State v. Carozza

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERIC MATTHEW CAROZZA, Appellant.

No. 1 CA-CR 22-0359
FILED 6-1-2023

Appeal from the Superior Court in Yavapai County
No. P1300CR202100203
The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Rebecca Jones
Counsel for Appellee

Law Offices of Stephen L. Duncan PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Anni Hill Foster joined.

H O W E, Judge:

¶1 Defendant Eric Matthew Carozza appeals from his
convictions and sentences for aggravated assault, disorderly conduct, and
assault. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2021, Carozza lived with his girlfriend, Lindsay Rae Excell,
in Prescott Valley, Arizona. Their next-door neighbor was Kyle.1 The
neighbors had no issues in the past, sharing pleasantries on occasion.

¶3 One afternoon in February 2021, Kyle’s friend Chad, came to
visit him. When Chad arrived, he parked in front of Kyle’s house. Kyle and
Chad began chatting with Carozza over the fence between their properties.
Carozza offered to give Chad a cigarette and went inside his house, leaving
his front door open. Chad approached Carozza’s front door, stopping when
he heard Excell shouting expletives. Carozza told Excell to “shut up,” and
walked back out of the house.

¶4 Without explanation, Carozza pulled out what looked like a
gun, pointed it in Kyle’s direction, and said, “I hope you know God” or “I
hope you know Jesus.” Fearing for Kyle’s life, Chad grabbed for the gun
and pushed Carozza back into his house. Carozza hit Chad in the face,
placed him in a headlock, and pointed the gun at his head. At some point,
Excell hit Chad in the face. Chad broke out of the headlock and backed out
of the door as Carozza continued to point the gun at him.

¶5 After seeing Carozza pointing a gun, Kyle ran into his house
and retrieved his own gun. Kyle waited in his driveway until Chad came
out of Carozza’s house. Kyle and Chad then called the police. When officers
arrived, Carozza ignored their commands and barricaded himself inside his
house. The officers eventually arrested Carozza and Excell, who both
appeared to be under the influence of unidentified substances. The officers

1 We use pseudonyms to protect the privacy of the victims.

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discovered multiple airsoft or BB guns in Carozza’s house, which looked
like real guns. They saw injuries to Chad’s face consistent with being hit in
the face.

¶6 Once in custody, Carozza began acting increasingly erratic
and admitted to taking “some sort of pills.” The officers did not interview
Carozza or Excell. Officers would later obtain recorded jail calls of Carozza
telling Excell, “we’ve got to get our stories straight,” adding that “they came
into our house.” Excell indicated that she could not remember and “seemed
to be relying on [Carozza] telling her what happened.”

¶7 The State charged Carozza with one count of kidnapping, a
class 2 felony, two counts of aggravated assault, class 3 felonies, one count
of assault, a class 1 misdemeanor, and two counts of disorderly conduct,
class 1 misdemeanors. The State charged Excell as his co-defendant.

¶8 Before trial, Carozza moved to admit evidence of Chad’s prior
violent acts under Arizona Rule of Evidence (“Rule”) 404(b), arguing that
Chad’s prior felony convictions for aggravated assault and burglary-related
offenses showed a pattern of using “assaultive behavior” to exert power
and control over others. Carozza contended that this evidence would
support his justification defenses at trial, which would paint Chad as the
initial aggressor. Carozza listed Chad’s prior felony convictions without
supporting documents or witness affidavits. The State asserted that
Carozza was attempting to “tar” Chad’s character, arguing the age and
“varied nature” of the convictions made it difficult to determine their
relevancy to the current case. The trial court denied the motion, finding that
a defendant claiming self-defense cannot introduce prior violent acts not
known to him at the time of the offenses. The court concluded that Carozza
did not know of the convictions in February 2021, adding that most of the
convictions “occurred in the 1990’s.”

¶9 In a similar filing, Excell moved to admit evidence of Chad’s
prior violent acts under Rule 404(b) and Carozza joined the motion. Excell
argued that evidence of Chad’s prior felony convictions should be
admitted, not to support a self-defense claim, but to show Chad himself had
a pattern of using self-defense claims to avoid repercussions for his violent
conduct. As relevant here, Excell moved to admit Chad’s conviction for
aggravated assault from 2009 based on its related presentence report.2

2 Excell also sought to admit Chad’s burglary conviction from 2000.
Carozza does not argue this conviction should have been admitted on
appeal.

