sections 12-120.21(A)(1) and 13-4033(A)(1). DISCUSSION I. Substantial Evidence Sustains Lopez’s Conviction of Aggravated Assault for Count Seven. ¶8 Lopez argues insufficient evidence supports his conviction for aggravated assault because Chris’s gunshot wound was allegedly self- inflicted. When a defendant challenges a jury’s verdict, “[w]e review a sufficiency of the evidence claim for abuse of discretion.” State v. McCauley, 262 Ariz. 181, 219 ¶ 137 (2026). On appeal, we do not reweigh evidence or reassess witness credibility, State v. Duncan, 257 Ariz. 360, 368 ¶ 10 (App. 2024), but instead “review the record to determine whether substantial evidence supports the jury’s finding[s], viewing the facts in the light most favorable to sustaining the jury verdict,” McCauley, 262 Ariz. at 219 ¶ 137 (cleaned up). “Substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of the defendant’s guilt beyond a reasonable doubt.” Id. (cleaned up). Evidence is sufficient when reasonable jurors “could differ on the inferences to be drawn from the evidence.” State v. Cantua-Ramirez, 149 Ariz. 377, 379 (App. 1986). ¶9 Here, the jury convicted Lopez of aggravated assault in violation of multiple statutes and found the conviction involved the presence of an accomplice. A.R.S. §§ 13-302; -303; -1203(A)(1); and - 1204(A)(2). The jury was properly instructed that a person commits aggravated assault if he “intentionally, knowingly or recklessly caus[es] any physical injury to another person” with a deadly weapon. A.R.S. §§ 13- 1203(A)(1); -1204(A)(2). A person is also guilty of an offense if, with the intent to promote or facilitate the commission of the offense, he “[a]ids, 3  STATE v. LOPEZ Decision of the Court counsels, agrees to aid or attempts to aid another person in planning or committing an offense.” A.R.S. § 13-301(2); -302. Thus, a person is criminally accountable for another’s conduct if he is an accomplice of “such other person in the commission of an offense including any offense that is a natural and probable or reasonably foreseeable consequence of the offense for which the person was an accomplice.” A.R.S. § 13-303(A)(3). ¶10 Much evidence presented at trial was ambiguous about how Chris was shot, but none conclusively established Chris’s injury was self- inflicted. And although the State mentioned Chris shooting himself during its closing argument, such comments are not evidence. The jury was instructed accordingly, and we presume it followed that instruction. See State v. Vargas, 251 Ariz. 157, 179 ¶ 77 (App. 2021) (observing that when prosecutors imprecisely characterize evidence adduced at trial, “we presume the jurors followed their instructions that attorneys’ arguments are not evidence”). Thus, Lopez’s argument hinges on an impermissible inference that Chris shot himself. But the verdict here shows the jury adopted a different inference; specifically, that someone other than Chris inflicted the gunshot wound to his leg. The record supports such an inference. ¶11 Trial evidence established that bullets ricocheted in the backyard. Lopez was next to Chris throughout the shooting and fired his gun in the same direction. Five .45 caliber casings and two .45 bullets were found, the same caliber as the gun Lopez brought to the party. Further, police found gunshot holes and damage in almost every direction of the backyard. They discovered a 9mm pistol and five of its shell casings in the grass, proof someone fired the pistol. On the other hand, no evidence of the caliber or type of bullet that struck Chris was admitted. ¶12 On this record, the jury could properly infer from the evidence that either one of Lopez’s shots ricocheted and struck Chris or whoever was firing the 9mm pistol shot him. The jurors might reasonably have parsed the evidence differently and found Chris shot himself. But the verdict establishes this jury found otherwise and therefore, the evidence is sufficient as a matter of law. Duncan, 257 Ariz. at 368 ¶ 10. ¶13 Lopez raises a number of contrary theories on the evidence. But the State need not negate every conceivable “hypothesis of innocence” when it has established guilt through circumstantial evidence. State v. Nash, 143 Ariz. 392, 404 (1985). Given this record, substantial evidence supports the jury’s inference that someone else shot Chris. McCauley, 262 Ariz. at 219 ¶ 137. 4  STATE v. LOPEZ Decision of the Court II. Giving a Transferred Intent Instruction Was Not Error. ¶14 Lopez argues the court abused its discretion when it instructed the jury on transferred intent on all counts. ¶15 Although we review a court’s decision to give a jury instruction for abuse of discretion, we review de novo whether the instruction correctly states the law. State v. Ewer, 254 Ariz. 326, 329 ¶ 10 (2023). Under the abuse of discretion standard, “we uphold a decision if there is any reasonable evidence in the record to sustain it.” State v. Salamanca, 233 Ariz. 292, 295 ¶ 8 (App. 2013) (quoting State v. Morris, 215 Ariz. 324, 341 ¶ 77 (2007)) (citation modified). A. The Instruction Correctly States the Law. ¶16 The court instructed the jury as follows: You may find that the defendant acted “intentionally” or with “intent to” as to [Adam] and [Duke] on the charge of First Degree Murder (Counts 1–2), and as to [Bystander 1], [Bystander 2], [Bystander 3], [Bystander 4], and [Chris] on the charge of Aggravated Assault (Counts 3–7), if you find “transferred intent.” Transferred intent is established if the actual result of the defendant’s action differs from that which the defendant intended or contemplated only in the respect that: 1. A different person or different property is injured or affected; or 2. The injury or harm intended or contemplated would have been more serious or extensive than that caused. ¶17 During a trial objection to the transferred intent instruction, Lopez voiced concerns the jury could find him guilty of reckless manslaughter or aggravated assault and mistakenly transfer intent to find him guilty of other offenses. The court explained the instruction was sufficient because it specifically articulates to what it applies. Lopez now argues the court erred because it was possible for the jury to improperly transfer intent between the murder and aggravated assault counts. ¶18 To correctly state the law, “[j]ury instructions need only be substantially free from error.” State v. Tarr, 235 Ariz. 288, 292 ¶ 9 (App. 2014) (cleaned up). We will only reverse if the instructions, taken as a whole, 5  STATE v. LOPEZ Decision of the Court would mislead jurors. State v. Rios, 255 Ariz. 124, 132 ¶ 32 (App. 2023). And we consider the instructions in context and in conjunction with closing arguments. State v. Johnson, 205 Ariz. 413, 417 ¶ 11 (App. 2003) (citing cases). ¶19 Here, Lopez’s arguments are an unreasonable and unnatural reading of the jury instruction. To begin, there is no apparent error with the instruction as written. Arizona has codified the doctrine of transferred intent and extended it to “intentional criminal conduct causing an unintended result.” State v. Rodriguez-Gonzales, 164 Ariz. 1, 2 (App. 1990); see A.R.S. § 13-203(B)(1). Subsection (B)(1) of Arizona’s transferred intent statute applies when the actual result of the intended conduct differs, specifically when a different person is injured. Cantua-Ramirez, 149 Ariz. at 380. The instruction, as given, accurately reflects the statutory definition of transferred intent as applied to unintended victims of the same harm. A.R.S. § 13-203(B). ¶20 Lopez’s trial objection unreasonably construes the instruction because the text of the instruction expressly—and properly—limits the jury’s application of the transferred intent doctrine to the circumstance where it finds Lopez acted “intentionally” or “with intent to.” There is no reasonable way to read this language to permit a jury to transfer a finding of “reckless” intent between the various counts or defendants. Thus, the instruction could not mislead jurors as Lopez argued at trial. See Rios, 255 Ariz. at 132 ¶ 32. ¶21 Nor is Lopez’s objection on appeal availing. The most natural reading of the instruction clearly separates the two sets of victims into categories according to the crimes charged and confines transferred intent within those categories, rather than allowing intent to flow between them. ¶22 Moreover, we interpret the jury instruction in context and in conjunction with closing arguments. Johnson, 205 Ariz. at 417 ¶ 11. The other instructions defined “intentionally” and the crimes charged. And the State’s closing argument referred to the transferred intent instruction in context of the “bad aim rule” by stating “[i]ntent follows the bullet from intended victims to unintended victims.” Following this introduction, the State exclusively argued about transferring intent between the two murder victims, not between different categories of crime. Lopez’s only discussion of the transferred intent instruction was a fleeting remark to the jury to expect instructions on “transferred intent.” He did not allude to transferring intent between categories of crime. The record indicates this jury was engaged and asked questions when clarity was needed. 6  STATE v. LOPEZ Decision of the Court ¶23 Because Lopez’s proposed reading of the instruction argued on appeal is unnatural and is unsupported by either the text of the instruction or the context in which it was explained and argued at trial, his argument that the jury relied on that understanding to reach its verdict is speculation. Such speculation is insufficient to establish that the jury was confused by the instruction. See State v. Allen, 248 Ariz. 352, 363 ¶ 34 (2020). Nothing in the record reflects jury confusion about the instruction and the instruction did not mislead the jury. Rios, 255 Ariz. 124 at 132 ¶ 32. Because the instruction was substantially free from error, it correctly stated the law. Tarr, 235 Ariz. at 292 ¶ 9. B. Sufficient Evidence Supports the Court’s Decision to Provide the Instruction. ¶24 Lopez further argues on appeal that the court lacked sufficient evidence to provide the transferred intent instruction. We disagree. ¶25 Whether a defendant has the requisite criminal intent is a question of fact “for the jury’s determination.” State v. Quatsling, 24 Ariz. App. 105, 108 (1975). We view all facts in the light most favorable to sustaining the jury verdict. McCauley, 262 Ariz. at 219 ¶ 137; see also State v. Milton, 85 Ariz. 69, 73 (1958) (the jury is “free to discard or disbelieve” facts inconsistent with its conclusion when an