State v. Villalpando

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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/Cross-Appellant,

v.

ROGELIO M. VILLALPANDO, Appellant/Cross-Appellee.

Nos. 1 CA-CR 25-0267, 1 CA-CR 25-0321
(Consolidated)
FILED 07-31-2026

Appeal from the Superior Court in Maricopa County
No. CR2022-001322-001
The Honorable Monica Edelstein, Judge

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

COUNSEL

Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant/Cross-Appellee

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee/Cross-Appellant

STATE v. VILLALPANDO
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision in which Presiding
Judge Daniel J. Kiley and Judge Cynthia J. Bailey joined.

W I L L I A M S, Judge:

¶1 Defendant Rogelio Villalpando (“Defendant”) appeals his
conviction and sentence for one count of disorderly conduct. Defendant’s
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that after a diligent
search of the record, he found no arguable questions of law. Counsel asks
us to search the record for reversible error. This court granted Defendant
an opportunity to file a supplemental brief in propria persona but he did not
do so. The State cross-appeals1—challenging the trial court’s post-verdict
ruling setting aside a conviction on another charge—the unlawful
discharge of a firearm. After reviewing the entire record for fundamental
error, we affirm Defendant’s conviction and sentence for disorderly
conduct but vacate the directed verdict of acquittal on the count of unlawful
discharge of a firearm. We remand to the trial court with instructions to
reinstate the verdict of guilt and proceed with sentencing.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The State charged Defendant with one count of disorderly
conduct, a class 6 dangerous felony and domestic violence offense (Count
1), and one count of unlawful discharge of a firearm, a class 6 dangerous
felony (Count 2), for conduct arising out of an altercation with his adult son
(“Ryan”, a pseudonym). The State also alleged aggravating circumstances.

¶3 At trial, Ryan recounted a visit by Defendant to his home.
According to Ryan, when Defendant arrived, Ryan’s younger (adult)
brother (“Connor”, a pseudonym) was already there. For a time, the three
men spoke in the kitchen while drinking beers, but before long, Ryan and
Defendant began arguing. Their heated verbal exchange quickly escalated
when Defendant “lunged for” and “grabbed” Ryan’s loaded gun, which
laid on a counter between them. Fearing for the safety of everyone in the

1 Although the State filed its notice of appeal before Defendant filed
his notice of appeal, we treat the State’s appeal as a cross-appeal.

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home, including his four-year-old son, Ryan immediately reached for the
gun. As he and Defendant wrestled, their hands “went up” and a round
“went off,” leaving a hole in the kitchen ceiling. Ryan repeatedly punched
Defendant and gained possession of the gun. He then asked Connor to
drive Defendant home. After Defendant and Connor left, Ryan did not
contact the police because he viewed the incident as “a family matter.” In
fact, within hours of the altercation, Ryan plastered over the bullet hole in
his ceiling because he did not want his daughter to see it. Later that evening,
however, the police contacted Ryan, took photographs of his home, and
collected his gun. When asked whether Defendant had his finger on the
trigger, Ryan testified that he was uncertain, stating “we both had our
hands on it.” But he testified unequivocally that Defendant first grabbed
the gun, explaining he only reached for the gun to take it away from
Defendant out of “fear” that “somebody” might get hurt.

¶4 Next, Connor testified, largely confirming Ryan’s account. He
stated that he witnessed Ryan and Defendant “having a heated argument,”
and then saw Defendant “reach for” Ryan’s gun “that was sitting on the
counter.” Unable to identify who pulled the trigger during the ensuing
scuffle, Connor testified that Ryan’s hands “were collapsed [clasped]
around” Defendant’s hands when “a round was discharged.” Ryan then hit
Defendant and gained possession of the gun. Once Ryan had control of the
firearm, he asked Connor to take Defendant home, and Connor did so.
Describing his own reaction to the events, Connor testified that he froze
with panic and fear when Defendant grabbed the gun, worried for
everyone’s safety. Like Ryan, Connor testified that he did not contact the
police because he “chalked it up to a family argument.” Shortly after he and
Defendant arrived at Defendant’s home, however, Defendant’s fiancé
contacted the police, and Connor spoke with officers later that evening.

¶5 After the State rested, defense counsel moved for a directed
verdict of acquittal on both counts under Arizona Rule of Criminal
Procedure (“Rule”) 20. The trial court denied the motion.

¶6 Defendant then testified. Consistent with his sons’ testimony,
Defendant described arriving at Ryan’s house and sitting at the kitchen
counter. He also recounted an argument with Ryan but testified that Ryan
retrieved a gun from on top of the refrigerator, pointed it at his head, and
fired a shot with the gun positioned next to his ear. After the gunshot, Ryan
struck him down and he lost consciousness. When he “c[a]me to,” Connor
was dragging him outside to his vehicle. Although he tried to contact the
police while Connor drove, Connor took his phone, so his fiancée called the
police when he returned home. Later that evening, while receiving

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treatment at a hospital for a “gash” he sustained on his left eyebrow,
Defendant spoke with police officers.