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Excell alleged that, while in prison for another conviction, Chad beat
another inmate to death and claimed the victim “swung at him first.” The
investigation revealed that the murder was part of an “arranged hit” by the
Aryan Brotherhood and Chad pleaded guilty to aggravated assault. Excell
claimed that the evidence would be used solely to impeach Chad about
prior self-defense claims, and would not be presented through a separate
fact-witness. Carozza added that the evidence should be admitted to attack
Chad’s credibility because this case involved a “he said, she said” dispute,
asking to incorporate by reference arguments from his previous motion.

¶10 The trial court affirmed its previous ruling on Carozza’s
motion, finding he did not know of the prior violent acts in February 2021
and the evidence could not be used to show Chad was the initial aggressor.
Looking to Excell’s motion, which Carozza joined, the court found that they
failed to establish sufficient similarities between the alleged prior violent
acts and the facts of the current case. The court noted that the “factual
discrepancies” would confuse the issues for the jury, leading to a prejudicial
result. The court precluded any mention of the underlying facts associated
with Chad’s aggravated assault conviction. The court, however, found any
evidence of Chad’s “propensity for violence” admissible as pertinent
character trait evidence under Rule 404(a)(2), which could be proven by
reputation or opinion evidence under Rule 405(a). The court also permitted
the use of Chad’s two prior felony convictions, in sanitized form, for
impeachment under Rule 609(a).

¶11 At trial, Carozza presented several justification defenses,
asserting that he acted in defense of himself, his home, and Excell. Carozza
claimed that Chad kept parking in front of his house, causing tension
between the two men. On the day of the incident, after arguing over
parking, Chad followed Carozza into his house and when Excell confronted
Chad at the front door, he hit her in the face. Seeing this, Carozza stepped
in to protect Excell and wrestled Chad to the floor. Carozza grabbed a BB
gun and told Chad to get out of his house. When the officers arrived, he had
a panic attack and ran inside to take anti-anxiety pills. He took sleeping pills
by mistake, which caused him to seem impaired that day. Excell testified
that Chad barged into their house uninvited, she confronted him, and he
hit her in the face. She had issues recalling anything after that point,
remembering only that the situation was chaotic.

¶12 Kyle testified that he did not hear Chad make any threats and
that Carozza pulled a gun for seemingly no reason. Chad denied
threatening Carozza or Excell, parking in front of their house, or entering
their house uninvited. Chad admitted to having a prior felony conviction

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but, consistent with the court’s pretrial ruling, did not testify about the
nature of the conviction or its underlying facts. Carozza did not question
Chad further about the convictions and did not introduce character trait
evidence in the form of reputation or opinion. The trial court instructed the
jury on the various justification defenses Carozza raised, providing an
instruction on self-defense, defense of a third person, and defense of
premises. See generally A.R.S. §§ 13–404 to –407.

¶13 The jury found Carozza guilty of two counts of aggravated
assault and also found aggravating circumstances. The trial court rendered
the verdict as to the misdemeanor offenses, finding Carozza guilty of one
count of assault and one count of disorderly conduct. The jury and the
court, respectively, found Carozza not guilty of kidnapping and one count
of disorderly conduct. Excell was acquitted of all counts. The court
sentenced Carozza to concurrent terms of 11.25 years’ imprisonment for the
two aggravated assault counts, and to time served for the counts of assault
and disorderly conduct. Carozza timely appealed.

DISCUSSION

¶14 Carozza argues that the trial court erred by precluding him
from introducing evidence of the victim’s prior violent acts. He contends
that the court’s ruling deprived him of his constitutional right to present a
complete defense. We review evidentiary rulings for a clear and prejudicial
abuse of discretion. State v. Ayala, 178 Ariz. 385, 387 (App. 1994). We defer
to the court’s assessment of relevance and unfair prejudice. State v. Via, 146
Ariz. 108, 122 (1985).

¶15 Although due process guarantees defendants “a meaningful
opportunity to present a complete defense,” California v. Trombetta, 467 U.S.
479, 485 (1984), defendants are still bound by the established rules of
evidence, Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Under Rule
404(a), character evidence is generally inadmissible to prove that a person
acted in conformity with it. Rule 404(a)(2), however, provides an exception
to this general rule, allowing the defendant to offer evidence of a “pertinent
trait of character of the victim of the crime” to show conformity with it,
“even if the defendant did not know about that character.” State v. Zaid, 249
Ariz. 154, 159 ¶ 18 (App. 2020). Rule 405(a) and (b) govern the method of
proving the victim’s character, providing that such character evidence may
be in the form of reputation or opinion but not specific acts evidence unless
character is an “essential element of a . . . defense . . . .”

