State v. Valenzuela

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JACK RICHARD VALENZUELA, JR., Appellant. No. 1 CA-CR 25-0525 FILED 09-30-2026 Appeal from the Superior Court in Mohave County No. CR-2025-00028 The Honorable Billy K. Sipe, Judge Pro Tempore AFFIRMED COUNSEL Arizona Attorney General's Office, Phoenix By Michael T. O'Toole Counsel for Appellee Carr Law Office, PLLC, Kingman By Sandra Carr Counsel for Appellant  STATE v. VALENZUELA Decision of the Court MEMORANDUM DECISION Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Andrew J. Becke and Judge Samuel A. Thumma joined.1 M O R S E, Judge: ¶1 Defendant Jack Valenzuela ("Valenzuela") appeals his two convictions for aggravated assault. We affirm. FACTS AND PROCEDURAL BACKGROUND2 ¶2 Valenzuela, and a roommate, lived in a house in which Valenzuela had installed surveillance cameras. Valenzuela's roommate and her boyfriend often invited friends over to the house, including Troy (a pseudonym). As captured by the surveillance cameras, on the afternoon of January 3, 2025, Valenzuela went out to his car and returned with a handgun and a rifle. Troy was in the roommate's bedroom when Valenzuela yelled from the living room, demanding Troy return a portable speaker. Valenzuela and Troy argued about the speaker until Valenzuela demanded "Get the [expletive] out of my house right now, [Troy]." Troy asked for a couple minutes, but Valenzuela persisted, shouting "Get out of here now!" Troy responded, "Make me." Valenzuela approached the roommate's bedroom, pointed his handgun through the door, and demanded that Troy leave. Valenzuela then fired a shot from his handgun. ¶3 After firing the shot, Valenzuela backed away while keeping his gun pointed toward the bedroom door and demanding Troy leave. Troy left the bedroom and turned so that his hand was briefly behind him 1 Judge Samuel A. Thumma was on the panel assigned to this case until retiring effective August 28, 2026. Arizona Supreme Court Chief Justice Ann A. Scott Timmer appointed Judge Thumma to continue to serve on the Court through December 31, 2026, to resolve those cases in which he previously participated like this case. See Arizona Supreme Court Administrative Order 2026-124. 2 "We view the facts in the light most favorable to affirming the jury's verdicts." State v. Rodriguez, 251 Ariz. 90, 93, ¶ 2 (App. 2021). 2  STATE v. VALENZUELA Decision of the Court as he walked toward Valenzuela. When Troy walked into the living room, Valenzuela shot him three times. Troy was unarmed. ¶4 The State charged Valenzuela with attempted second-degree murder, two counts of aggravated assault, and unlawful discharge of firearms. The State later dismissed the unlawful discharge count with prejudice. ¶5 Before trial, the State provided notice it intended to admit Arizona Rule of Evidence ("Rule") 404(b) evidence, including drug paraphernalia in Valenzuela's bedroom and kitchen and a white crystalline powder found with the paraphernalia. Valenzuela opposed the admission of the State's 404(b) evidence. At a pre-trial hearing, the superior court ruled that the State could not present the paraphernalia or drug evidence at trial, because it was not relevant to Valenzuela's justification defense and it would create a danger of unfair prejudice. Valenzuela also filed a motion in limine to admit evidence that Troy had prior convictions for burglary, credit card theft, and shoplifting, and evidence that the State had recently filed a complaint against Troy for aggravated assault by domestic violence. The superior court denied the motion. ¶6 At trial, Valenzuela presented a justification defense. During the trial, despite the superior court's pre-trial ruling prohibiting the admission of the drug paraphernalia, the State, over Valenzuela's objection, introduced police officer testimony that Valenzuela appeared to be under the influence of drugs during the shooting and evidence of the drug paraphernalia. The jury could not agree whether Valenzuela was guilty of attempted second-degree murder but found him guilty on both aggravated assault counts. The court later sentenced Valenzuela to concurrent 7.5 year prison terms. Valenzuela timely appealed and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1). DISCUSSION ¶7 Valenzuela raises four issues on appeal. First, he argues the superior court abused its discretion by declining to admit evidence of Troy's other acts. Second, Valenzuela argues the superior court abused its discretion by admitting evidence Valenzuela was impaired by drugs at the time of the shooting. Third, Valenzuela argues the prosecutor committed 3  STATE v. VALENZUELA Decision of the Court errors depriving him of a fair trial.3 Fourth, Valenzuela argues the superior court abused its discretion by giving an inapplicable jury