State v. Felix

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

FRANCISCO JAVIER FELIX, Appellant.

No. 1 CA-CR 12-0707

FILED 5-21-2015

Appeal from the Superior Court in Yuma County

No. S1400CR201101023

The Honorable John Neff Nelson, Judge

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

COUNSEL

Office of the Attorney General, Phoenix

By Colby Mills

Counsel for Appellee

Sharmila Roy, Laveen

Counsel for Appellant

OPINION

Judge John C. Gemmill delivered the opinion of the Court, in which Judge

Kent E. Cattani joined. Presiding Judge Randall M. Howe concurred in part

and dissented in part.

G E M M I L L, Judge:

STATE v. FELIX

Opinion of the Court

¶1 Francisco Javier Felix appeals his convictions and sentences

on ten counts of attempted second-degree murder, ten counts of aggravated

assault, one count of assisting a criminal street gang, and one count of

endangerment. We vacate Felix’s convictions for attempted second-degree

murder because the jurors were improperly instructed that they could

convict Felix of that offense if they found that he attempted to cause death

through conduct he knew would cause death or serious physical injury. We

affirm Felix’s remaining convictions and sentences and remand for further

proceedings.

BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the

jury’s verdicts and resolve all reasonable inferences against the defendant.

State v. Vendever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005).

¶3 Felix, his girlfriend Heidy, and three other friends went to a

bar in Yuma to celebrate a friend’s birthday. While they were there, Heidy

received phone messages from her cousin Elizabeth, inviting them to a

party at Elizabeth’s house. Elizabeth also told Heidy to tell Felix that she

did not want any trouble because she knew that Felix was a member of the

East Side Naked City gang.

¶4 The group arrived at the house at approximately 2:30 a.m. and

found the party underway, with approximately 15-20 people in the house.

Heidy and Felix went into the bathroom. When they came out, someone

who appeared to be waiting for Felix immediately began punching his face

and body. Others joined in and beat Felix to the ground. At some point,

one of the people hitting Felix yelled “Okie” or “Okie Town,” referring to a

rival gang. When Heidy stepped in to help Felix, the person who had

initially hit Felix told his friends to “jump her,” and several people started

hitting and beating Heidy. Felix and Heidy fled the house, but the others

followed them and continued to attack. When Elizabeth’s boyfriend Steve

noticed that Heidy was being hurt, he told everyone to leave and stated he

was going to call the police.

¶5 Felix, Heidy, and their friends returned to their vehicle. Felix

was bleeding, his clothes were ripped, and one of his eyes was badly

bruised, but he refused to go to the hospital. On their drive home, Felix

took Heidy’s phone and called someone to say he had been “beat up really

bad” and that “they were going to do something about it.” He told the

person that he needed a ride and asked to be picked up. Felix also stated

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Opinion of the Court

he needed to “get these mother f---ers” and asked the person to “pick up a

toy or get a toy” — common gang terminology for a gun.

¶6 When Felix and Heidy arrived at their home, Felix did not go

inside, but asked Heidy for Elizabeth’s address. A friend and fellow East

Side Naked City gang member picked Felix up in a car at about 4:30 a.m.

¶7 Around 5:00 a.m., a shooter approached the front of Elizabeth

and Steve’s house on foot and fired nine large-caliber high-velocity bullets

in multiple bursts from an AK-47 into the house. While firing, the shooter

changed locations at least one time. Steve, Elizabeth, their sixteen-month-

old baby, J.V., and seven of Steve’s friends were inside at the time. No one

was injured by the shots.

¶8 Two neighbors heard the gunshots and observed a vehicle

with male occupants and a male figure running toward the vehicle as it

sped away, but neither witness could identify the individuals. After the

shooting, Felix told Heidy that he had given her cousin’s address to his

friends and that they had “shot up” her cousin’s house.

¶9 The police investigation led to Felix as the suspected shooter

and the State charged him with nine counts of attempted first-degree

murder, one count of attempted first-degree murder of a juvenile, nine

counts of aggravated assault with a deadly weapon, one count of

aggravated assault of a juvenile, one count of assisting a criminal street

gang, and one count of endangerment. The jury declined to convict Felix

on the attempted first-degree murder counts, but found him guilty of ten

counts of the lesser-included offense of attempted second-degree murder.

The jury also found Felix guilty of ten counts of aggravated assault with a

deadly weapon, one count of assisting a criminal street gang, and one count

of endangerment. The jury found that the attempted murder, aggravated

assault, and endangerment offenses were committed “with the intent to

promote, further or assist any criminal conduct by a criminal street gang.”

¶10 The trial court sentenced Felix to concurrent terms of 12 years’

imprisonment on each of the attempted second-degree murder convictions,

and a concurrent term of 3.5 years’ imprisonment for assisting a criminal

street gang. On each of the aggravated assault offenses with adult victims,

the trial court sentenced him to concurrent terms of 10 years’ imprisonment.

For the aggravated assault conviction involving J.V., a dangerous crime

against children, the court sentenced Felix to a consecutive term of 15 years’

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Opinion of the Court

imprisonment. The court sentenced Felix to time served on the

endangerment offense. Felix timely appeals.

ANALYSIS

¶11 Felix raises four arguments: (1) the trial court gave incorrect

instructions on attempted second-degree murder and accomplice liability;

(2) there was insufficient evidence to support his conviction of aggravated

assault against J.V; (3) the trial court incorrectly ordered consecutive

sentences based on its finding that the aggravated assault against J.V. was

a dangerous crime against children; and (4) the trial court abused its

discretion when it admitted photographs of a stuffed gorilla and a crib with

bullet holes in them.

I. Improper Jury Instruction on Attempted Second-Degree Murder

¶12 The trial court instructed the jury on attempted first-degree

premeditated murder and, without objection, instructed the jury as follows

regarding the lesser-included offense of attempted second-degree murder:

The crime of second degree murder requires proof of one of

the following.

