State v. Orona

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STEVEN ORONA, Appellant.

No. 1 CA-CR 25-0303
FILED 10-06-2026

Appeal from the Superior Court in Maricopa County
No. CR2020-142820-001
The Honorable Todd F. Lang, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

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

STATE v. ORONA
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which Chief
Judge Randall M. Howe joined and Presiding Judge Andrew J. Becke joined
in part and concurred in the result.

M O R S E, Judge:

¶1 Steven Orona appeals his convictions for one count of
first-degree murder and one count of drive-by shooting. For the following
reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 "We view the facts in the light most favorable to affirming the
jury's verdicts." State v. Rodriguez, 251 Ariz. 90, 93, ¶ 2 (App. 2021).

¶3 On September 24, 2020, Orona was involved in a road-rage
incident during which he fatally shot the driver of another car. Two months
after the shooting, the police arrested Orona and the State charged him with
first-degree murder (Count 1) and drive-by shooting (Count 2). Orona
noticed several defenses, including self-defense and crime prevention.

¶4 Before trial, the State moved to preclude a toxicology report
showing the victim had marijuana metabolites in his system. Orona
opposed the motion, contending the toxicology report, in conjunction with
his expert witness, was relevant for his self-defense claim because it
supported his narrative that the victim was the aggressor. The court
granted the State's motion, finding the probative value of the toxicology
report and the expert testimony was "strongly outweighed" by the danger
of unfair prejudice under Arizona Rule of Evidence ("Rule") 403.

¶5 Orona testified at trial and claimed the shooting was justified.
He testified that while he was driving with his then-girlfriend, the victim
pulled in front of them and began tapping his brakes. Orona said the victim
then came "to an abrupt stop" and, after Orona honked his horn, the victim
got out of his vehicle holding a gun. Orona then testified that he pulled out
his own gun, put it on his lap, and drove away. The victim got back in his
car and caught up to Orona, so the girlfriend rolled down her window to
ask the victim if he was okay. The victim made a gun gesture with his hand

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and said, "You don't know who you're messing with." Orona also said the
victim swerved multiple times trying to hit Orona's car.

¶6 At one point, Orona claimed he saw the victim reach between
the center console and his seat before "slowing [his car] down to come level
with [Orona's car]." The victim then "turn[ed] his whole body" while lifting
his arm, causing the girlfriend to "shriek[] and duck[] into the center
console" of Orona's car. Orona testified he saw the victim holding a gun, so
he ducked and fired his gun in the victim's direction. The bullet struck the
victim in the head, killing him. Orona drove away without calling the
police, and the victim's vehicle briefly stopped before accelerating, hitting
a guidewire, and flipping onto the driver's side. At home, Orona placed his
gun in a box for safekeeping and, with the girlfriend's help, arranged for
his car to be towed away and hidden.

¶7 To support his defense of crime prevention, Orona requested
jury instructions on several crimes, including aggravated assault with a
simulated weapon. He argued the victim's hand gesture was a simulated
weapon when considered with Orona's statement that the victim had an
actual gun. The court instructed the jury on the crime prevention defense
but denied Orona's request to provide an additional instruction on
aggravated assault with a simulated weapon. The court found the hand
gesture could have been perceived as a threat but was "clearly not intended
to deceive the viewer into thinking that it's a weapon."

¶8 Following an eleven-day trial, the jury found Orona guilty on
both counts. After an aggravation phase, the jury also found the State
proved aggravating circumstances. The court sentenced Orona to life in
prison with the possibility of release after 25 years for Count 1 and a
concurrent sentence of 16 years in prison for Count 2.

¶9 Orona timely appealed and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶10 Orona argues the superior court erred by precluding his
expert witness and refusing to give his requested jury instruction. We
address each argument in turn.

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I. Expert Witness.

A. Rule 403

¶11 Orona contends the court erred under Rule 403 by precluding
his expert witness from testifying about marijuana intoxication. Rule 403
permits the court to "exclude relevant evidence if its probative value is
substantially outweighed" by the danger of "unfair prejudice, confusing the
issues, [or] misleading the jury . . . ." Here, the superior court concluded
that although the expert testimony was relevant, its probative value was
"strongly outweighed by prejudice" because "the possible benefits of [the
expert's] analysis are speculative," would not show the victim was the
aggressor, and could "distract the jury from the issues at hand."