instruction. ¶8 We review the superior court's decision to give a jury instruction and to admit evidence for an abuse of discretion. State v. Foster, 258 Ariz. 472, 481, 488, ¶¶ 25, 65 (App. 2024). We review prosecutorial error claims to determine whether the defendant has shown the prosecutor's conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007) (cleaned up). We review each of the asserted errors individually, and then review their cumulative effect on the proceedings. See State v. Montoya, 258 Ariz. 128, 142, ¶ 10 (2024). When a defendant properly objects to an error at trial, we review for harmless error. State v. Perez-Gutierrez, 257 Ariz. 334, 339, ¶ 18 (2024). To prevail under harmless-error review, the State must prove beyond a reasonable doubt that the error did not affect the verdict or sentence. Id. I. Precluded Evidence. ¶9 Valenzuela argues the superior court abused its discretion by declining to admit evidence of Troy's other acts. Prior to trial, Valenzuela sought to present evidence that Troy had prior convictions for burglary, credit card theft, and shoplifting, and that the State had recently filed a complaint against Troy for aggravated assault by domestic violence. At the time of the shooting, Valenzuela did not know of Troy's past acts, but citing State v. Fish, 222 Ariz. 109, 126, ¶ 54 (App. 2009), Valenzuela argued this evidence would support his justification argument and strengthen his credibility as a witness. The superior court denied Valenzuela's request, distinguishing Fish because the confrontation between Valenzuela and Troy was video recorded. The superior court also concluded the evidence of the aggravated-assault complaint posed the danger of unfairly prejudicing the State and that the danger of unfair prejudice substantially outweighed its probative value. The superior court further concluded the prior convictions were not admissible because there was no evidence the events at issue here arose from a burglary. ¶10 On appeal, Valenzuela asserts that the aggravated-assault complaint and prior convictions are relevant and that the superior court 3 In his briefing, Valenzuela alleges the prosecutor engaged in "prosecutorial misconduct." But, as the State notes, Valenzuela did not accuse the prosecutor of an ethical violation, so we refer to this claim as prosecutorial error. See Matter of Martinez, 248 Ariz. 458, 470, ¶ 47 (2020). 4  STATE v. VALENZUELA Decision of the Court failed to correctly apply Fish. In Fish, the Court stated that "a defendant may not introduce evidence of specific acts unknown to the defendant at the time of the alleged crime to show that the victim was the initial aggressor" nor "to show a defendant's state of mind . . . ." Id. at 121, ¶ 35– 36. However, the Court held specific-act evidence could be admitted in some circumstances to corroborate a defendant's description of events. Id. at 126, ¶ 54. Notably, the Court stressed that "prior acts of a victim unknown to the defendant at the time of the alleged crime" are not always admissible to corroborate a defendant's justification claim. Id. at 125, ¶ 49. Rather, it depends upon "the nature of the record." Id. The Court highlighted that the Defendant's "description of the Victim's conduct given immediately after the shooting [was] very similar to proffered evidence of prior acts of the Victim of which Defendant did not know when he made those statements [and] [t]here was no other witness to the shooting who could testify." Id. ¶11 This case is distinguishable from Fish. As the superior court noted, unlike in Fish, the confrontation between Valenzuela and Troy is captured on video, negating any need for corroboration. Additionally, Valenzuela "has not pointed to any details of the victim's prior violent conduct that presented substantial similarities to his account." State v. Zaid, 249 Ariz. 154, 159, ¶ 16 (App. 2020). Valenzuela fails to explain how any of Troy's prior convictions or the aggravated-assault complaint sufficiently mirror Troy's actions on the day of the shooting nor establish that "the nature of the record" in this case aligns with that of Fish. 222 Ariz. at 125, ¶ 49. The superior court did not abuse its discretion by declining to admit evidence of Troy's other acts.4 II. Admitted Evidence. ¶12 Valenzuela argues the superior court abused its discretion by admitting evidence Valenzuela was under the influence of drugs at the time of the shooting. Valenzuela argues that, under Rules 402, 404(b), and 403, the superior court should have prohibited admission of evidence of Valenzuela's alleged impairment because it was not relevant, it constituted impermissible other acts evidence, and because its probative value was substantially outweighed by its danger of creating unfair prejudice. 