The defendant or an accomplice attempted to intentionally

cause the death of another person; or, two, the defendant or

an accomplice attempted to knowingly cause the death of

another person by conduct which the defendant knew would

cause death or serious physical injury.

(Emphasis added.)

¶13 Felix challenges the portion of the instruction permitting the

jury to return a guilty verdict on the alternative showing that Felix knew

that his conduct “would cause death or serious physical injury.” He did not

object to the instruction at trial, and we are therefore limited to fundamental

error review on appeal. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d

601, 607 (2005). Felix has the burden to “establish both that fundamental

error exists and that the error in this case caused him prejudice.” Henderson,

210 Ariz. at 567, ¶ 20, 115 P.3d at 607.

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Opinion of the Court

A. Fundamental Error

¶14 “[I]nstructing a jury on a non-existent theory of criminal

liability is fundamental error.” State v. Dickinson, 233 Ariz. 527, 530, ¶ 12,

314 P.3d 1282, 1286 (App. 2013); State v. James, 231 Ariz. 490, 493, ¶ 13, 297

P.3d 182, 185 (App. 2013). In State v. Ontiveros, 206 Ariz. 539, 542, ¶ 14, 81

P.3d 330, 333 (App. 2003), this court held that attempted second-degree

murder can be committed only when the defendant intended to kill the

victim or knew that his conduct would cause death. See also Dickinson, 233

Ariz. at 530, ¶ 11, 314 P.3d at 1285 (following Ontiveros and recognizing that

attempted second-degree murder cannot be “based on knowing merely that

one’s conduct will cause serious physical injury”). Such an instruction

potentially relieves the State of its burden of proving an element of the

offense of attempted second-degree murder. Dickinson, 233 Ariz. at 531, ¶

12, 314 P.3d at 1286. Consequently, instructing the jury that it could convict

Felix of attempted second-degree murder based on a finding that he knew

that his conduct would merely cause serious physical injury resulted in

fundamental error.

B. Prejudice

¶15 Fundamental error alone is not, however, sufficient grounds

for reversal. Id. at 531, ¶ 13, 314 P.3d at 1286. To obtain relief based on an

erroneous jury instruction, a defendant must also show prejudice, i.e. “that

a reasonable jury ‘could have reached a different result’ had the jury been

properly instructed.” State v. James, 231 Ariz. 490, 494, ¶ 15, 297 P.3d 182,

186 (App. 2013) (quoting Henderson, 210 Ariz. at 569, ¶ 27, 115 P.3d at 609).

¶16 “Prejudice is a fact-intensive inquiry, the outcome of which

will depend upon the type of error that occurred and the facts of the

particular case.” Dickinson, 233 Ariz. at 531, ¶ 13, 314 P.3d at 1286 (internal

quotations and citations omitted). Felix “must show that a reasonable,

properly instructed jury ‘could have reached a different result.’” Id.

(citation omitted). Here, to determine whether Felix has established

prejudice, we may consider the jury instructions as given, the evidence at

trial, the parties’ theories, and the parties’ arguments to the jury. See id.

Under the facts and circumstances of this case, we conclude that Felix has

met his burden of showing that a properly instructed jury “could have”

reached a different result.

¶17 The State argues that the erroneous “serious physical injury”

portion of the instructions did not affect the jury’s deliberations, but our

supreme court has repeatedly stated that we should presume that jurors

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Opinion of the Court

follow the instructions provided to them. State v. Payne, 233 Ariz. 484, 518,

¶ 151, 314 P.3d 1239, 1237 (2013); State v. Dann, 220 Ariz. 351, 366, ¶ 75, 207

P.3d 604, 619 (2009); State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833,

847 (2006). Here, the incorrect instruction, allowing the jurors to convict

based on Felix’s alleged knowledge that his conduct would cause serious

physical injury, was delivered to the jury by the trial court both orally and

in writing. In the absence of evidence in the record demonstrating that the

jury failed to follow its instructions, we presume the jury did so here. We

therefore reject the assertion that the jury did not consider the “serious

physical injury” language.

¶18 The State further argues that because it advanced a theory of

the case inconsistent with the shooter merely knowing that his conduct

would cause serious physical injury, the jury’s attention was not focused on

the “serious physical injury” language and the instruction was therefore not

prejudicial to Felix. We note that, although “arguments of counsel

generally carry less weight with a jury than do instructions from the court,”

Boyde v. California, 494 U.S. 370, 384 (1990), in some trials, the arguments of

counsel can cure or obviate instructional ambiguity or error, see State v.

Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989) (“Closing

arguments of counsel may be taken into account when assessing the

adequacy of jury instructions.”). Here, however, we disagree that the

prosecutor’s argument rendered the incorrect jury instruction immaterial.

¶19 The State’s theory throughout the case was that Felix, acting

with premeditation, intended to kill all of the individuals inside the house

when he fired the AK-47 at the house from short range. In his opening

statement, the prosecutor stated that Felix was out to get “revenge” for

being beaten and embarrassed earlier that night. The prosecutor argued

that the evidence would show Felix “emerged from the vehicle, walked up

to the home, knowing that there was [sic] people still within that home . . .

walked in front of that home with an AK-47 or an SKS, a high powered

assault rifle, and stood before that home, and finished his plan.” During

trial, the State’s evidence established that the home was a modular home

with thin walls. The type of high-powered semi-automatic weapon used

would shoot through “multiple structures and multiple walls,” was “only

made for going through and destroying things,” and the majority of the

bullets were fired at the level of the “chest or stomach area . . . more of the

lower belt buckle up to about the neck region,” a height likely to inflict

serious injury or death. In closing, the prosecutor continued to argue for

conviction on ten counts of attempted first-degree murder. He argued that

the nine shots were fired by Felix with the premeditated intent to kill the

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STATE v. FELIX

Opinion of the Court

ten people in the house in retaliation for his having been injured and

embarrassed by rival gang members in front of his girlfriend and others.

