State v. Jacques

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANTHONY JACQUES, Appellant.

No. 1 CA-CR 19-0033
FILED 4-28-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-104388-001
The Honorable Cari A. Harrison, Judge, Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Law Offices of Stephen L. Duncan Esq., Scottsdale
By Stephen L. Duncan
Counsel for Appellant
 STATE v. JACQUES
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge D. Steven Williams joined.

B R O W N, Judge:

¶1 Anthony Jacques appeals his convictions and sentences for
second-degree murder, aggravated assault, and simple assault. For the
following reasons, we affirm.

BACKGROUND

¶2 Jacques got into a brawl in the parking lot of his apartment
building with his neighbor (J.E.) and J.E.’s friends (S.A. and A.V.). Jacques
had never met the two friends. During the altercation, Jacques broke away
and ran toward his apartment, obtained a gun, and began shooting—first
at J.E., who was grazed by a bullet as he ran toward his own apartment, and
then at S.A. and A.V., who both attempted to flee in other directions.
Jacques shot S.A. two or three times, killing him.

¶3 The State charged Jacques with the first-degree murder of S.A.
and two counts of aggravated assault against J.E. and A.V. At trial, Jacques
defended on the basis that he was justified in using deadly physical force
to prevent the commission of one or more crimes. He testified that (1) he
shot at the victims because he feared for his life, and (2) J.E. was a violent
gang member who regularly carried guns and who had threatened him
with an assault rifle two weeks before the fight. A jury found Jacques guilty
of (1) the lesser-included offense of assault, committed against J.E.; (2)
aggravated assault committed against A.V.; and (3) the lesser-included
offense of second-degree murder of S.A.

¶4 The superior court sentenced Jacques to an aggravated term
of 20 years’ imprisonment for the murder conviction, to be served
concurrently with a presumptive term of 7.5 years’ imprisonment for the
aggravated assault and 180 days in jail (time served) for the simple assault.
This timely appeal followed.

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DISCUSSION

¶5 Two of the three issues Jacques raises on appeal relate to the
justification defense he presented at trial. A.R.S. § 13-411 (“use of force in
crime prevention”) states, in relevant part:

A. A person is justified in threatening or using both physical
force and deadly physical force against another if and to the
extent the person reasonably believes that physical force or
deadly physical force is immediately necessary to prevent the
other’s commission of . . . manslaughter under § 13-1103,
second or first degree murder under § 13-1104 or 13-1105, . . .
or aggravated assault under § 13-1204, subsection A,
paragraphs 1 and 2.1

B. There is no duty to retreat before threatening or using
physical force or deadly physical force justified by subsection
A of this section.

C. A person is presumed to be acting reasonably for the
purposes of this section if the person is acting to prevent what
the person reasonably believes is the imminent or actual
commission of any of the offenses listed in subsection A of
this section.

D. This section includes the use or threatened use of physical
force or deadly physical force in . . . any . . . place in this state
where a person has a right to be.

If a defendant offers “some evidence” that the conduct underlying the
alleged offense was justified under § 13-411, the State “bears the burden of
proving ‘beyond a reasonable doubt that the defendant did not act with
justification.’” State v. Holle, 240 Ariz. 300, 304, ¶ 21 (2016) (quoting A.R.S.
§ 13-205(A)).

A. Other Acts Evidence

¶6 Arizona Rule of Evidence (“Rule”) 404(b) provides in relevant
part that “evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity

1 Section 13-1204(A)(1) and (2) refer to aggravated assault by
“caus[ing] serious physical injury” or “us[ing] a deadly weapon or
dangerous instrument.”

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therewith. It may, however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” The party seeking admission of other acts
evidence, in this case Jacques, must prove by clear and convincing evidence
that the alleged acts occurred. State v. Fish, 222 Ariz. 109, 123, ¶ 43 (App.
2009).

¶7 Before trial, Jacques filed a motion in limine seeking approval
to present evidence at trial that J.E. had committed other acts of violence
both known and unknown to Jacques at the time of the shooting. The
unknown other acts were based on charges the State had previously
brought—and dismissed—against J.E. for attempted second degree
murder, aggravated assault, endangerment, discharge of a firearm at a
structure, kidnapping, and theft by extortion. Jacques argued evidence of
J.E.’s known and unknown other violent acts was relevant to show or
corroborate his fear of J.E. and thereby support his defense that he
reasonably believed he needed to exercise force against J.E. and his friends.
The superior court permitted Jacques to present evidence of J.E.’s violent
acts and disposition known to Jacques at the time of the shooting. Supra
¶ 3. But the court ruled the unknown other acts evidence was inadmissible
under Rule 404(b) and, even if it were admissible, it should be excluded
under Rule 403. Specifically, the court found that the evidence of the
unknown other acts was “irrelevant to the facts in this case,” and even if the
evidence was admitted, it would likely confuse the jury. We review the
court’s exclusion of other act evidence for an abuse of discretion. See State
v. Romero, 239 Ariz. 6, 9, ¶ 11 (2016).