4 Given this conclusion, we need not address the superior court’s Rule 403 analysis, which provides an alternative basis for excluding the evidence. 5  STATE v. VALENZUELA Decision of the Court Valenzuela also argues the superior court abused its discretion by failing to give an appropriate limiting instruction under Rule 105. ¶13 Before trial, the superior court ruled that the State could not present evidence of drug paraphernalia or alleged drugs because it was not relevant and would create a danger of unfair prejudice. The superior court stressed that "when I make pretrial rulings, I make it very clear that it's subject to change based on what's presented" and that his determination on the State's Rule 404(b) evidence was "subject to review depending on how the trial plays out." At trial, the superior court permitted the State to present evidence that Valenzuela appeared to be impaired by drugs at the time of the shooting through testimony from a police officer on the scene. Subsequently, the State directly questioned Valenzuela regarding his alleged impairment and offered evidence of the drug paraphernalia found in Valenzuela's room. A. Testimony of Officer Hernandez. ¶14 Valenzuela argues the superior court abused its discretion by letting Officer Hernandez testify that he believed Valenzuela was impaired by drugs at the time of the shooting. Valenzuela asserts the testimony should have been prohibited under Rule 404(b) and Rule 403. We conclude the superior court did not err. On appeal, Valenzuela asserts the superior court erred in admitting Officer Hernandez's testimony under Rule 404(b) regarding Valenzuela's impairment because it was not supported by clear and convincing evidence. Under Rule 404(b), evidence of other acts is not admissible to prove the character of a person in order to show conformity therewith. Ariz. R. Evid. 404. Here, Officer Hernandez's testimony was not offered to show Valenzuela acted in conformity with any prior act. Instead, the State offered Officer Hernandez's testimony in relation to Valenzuela's justification defense and whether Valenzuela acted reasonably. Because the testimony was not offered to show conformity with prior acts, it was not subject to Rule 404(b), and we need not address Valenzuela's other arguments under the rule. 1. Relevance Analysis. ¶15 Valenzuela argues the superior court abused its discretion by finding that Officer Hernandez's testimony about Valenzuela's alleged impairment was relevant and that its probative value was not substantially outweighed by the danger of unfair prejudice. At trial, Valenzuela conceded that evidence of his alleged impairment was relevant but argued it should not be introduced under Rule 403. 6  STATE v. VALENZUELA Decision of the Court ¶16 The superior court found that evidence of Valenzuela's alleged impairment was relevant as to Valenzuela's claim of justification. Even if Valenzuela's alleged impairment is not relevant to determining whether a reasonable person would feel threatened (i.e., the objective standard for a justification defense), once Valenzuela decided to testify, his impairment was relevant as to his credibility and ability to recall the events in question. "Evidence of intoxication at the time of observation is admissible to attack a witness on her ability to perceive and remember." State v. Orantez, 183 Ariz. 218, 222 (1995). Because Valenzuela chose to testify, evidence of his alleged impairment at the time of the incident was relevant and admissible to assess his credibility as a witness. The fact that Officer Hernandez's testimony was offered before Valenzuela testified does not alter this analysis. Cf. State v. Crain, 250 Ariz. 387, 394, ¶¶ 22, 23 (App. 2021) (recognizing once a defendant chooses to testify, credibility evidence, even if improper for another purpose, becomes proper for impeachment). B. Drug Paraphernalia. ¶17 Valenzuela argues the superior court abused its discretion by admitting drug paraphernalia found in his bedroom. Valenzuela argues that the superior court should not have revisited its pre-trial order about the drug paraphernalia without good cause, the drug paraphernalia should not have been admitted, and the superior court should have provided a limiting instruction after admitting the evidence. ¶18 Before trial, considering whether the paraphernalia or drug evidence was relevant, the superior court ruled that the State could not present the paraphernalia or drug evidence. Later, the State requested to admit the same evidence, but as relevant to an entirely different issue—to impeach Valenzuela if he asserted he was not under the influence of drugs. Because the superior court's decision to allow the paraphernalia or drug evidence is distinguishable from the pre-trial order, we do not address whether the superior court had good cause to change its pre-trial order. 