State v. Strover

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JSSAN STROVER, Appellant.

No. 1 CA-CR 22-0537
FILED 11-14-2023

Appeal from the Superior Court in Maricopa County
No. CR2021-001242-001
The Honorable Justin Beresky, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Law Offices of Trent R. Buckallew, P.C., Phoenix
By Trent R. Buckallew
Counsel for Appellant
 STATE v. STROVER
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MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Brian Y. Furuya joined.

B A I L E Y, Judge:

¶1 Jssan Strover appeals his convictions and sentences for first-
degree murder, attempted first-degree murder, and aggravated assault.
Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We review the facts in the light most favorable to sustaining
the verdicts. See State v. Guerra, 161 Ariz. 289, 293 (1989).

¶3 The trial evidence revealed the following: W.W. was hosting
a party one evening at his South Phoenix retail store when an unknown
assailant shot him three times in the back, killing him. A.F., who was
standing near W.W., was shot in the thigh and ankle, but survived.

¶4 Phoenix police responded to the scene and obtained security
video footage depicting the area around W.W.’s store just before, during,
and after the shooting. The footage showed a masked African American
male wearing black clothing and gloves get out of a rented white Chevrolet
Impala, walk toward the victims, and fire a handgun in their direction. The
shooter then ran back to the Impala and quickly drove off. Investigators
found six nine-millimeter silver bullet casings in the area where the
assailant shot the victims.

¶5 The next morning, a civilian found a black backpack in a rural
desert area south of Phoenix and called police. The backpack contained a
nine-millimeter Glock handgun with one live round in its chamber, a 50-
count box of ammunition containing 25 rounds of ammunition, and an
extended firearm magazine containing 18 rounds—a total of 44 rounds. All
the ammunition matched the size, color, and manufacturer of the six
casings found at the murder scene. Black clothing—including gloves, a T-
shirt, sweatpants, and a hooded sweatshirt—was also in the backpack,
along with a paper shopping bag and receipt from a nearby sporting goods
store indicating the gloves were purchased the afternoon of the shooting.
Like the shooter’s sweatshirt in the surveillance video, the sweatshirt in the

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backpack had distinctive “muted” stripes across the front. Surveillance
video from the sporting goods store showed an individual matching the
shooter’s physical characteristics enter the store and purchase a pair of
black gloves at the time shown on the receipt.

¶6 Forensic analysis of the Glock pistol found in the backpack
determined it was the weapon that fired the casings officers located at the
murder scene. Further investigation revealed the identity of the person
who sold the Glock on the morning of the shooting. That person identified
Strover as the man who purchased the gun.

¶7 The State charged Strover with first-degree murder (Count 1),
attempted first-degree murder (Count 2), and aggravated assault (Count 3),
alleging all were dangerous offenses for sentencing purposes because they
involved the discharge of a firearm. The State also alleged aggravating
factors as to each count. Two months after the shooting, Phoenix detectives
arrested Strover in Georgia and extradited him to Arizona.

¶8 Having obtained a buccal swab from Strover after his arrest,
police compared his DNA profile to DNA extracted from the clothing found
in the desert. They matched to a certainty of one in 9.6 decillion.1

¶9 At trial, Strover’s sole defense was misidentification. Near the
end of the tenth and final day of trial, when the jury returned from
deliberations, the trial court noticed a problem with the completed verdict
form for Count 1: the foreperson had marked the “not guilty” box for the
offense but also marked the “proven” box regarding dangerousness.
Noting the findings were “inconsistent” because the verdict form directed
the jury to determine dangerousness only if it found the defendant guilty
of the underlying offense, the court instructed the jury to “go back in the
jury room and review this verdict form and make sure
. . . you checked the correct boxes. . . . If you need additional deliberations,
that’s fine, just -- I’m going to ask you to review that verdict form again.”
Neither party objected to the court’s directive.

¶10 The jury returned four minutes later and found Strover guilty
as charged on all counts. The jury also found the offenses were dangerous.
The court polled the jurors individually, and they all agreed with the guilty
verdicts. The aggravation phase of trial proceeded.