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¶16 Under 404(b)(2), evidence of a person’s other acts is
admissible to show motive, intent, or to corroborate the defendant’s
“version of the events.” State v. Fish, 222 Ariz. 109, 122–23 ¶¶ 42–45 (App.
2009). But when evidence of specific acts is offered to show the defendant’s
state of mind and the reasonableness of the defendant’s response to the
victim, such evidence is inadmissible unless the defendant knew of the
specific acts before the incident in question. Id. at 121 ¶ 37. In determining
whether a prior violent act may be admitted under Rule 404(b), the trial
court must first look to whether (1) the act has been offered for a proper
purpose; (2) it is relevant to prove that proper purpose; (3) its probative
value is not substantially outweighed by a danger of unfair prejudice; and
(4) clear and convincing evidence shows the victim committed the act. Id.
at 123 ¶ 43; see also Rules 402 (relevancy standard), 403 (balancing test). In
weighing the probative value of the evidence, the court may consider “the
strength of the evidence of the prior violent act, the degree of similarity
between the prior violent act and the event at issue, the need for the
evidence, whether alternative proof would be effective, whether the prior
violent act was recent or remote, and the degree to which the evidence
would likely engender hostility in the jury.” Zaid, 249 Ariz. at 158 ¶ 13. Also
relevant to this inquiry is whether the defendant provided his version of
events to police officers “at a time when he did not know of the victim’s
prior violent acts and could not have fabricated his account based on them.”
Id. at 159 ¶¶ 14, 16.

¶17 Applying these legal standards, the trial court did not err in
finding the victim’s prior violent acts inadmissible at trial. Even if Excell
and Carozza had offered the acts for a proper purpose under Rule 404(b),
the court properly concluded that the probative value of the evidence was
substantially outweighed by a danger of confusing the issues and unfair
prejudice. See Rules 403, 404(b)(2). That Chad may have claimed self-
defense in a prior case does not, on its own, portray a pattern of conduct
relevant to Carozza’s defense. The proffered acts, at best, involved a prison
fight resulting in death or, at worst, a targeted gang “hit.” Here, Carozza’s
version of events involved a parking dispute that ultimately led to Chad’s
unlawful entry into his home and an assault. That Chad may have alleged
self-defense in both cases does not have the degree of similarity needed to
show the acts themselves were “highly relevant” to Carozza’s claims at
trial. See Fish, 222 Ariz. at 126 ¶ 53 (finding that the evidence uniquely
relevant where both the proffered acts and the defendant’s version of
events involved confrontations over the victim’s dogs). As the court
concluded, given the nature of the evidence, the probative value of the
proffered acts was substantially outweighed by the danger of confusing the
issues and unfair prejudice.

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¶18 In addition, Carozza and Excell provided limited details
surrounding Chad’s prior convictions. Excell provided a summary of
Chad’s aggravated assault conviction from 2009, citing only to its associated
presentence report, and conceded that the information would only be used
to impeach Chad as to prior self-defense claims. Even now, on appeal,
Carozza provides no further details, arguing only that the trial court should
have admitted Chad’s “violent history” because he claimed self-defense in
both the prior and current cases. Given the lack of supporting details and
the age of the conviction, the court did not err in precluding its use at trial.
See Rule 403; see also Zaid, 249 Ariz. at 158 ¶ 13 (allowing the court to
consider the strength and recency of the proffered acts in determining
relevancy). Moreover, this case did not involve a defendant providing
unique details, similar to the prior violent acts, before he had time to
fabricate his version of events. See Zaid, 249 Ariz. at 159 ¶¶ 14, 16. On this
record, the court did not err by precluding evidence of the victim’s prior
violent acts.

¶19 Finally, Carozza appears to conflate prior violent act evidence
with character trait or reputation evidence under Rules 404(a)(2) and 405(a).
To the extent that he raises a Rule 404(a)(2) or 405(a) argument, the trial
court found such evidence to be admissible. Carozza, however, made no
attempts to introduce character trait reputation or opinion evidence
associated with Chad at trial. Again, on this record, Carozza has shown no
error. See State v. Campbell, 146 Ariz. 415, 418 (App. 1985) (concluding that
a “mere assertion . . . is not sufficient to show any error”).

CONCLUSION

¶20 For the reasons stated, we affirm Carozza’s convictions and
resulting sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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