¶20 Although the prosecutor did not argue for a conviction based

on “serious physical injury” and did not call specific attention to the faulty

language in the instruction, his arguments seeking a conviction for

attempted first-degree murder addressed Felix’s culpable mental state, i.e.

his alleged premeditation. The jury rejected the prosecutor’s argument that

Felix acted with premeditated intent to kill and chose instead to convict

Felix of attempted second-degree murder, which involves a less culpable

state of mind. The instructions pertinent to that lesser-included offense

included the erroneous definitional language. Because the jurors rejected

premeditation, they presumably reviewed carefully the language

describing the required mental state for the charged offense and the lesser-

included offense of attempted second-degree murder, including the

erroneous language. We therefore reject the State’s contention that its

vigorous pursuit of first-degree murder convictions compels the conclusion

that the “serious physical injury” language could not have prejudiced Felix.

¶21 We also find unpersuasive the State’s assertion that defense

counsel’s argument did not implicate the erroneous instruction. Although

defense counsel’s primary argument was that Felix was not present and had

an alibi, counsel also asserted in closing an alternative defense based on the

mindset of the shooter. Defense counsel specifically argued that whoever

did the shooting did not plan his shots like a person who really had the

intent to kill:

Mr. Felix wasn’t there, but the shooter who was there had no

way of knowing that his or her actions would kill anybody,

and in some ways you can see by the results nobody was

killed or even hit.

I would ask you to look at Exhibit No. 120 when you get back

and start deliberations, and that’s a photograph of the house,

and you can see and we talked about it, Deputy S---- testified

that’s what the house looked like when they showed up. The

blinds were down, the door was closed, the blinds in the

living room were also down. Somebody was there shooting

at that house, they would not have seen anybody.

The one window that went -- that was right there on the

corner, there were no lights on in there. There was still a party

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Opinion of the Court

going on. At that time, there were nine people in there

playing beer pong. Person would have probably heard those

people, would have known that people were there, would

have gone towards the middle where the living room was.

That’s where, if you’re gonna go and kill somebody, that’s

where at that time you would have been. That’s where you

would have gone to shoot, where the people were. The

people that you could hear, the people that you knew were

there, would have been able to see some light in the house,

that’s where you’re gonna go. Not gonna stand at one corner

where it’s dark and quiet and shoot there. There’s a party

going on, you can see all those cars out there, that’s not where

you’re gonna go.

The defense attorney further argued that the shooter acted only recklessly,

rather than intentionally:

[T]hat’s the floor plan that we got with some of those

drawings of where the bullets went. The person right there

who took those shots, shot them all in the same direction.

If someone was intending to kill everybody at that house,

knowing that they were gonna kill everybody at that house,

they would have spread those shots out. But you’ll see that

all of those shots, almost all of those shots go almost in an

exact straight line. There are a couple of strays, but whoever

it was shot directly in one line, and that’s not something that

you’re gonna do to try and kill everybody in the house. It

doesn’t make sense.

Now, you did get an instruction on recklessly, and I’m gonna

read it to you, but it says recklessly means that a person is

aware of and consciously disregards a substantial and

unjustifiable risk that the result will occur or that the

circumstances exist. The risk must be of such nature and

degree that disregard of such risk constitutes a gross

deviation from the standard of conduct that a reasonable

person would observe, and that’s what this is. This is not

intentionally trying to kill somebody -- I mean there’s a

statute about shooting at a residence -- but this is someone

shooting away from where the people in the house are, not

targeting anybody, not aiming at anybody.

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STATE v. FELIX

Opinion of the Court

Detective G----- told us, you can’t hit something that you

don’t aim at. This is not an intentional crime or a knowing crime.

It is not an attempted murder of any kind. Shooter could not see

anyone, he or she would not know or intend that his actions will

cause death. That’s the way it is. And if the action’s reckless, then

you cannot convict Mr. Felix or anyone else of attempted first or

second-degree murder.

(Emphasis added.) Although defense counsel did not mention the serious

physical injury portion of the jury instructions, his alternative argument

surely drew the jury’s attention to the question of what culpable mental

state was required for conviction and may have prompted the jurors to

consider and apply the mistakenly included “serious physical injury”

option.

¶22 Finally, although the evidence was sufficient to support the

convictions for attempted second-degree murder, the sufficiency of the

evidence is not the test of whether the fundamentally erroneous jury

instruction prejudiced Felix. Nor is the test whether this court thinks

another jury, properly instructed, will probably find Felix guilty again.

Rather, the test is whether a reasonable jury, properly instructed, could have

found Felix not guilty of attempted second-degree murder. See James, 231

Ariz. at 494, ¶ 15, 297 P.3d at 186; Dickinson, 233 Ariz. at 531, ¶ 13, 314 P.3d

at 1286. A shooter who stands outside a home and fires nine rounds into

the house, without seeing the people inside or knowing how many are there

and where they are, might intend to kill them all. Alternatively, the shooter

could intend or know that his shots will scare them all and perhaps injure

some of them or even kill some of them. Thus, while we agree with the

State that the evidence supports the convictions for attempted second-

degree murder, in our view the evidence also supports a reasonable

conclusion that the shooter intended or knew that his shots would scare the

people inside and perhaps injure and even kill some of them. Accordingly,

we disagree that the only logical conclusion a jury could have reached was

that the shooter intended to kill everyone in the house.

¶23 We respectfully disagree with our dissenting colleague on the

question of prejudice. The dissent cites Dickinson, 233 Ariz. at 533, ¶ 22, 314

P.3d at 1288, to argue that there was no prejudice here. The defendant in

Dickinson also was convicted of attempted second-degree murder with a

similar instructional error. But in Dickinson the defendant used his truck to

run down a bicyclist, striking the bicyclist with the truck two times. Id. at

531, ¶ 14, 314 P.3d 1286. After the second hit, the victim was dragged

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Opinion of the Court

underneath the truck for some distance. Id. Based on this evidence, which

showed that the defendant clearly saw and targeted the specific victim, this

court determined that no reasonable juror could have found that the

defendant did not intend to kill the bicyclist. Id. In contrast, at the time of

the shooting in this case, the shooter was standing outside the house in

which the victims were located and could not see the victims or know

precisely where they were in the house. The fact that he shot nine shots at

the house with a high-powered rifle does not automatically establish that

he intended to kill each of the ten people inside, particularly since many of

the shots were fired at the same location.