1 Thus, the odds of any random individual’s DNA profile matching
the DNA profile found on the clothing were one in
9,600,000,000,000,000,000,000,000,000,000,000.

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¶11 As the jury deliberated on the State’s alleged aggravating
factors, Strover personally argued with the court regarding the court’s
refusal to enter a not guilty verdict for Count 1 based on the jury’s initial
verdict form. Strover repeatedly interrupted the court and used profanity.
The court ordered Strover removed from the courtroom “for the rest of the
day” due to his “disruptive behavior.” Thus, Strover was not physically
present when the jury returned unanimously proven aggravation verdicts
as to all counts.

¶12 The court then released the jury, except for the foreperson,
whom the court questioned under oath regarding the initially returned
verdict form for Count 1. The foreperson explained that the jurors had
unanimously found Strover guilty, but she made a “mistake” and
“inadvertently checked off the wrong box.”

¶13 At sentencing, the court imposed a natural life prison term for
Count 1, an aggravated term of 21 years for Count 2, and a presumptive 7.5-
year sentence for Count 3. The court imposed concurrent sentences for
Counts 2 and 3, to run consecutive to the life term imposed for Count 1.

¶14 Strover timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

I. The “Original Verdict” for Count 1

¶15 “When a defendant fails to object to trial error, he forfeits
appellate relief absent a showing of fundamental error.” State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018). This standard requires the defendant to
establish the trial court “committed error that was both fundamental and
prejudicial.” Id. at 140, ¶ 12. Strover argues the court erred by failing to
announce “the jury’s original verdict of acquittal [for Count 1]” followed by
a poll of the jurors to determine their individual agreement. Alternatively,
Strover contends the court should have made findings regarding the
defective verdict form and then reinstructed the jury or declared a mistrial.
We review the court’s actions for fundamental error only because Strover
did not raise either of these objections at trial. Id.

¶16 Based on the trial court’s explicit verbal and written
instructions to consider dangerousness only if it found Strover guilty of the
offense—an instruction repeated on all the verdict forms—the jury’s initial
not guilty and dangerousness findings for Count 1 were “impossible in the

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sense that they cannot be given simultaneous effect.” State v. Hansen, 237
Ariz. 61, 68, ¶ 21 (App. 2015). This court has recognized that such a failure
of the jury “to express a meaningful intention [as to a defendant’s guilt]”
requires further deliberations to resolve the ambiguity. Id. Here, the trial
court noted the inconsistent findings and properly instructed the jury to
review the verdict form and deliberate further, if necessary. Significantly,
when the court directed the jury to review the inconsistent findings, it did
not indicate whether either of those findings was somehow incorrect or
improper. Rather, the court merely informed the jury that the findings were
inconsistent. Strover does not contend otherwise. Thus, the court complied
with its legal duty to take “immediate corrective action” when the jury
returned a “patently uncertain” verdict as reflected in the first verdict form
for Count 1. Id. at 66, ¶ 13 (quoting United States v. Rastelli, 870 F.2d 822,
835 (2d Cir. 1989)). Accordingly, the court effectively took the corrective
measures that Strover argues it should have taken, including polling the
jury. Strover therefore fails to satisfy his burden of establishing error, let
alone fundamental error. See Escalante, 245 Ariz. at 142, ¶ 21 (recognizing
that, under fundamental error review, the defendant bears the burden of
first establishing error).

II. The Denial of Strover’s Rule 20 Motion

¶17 Strover challenges the trial court’s denial of his motion for
judgment of acquittal under Arizona Rule of Criminal Procedure (“Rule”)
20. See Ariz. R. Crim. P. 20(a)(1) (“After the close of evidence on either side,
and on motion or on its own, the court must enter a judgment of acquittal
on any offense charged in an indictment, information, or complaint if there
is no substantial evidence to support a conviction.”). Primarily, Strover
argues the evidence failed to sufficiently identify him as the shooter.

