State v. Aleman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELY ALFREDO ALEMAN, Appellant.

No. 1 CA-CR 24-0589
FILED 08-12-2025

Appeal from the Superior Court in Maricopa County
No. CR 2023-006368-002
The Honorable Daniel G. Martin, Judge

AFFIRMED

COUNSEL

Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Casey D. Ball
Counsel for Appellee
 STATE v. ALEMAN
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 The defendant, Ely Alfredo Aleman, appeals his convictions
and sentences for one count of aggravated assault, one count of assisting a
criminal street gang, and two counts of threatening or intimidating. We
affirm Aleman’s convictions and sentences because he fails to show the
court abused its discretion by denying his motion to strike a juror for cause
or his motion for a mistrial.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 In 2022, four friends rode their motorcycles home from dinner
on Bethany Home Road in Glendale. When they tried to turn right onto
Grand Avenue, they encountered another group of motorcyclists
obstructing the roadway and preventing them from making the turn.
Unbeknownst to the friends, the other motorcyclists were part of the Vagos
motorcycle gang. One of the friends, Don (a pseudonym), waved at the
Vagos gang before asking if there was an issue and stating they were trying
to get home. An argument then ensued between Don and the gang.

¶3 Aleman, a documented member of the Vagos gang, pushed
Don off his bike. The other friends tried to intervene, but the gang
prevented them from doing so. Don lay on the ground getting hit by several
people, including Aleman. Eventually, the friends walked away, but Don
stood and knocked down a Vagos’s bike. The gang once again began hitting
and punching Don. The fight ended with a member of the Vagos gang
knocking over Don and his friends’ bikes.

¶4 One of Don’s friends captured the incident with her camera,
and she sent the video to the Glendale Police Department. Law enforcement
officers throughout the state identified the Vagos gang members, including

1 We view the facts in the light most favorable to affirming. State v.
Mendoza, 248 Ariz. 6, 11, n.1 (App. 2019).

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Aleman, by examining stills from the video and comparing the patches on
the individuals’ vests, as well as their helmets and facial features, to known
photos.

¶5 At the trial, during jury selection, the court asked potential
jurors, “[i]s there anyone here who would be likely to believe a police officer
either more or less just based on the fact that they are a police officer?” Juror
152 told the court that she wanted to believe she could be fair and impartial,
but her husband had worked for the sheriff’s office, and her son-in-law was
killed while working as a police officer. Aleman’s counsel questioned Juror
15 about her comments.

[Defense Counsel]: So your husband was a member of the Sheriff’s
Department?

[Juror 15]: Yes, he was.

[Defense Counsel]: And I think you said that you would give more
weight towards police officers because of that?

[Juror 15]: No, I didn’t say I would give more weight. I would hope
I could be -- I’m pretty sure I could be impartial with -- I wouldn’t --
I would go by what I hear and stuff. I wouldn’t judge anything by
that. . . .

...

[Defense Counsel]: And I appreciate that. It’s also -- there was a
death in your family?

[Juror 15]: There was. My son-in-law was a police officer, and he was
killed in the line of duty. And do I say that it was a gang member
issue? But I would not judge it on that. . . .

[Defense Counsel]: You didn’t tell me it was a gang member issue
before.

[Juror 15]: I didn’t, because, actually, just sitting here listening to the
-- I mean, that’s why I said it now.

2 Juror 15 was originally labeled Juror 58. After she was selected as a
juror, she was relabeled Juror 15.

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[Defense Counsel]: And I appreciate that.

[Juror 15]: But I wouldn’t be impartial [emphasis added] in the sense
of my decision. I would listen to the evidence. That wouldn’t affect
it.

[Defense Counsel]: You sure? Because this is -- I mean, it’s a
traumatic situation --

[Juror 15]: I know. I mean, I think I would be, yes.

[Defense Counsel]: Okay. Thank you.

¶6 Aleman moved to strike Juror 15 for cause. While he
acknowledged that Juror 15 said she would try to be fair and impartial, he
feared that as more information came out, her history would affect her. The
court denied the motion because “there has not been a sufficient showing
that she is unable to serve fairly and impartially to both sides of this case.”

¶7 As part of its case-in-chief, the State called a detective who
identified Aleman as one of the Vagos gang members in the video. Midway
through the cross-examination, the court allowed the parties to question the
detective outside the jurors’ presence about his previous contacts with
Aleman. After some discussion, the court ordered the detective not to refer
to any other clubs or groups to which Aleman may have belonged.

¶8 Before the jury, Aleman asked the detective about his ability
to identify Aleman’s tattoos. Aleman asked the detective if he could see
Aleman’s tattoos clearly during prior contact, when they were standing 20
to 40 yards apart. The detective responded:

I’ve seen Mr. Aleman‘s tattoos on several different occasions,
and it wasn’t, like, visually 20, 40 yards away, usually. It was
his prior contacts with police, his booking photos, stuff like
that.

¶9 Aleman moved for a mistrial, arguing that the detective’s
statement prejudiced him by mentioning his prior contacts with law
enforcement. The court denied Aleman’s motion but offered to give the jury
a limiting instruction, which Aleman refused.