¶24 In our view, the evidence can be seen to establish any one of

three things: (1) reckless conduct by the shooter (particularly in light of the

absence of evidence that he knew where people were in the house), (2) an

intent to seriously injure the people in the house, or (3) an intent to kill the

people in the house. In light of the erroneous instruction, the jurors could

have stopped deliberations after concluding that Felix intended to cause

serious physical injury. Thus, we cannot conclude that no reasonable jury,

properly instructed, could have declined to convict Felix of attempted

second-degree murder.

¶25 We therefore hold, based on the particular facts of this case,

that Felix has established prejudice from the fundamental error in the jury

instruction. See Henderson, 210 Ariz. at 568, ¶¶ 23–24, 115 P.3d at 608; see

also Ontiveros, 206 Ariz. at 543, ¶ 18, 81 P.3d at 334. His attempted second-

degree murder convictions must be vacated for a new trial.1

1 We decline the State’s request to overrule Ontiveros as wrongly decided.

Ontiveros was decided in 2003. The “Ontiveros error” is the inclusion of the

“serious physical injury” language from the elements of second-degree

murder when marrying the definition of “attempt” with second-degree

murder. This error continues to be made far too often. See, e.g., State v.

Juarez-Orci, 236 Ariz. 520, 342 P.3d 856 (App. 2015); State v. Dickinson, 233

Ariz. 527, 314 P.3d 1282 (App. 2013); State v. Ortiz, 2 CA-CR 13-0157, 2014

WL 2095188 (Ariz. App. May 16, 2014) (mem. decision), State v. Corrales, 1

CA-CR 12-0532, 2014 WL 173901 (Ariz. App. Jan. 16, 2014) (mem. decision),

State v. Calbillo, 1 CA-CR 11-0391, 2012 WL 6719572 (Ariz. App. Dec. 27,

2012) (mem. decision), State v. Hansen, 1 CA-CR 10-0248, 2011 WL 2937208

(Ariz. App. July 21, 2011) (mem. decision); State v. Maikowski, 2 CA-CR 09-

0288, 2011 WL 2695761 (Ariz. App. June 3, 2011) (mem. decision); State v.

Cross, 2 CA-CR 08-0316, 2009 WL 1830796 (Ariz. App. June 25, 2009) (mem.

decision). We urge prosecutors, defense attorneys, and trial judges to avoid

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II. Accomplice Liability Instruction

¶26 The indictment charged that Felix or an accomplice

“intentionally put another person in reasonable apprehension of immediate

physical injury.” Because no direct evidence identified the shooter, the trial

court instructed the jury on accomplice liability as follows:

Accomplice means a person, who, with the intent to promote

or facilitate the commission of the offense, does any of the

following:

One, solicits or commands another person to commit the

offense; or, two, aids, counsels, agrees to aid, or attempts to

aid another person in planning or committing the offense; or,

three, provides means or opportunity to another person to

commit the offense.

A defendant is criminally accountable for the conduct of

another if the defendant is an accomplice of such other person

in the commission of the offense, including any offense that is

a natural and probable or reasonably foreseeable consequence

of the offense for which the person was an accomplice.

Felix argues for the first time on appeal that this instruction was erroneous

regarding the aggravated assault counts because it “could have misled the

jury into rendering guilty verdicts for reasonable apprehension assaults

even if [Felix] did not have the mens rea of intent.” Felix’s failure to object

to the instruction at trial limits our review to fundamental error. Henderson,

210 Ariz. at 567, ¶ 19, 115 P.3d at 607. Felix must establish that fundamental

error exists and that the error prejudiced him. Id. We reject his claim

because we conclude that the instruction was correct and no error resulted

from the instruction.

¶27 The trial court’s accomplice liability instruction was based on

the statutory definition of “accomplice,” see A.R.S. § 13-301, and the

statutory description of accomplice liability, see § 13-303(A)(3). Felix

nevertheless maintains that, because the prosecutor argued Felix need not

be the actual shooter to be held responsible as an accomplice to the shooter,

the use of the phrase “serious physical injury” when instructing on

attempted second-degree murder.

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the jury “could have used the instruction to conclude that [he] did not have

to have the intent to place the victims in reasonable apprehension, as long

as the shooter had such an intent and as long as the offense was reasonably

foreseeable as far as [he] was concerned.” He argues that this indicates that

the jurors might have believed that he “could have been found liable for the

intentional acts of his accomplice” even if he only had a mens rea of

“recklessness,” and suggests that this misapprehension influenced both the

attempted second-degree murder and aggravated assault convictions.

¶28 Contrary to Felix’s argument, however, the instruction

included the important language emphasizing that an accomplice is a

person who, “with the intent to promote or facilitate the commission of the

offense,” undertakes certain actions. See supra ¶ 12. Accordingly, the jury

was instructed that Felix would be guilty as an accomplice only if he had

the “intent to promote or facilitate the commission of the offense.”

(Emphasis added.) And the jury was properly instructed that the offense

of reasonable apprehension aggravated assault required proof that “the

defendant or an accomplice intentionally put another person in reasonable

apprehension of immediate physical injury.” (Emphasis added.)