¶18 As the plain language of Rule 20 makes clear, a motion for
judgment of acquittal must be granted when “there is no substantial
evidence to support a conviction.” Ariz. R. Crim. P. 20(a)(1). We review de
novo a trial court’s ruling on a Rule 20 motion. State v. Bible, 175 Ariz. 549,
595 (1993), abrogation on other grounds recognized by McKinney v. Ryan, 813
F.3d 798, 815 (9th Cir. 2015).

¶19 “‘Substantial evidence’ is evidence that reasonable persons
could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” State v. Jones, 125 Ariz. 417,
419 (1980) (citations omitted). When reviewing the record for substantial
evidence, we do not evaluate the relative probative value of apparently
conflicting evidence. State v. Borquez, 232 Ariz. 484, 487, ¶ 9 (App. 2013). In

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other words, we do not weigh evidence, which is the sole province of the
jury. See State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (recognizing that the
jury, not a reviewing court, determines whether evidence is credible
(citation omitted)). Similarly, because evidence that gives rise to a
reasonable inference of guilt is sufficient to support a conviction, see State v.
Burton, 144 Ariz. 248, 252 (1985), evidence is not less probative merely
because it is circumstantial, Bible, 175 Ariz. at 560 n.1; see Rev. Ariz. Jury
Instr. (“RAJI”) Prelim. Crim. 4 (Direct and Circumstantial Evidence) (5th
ed. 2019) (“Circumstantial evidence is the proof of a fact or facts from which
the existence of another fact may be determined. The law makes no
distinction between direct and circumstantial evidence.”). As long as a
rational jury could reasonably infer Strover’s guilt beyond a reasonable
doubt based on the trial evidence, we will affirm the trial court’s denial of
the Rule 20 motion. See Burton, 144 Ariz. at 252.

¶20 Here, the evidence of Strover’s guilt, viewed in the requisite
light most favorable to sustaining the guilty verdicts, Guerra, 161 Ariz. at
293, was substantial. The evidence established Strover purchased the
murder weapon hours before driving across town and purchasing gloves.
Later that evening, the assailant—wearing Strover’s recently purchased
gloves—proceeded to W.W.’s store, parked, and walked to within a few
yards of the victims before using the Glock Strover had purchased earlier
that day and intentionally shot W.W. at least three times in the back and
A.F. twice in the leg. The jury therefore could reasonably determine that
Strover was planning to murder at least one of the victims when he
purchased the gun and gloves.2 Additionally, just after the shooting, the
assailant ditched the murder weapon, the gloves, and other potentially
identifying evidence in the desert, suggesting that once the gun and gloves
had each apparently served their sole purpose—respectively, to murder
one or both victims and to conceal the assailant’s identity—the assailant had
no more use for them. See In re William G., 192 Ariz. 208, 213 (App. 1997)
(recognizing that, absent an admission, determining a person’s intent
requires drawing an inference “from all relevant [] circumstances”). Thus,
the testimony identifying Strover as the individual who purchased the
murder weapon hours before the shooting, Strover’s DNA on clothing that
visibly matched the shooter’s clothes, and the backpack containing the
clothing and murder weapon located in the desert the morning after the
shooting all lead to a reasonable inference that Strover was the shooter who
intentionally killed W.W. and caused A.F.’s gunshot injuries while trying
to murder him. See A.R.S. §§ 13-1105(A)(1) (elements for first-degree

2 The trial court instructed the jury on “transferred intent.” See RAJI
Stat. Crim. 2.024.

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premeditated murder), -1203(A)(1) & -1204(A)(2) (elements for aggravated
assault with a deadly weapon resulting in physical injury); see also A.R.S. §
13-1001(A)(2) (defining “attempt”).

