State v. Jackson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LEROY MARCELLUS JACKSON, III, Appellant.

No. 1 CA-CR 19-0526
FILED 2-18-2021

Appeal from the Superior Court in Maricopa County
No. CR2012-147343-002
The Honorable Michael J. Herrod, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
 STATE v. JACKSON
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Lawrence F. Winthrop joined.

B A I L E Y, Judge:

¶1 Leroy Marcellus Jackson, III, appeals his conviction for first-
degree murder, a Class 1 dangerous felony, and attempted armed robbery,
a Class 3 dangerous felony. Because Jackson has shown no error, we affirm
his convictions.

FACTS 1 AND PROCEDURAL HISTORY

¶2 A jury convicted Jackson of attempted armed robbery and
first-degree murder of D.C. 2, who was shot inside his apartment near
Brown Road in Mesa in July 2012. Before trial, the State noticed its intent to
introduce text messages exchanged between Jackson and his alleged
accomplice, Christopher Woods, to rebut Jackson’s noticed defenses and as
evidence of Jackson’s plan and intention to rob D.C. See Ariz. R. Evid.
404(b). In the two months preceding the murder, Jackson and Woods had
exchanged several text messages that referenced “licks,” “stains,” and
guns. 3 Two of the texts specifically discussed a “stain” on Brown Street
(“Brown Street texts”) less than a month before the murder.

¶3 After a hearing, the court ruled that the State could introduce
the Brown Street texts but precluded more than two dozen other text
exchanges between Jackson and Woods unless Jackson presented a lack-of-
intent or mere-presence defense. The court noted that the ruling was

1On appeal, we view the evidence in the light most favorable to sustaining
the convictions and resolve all reasonable inferences against Jackson. State
v. Karr, 221 Ariz. 319, 320, ¶ 2 (App. 2008).

2Initials are used to protect the victim’s privacy. State v. Maldonado, 206
Ariz. 339, 341, ¶ 2 n.1 (App. 2003).
3 A detective familiar with slang testified at the pre-trial hearing that a
“lick” refers to a robbery and “stain” refers to the robbery of a drug dealer.

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“subject to change depending on how the trial unfolds and what evidence
gets presented.”

¶4 At the trial, the State introduced the Brown Street texts
through Detective Larry Gladysh. On cross-examination, Jackson asked
Gladysh, “And you had the one text message with that number . . . and
Christopher Woods on June 24th?” The State objected. At a sidebar outside
the jury’s presence, the State argued that the question unfairly
characterized the communication between Jackson and Woods but did not
move to strike the question or Gladysh’s answer. When the examination
resumed, Jackson challenged Gladysh’s earlier testimony that the text’s
reference to “Brown Street” was a reference to “Brown Road.” On re-direct,
the State moved to reconsider the court’s pre-trial ruling, arguing that the
defense’s questioning unfairly depicted communications between Jackson
and Woods before the murder and therefore opened the door for the State
to introduce the remaining texts. The court granted the State’s motion and
concluded the cross-examination had implied that Jackson and Woods had
exchanged just the one set of texts before the murder and the defense had
therefore opened the door to the admission of the remaining texts.

¶5 We have jurisdiction over Jackson’s timely appeal pursuant
to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

¶6 On appeal, Jackson argues the court erred in admitting the
texts. “We review a trial court’s admission of evidence for an abuse of
discretion . . . .” State v. Gill, 242 Ariz. 1, 3, ¶ 7 (2017).

I. Admission of the Brown Street Texts

¶7 Jackson argues the Brown Street texts were irrelevant; the
State argues the Brown Street texts were relevant because they made it more
probable that Jackson intended to rob D.C. Under Arizona Rule of
Evidence 401, “[e]vidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the evidence; and (2)
the fact is of consequence in determining the action.” Per Rule 402, relevant
evidence is admissible. The bar for relevancy is not particularly high. State
v. Fish, 222 Ariz. 109, 124, ¶ 48 (App. 2009).