Considering these instructions together, Felix is guilty if he intended either

to place the victims in reasonable apprehension of immediate physical

injury or to promote or facilitate another person doing exactly that. Either

way, the instructions required that Felix have the intent to place the victims

in reasonable apprehension. No error arose from the jury instructions

regarding accomplice liability. See State v. Ellison, 213 Ariz. 116, 138, ¶¶ 92–

94, 140 P.3d 899, 921 (2006) (similarly explaining that the jury instruction

defining an “accomplice” properly required proof the defendant “had the

specific intent to promote or facilitate the offense that he actually aided,

counseled, agreed to aid, or attempted to aid”).

III. Aggravated Assault of J.V.

¶29 The State charged that Felix committed the aggravated assault

of J.V., Steve and Elizabeth’s 16-month-old daughter, when Felix

intentionally placed the child in reasonable apprehension of immediate

physical injury using a deadly weapon. The State also charged that the

offense was a dangerous crime against children. The jury found Felix guilty

of the offense as charged and also that the offense was a dangerous crime

against children. On appeal, Felix argues that the State presented

insufficient evidence to sustain either this conviction or the jury’s finding

that the crime is a dangerous crime against children.

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¶30 “[The] question of sufficiency of the evidence is one of law,

subject to de novo review on appeal.” State v. West, 226 Ariz. 559, 562, ¶ 15,

250 P.3d 1188, 1191 (2011). We conduct our review viewing all the evidence

at trial in the light most favorable to sustaining the jury’s verdicts and

resolving all reasonable inferences against the defendant. State v. Bible, 175

Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). Sufficient evidence may be

comprised of both direct and circumstantial evidence, id. at 560 n.1, 858 P.2d

at 1163 n.1, and be substantial enough for a reasonable person to determine

that it supports a verdict of guilt beyond a reasonable doubt. State v. Stroud,

209 Ariz. 410, 412, ¶ 6, 103 P.3d 912, 914 (2005). “Reversible error based on

insufficiency of the evidence occurs only when there is a complete absence

of probative facts to support the conviction.” State v. Soto-Fong, 187 Ariz.

186, 200, 928 P.2d 610, 624 (1996).

¶31 Felix first maintains that the State presented no evidence that

J.V. experienced “reasonable apprehension” of physical injury. Felix does

not dispute that an assault rifle was fired into the house where J.V. was

present, but asserts that, by virtue of her age, J.V. could not have had fear

of sounds outside her vision, even the sounds of gunshots. The evidence

does not support Felix’s assertions.

¶32 Either direct or circumstantial evidence is sufficient to prove

that a defendant placed a victim in “reasonable apprehension of immediate

physical injury.” See Bible, 175 Ariz. at 560 n.1, 858 P.2d at 1163 n.1. Nothing

requires that the victim testify to actual fright or apprehension. State v.

Wood, 180 Ariz. 53, 66, 881 P.2d 1158, 1171 (1994); see also, State v. Speaks, 691

A.2d 547, 550–51 (R.I. 1997) (imperturbability, fortitude, or unawareness of

intended victim not a defense to placing baby in reasonable apprehension

of immediate injury). Here, Elizabeth testified that the shots fired were

audible in her bedroom, where she was lying down and playing with J.V.,

and that J.V. “started crying” when the shots were fired. Elizabeth then

crouched over J.V. and covered her. This evidence is sufficient to support

the jury’s reasonable inference that J.V. was frightened by the gunshots and

its finding that she was thereby placed in “reasonable apprehension” of

physical harm when she heard them.

¶33 Felix also argues for the first time on appeal that the

aggravated assault of J.V. does not qualify as a dangerous crime against

children because no evidence showed that he “targeted” her as a victim.

Felix asserts that it was merely “fortuitous” that a child was the victim of

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his aggravated assault.2 Aggravated assault involving the discharge of a

deadly weapon committed against a minor who is under the age of fifteen

is a dangerous crime against children. A.R.S. § 13-705(P)(1)(b). A defendant

need not know the age of the victim when committing the offense for it to

qualify as a dangerous crime against children; the only requirement is that

his conduct be “focused on, directed against, aimed at, or target a victim

under the age of fifteen.” State v. Miranda-Cabrera, 209 Ariz. 220, 223, ¶ 14,

99 P.3d 35, 38 (App. 2004). Our supreme court has explained that the intent

of the statute is to punish more severely those who prey upon children as

opposed to those whose actions only coincidentally affect a child. Id.

¶34 Felix relies on our supreme court’s decision in State v.

Williams, 175 Ariz. 98, 854 P.2d 131 (1993). Williams involved a drunk driver

who drove his car in an extremely aggressive and dangerous manner,

placing other drivers and passengers in vehicles around him at danger. Id.

at 104, 854 P.2d at 137. The defendant rammed a station wagon, and its

fourteen-year-old passenger was thrown from the vehicle and badly

injured. Id. at at 99, 854 P.2d at 132. Our supreme court held that, because

“no evidence [showed] that the [defendant’s] behavior was directed at or

focused upon the victim, or that he was even aware of the minor’s presence

in the station wagon,” the dangerous crime against children statute did not

apply. Id. at 104, 854 P.2d at 137.

¶35 Unlike the defendant in Williams, however, Felix admitted

that although he did not see the baby during the party that night, he knew

that J.V. lived at the house with Steve and Elizabeth when the house “was

shot up.” He was therefore aware that by indiscriminately shooting an

assault rifle into the house at 5:00 a.m., he would be directing his fire at the

baby, who, as one occupant of the house, was likely to be home and asleep

at that hour of the morning. See, e.g., Miranda-Cabrera, 209 Ariz. at 225–26,

¶ 22–24, 99 P.3d at 40–41 (evidence that defendant abandoned adult parents

and their child in the desert was sufficient evidence that defendant’s

conduct focused on the child for purposes of the dangerous crime against

children statute, even if the harm against the child victim was not intended).

Sufficient evidence supports the jury’s finding that Felix’s aggravated

2 Although Felix’s failure to object that the aggravated assault does

not qualify as a dangerous crime against children limits our review to

fundamental error, see Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607, an

illegal sentence constitutes fundamental error, State v. McDonagh, 232 Ariz.