¶21 In addition to the foregoing substantial evidence of guilt, the
State presented evidence that reasonably suggested Strover knew he was
guilty. Less than six days after the shooting, Strover fled to Atlanta, where
he was arrested and informed that he was a suspect in the shooting of W.W.
and A.F. Then, aware of the charges he was facing here, Strover escaped
from custody as detectives initially attempted to extradite him back to
Arizona. As the trial court properly instructed the jurors—without
objection—they could justifiably consider Strover’s repeated “flight or
concealment” as evidence of his guilty conscience. See State v. Cutright, 196
Ariz. 567, 570, ¶ 12 (App. 1999) (“Instructing on flight is proper when . . .
there is evidence from which it can be reasonably inferred that the
defendant engaged in some ‘eluding’ conduct that [] was an attempt to
prevent apprehension . . . .”), disapproved on other grounds by State v. Miranda, 200 Ariz. 67, 69, ¶ 5 (2001).

¶22 Nonetheless, Strover maintains the evidence was insufficient
because the State presented no eyewitness testimony identifying him as the
shooter. But the lack of such direct evidence does not negate the substantial
nature of the circumstantial evidence establishing Strover was the shooter.
See Burton, 144 Ariz. at 252 (“[A] conviction may be proved by
circumstantial evidence alone.”). To conclude otherwise requires us to
improperly reweigh the evidence, and then conclude no rational juror could
find it established Strover’s guilt beyond a reasonable doubt. See Borquez,
232 Ariz. at 487, ¶ 9 (“We do not reweigh the evidence to decide if we would
reach the same conclusions as the trier of fact.” (citation and internal
quotations omitted)). In addition to the evidence discussed above, the jury
also viewed surveillance video from the murder scene and the sporting
goods store. Having received and considered all of this evidence,
regardless of its circumstantial nature, the jury could determine for itself
whether Strover was the shooter.

¶23 Strover also refers to “inconsistencies” in the evidence that the
State failed to explain. For example, the evidence suggested Strover did not
personally rent the white Impala that appeared in the surveillance video at
the murder scene. Also, someone other than Strover purchased the
ammunition from a store near the location where he purchased the murder
weapon. But if the State presents substantial evidence of guilt, evidentiary
“inconsistencies” do not require granting a Rule 20 motion. See State v.
Nash, 143 Ariz. 392, 404 (1985) (noting the State is not required “to negate

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every conceivable hypothesis of innocence when guilt has been established
by circumstantial evidence” (citation omitted)). Again, we do not reweigh
the evidence.

¶24 Strover further argues that the DNA on the clothing did not
result from him wearing the clothes. He instead contends the DNA was
deposited on the clothes through “secondary transfer.” But Strover
presented the jury with that argument, and we will not determine whether
the jury should have accepted it and found Strover not guilty. See State v.
Bronson, 204 Ariz. 321, 328, ¶ 34 (App. 2003) (“Because a jury is free to credit
or discredit testimony, we cannot guess what they believed, nor can we
determine what a reasonable jury should have believed.” (citation
omitted)). Similarly unavailing is Strover’s argument that the police
“missed opportunities” to conduct additional lines of investigation that
may have revealed exculpatory evidence. As this court long ago observed,
the law does not require police “to investigate every possible circumstance
which might exculpate [defendants],” nor will we, “by judicial fiat, require
the police to expend valuable time searching for exculpating evidence when
they have developed a sufficient case against an accused.” State v.
Turrubiates, 25 Ariz. App. 234, 240 (1975).

¶25 The evidence of Strover’s guilt was substantial. The trial court
therefore correctly denied Strover’s Rule 20 motion.

III. The Amended Indictment

¶26 On the ninth day of trial, the State moved to amend Count 3
by adding a definition of a dangerous offense. As the State noted, and
consistent with the record, the indictment’s caption alleged all counts as
dangerous offenses, including Count 3, but the body of the indictment did
not include the definition of a dangerous offense with Count 3 as it did with
the other counts, both of which alleged Strover’s discharge of a firearm
supported the allegation of dangerousness.