¶7 Retaking the stand as a rebuttal witness, Connor denied that
Ryan ever threatened Defendant, either verbally or with a gun. Indeed, he
testified unequivocally that Defendant first grabbed the firearm. Consistent
with Connor’s testimony, Ryan denied retrieving a gun from atop the
refrigerator or pointing a gun at Defendant, reiterating that Defendant first
reached for the gun on the kitchen counter.

¶8 A jury found Defendant guilty as charged. The jurors also
found proven the alleged aggravating circumstances: (1) Count 1 was both
dangerous and a domestic violence offense, and (2) Count 2 was a
dangerous offense.

¶9 After excusing the jurors, the trial court, on its own initiative,
entered a directed verdict on Count 2. The court explained that having
reviewed the evidence, it determined insufficient evidence supported the
conviction:

[T]he State failed to provide any evidence through testimony
or otherwise, that Defendant actually fired the gun. Unlike
Count 1[,] . . . Count 2 requires evidence to support that it was
Defendant who actually fired the gun. The State has failed to
present sufficient evidence that Defendant discharged the
firearm to support a conviction on Count 2 beyond a
reasonable doubt.

The State timely appealed.

¶10 At the sentencing hearing, the trial court found several
mitigating factors: family support, medical issues, lack of criminal history,
and cooperation with law enforcement. Finding that these mitigating
factors, on balance, outweighed the jury’s finding of dangerousness, the
court sentenced Defendant to a minimum term of 1.5 years’ imprisonment
on Count 1, with 31 days presentence incarceration credit.

¶11 Defendant timely appealed. We have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

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DISCUSSION

¶12 Under Rule 20(a)(1), a trial court “must enter a judgment of
acquittal” before a jury renders a verdict “if there is no substantial evidence
to support a conviction.” If, after a guilty verdict, the court determines “no
substantial evidence” supports it, Rule 20(b)(2) requires the court, on its
own initiative, to “order a judgment of acquittal.”

¶13 We review de novo a trial court’s ruling on a Rule 20 motion,
whether at trial or post-verdict. State v. West, 226 Ariz. 559, 562–63, ¶¶ 15,
19 (2011). “The relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
Id. at 562, ¶ 16 (citation modified). Sufficient evidence upon which a
reasonable jury can convict may be direct or circumstantial. Id. In reviewing
the sufficiency of the evidence, we test the evidence “against the statutorily
required elements of the offense,” State v. Pena, 209 Ariz. 503, 505, ¶ 8 (App.
2005), and neither reweigh conflicting evidence nor assess the credibility of
witnesses, State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38 (App. 2013).

¶14 First, as part of our Anders review, we examine the sufficiency
of the evidence supporting Defendant’s conviction for disorderly conduct.
As charged in this case, a person commits disorderly conduct by
intentionally or knowingly disturbing “the peace or quiet” of a “family or
[] person” through the reckless handling, displaying, or discharging of a
deadly weapon. A.R.S. § 13-2904(A)(6).

¶15 At trial, Ryan and Connor both testified, unequivocally, that
Defendant first lunged for the gun. Defendant, by contrast, testified that he
never touched the gun. Deferring to the jury’s assessment of the witnesses’
credibility and the weight to accord the conflicting evidence, as we must,
substantial evidence supports a finding that Defendant intentionally
grabbed Ryan’s gun with the knowledge that his control over (handling of)
the firearm would alarm (disturb the peace) both his sons. Because the State
presented some evidence to support each element of the offense, a rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Therefore, the trial court did not err by denying
Defendant’s Rule 20 motion for a directed verdict of acquittal on the count
of disorderly conduct.

¶16 Next, we turn to the State’s contention that the trial court
improperly entered a post-verdict ruling directing an acquittal on the count
of unlawful discharge of a firearm. A person commits unlawful discharge

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of a firearm by, acting with “criminal negligence,” “discharg[ing] a firearm
within or into the limits of any municipality.” A.R.S. § 13-3107(A). A person
acts with criminal negligence when he “fails to perceive a substantial and
unjustifiable risk that the result will occur.” A.R.S. § 13-105(10)(d). “The risk
must be of such nature and degree that the failure to perceive it constitutes
a gross deviation from the standard of care that a reasonable person would
observe in the situation.” Id.

¶17 “Unless there is ‘a complete absence of probative facts to
support a conviction,’ a Rule 20 motion should be denied.” State v. Sabalos, 178 Ariz. 420, 422 (App. 1994) (quoting State v. Mathers, 165 Ariz. 64, 67
(1990)). “[I]f the record reveals the presence of facts from which a
reasonable jury could infer guilt beyond a reasonable doubt,” a trial court
may not set aside a jury’s verdict of guilt. Id.