247, 249, ¶ 7, 304 P.3d 212, 214 (App. 2013).

14

STATE v. FELIX

Opinion of the Court

assault of J.V. is a dangerous crime against children. See Bible, 175 Ariz. at

595, 858 P.2d at 1198.

IV. Consecutive Sentence for Dangerous Crime against Children

¶36 Felix also argues for the first time that the trial court

committed fundamental error by imposing a consecutive sentence for this

offense. He maintains that, because the attempted second-degree murder

offenses and the aggravated assault offenses in this case “arose out of the

same act of shooting into the house,” the double punishment statute, A.R.S.

§ 13-116, prohibits consecutive sentences for an act punishable in different

ways by different sections of the law. The Arizona Supreme Court’s recent

opinion in State v. Jones, 235 Ariz. 501, 334 P.3d 191 (2014), defeats Felix’s

argument. Jones held that the dangerous crimes against children provision,

A.R.S. § 13-705, takes priority over A.R.S. § 13-116. Id. at 502, ¶ 1, 334 P.3d

at 192.

V. Admission of Photographs

¶37 Before trial, Felix sought to preclude the State from presenting

photographs of a crib with bullet damage and a stuffed gorilla with a bullet

hole in it. Felix argues that they had no probative value and were being

admitted to improperly inflame the jury. According to defense counsel,

they were not relevant to the only question for the jury to decide, which

was “whether or not Mr. Felix took a shot at this particular house.” The

State responded that the photographs were essential to establish the

trajectory of the bullets in the house as well as the presence of a child and

the potential harm to that child. After viewing the photographs, the trial

court denied Felix’s motion, finding that the probative value of the photos

outweighed any prejudice. On appeal, Felix argues that the trial court

committed reversible error in admitting the photographs. We do not agree.

¶38 We review a superior court’s ruling on the admissibility of

evidence, including photographic evidence, for abuse of discretion. State v.

Aguilar, 209 Ariz. 40, 49, ¶ 29, 97 P.3d 865, 874 (2004); State v. Anderson, 210

Ariz. 327, 339, ¶ 39, 111 P.3d 369, 381 (2005). Under that standard, “we

uphold a decision if there is ‘any reasonable evidence in the record to

sustain it.’” State v. Butler, 230 Ariz. 465, 472, ¶ 28, 286 P.3d 1074, 1081 (App.

2012) (quoting State v. Morris, 215 Ariz. 324, 341, ¶ 77, 160 P.3d 203, 220

(2007)).

15

STATE v. FELIX

Opinion of the Court

¶39 The State argued that, to support the allegations of attempted

murder and of dangerous crimes against children, the photographs were

necessary to show both that the trajectory of the bullets was at a level that

could have been lethal to the home’s occupants and that a child resided in

the home. The trial court here reviewed the photographs and engaged in

the proper balancing analysis. See Ariz. R. Evid. 401, 403. The photographs

were relevant to show the potential harm to the inhabitants and to confirm

the presence of a child in the house. Furthermore, Felix does not allege that

the State used the photographs in an improper fashion, and we find no

evidence to support such a claim. On this record, including the

photographs themselves, we conclude the trial court did not abuse its

discretion by admitting them over Felix’s objection. See Aguilar, 209 Ariz.

at 49, ¶ 29, 97 P.3d 874.

CONCLUSION

¶40 For the foregoing reasons, we vacate Felix’s convictions for

attempted second-degree murder and remand for a new trial. We affirm

all of Felix’s other convictions and sentences.

H O W E, Judge, Concurring in Part and Dissenting in Part,

¶41 I concur in the Majority’s affirmance of Felix’s convictions and

sentences for aggravated assault, assisting a criminal street gang, and

endangerment. I also agree that the attempted second-degree murder

instruction was fundamental error. This Court has repeatedly held that the

instruction is erroneous because it does not require that the jury determine

whether the defendant intended to kill—the mens rea for attempted

second-degree murder—but allows a conviction based on a lesser mens

rea—that the defendant merely knew that his conduct would cause serious

physical injury. See State v. Ontiveros, 206 Ariz. 539, 541 ¶ 11, 81 P.3d 330,

332 (App. 2003); State v. Dickinson, 233 Ariz. 527, 530 ¶ 11, 314 P.3d 1282,

1285 (App. 2013); State v. Juarez-Orci, 236 Ariz. 520, 524 ¶ 14, 342 P.3d 856,

860 (App. 2015). Even the Criminal Revised Arizona Jury Instructions

applicable to Felix’s trial recognized such an instruction is incorrect. See

RAJI (Criminal) 3d, § 11.04, cmt. (2011 Rev.) (“There is no crime of

attempted second-degree murder if the defendant only knows that his or

her action would cause serious physical injury rather than death.”) (citing

Ontiveros, 206 Ariz. at 542 ¶ 14, 81 P.3d at 333). Trial courts should cease

giving this instruction.

16

STATE v. FELIX

Howe, J Concurring in Part and Dissenting in Part

¶42 But I cannot agree that the error justifies reversing Felix’s

attempted second-degree murder convictions. “It is the rare case in which

an improper [jury] instruction will justify reversal . . . when no objection

has been made in the trial court.” Dickinson, 233 Ariz. at 530 ¶ 10, 314 P.3d

at 1285. Because Felix did not object to the instruction at trial—when the

erroneous instruction could (and likely would) have been easily

corrected—but waited for appeal to raise it, reversal is justified only if he

proves that the error prejudiced him. State v. Henderson, 210 Ariz. 561, 567

¶ 20, 115 P.3d 601, 607 (2005). To prove prejudice, Felix must show that “a

reasonable, properly instructed jury could have reached a different result”

than did the first jury. Dickinson, 233 Ariz. at 531 ¶ 13, 314 P.3d at 1286

(internal quotation marks and citation omitted). Speculation that the

outcome might have been different is not enough to prove prejudice. See

State v. Martin, 225 Ariz. 162, 166 ¶ 15, 235 P.3d 1045, 1049 (App. 2010)

(“Speculative prejudice is insufficient under fundamental error review.”).