¶27 Over Strover’s objection, the court granted the State’s request
and amended Count 3 to include the following: “The State further alleges
that the offense charged in this count is a dangerous felony because the
offense involved the discharge, use, or threatening exhibition of a Firearm,
a deadly weapon or dangerous instrument, in violation of A.R.S. §§ 13-105
and 13-704.” See A.R.S. §§ 13-105(13) (“‘Dangerous offense’ means an
offense involving the discharge, use or threatening exhibition of a deadly
weapon or dangerous instrument or the intentional or knowing infliction
of serious physical injury on another person.”); -704(A) (providing for a

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presumptive term of 7.5 years’ imprisonment for “a person who is at least
eighteen years of age or who has been tried as an adult and who stands
convicted of a [Class 3] felony that is a dangerous offense”).

¶28 Citing Rule 13.5(b), Ariz. R. Crim. P., Strover contends the
trial court abused its discretion, see State v. Buccheri-Bianca, 233 Ariz. 324,
329, ¶ 16 (App. 2013), because he did not agree to the amendment and the
State’s motion was untimely. Strover thus asserts he is entitled to
resentencing on Count 3 as a non-dangerous offense.

¶29 An indictment generally limits the trial to the specific charge
or charges stated in the indictment, and absent the defendant’s consent, a
criminal “charge may be amended only to correct mistakes of fact or
remedy formal or technical defects.” Ariz. R. Crim. P. 13.5(b). “A defect
may be considered formal or technical when its amendment does not
operate to change the nature of the offense charged or to prejudice the
defendant in any way.” State v. Bruce, 125 Ariz. 421, 423 (1980) (citations
omitted).

¶30 When considering the appropriateness of an amendment to
an indictment, courts should not conflate Rule 13.5(b) and the notice
requirement of the Sixth Amendment.3 See State v. Freeney, 223 Ariz. 110,
114, ¶ 24 (2009). “Rule 13.5(b) is a prophylactic rule of criminal procedure”
that “is limited to the procedural requirements for amending indictments,”
and “a violation of Rule 13.5(b) does not necessarily equate to an
infringement of a defendant’s Sixth Amendment rights.” Id. at ¶ 25. And
even if the elements of an amended charge differ from those in the original
charge, and therefore change the nature of the offense and violate Rule
13.5(b), such a violation is neither prejudicial per se nor structural error, but
is instead subject to harmless error review. Id. at 111, 114, ¶¶ 2, 26 (finding
an improper amendment to an indictment was harmless beyond a
reasonable doubt when the defendant had notice of the allegation and the
change did not alter his trial strategy).

¶31 Here, even assuming arguendo that the trial court abused its
discretion in allowing the amendment, any error was harmless beyond a
reasonable doubt. Count 3 of the original indictment charged Strover with
committing aggravated assault because he allegedly used a firearm—a
deadly weapon or dangerous instrument—to intentionally, knowingly, or

3 Strover does not contend the amended indictment violated the Sixth
Amendment and has waived any argument in that regard. See State v.
Bolton, 182 Ariz. 290, 297-98 (1995).

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recklessly cause physical injury to A.F. See A.R.S. §§ 13-1203(A)(1),
-1204(A)(2). This was the same allegation as that used in the amendment to
allege dangerousness. Thus, amending the indictment to specify that
Strover’s use of a firearm rendered Count 3 a dangerous offense—as stated
in the caption—did not deprive Strover of any required notice. In fact,
when the State moved to amend the indictment, Strover did not contest the
State’s assertion that he had been on notice that the State was alleging and
intending to prove that Count 3 was a dangerous offense because he had
used a deadly weapon or dangerous instrument to injure A.F.

¶32 Moreover, the revision to Count 3 did not prejudice Strover,
and Strover does not contend otherwise. Both before and after the
amendment, Strover’s global defense to all counts was misidentification.
As a result, amending the indictment to allege the specific conduct
constituting a dangerous offense applicable to Count 3 (discharging a
firearm as opposed to causing serious physical injury) had no bearing on
Strover’s trial strategy. See Freeney, 223 Ariz. at 115, ¶ 28 (citing State v.
Ramsey, 211 Ariz. 529, 533, ¶ 7 (App. 2005) (finding no showing the defense
was prejudiced by an allegedly duplicitous indictment when the defendant
claimed he had not committed the charged acts)). Accordingly, any
violation of Rule 13.5(b) was harmless beyond a reasonable doubt. See id.