¶10 The jury convicted Aleman of the charges, and the court
sentenced him to four concurrent aggravated terms, totaling 13.5 years in

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prison. Aleman appealed. We have jurisdiction under Arizona Revised
Statutes (“A.R.S.”) §§ 12-120.21, 13-4031, and 13-4033(A)(1).

DISCUSSION

A. The Court Did Not Abuse Its Discretion by Finding Juror 15 Could
Be Fair and Impartial.

¶11 Aleman contends that the superior court denied him due
process by denying his motion to strike Juror 15 for cause. We review a trial
court’s denial of a motion to strike a potential juror for an abuse of
discretion. State v. Allen, 253 Ariz. 306, 330, ¶ 41 (2022). The court must
dismiss jurors for cause if it finds “a reasonable ground to believe that the
. . . jurors cannot render a fair and impartial verdict.” Ariz. R. Crim. P.
18.4(b). But a court “need not strike a juror for cause simply because she
was the victim of a crime similar to one with which the defendant is
charged.” State v. Puga, ___ Ariz. ___, ___, ¶ 27, 564 P.3d 631, 636 (App.
2025) (quotation omitted) (cleaned up).

¶12 During voir dire, Aleman twice acknowledged that Juror 15
“said that she could be . . . fair and impartial,” but stated he feared that “as
more information comes out[,] her history may affect her.” But on appeal,
Aleman argues “[o]n two occasions [Juror 15] said she would not be
impartial.” (emphasis added). “To preserve an argument for review, the
defendant must make a sufficient argument . . . . And an objection on one
ground does not preserve the issue [for appeal] on another ground.” State
v. Kinney, 225 Ariz. 550, 554, ¶ 7 (App. 2010) (alteration in original)
(quotation omitted). A “fundamental rule of appellate procedure in
Arizona” presumes that “the trial court must be given an opportunity to
correct the errors at trial,” and when no opportunity is given, the claim is
waived. State v. Totress, 107 Ariz. 18, 20 (1971).

¶13 We disagree with the State that Aleman has forfeited his right
to seek relief for all but “fundamental, prejudicial error” over the argument
that Juror 15 made contradictory statements, suggesting she could not be
impartial. Kinney, 225 Ariz. at 555, ¶ 11. Aleman’s trial argument was
enough to allow the superior court to evaluate Juror 15’s demeanor and
responses and to determine, based on all the evidence, if she could be fair
and impartial. We believe that the trial court had the chance to correct the
claimed error, so we review the claim for an abuse of discretion. Allen, 253
Ariz. at 330, ¶ 41.

¶14 Aleman argues the jury was not impartial because Juror 15
made contradictory statements, including “[w]ell, I want to feel I can be not

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impartial, but my husband was with the sheriff’s department.” Aleman
tries to characterize these portions of Juror 15’s statements as contradictory,
but the record shows that neither the parties nor the superior court
perceived the statements that way during jury selection. After informing
Aleman that her son-in-law was a police officer who was killed in the line
of duty on a “gang member issue,” Juror 15 said, “I wouldn’t be impartial
in the sense of my decision. I would listen to the evidence. That wouldn’t
affect it.”

¶15 A court must “consider the totality of a prospective juror’s
conduct and answers given during voir dire” in assessing a challenge for
cause. Ariz. R. Crim. P. 18.5(h). And a prospective juror need not make her
assurances of impartiality in absolute terms. State v. Acuna Valenzuela, 245
Ariz. 197, 210, ¶ 32 (2018); see also State v. Bible, 175 Ariz. 549, 573 (1993) (The
court’s refusal to strike jurors who believed it would be difficult but not
impossible for them to be impartial was not error.), abrogation on other
grounds recognized by McKinney v. Ryan, 813 F.3d 798, 815 (9th Cir. 2015).
Juror 15’s full statements during voir dire revealed that she felt she could
be fair and impartial, despite her personal experiences: “I’m pretty sure I
could be impartial . . . I would go by what I hear . . . .”

¶16 Taken in context, the record reflects that Juror 15 misused the
word “impartial” when she said she would not be impartial. Defense
counsel immediately responded “[y]ou sure? . . . I mean it’s a traumatic
situation.” And later, when making the motion to strike Juror 15, Aleman
acknowledged that Juror 15 said she would try to be fair and impartial. The
court interpreted Juror 15’s comments the same way: “[Juror 15] indicated
her ability to be impartial.” See State v. Colorado, 256 Ariz. 97, 99, 102, ¶¶ 16,
23 (App. 2023) (The superior court determines the juror’s credibility about
assurances of impartiality, and we defer to those findings unless
unsupported by the record.). The court did not err by denying Aleman’s
motion to strike.

B. The Court Did Not Abuse Its Discretion by Denying Aleman’s
Motion for Mistrial.

¶17 Aleman argues the superior court erred by denying his
motion for a mistrial after the detective testified about Aleman’s prior
police contacts. Mistrials are “the most dramatic remedy for trial error,” and
the court should only grant a party’s request for a mistrial if “the interests
of justice will be thwarted otherwise.” State v. Miller, 234 Ariz. 31, 40, ¶ 25
(2013) (quotation omitted).