In evaluating prejudice, we consider “the parties’ theories, the evidence

received at trial and the parties’ arguments to the jury.” Dickinson, 233 Ariz.

at 531 ¶ 13, 314 P.3d at 1286.

¶43 Considering these factors, Felix cannot show that the jurors

could have found him not guilty of attempted second-degree murder had

they not been misinstructed that knowingly causing serious physical injury

satisfied the mens rea requirement of the offense. The evidence leaves no

doubt that the shooter intended to kill and not merely to cause serious

physical injury. The evidence established that the shooter shot nine times at

the victims’ house using a high-powered semi-automatic AK-47 rifle loaded

with large caliber high-velocity bullets. The victims’ house—a

mobile/modular home—was little protection from the assault; an AK-47

was “only made for going through and destroying things” and would go

through “multiple structures and multiple walls.” The shooter also shot at

the house from close range, changed positions in front of the house at least

once, and fired the rifle at the level of the “chest or stomach area . . . more

of the lower belt buckle up to about the neck region”—a height most likely

to kill. Nothing in the evidence presented at trial would allow the jurors to

find that the shooter intended only to cause serious physical injury.

¶44 The State never mentioned the serious physical injury

language in the jury instruction, and its theory of the case was solely that

Felix was the shooter and that he premeditatedly intended to kill the

individuals inside the house. In its opening statement, the State stated that

Felix was out to get “revenge” for being beaten and embarrassed and that

the evidence would show that he “emerged from the vehicle, walked up to

the home, knowing that there was [sic] people still within that home . . .

17

STATE v. FELIX

Howe, J Concurring in Part and Dissenting in Part

walked in front of that home with an AK-47 or an SKS, a high powered

assault rifle, and stood before that home, and finished his plan.”

¶45 The State maintained this theory in its closing argument after

the presentation of the evidence. The State contended that Felix fired nine

rounds into the home aimed specifically at the waist to neck level to

maximize the chance of a hit:

[T]hese shots weren’t fired randomly into this home. The

evidence shows that these shots were fired in such a way as

to maximize the chance that someone would be hit. And when

we’re talking about a round from a military assault rifle, a hit

means—is likely to mean death.

He fired the powerful rifle nine times into the home . . .

not into the walls of the yard, not into the cars and not into

the roof, but waist to neck level into that home. And he did it

from a standing position, not a speeding car, and a reasonable

inference from that is because he wanted to be able to place

his shots; he wanted to be able to control where that automatic

rifle was firing. The intent inference, you all know the intent

inference. You’ve heard it a thousand times. Actions speak

louder than words. Certainly it would be great to have a case

in which you had testimony where someone is running up to

someone, I’m intending to kill you. But it’s rare that you get

cases like that, and the law does not require that a defendant

make a formal pronouncement, I’m here to kill everyone in

this structure. No. Actions speak louder than words. The facts

and the circumstances behind this case show what they were

attempting to do, or at the very least, knew what could

happen when they did it. Knowingly shooting repeatedly into

an occupied home and kill people.

The State never deviated from the argument that Felix intended to kill the

persons in the house in retaliation for having been injured and embarrassed

by rival gang members in front of his girlfriend and friends. The State’s

argument did not implicate at all the instruction’s serious physical injury

language.

¶46 Felix’s defense did not implicate the erroneous language,

either. He defended the charges by testifying that he was not the shooter

and not involved in the shooting. He testified that he was no longer a

member of a gang and that at the time of the shooting, he was at a friend’s

18

STATE v. FELIX

Howe, J Concurring in Part and Dissenting in Part

house and did not leave until 7:00 or 8:00 a.m. In Felix’s closing argument,

defense counsel continued this theory of the case and argued that the State

had no physical evidence linking Felix to the crimes and suggested that it

was more likely that the Okie Town gang members had returned and shot

at the house in retaliation for Steve’s having ordered them to leave the

party. Felix never admitted that he was the shooter and never argued that

he knew only that his actions would cause serious physical injury.

¶47 The evidence and arguments of counsel focused only on

whether Felix was the shooter and whether the shooter intended to kill.

Nothing in the evidence or arguments gave the jurors the occasion to

consider whether Felix merely knew that his actions would cause serious

physical injury. Because the erroneous part of the jury instruction did not

come into play, I find that Felix cannot show any prejudice from the error,

and his convictions for attempted second-degree murder should be

affirmed.

¶48 This is not a case like Ontiveros, where the defendant,

Ontiveros, admitted that he shot the victim but denied that he shot him in

the face or head, 206 Ariz. at 540 ¶ 3, 81 P.3d at 331, and the State “argued

repeatedly” that Ontiveros “intentionally fired the gun with the purpose or

intent of causing serious physical injury or death,” id. at 543 ¶ 19, 81 P.3d at

334. In its rebuttal closing argument, the State specifically argued that

Ontiveros intended to cause serious physical injury. Id. The evidence and

the State’s argument squarely presented the serious physical injury issue to

the jury. In this case, however, the evidence does not suggest that Felix

intended to use his AK-47 rifle loaded with large caliber high-velocity

bullets to cause only serious physical injury, nor did the State and Felix

present argument about serious physical injury as the mens rea for

attempted second-degree murder. The erroneous part of the instruction

was never at issue here.

¶49 This case is little different than Dickinson. There, the evidence

showed that the defendant, Dickinson, used his truck to run down and run

over his victim, who was riding his bicycle. Id. at 529 ¶¶ 5–6, 314 P.3d at

1284. The State’s theory was that Dickinson tried to kill the victim. Id. at ¶ 6.

Dickinson did not testify, nor did he call witnesses, but he asserted a

defense of mistaken identity and claimed no involvement. Id. Dickinson

argued that someone else ran over the victim and that he was being framed.