IV. The Exclusion of Strover from the Courtroom

¶33 When the trial court excluded Strover from the courtroom for
about the final fifteen minutes of trial for his repeated interruptions and use
of profanity, Strover did not object on any basis. Strover now argues the
court committed fundamental or structural error by excluding him from the
courtroom without first warning him, explaining the process for him
returning, providing a mechanism for him to consult with counsel during
his absence, or later checking if he wished to return for the final few minutes
of that day. See Escalante, 245 Ariz. at 140, ¶ 12 (reviewing an unobjected-
to alleged error for fundamental, prejudicial error); State v. Forte, 222 Ariz.
389, 392, 394, ¶¶ 6, 14 (App. 2009) (“Structural error is that which affects the
basic framework within which the trial proceeds and which so undermines
the proceedings that the trial cannot reliably serve its function as a vehicle
for determination of guilt or innocence.” (citations and internal quotations
omitted)).

¶34 The Sixth and Fourteenth Amendments to the United States
Constitution and Article 2, Section 24, of the Arizona Constitution
guarantee a criminal defendant’s right to be present at trial. State v.
Schackart, 190 Ariz. 238, 255 (1997). However, “[t]he right to be personally

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present applies only to those proceedings in open court whenever [the
accused’s] presence has a relation, reasonably substantial, to the fullness of
his opportunity to defend against the charge.” State v. Christensen, 129 Ariz.
32, 38 (1981) (citations and internal quotations omitted).

¶35 A defendant “forfeits the right to be present” at trial if the
court warns him that continued disruptive conduct will lead to expulsion,
and the defendant nonetheless engages in disruptive conduct. Ariz. R.
Crim. P. 9.2(a). At the time of expulsion, the court must inform a defendant
that he can return upon a promise to engage in orderly conduct. Id.
Additionally, “[a]fter expulsion, the court must use every feasible means to
allow the defendant to watch, hear, and be informed of the proceeding’s
progress, and to consult with counsel at reasonable intervals.” Ariz. R.
Crim. P. 9.2(b). “The court should inquire periodically if the defendant
wishes to reacquire the right to be present” and should allow the defendant
to return upon an assurance of future good behavior. Ariz. R. Crim. P.
9.2(b)–(c).

¶36 Strover maintains the court did not follow the procedures
outlined in Rule 9.2 for when a court determines a defendant has forfeited
the right to be present due to disruptive conduct. We agree with Strover
that the record shows that, although the trial court correctly removed
Strover from the courtroom for his disruptive behavior, the court did not
follow the directives of Rule 9.2. The court’s oversights, however, do not
require reversal of Strover’s convictions.

¶37 Here, Strover was absent when the jury finished deliberating
on the aggravating circumstances allegations, when the jury then returned
its findings, and when the court briefly questioned the foreperson about the
defective verdict form for Count 1. Strover cites no authority holding that
a defendant’s absence from such proceedings constitutes a violation of the
right to be present for trial. Nor does he otherwise explain how a
defendant’s personal presence at such proceedings has a “reasonably
substantial [relation] to the fullness of his opportunity to defend against the
charge[s].” Christensen, 129 Ariz. at 38 (citations omitted). The only
conceivable contribution Strover could personally make during jury
deliberations is in crafting a response to the jury’s questions for the judge,
if any. But our supreme court has held that a defendant does not have a
constitutional right to be personally present “to discuss how to handle the
jury’s communications.” Id. We also fail to see how Strover’s personal
absence when the jury returned its aggravating factor findings and when
the court questioned the foreperson “so insulted the basic framework of a
criminal [trial] such that the proceeding could no longer serve its core

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function.” Forte, 222 Ariz. at 394, ¶ 16. Because Strover fails to establish
that he was absent from a “critical stage” of trial at which he had a right to
be present, he fails to establish any error was fundamental and prejudicial,
let alone structural.