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¶18 In granting a motion for a mistrial based on witness
testimony, the superior court must consider two factors: “(1) whether the
testimony called to the jurors’ attention matters that they would not be
justified in considering in reaching their verdict and (2) the probability
under the circumstances of the case that the testimony influenced the
jurors.” State v. Lamar, 205 Ariz. 431, 439, ¶ 40 (2003). This inquiry focuses
on whether the contested testimony would deny the defendant a fair trial.
State v. Bailey, 160 Ariz. 277, 279 (1989).

¶19 We review the admission of evidence under an abuse of
discretion standard. See State v. Gulbrandson, 184 Ariz. 46, 60 (1995).
Evidence of other acts is admissible if it is relevant and “admitted for a
proper purpose.” Id. Evidence is relevant if it tends to make a material fact
more or less probable than it would be without the evidence. See Ariz. R.
Evid. 401. Although evidence of other acts may not be used to prove a
defendant’s propensity to commit crimes, it is admissible when used to
prove the defendant’s “identity.” Ariz. R. Evid. 404(b); State v. Van Adams, 194 Ariz. 408, 415, ¶ 20, (1999).

¶20 Here, a central issue in the case was whether Aleman was
involved in the gang assault. His identity, and how law enforcement
arrived at that conclusion, was key to the State’s case. How the detective
determined the tattoos on the assailant in the crime video matched known
tattoos on Aleman was material to the jurors’ determination of identity.

¶21 The detective’s “booking photos” statement was made in
response to Aleman questioning the detective’s ability to recognize
Aleman’s tattoos from prior contact when the detective was standing 20 to
40 yards away. The response was relevant to the question asked because
the detective’s ability to recognize the tattoos was not based solely on seeing
the defendant from 20 to 40 yards away on a prior occasion. Unfortunately,
the detective did not limit his answer to “known photos” of Aleman, thus
introducing the fact that Aleman had previous contacts with the police.
That an individual has had prior police contact for “another crime entirely
distinct and independent of that for which he is on trial, even though it be
a crime of the same class, is neither relevant nor admissible.” State v. Finn, 111 Ariz. 271, 278 (1974) (quotation omitted), abrogated on other grounds by,
State v. Bush, 244 Ariz. 575, 589-90, ¶¶ 59-61 (2018).

¶22 Thus, the statement referring to how the detective arrived at
his conclusion about identity contained both admissible and inadmissible
components. If evidence is admissible against a party for one purpose but
not for other purposes, “the court, on timely request, must restrict the

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evidence to its proper scope and instruct the jury accordingly.” Ariz. R.
Evid. 105; see also State v. Maxwell, 95 Ariz. 396, 400 (1964) (A defendant’s
failure to request a “limiting instruction constituted a waiver of any right
to have such given,” and the failure to instruct is not error.); State v.
McFarlin, 110 Ariz. 225, 228 (1973) (An alleged error about the limited
purpose of evidence cannot be raised “absent a request by counsel for such
an instruction.”), superseded by rule on other grounds, State v. Aguilar, 209
Ariz. 40, 47, ¶ 24 (2004).

¶23 Here, the superior court offered to give a limiting instruction
to the jury, which Aleman refused to accept. While Aleman’s decision may
have been strategic, it does not support the argument that the court abused
its discretion by denying a mistrial. See State v. Herrera, 203 Ariz. 131, 134-35,
¶ 6 (App. 2002) (Refusing curative instructions weighs against finding an
abuse of discretion when the court denied a mistrial.); Miller, 234 Ariz. at
40, ¶¶ 24, 26 (No abuse of discretion in the denial of a mistrial in part
because the court gave a curative instruction.); State v. Adamson, 136 Ariz.
250, 262 (1983) (Whether “some remedy short of mistrial will cure the error”
is a discretionary determination for the superior court.). On this record,
including the fact that Aleman refused a curative instruction, his argument
about the jury improperly considering the evidence fails.

¶24 Aleman’s argument also fails because he does not
demonstrate a reasonable probability that the verdict would have been
different had the testimony not been admitted. See State v. Grijalva, 137 Ariz.
10, 14 (App. 1983), superseded by statute on other grounds as recognized in State
v. Cons, 208 Ariz. 409, 413, ¶ 9 (App. 2004). The detective’s statements
referenced only Aleman’s prior contact with police, not convictions. The
detective said he recognized Aleman from several different contacts,
including “prior contacts with police, his booking photos, stuff like that.”
The detective referenced the photos to explain how he could identify
Aleman and not to “prove [Aleman’s] character . . . to show action in
conformity therewith.” Ariz. R. Evid. 404(b).

¶25 Aleman fails to show a reasonable probability that the
detective’s statements influenced the jury and thus fails to show that the
superior court erred by denying his motion for mistrial.

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CONCLUSION

¶26 We affirm Aleman’s convictions and sentences.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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