¶18 Pointing to evidence that he grabbed the gun first, the State
posits that Defendant “had primary control of the weapon when it went off
during the struggle.” Working from this premise, the State argues that the
“jurors could reasonably find [Defendant] discharged the firearm with
criminal negligence.” To the extent the trial court predicated its directed
verdict ruling on “an implicit conclusion” that A.R.S. § 13-3107 criminalizes
only the intentional or knowing discharge of a firearm or requires evidence
that the defendant’s “finger was on the trigger” when the “weapon was
discharged,” the State contends the court misapprehended the law and
improperly added elements to the offense. See State v. Miranda, 200 Ariz. 67,
69, ¶ 5 (2001) (“Courts may not add elements to crimes defined by statute.”).

¶19 To be sure, the State did not put forward any evidence,
testimonial or otherwise, that Defendant pulled the trigger as he and Ryan
jockeyed for control of the gun. But the express language of A.R.S. § 13-3107
does not identify “pulling the trigger” as an element of the offense. Rather,
the statute’s plain language encompasses the unintentional discharge of a
firearm if the discharge is the result of criminal negligence.

¶20 “Conduct is the cause of a result when both of the following
exist: 1. But for the conduct the result in question would not have
occurred[;] 2. The relationship between the conduct and result satisfies any
additional causal requirements imposed by the statute defining the
offense.” A.R.S. § 13-203(A).

¶21 At trial, both Ryan and Connor testified that: (1) Defendant
first grabbed the gun, (2) Defendant and Ryan fought for possession and
control of the weapon, (3) during the struggle, the firearm discharged, and

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(4) neither knew who pulled the trigger. 2 Pointing to this evidence, the State
contends that Defendant acted with criminal negligence when he escalated
the verbal altercation by arming himself with the gun—creating a
substantial and unjustifiable risk of an ensuing struggle to gain control over
the firearm—a struggle that could, and did, result in the discharge of the
weapon.

¶22 Defendant contests the State’s reasoning. Although he
concedes that a person who recklessly displays a weapon during a verbal
altercation “would be responsible for recognizing that [the other party to
the argument] may try to take the gun,” he contends the arming party could
not be charged with foreseeing that such a scuffle could result in “an
accidental discharge.”

¶23 We agree with the State. By inserting a gun into his verbal
dispute with his son, Defendant arguably created a substantial and
unjustifiable risk the firearm would discharge during the foreseeable,
ensuing struggle for possession and control of the weapon. Had Defendant
not grabbed the gun from the counter, there would have been no risk of
such a discharge. See State v. Aragon, 252 Ariz. 525, 528–29, ¶¶ 8–11 (2022)
(explaining a defendant is not relieved of culpability when another force
also “operates” to produce harm if: (1) the other force was foreseeable, or
(2) “the defendant’s course of conduct actively continues up to the time the
injury is sustained, then any outside force which is also a substantial factor
in bringing about the injury is a concurrent cause of the injury and never an
intervening force” (citation modified)).

¶24 Applying the criminal negligence standard to the evidence
presented at trial, a reasonable jury could have found that Defendant’s
escalation of the conflict (grabbing a gun) constituted a gross deviation
from the standard of care that a reasonable person would have observed in
the situation. Because the State presented probative evidence from which a
reasonable jury could infer guilt beyond a reasonable doubt, the trial court
erred by setting aside the jury’s verdict and ordering a judgment of
acquittal on the count of unlawful discharge of a firearm. Accordingly, we
vacate the court’s order and remand with directions to reinstate the verdict
of guilt.

¶25 Finally, a review of the record confirms that all proceedings
were conducted in compliance with the Arizona Rules of Criminal

2 The parties did not dispute that the discharge occurred within
municipal limits.

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Procedure. Defendant was at all times represented by counsel and was
present at all critical stages of the proceedings, including the trial and
verdict. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at
critical stages); see also State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be
present at critical stages). The jury appropriately consisted of eight jurors;
and the record shows no evidence of juror misconduct. A.R.S. § 21-102(B);
Ariz. R. Crim. P. 18.1(a). The trial court properly instructed the jury of
Defendant’s presumption of innocence, the State’s burden of proof, and the
elements of the charged offenses. At sentencing, Defendant was given an
opportunity to speak, and the court stated on the record the evidence and
materials it considered and the factors it found in imposing the sentence for
disorderly conduct. See Ariz. R. Crim. P. 26.9, 26.10. Additionally, the
sentence imposed was within the statutory limits. See A.R.S. §§ 13-701,
-704(A). Our review of the entire record reveals no fundamental error with
respect to the disorderly conduct conviction and sentence. See Leon, 104
Ariz. at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”).

CONCLUSION

¶26 We affirm the conviction and sentence for disorderly conduct,
reverse the post-verdict ruling directing an acquittal on the count of
unlawful discharge of a firearm, and remand for the trial court to reinstate
the verdict of guilt and proceed with sentencing.

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

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