V. The Use of Serious Physical Injury as an Aggravating Factor

¶38 Strover argues the court improperly aggravated his sentence
for Count 2 based on the jury’s finding that he caused A.F.’s serious
physical injury (“SPI”). According to Strover, the SPI finding was the basis
for enhancing his sentence under A.R.S. § 13-704(A), and such a finding
cannot be used to both enhance and aggravate a sentence. See A.R.S. § 13-
701(D)(1) (providing that the infliction of SPI is properly used to aggravate
a sentence “except if [SPI] . . . has been used to enhance the range of
punishment under § 13-704”); see also State v. Alvarez, 205 Ariz. 110, 112, ¶ 4
n.1 (App. 2003) (noting that enhancement of a sentence, which increases the
entire range of possible punishment for each class of an offense, differs from
aggravation and mitigation, which raise or lower a particular sentence
within the permissible range). As Strover concedes, we review for
fundamental error because he did not raise this objection to the court. See
State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002).

¶39 We reject Strover’s argument. The dangerousness finding
used to enhance the sentence in Count 2 was not based on the SPI that
Strover inflicted on A.F. when Strover attempted to murder him. Rather,
Strover’s use of a gun made Count 2 a dangerous offense. See A.R.S. § 13-
105(13) (“‘Dangerous offense’ means an offense involving the discharge,
use or threatening exhibition of a deadly weapon or dangerous instrument
or the intentional or knowing infliction of serious physical injury on another
person.” (emphasis added)). Thus, although SPI may not be used to both
enhance and aggravate a sentence, SPI did not enhance the sentence for
Count 2. No error occurred, let alone fundamental error.

VI. The Denial of a Lesser-Included Offense Instruction

¶40 Finally, Strover argues the trial court erred by denying
defense counsel’s request for a lesser-included offense instruction of
second-degree murder for Count 1.4 Strover contends the evidence was
sufficient to find he did not premeditate the murder of W.W.

¶41 We review a trial court’s decision to refuse a jury instruction
on a lesser-included offense for an abuse of discretion. See State v. Wall, 212

4 Strover personally objected to his counsel’s request.

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Ariz. 1, 3, ¶ 12 (2006). A defendant is entitled to a lesser-included offense
instruction when two conditions are satisfied: “The jury must be able to find
(a) that the State failed to prove an element of the greater offense and (b)
that the evidence is sufficient to support a conviction on the lesser offense.”
Id. at 4, ¶ 18 (citation omitted). “It is not enough that, as a theoretical matter,
the jury might simply disbelieve the state’s evidence on one element of the
crime because this would require instructions on all offenses theoretically
included in every charged offense.” Id. (citations and internal quotations
omitted). “Instead, the evidence must be such that a rational juror could
conclude that the defendant committed only the lesser offense.” Id. (citation
omitted).

¶42 “Second-degree murder is a lesser-included offense of
premeditated first-degree murder, the difference between the two being
premeditation.” State v. Sprang, 227 Ariz. 10, 12, ¶ 6 (App. 2011) (citation
omitted). Thus, the dispositive question is whether the evidence supported
a conclusion that the shooter did not premeditate the murder of W.W. Our
review of the evidence, see supra ¶¶ 3–8, 20–25, leads us to conclude that the
trial court could reasonably determine no rational juror could find the
shooter murdered W.W. without premeditation. Accordingly, the court did
not abuse its discretion by denying the request for a second-degree murder
instruction as to Count 1. See State v. Chapple, 135 Ariz. 281, 297 n.18 (1983)
(stating that an abuse of discretion occurs when the court’s decision is “not
justified by, and clearly against, reason and evidence”), superseded by statute
on other grounds as stated in State v. Riley, 248 Ariz. 154, 167, ¶ 7 (2020); see
also Ariz. R. Crim. P. 21.4(a) (stating that a court must present forms of
verdict for a lesser-included offense only if the lesser offense is “supported
by the evidence”).

CONCLUSION

¶43 We affirm Strover’s convictions and sentences.

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

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