¶8 Jacques argues he was entitled to present evidence of J.E.’s
unknown other acts for the reasons set forth in Fish, 222 Ariz. at 122–26,
¶¶41–54. In that case, the homicide defendant sought to present evidence
of specific acts of violence by the victim—unknown to the defendant at the
time of the homicide—to support the defendant’s claim he acted in self-
defense. Id. at 115, ¶ 9. On appeal, we held that the proffered evidence
was relevant under Rule 404(b) “to corroborate Defendant’s description of
the events leading up to the shooting even though Defendant was unaware
of those acts.” Id. at 126, ¶ 54. We emphasized that our decision did not
“mean that in any self-defense claim prior acts of a victim unknown to the
defendant at the time of the alleged crime are always admissible to
corroborate the defendant’s claim,” but concluded the victim’s “prior acts
were highly relevant to the credibility of the self-defense claim” in Fish’s
case given the following circumstances: (1) the State did not dispute that
the victim had committed the other acts, (2) those acts were “very similar”
to the description of the victim’s conduct given by the defendant

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immediately after the shooting, (3) there were no other witnesses to the
shooting, and (4) the State attacked the veracity of the defendant’s account
of what occurred.2 Id. at 123–25, ¶¶ 44, 48–49.

¶9 Fish does not support Jacques’s argument because the
circumstances supporting admissibility in that case do not exist here. First,
Jacques fails to show how the superior court abused its discretion in finding
that Jacques did not meet his burden of showing J.E. committed the alleged
other acts by clear and convincing evidence. See id. at 123, ¶ 43. The
prosecutor dismissed all of the charges against J.E., and Jacques’s proposed
proof that J.E. committed the charged conduct is not included in the record
on appeal.3 See State v. Geeslin, 223 Ariz. 553, 554, ¶ 5 (2010) (stating the
general rule that an appellant bears burden of making record of trial error
and matters missing from that record are presumed to support the trial
court’s ruling). Thus, we affirm the court’s exclusion of the unknown other
acts evidence on that basis alone.

¶10 Even assuming Jacques met his burden of proof, the evidence
Jacques relied on did not show pronounced similarities to the
circumstances in this case so as to render the other acts probative of J.E.’s
conduct in this case. The alleged other acts took place three and seven years
before the incident in this case, and the only resemblance between the
earlier and later events was of a general nature—namely, allegations that
J.E. carried a gun and made threats. By contrast, the other acts in Fish
entailed similar conduct by the victim under circumstances peculiarly
similar to the situation at the time he was killed, making the other acts
highly probative of the victim’s intent on the later occasion. Third, unlike
in Fish, multiple witnesses were available to testify in this case about what
occurred between Jacques and J.E.; therefore, Jacques did not need to rely
on unknown other act evidence as the sole means of corroborating his
account. On this record, the superior court did not abuse its discretion in
finding the other act evidence inadmissible under Rule 404(b). We

2 We reversed and remanded the case for a new trial on other grounds.
Fish, 222 Ariz. at 114, ¶ 7. Because the superior court did not conduct a Rule
403 analysis when it initially considered the other act evidence, we directed
the court to do so if appropriate on remand. Id. at 126, ¶¶ 53–54.

3 Jacques sought to prove J.E. committed the acts exclusively with
documentary evidence—namely, “Form 4” statements completed by law
enforcement for the purpose of showing probable cause for arrest.

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therefore find it unnecessary to consider its alternative finding under Rule
403.

B. Motion for a New Trial

¶11 In its final jury instructions, the superior court advised jurors
of the law applicable to Jacques’s justification defense under A.R.S. § 13-
411. See Revised Arizona Jury Instructions (“RAJI”) Stat. Crim. 4.11 (use of
force in crime prevention) (4th ed. 2016). During their deliberations, the
jury asked the following question: “Does the ‘Use of Force In Crime
Prevention’ apply to each charge individually or as a blanket statement?
(i.e. if crime prevention applies, do we have to find the defendant not guilty
of all three counts?).” In discussing the question, the prosecutor, defense
counsel, and court all agreed that jurors should consider the justification’s
applicability to each count separately. Defense counsel suggested that the
court refer jurors to the general instruction on separate counts and
ultimately concurred in the court’s response: “[Y]ou need to consider each
count separately as it relates to the ‘Use of Force in Crime Prevention’
Instruction.”4 The questions the jury asked, together with their verdicts,
make clear they found Jacques’s conduct justified as to J.E. but not as to the
other two victims.