¶8 Jackson contends the Brown Street texts, exchanged three
weeks before the murder, were sent “too long before” the killing to be
relevant. However, “temporal remoteness goes to weight, not

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admissibility.” State v. Bible, 175 Ariz. 549, 593 (1993); see also State v. Van
Adams, 194 Ariz. 408, 416, ¶ 24 (1999). Here, the jury could properly
conclude that the texts, sent weeks before the murder, suggested Jackson
and Woods planned the crime. Likewise, Jackson’s claim that the reference
to “Brown Street” did not necessarily refer to Brown Road is simply an
argument against the evidence’s weight. See Yauch v. S. Pac. Transp. Co., 198
Ariz. 394, 402, ¶ 22 (App. 2000) (“[A]lleged deficiencies in . . . proffered
evidence neither render it irrelevant nor destroy its foundation . . . .”). It
was for the jury to determine how much weight to give these texts. See id.
The jury properly could consider that Brown Street was a reference to
Brown Road in Mesa and weigh the Brown Street texts accordingly. Here,
the court did not abuse its discretion in admitting the Brown Street texts.
See Gill, 242 Ariz. at 3, ¶ 7.

II. Admission of the Other Messages

¶9 Jackson argues the court erred in admitting the remaining
texts because his questioning was proper and did not open the door to
admission of otherwise inadmissible evidence. He contends the court had
stated it would reconsider its initial ruling only if Jackson asserted a
particular defense. That assertion, however, misstates the court’s ruling,
which cautioned, “this ruling is subject to the evidence presented at trial
which may either allow this evidence to be presented or make the evidence
subject to objection.”

¶10 “[W]here one party injects improper or irrelevant evidence or
argument, the ‘door is open,’ and the other party may have a right to
retaliate by responding with comments or evidence on the same subject.”
Pool v. Superior Court, 139 Ariz. 98, 103 (1984). Here, Jackson’s questions
about the Brown Street texts implied that Jackson and Woods had just one
text exchange about drug robberies. Thus, the court did not abuse its
discretion by admitting the remaining texts to rebut that incorrect inference.
See State v. Connor, 215 Ariz. 553, 563, ¶ 33 (App. 2007) (admission of
burglary evidence was proper to rebut defendant’s testimony about the
relationship with the victim); see also State v. Kemp, 185 Ariz. 52, 60-61 (1996)
(stating limited admission of co-defendant’s statements was proper when
questioning implied there was no evidence linking the defendant to the
murder).

¶11 Jackson further argues that the jury could have considered the
evidence for an improper purpose, in violation of Arizona Rule of Evidence
404(b). Under Rule 404(b), a trial court may allow evidence only if it
determines that:

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(1) the evidence is proffered to show something
other than conduct in conformity with the prior
acts, pursuant to rule 404(b); (2) the evidence is
legally and logically relevant under rule 402; (3)
the probative value of the evidence
substantially outweighs the risk of unfair
prejudice under rule 403; and (4) defendant has
not been denied an appropriate limiting
instruction under rule 105.

State v. Hyde, 186 Ariz. 252, 276 (1996). Here, the evidence was not offered
to prove Jackson intended to kill or rob the victim, or as character evidence,
but to rebut the inference that Jackson and Woods discussed committing a
“stain” only once and establish Jackson’s intent or plan to commit the
robbery. See id. Moreover, the court did not err by concluding that the
texts’ probative value was not substantially outweighed by their prejudicial
effect. Furthermore, any risk of prejudice was alleviated when the court
instructed the jury to consider the remaining messages only to establish
Jackson’s motive or intent or for another permitted purpose under Rule
404(b). See Fish, 222 Ariz. at 125, ¶ 52 (“[T]he risk of a jury using the
evidence for an improper purpose is minimized by the requirement that a
limiting instruction be given.”).

¶12 On this record, we cannot conclude the court abused its
discretion in admitting the remaining text messages. See Connor, 215 Ariz.
at 563, ¶ 32.

CONCLUSION

¶13 Because the court did not err in admitting the text messages,
we affirm Jackson’s convictions.

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

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