1. Relevance Analysis. ¶19 Valenzuela argues the superior court abused its discretion by finding the drug paraphernalia was relevant and that its probative value was not substantially outweighed by the danger of unfair prejudice. When determining the drug paraphernalia could be admitted at trial, the superior court ruled that the drug paraphernalia could be presented to rebut a claim by Valenzuela that he was not impaired by drugs at the time of the shooting. As discussed, supra ¶ 16, whether Valenzuela was impaired by drugs is 7  STATE v. VALENZUELA Decision of the Court relevant to impeach his testimony based on his ability to perceive and remember. Orantez, 183 Ariz. at 222. Just like Officer Hernandez's testimony, the superior court did not err in admitting the drug paraphernalia evidence. 2. Rule 105 Instruction. ¶20 Valenzuela argues the superior court abused its discretion by failing to give a limiting instruction under Rule 105. In his response to the State's pretrial notice regarding the drug paraphernalia evidence, Valenzuela requested that if the superior court chose to admit the evidence, it should give a limiting instruction. Rule 105 provides that when evidence is admitted for a limited purpose, the court "must restrict the evidence to its proper scope and instruct the jury accordingly," but only "on timely request." Ariz. R. Evid. 105. Valenzuela's sole request for a limiting instruction was in response to the State's pretrial 404(b) motion, which the court denied. When the state later sought to admit the drug paraphernalia evidence at trial for impeachment and credibility purposes, Valenzuela did not request a limiting instruction. On appeal, Valenzuela argues that the superior court should have instructed the jury that, before considering this evidence, it must first find that the State proved he was under the influence by clear and convincing evidence. But because the evidence was not subject to Rule 404(b), the clear and convincing evidence standard did not apply. Additionally, Valenzuela did not request a Rule 105 limiting instruction on any other basis when the paraphernalia was admitted and did not object to the final instructions. On this record, we find no error, much less fundamental error, by the superior court. III. Prosecutorial Error. ¶21 Valenzuela argues that the prosecutor committed two errors depriving him of a fair trial. First, he asserts the prosecutor failed to ensure his witnesses did not introduce excluded information. Second, he asserts that the prosecutor misstated the law in closing argument. Valenzuela also argues that these errors together constitute cumulative error. Valenzuela objected, in part, to the alleged errors, but "raising one objection at trial does not preserve a different objection on appeal." Montoya, 258 Ariz. at 142, ¶ 13 (cleaned up). A prosecutorial error claim is only preserved if the defendant adequately raised the issue during trial. Id. We need not decide whether a defendant adequately raised an objection at trial if the prosecutor did not commit error. See id. at 143, ¶ 14. 8  STATE v. VALENZUELA Decision of the Court A. Witness Statements. ¶22 Valenzuela asserts the prosecutor failed to ensure his witnesses did not introduce excluded and prejudicial information about drugs. "[T]he prosecutor [is] not entitled to refer, by innuendo or otherwise, to evidence that had been ruled inadmissible." State v. Leon, 190 Ariz. 159, 163 (1997). At trial, the prosecutor called a witness who made reference to a "trap house" when explaining why she felt she needed Valenzuela's permission to call 911 to his home. Valenzuela immediately objected and the superior court sustained the objection. The prosecutor also called Officer Hernandez, who testified that both Valenzuela and another person in the house appeared to be under the influence of drugs. Valenzuela again objected and the superior court initially sustained his objections based on lack of foundation. However, the superior court then permitted the prosecutor to ask questions about whether Valenzuela appeared impaired after the prosecutor laid foundation. ¶23 Valenzuela argues that these witnesses' references to drugs, despite the superior court's pre-trial ruling precluding the admission of evidence about drug paraphernalia, suggest that the prosecutor failed to inform his witnesses about the superior court's ruling. Valenzuela did not raise that issue at trial. If he had, the superior court could have addressed it with counsel. Without such an objection and inquiry, the record does not reveal whether the prosecutor failed to instruct his witnesses or whether the witnesses acted "[i]n apparent contravention of the prosecutor's instructions . . . ." See State v. Dann, 205 Ariz. 557, 570, ¶ 46 (2003), supplemented, 206 Ariz. 371 (2003). Valenzuela only offers speculation, which is not enough to establish prosecutorial error. Additionally, the superior court sustained objections to all the challenged remarks, except Officer Hernandez's testimony. The superior court instructed the jury to disregard those remarks, and we presume jurors follow the superior court's instructions. State v. Hippensteel, 262 Ariz. 265, ¶ 35 (2026). That leaves Officer Hernandez's testimony about whether Valenzuela was impaired by drugs, and we have already concluded this was not an error. Supra ¶ 16. B. Statements to the jury. ¶24 Valenzuela asserts the prosecutor misstated the law to the jury during closing argument. "In determining whether an argument is [error], we consider two factors: (1) whether the prosecutor's statements called to the jury's attention matters it should not have considered in reaching its decision and (2) the probability that the jurors were in fact influenced by the remarks." State v. Goudeau, 239 Ariz. 421, 466, ¶ 196 (2016) 9  STATE v. VALENZUELA Decision of the Court (cleaned up). Prosecutors may not refer to facts outside the record. See Leon, 190 Ariz. at 162. Valenzuela complains the prosecutor wrongly suggested that Troy was an invitee to Valenzuela's home. During argument, the prosecutor referred to Valenzuela's roommate (Giovanni) as "his tenant" and said "[i]f you have a problem with a guest of a tenant, you call the police." Later, the prosecutor said: Now, defense counsel says, "Cannot prove victim had a right to be there." The defendant admitted Brandon was there. Brandon let him in. You saw that. Brandon is Giovanni's boyfriend. Giovanni had been his tenant for essentially over a year. You heard that. You seen all those people that were in and out of that house. You've seen the victim, who was there all day, come out of room in his pajamas that morning. In his reply brief on appeal, Valenzuela also points to additional statements the prosecutor made, but because he failed to raise them in his opening brief, we will not consider them. State v. Pena, 209 Ariz. 503, 506, ¶ 10 (App. 2005) ("New issues raised in a reply brief are waived."). ¶25 The State counters that the prosecutor's statements were permissible "reasonable inferences from the evidence." State v. Acuna Valenzuela, 245 Ariz. 197, 222, ¶ 109 (2018). The State presented sufficient evidence to allow the prosecutor to argue that Valenzuela's roommate was "essentially his tenant." ¶26 A witness testified that Valenzuela's roommate and her boyfriend essentially rented a room from the defendant. The same witness testified that the roommate and her boyfriend could have people over to the house even if Valenzuela did not know them, and that Troy would visit them at the house and sometimes stay there overnight. Valenzuela himself also confirmed that his roommate had access to the whole house, except his bedroom and storage room, and that she and her boyfriend would invite Troy over to the house. The evidence shows that on the day of the shooting, Troy stayed at the house most of the day and had possibly spent the night there. Though Valenzuela testified he told Troy not to come to his home, the jury could choose to disregard that self-serving testimony. See State v. Duffy, 124 Ariz. 267, 275 (App. 1979) (explaining the trustworthiness of self- serving statements is "highly suspect"). Ultimately, there is enough evidence to support the inferences in the prosecutor's closing argument and Valenzuela has shown no error. 10  STATE v. VALENZUELA Decision of the Court C. Cumulative Error. ¶27 Valenzuela has not identified any errors in the superior court and therefore cannot establish cumulative error. IV. Jury Instruction. ¶28 Valenzuela argues the superior court erred by instructing the jury that the presumption in A.R.S. § 13-419 for defense of a residential structure does not apply if "the person against whom physical force . . . was . . . used has the right to be in . . . the residential structure[,] . . . including an . . . invitee . . . ." A.R.S. § 13-419. Valenzuela did not object to the jury instruction, so we review for fundamental error. Valenzuela has shown no error. ¶29 The challenged jury instruction properly stated Arizona law. "A party is entitled to [a jury] instruction on any theory reasonably supported by the evidence." State v. Almeida, 238 Ariz. 77, 79, ¶ 9 (App. 2015) (quoting State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16 (1998)). As discussed, supra ¶ 26, the theory that Valenzuela's roommate and her boyfriend invited Troy into the house is reasonably supported by the evidence. Thus, the superior court did not abuse its discretion by giving the jury instruction. CONCLUSION ¶30 We affirm. MATTHEW J. MARTIN • Clerk of the Court FILED: JR 11