evidentiary basis for its verdict exists). Parties are “entitled to an instruction on any theory reasonably supported by the evidence” and we do not reweigh the evidence on appeal. Johnson, 205 Ariz. at 417 ¶ 10; Rios, 255 Ariz. at 132 ¶ 32. ¶26 Here, reasonable evidence supported the State’s “bad aim” theory and request for the transferred intent instruction as to the two murder charges and among the five aggravated assault charges. Lopez’s group appeared to have “intent to go after somebody” when they surrounded Adam. Lopez aimed his gun in the direction of Adam and Duke. He testified that he “reacted quick” upon hearing one shot and said that he fired warning rounds. But evidence also establishes that he was inattentive to his surroundings and people escaped over walls near him as the shooting intensified. Multiple victims with gunshot injuries appeared at the hospital soon after the shooting, including one who was shot as he hopped the wall. ¶27 Evidence showed Lopez aimed at Adam and missed. And Duke died from wounds that could have been caused by a handgun. This is reasonable evidence to support giving the transferred intent instruction 7  STATE v. LOPEZ Decision of the Court as to the murder charge concerning Duke’s death. See Salamanca, 233 Ariz. at 295 ¶ 8. ¶28 Lopez argues it was possible the jury could have viewed the evidence differently, perhaps in a manner that would not support giving the instruction. But our presumptions require us to view the evidence in the light most favorable to sustaining the jury’s verdicts. McCauley, 262 Ariz. at 219 ¶ 137. During closing arguments, the State theorized that Lopez fired “five shots all in [Adam]’s direction or [Bystanders 1–4].” Though different interpretations of this evidence are possible and contradictory evidence was introduced, the jury can disbelieve facts inconsistent with its conclusion when an evidentiary basis exists for its verdict. Milton, 85 Ariz. at 73. Such a basis exists here. The evidence showed Lopez aimed in Adam’s direction but also fired in two directions. He was right next to Chris, who fired a rifle wildly. ¶29 Viewing the facts most favorably to sustaining the jury’s verdicts, evidence was admitted supporting the jury’s implicit finding that Lopez intended to kill Adam, then turned his gun on those escaping over the walls to help Chris. The intent to commit assault is transferable between the aggravated assault charges because each count dealt with the same physical harm, with only the victims differing. See Johnson, 205 Ariz. at 418 ¶ 15. Sufficient evidence supported the court’s decision to give the transferred intent instruction. III. Lopez Has Not Established Fundamental, Prejudicial Error Occurred When the Court Aggravated His Sentence. ¶30 The jury reached multiple verdicts regarding the aggravating circumstances alleged by the State. It found all the convictions involved at least one aggravating factor: the presence of an accomplice proven beyond a reasonable doubt. And it found that victims suffered physical harm. Lopez argues the court fundamentally erred in using the physical harm suffered by victims as an aggravating factor because that factor is also an essential element to aggravated assault. A. Standard of Review ¶31 Because Lopez failed to object when the State alleged the aggravating factor of physical harm suffered by victims, we review for fundamental error. Allen, 248 Ariz. at 360 ¶ 18 (citing cases). To obtain relief, Lopez must demonstrate the court committed error, the error was fundamental, and the error prejudiced him. State v. Escalante, 245 Ariz. 135, 142 ¶ 21 (2018). 8  STATE v. LOPEZ Decision of the Court B. Lopez Has Not Established Fundamental Error. ¶32 The maximum term for dangerous offenses may only be imposed if the jury finds one or more alleged aggravating factors are true beyond a reasonable doubt. A.R.S. § 13-701(C). To impose an aggravated sentence, the court must find, beyond a reasonable doubt, at least one specific statutory aggravating factor on the record at sentencing. State v. Bonfiglio, 231 Ariz. 371, 372–373 ¶¶ 1, 8 (2013); A.R.S. § 13-701(D)(1)–(27). ¶33 After finding the aggravated assault counts were dangerous offenses, the court sentenced Lopez to an amalgam of sentences using the jury’s aggravating factors. See supra ¶ 27. Despite acknowledging that Arizona law allows using physical harm suffered by victims as an aggravating factor, Lopez contends the court’s use of it led to an absurd result. But even if this were so, the jury also found the aggravated assault convictions involved the presence of an accomplice. Because A.R.S. § 13- 701(D)(4) enumerates the presence of an accomplice as an aggravating factor, the court could aggravate Lopez’s sentence independently of physical harm. Bonfiglio, 231 Ariz. at 372 ¶ 1. Lopez did not establish the error needed for relief because the court needs the presence of only one circumstance to aggravate his sentence. Id. Thus, even assuming that physical harm could not be used to aggravate Lopez’s sentences, the jury’s finding of the presence of an accomplice properly supports the aggravated sentences as well. A.R.S. § 13-701(D)(4). Lopez has failed to show any prejudice. CONCLUSION ¶34 We affirm. MATTHEW J. MARTIN • Clerk of the Court FILED: JR 9