¶12 After the verdicts were handed down, Jacques moved for a
new trial on the ground that the superior court’s response to the jury’s first
question—that jurors should determine the applicability of A.R.S. § 13-411
to each count separately—was incorrect as a matter of law and resulted in
verdicts contrary to law. Jacques argued that because the facts of the case
showed all three victims were acting in concert, the court should have
instructed jurors that if they found § 13-411 justified Jacques’s exercise of
force against one victim, they were required to find his conduct justified as
to all three. The court denied Jacques’s motion.

4 The jury asked two related follow-up questions: “[I]f we cannot
agree that crime prevention appl[ie]s to aggravated ass[a]ult for one of the
victims, do we find defendant not guilty of [the] charge? If we find the
defendant not guilty of aggr[a]vated assault due to [the] crime prevention
statute, can we consider assault as a charge?” Again, the prosecutor and
defense counsel agreed with the court’s response: “Please refer to your jury
instructions as to the Crime Prevention Statute and the offense of
‘aggravated assault.’ The Crime Prevention Statute does not apply to the
lesser included offense of ‘assault.’”

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¶13 We ordinarily apply an abuse of discretion standard in
considering the superior court’s denial of a motion for a new trial. State v.
Hoskins, 199 Ariz. 127, 142, ¶ 52 (2000). Here, however, Jacques has forfeited
review of the issue. By requesting, in substance, the very response to the
jury of which he now complains, Jacques invited the error. See State v.
Logan, 200 Ariz. 564, 565–66, ¶¶ 8–9 (2001) (defendant who requests an
erroneous instruction waives the right to challenge that instruction on
appeal, even as a matter of fundamental error); State v. Yegan, 223 Ariz. 213,
218–19, ¶¶ 21–22 (App. 2009) (defendant invited error by submitting
instruction that carelessly reflected the State’s own erroneous submission).
Subsequently challenging a requested instruction in a motion for a new trial
does not un-invite the error so as to preserve the issue for review. See State
v. Davis, 226 Ariz. 97, 100, ¶ 12 (App. 2010) (“[A]n untimely objection first
raised in a motion for a new trial does not preserve an issue for appeal.”).

C. Admission of Photo

¶14 During its case in chief, the State sought to admit several
photos of Jacques for the asserted purpose of proving he was the shooter.
Three eyewitnesses (of the nine who testified) did not identify Jacques at
trial but described the shooter as having tattoos; the photos showed tattoos
on Jacques’s torso, calves, hands, and arms. Jacques objected, arguing
identity was not at issue in the case and at least some of the photos,
particularly on his legs, were unduly prejudicial under Rule 403. The
superior court admitted the photos over objection but instructed jurors to
consider them solely for the purpose of identity.

¶15 Jacques argues the superior court should have excluded the
photo of his calves, which showed tattoos with the words “WEST SIDE,”
under Rule 403 because its scant relevance was substantially outweighed
by the risk that jurors would assume he was a gang member and judge him
on that basis. However, because Jacques did not raise that objection during
trial, we only review whether admission of the photograph caused
fundamental error resulting in prejudice. State v. Escalante, 245 Ariz. 135,
140, ¶ 12 (2018).

¶16 We agree with Jacques that under the circumstances of this
case—in which he did not challenge his identity as the shooter,
overwhelming evidence established as much, and the superior court
admitted other photos showing Jacques’s tattoos—the relevance of the
photo showing a “WEST SIDE” tattoo on his calves was marginal. Jacques
provides no legal or evidentiary support for his contention that “WEST
SIDE” is commonly understood to symbolize gang affiliation—as opposed

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to signaling a benign reference, as to hometown pride. In addition to the
“WEST SIDE” tattoo on his calves, Jacques had “PHOENIX” tattooed on his
hands and testified he had lived in the Phoenix area his entire life. Thus,
no evidence was presented at trial suggesting he was a gang member.
Accordingly, Jacques has not established that the court committed
fundamental, prejudicial error in admitting the photo showing his “WEST
SIDE” tattoo.

CONCLUSION

¶17 For the foregoing reasons, we affirm Jacques’s convictions
and sentences.

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

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