Id. At no time did Dickinson assert that he hit the victim, but did not intend

to or try to kill the victim. Id.

19

STATE v. FELIX

Howe, J Concurring in Part and Dissenting in Part

¶50 On appeal after conviction for attempted second-degree

murder, we agreed with Dickinson that the attempted second-degree

murder instruction was fundamental error, id. at 530 ¶ 12, 314 P.3d at 1285,

but we nevertheless found that he had not proved prejudice:

The State’s theory was that Dickinson intended to kill the

victim; Dickinson’s defense was mistaken identity and that he

was not involved in the charged conduct in any respect.

Neither of these competing views suggests that Dickinson

intended to cause serious injury to the victim (as opposed to

kill him), which is the fundamental error in the jury

instructions.

Id. at 532 ¶ 22, 314 P.3d at 1287. The case before us should be resolved the

same way: The State’s theory was that Felix intended to kill the victims; his

defense was mistaken identity (alibi) and that he was not involved in the

shooting. Because neither the State’s or Felix’s views suggests that Felix

intended to cause only serious physical injury (as opposed to death), the

erroneous part of the jury instruction is not implicated, and Felix cannot

demonstrate prejudice.

¶51 Although the Majority finds otherwise, its reasons are—with

respect—unpersuasive. The Majority first finds that the jurors must have

considered the instruction’s erroneous language because the trial court read

the instruction to them and provided them a written copy of the instruction,

and the jurors were presumed to read and follow the instructions. See supra

¶ 16. But this circumstance cannot carry any weight in a prejudice analysis.

Every juror in a criminal case has read the instructions and has been given

a written copy of them and is presumed in every case to have read and

followed the instructions. By that light, every erroneous instruction is

prejudicial.

¶52 The important consideration is not whether the jurors read

the erroneous language of an instruction—I have no doubt that they read

and heard the words “or serious physical injury” in the attempted second-

degree murder instruction—but whether the evidence and counsels’

arguments required them to consider that language in determining whether

Felix committed attempted second-degree murder. The jurors were

instructed that as they determined the facts of the case, “you may find that

some of the instructions no longer apply. You must then consider the

instructions that do apply. . . .” Because the evidence did not show that Felix

shot at the mobile home with an AK-47 only to cause serious physical

20

STATE v. FELIX

Howe, J Concurring in Part and Dissenting in Part

injury, and neither the State or Felix’s own counsel so argued, the jurors had

no occasion to consider the erroneous language.

¶53 The Majority also finds that the jurors considered the “or

serious physical injury” language because they considered and rejected the

State’s argument that Felix acted with premeditation when he intentionally

shot at the mobile home. See supra ¶ 19. The jurors’ decision that the State

had not proved premeditation does not, however, mean that they

considered whether Felix merely knew that his actions would cause serious

physical injury. No evidence presented at trial would allow the jurors to

find that Felix merely knew that his shooting at the house with an AK-47

rifle loaded with large caliber high-velocity bullets would cause serious

physical injury, and the State and Felix’s counsel never discussed serious

physical injury in their opening or closing arguments. The fact that Felix’s

mental state was at issue does not mean—without more—that the jurors

considered the instruction’s erroneous language.

¶54 The Majority further argues that the jurors considered the

serious physical injury language because Felix’s counsel argued that

whoever the shooter was, the shooter did not intend to kill, which put

Felix’s mental state at issue. See supra ¶¶ 20–21. In addition to arguing that

Felix was not the shooter, Felix’s counsel did indeed argue that the shooter

did not intend to kill. He claimed that the shooter shot into areas of the

house that had no lights on and shot in a pattern that a shooter would not

use to “try and kill everyone in the house.” From this premise, Felix’s

counsel argued that the shooter acted recklessly, which meant that the

crime was “not an attempted murder of any kind.”

¶55 Although counsel’s argument clearly implicated the mental

state of the shooter—whether Felix’s or someone else’s—it did not require

the jurors to consider the serious physical injury language. Felix’s counsel

never mentioned that language and in fact referred the jurors to an entirely

different instruction—the instruction defining recklessness. The erroneous

language had no relevance to counsel’s argument. Counsel did not argue

that the shooter did not intend or know that the act of shooting would cause

serious physical injury. Nothing in counsel’s specific argument on lack of

intent offered the jurors an occasion to consider the serious physical injury

language.

¶56 The Majority concedes that the State did not rely on the

serious physical injury language as a theory of guilt at trial and that Felix’s

counsel never addressed that language either. The Majority’s finding that

the language nevertheless prejudiced Felix rests on its belief that because

21

STATE v. FELIX

Howe, J Concurring in Part and Dissenting in Part

Felix’s mental state was at issue and the serious physical injury language

was listed in the instruction as a possible mental state that would support

conviction for attempted second-degree murder, the jurors could have

relied on it to convict Felix. But nothing in the evidence or argument of

counsel gave the jurors any occasion to consider that language in

determining whether Felix was guilty of attempted second-degree murder.

The record does not support the Majority’s finding of prejudice.

¶57 Although the serious physical injury language of the

attempted second-degree murder instruction was undoubtedly erroneous,

Felix was entitled to a fair trial, not a perfect one. State v. Dann, 205 Ariz.

557, 565 ¶ 18, 74 P.3d 231, 239 (2003). The erroneous language, however,

had no effect on Felix’s trial. Felix approached a thin-walled

mobile/modular home with an AK-47 rifle loaded with large caliber high-

velocity bullets and shot nine times into the home. No evidence showed

that he could have possibly intended only to cause serious physical injury,

and neither the State nor Felix’s counsel discussed that as a possibility.

Because a reasonable jury would still have convicted Felix of attempted

second-degree murder if it had been properly instructed, I find that Felix

has not demonstrated that the erroneous language prejudiced him. I

therefore dissent from the Majority’s decision ordering that Felix’s

attempted second-degree murder convictions be vacated.

:ama

22