¶12 We review Rule 403 decisions for abuse of discretion. State v.
Parkinson, 258 Ariz. 601, 609, ¶ 28 (App. 2024). "Because the trial court is in
the best position to balance the probative value of challenged evidence
against its potential for unfair prejudice, the trial court has broad discretion
in this decision." State v. Connor, 215 Ariz. 553, 564, ¶ 39 (App. 2007)
(citation modified). The court abuses its discretion when the record does
not support the decision or the court makes an error of law. Parkinson, 258
Ariz. at 610, ¶¶ 28–29. Because this issue was raised before trial, we also
review for harmless error. State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005)
(stating courts review for harmless error when defendant objects and
preserves issue for appeal). Under harmless-error review, the State bears
the burden of "prov[ing] beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence." Id.

¶13 Orona argues his expert testimony is more probative than
prejudicial because it "would educate the jury in a matter that is relevant,"
assuming the jury believes Orona's testimony "about the aberrant and
dangerous behavior of [the victim]." In the report prepared by Orona's
expert witness, it lists general psychoactive side effects of marijuana use,
such as altered perception, paranoia, and poor judgment. The report also
states the victim "could have been displaying" such side effects. But before
the superior court, Orona admitted the expert would not testify about the
victim's specific reaction to marijuana or that the victim's marijuana level
"will make a person more likely to be violent."

¶14 While Orona's expert could educate the jury generally about
the side effects of marijuana intoxication, Orona has failed to show the
expert testimony can be linked to the victim. Orona did not cite in his brief,
and we did not find, any evidence in the record establishing when the

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victim used marijuana or how it affected him on previous occasions. See
State v. Calderon, 1 CA-CR 16-0379, 2017 WL 2376335, at *2, ¶ 7 (Ariz. App.
June 1, 2017) (concluding evidence of methamphetamine in victim's system
was properly excluded under Rule 403 when time of drug use and impact
on victim was unknown) (mem. decision). Without a link between the
expert testimony and the victim, the jury would be left to speculate about
the victim's reactions to marijuana, supporting the court's concern that the
intoxication evidence would "distract the jury from the issues at hand."
Thus, because the court has broad discretion in its Rule 403 determinations
and Orona has not shown the court erred, we affirm the court's decision to
exclude the expert testimony. See State v. Foshay, 239 Ariz. 271, 279, ¶ 40
(App. 2016) (affirming exclusion under Rule 403 of victim's drug use
because its probative value of proving third-party culpability was
outweighed by prejudice of portraying victim as drug dealer and user).

B. State v. Plew

¶15 Orona relies on State v. Plew, 155 Ariz. 44 (1987), to argue that
we should review the court's ruling de novo and that the court erred. In
Plew, the defendant was convicted of attempted second-degree murder
after fighting with and shooting his cocaine supplier. Id. at 44–45. The
superior court precluded expert testimony on the effect of cocaine
intoxication because it was speculative and "could not unequivocally state
the level of [the supplier's] cocaine tolerance" or how much cocaine the
supplier ingested before the shooting. Id. at 45–46. The supreme court
reversed and held, in part, that there was a sufficient factual basis for the
expert testimony and the court's refusal to admit the testimony was an error
of law because the evidence went "to the very heart of the only defense
presented by [the defendant]." Id. at 46–47, 50.

¶16 Orona asserts de novo review is appropriate here because our
supreme court concluded "that the error in refusing the admission of [the]
expert evidence [did not] fall[] within the realm of discretion left to the trial
judge." Id. at 50. Although Plew addresses one issue in this case, i.e., the
admissibility of expert testimony on drug intoxication, it did so by
analyzing the threshold admissibility of expert testimony, not the balancing
required under Rule 403. Id. at 46 (laying out criteria for evaluating expert
testimony); see also Ariz. R. Evid. 702. Moreover, subsequent case law
affirms that we review a superior court's decision under Rule 403 for abuse
of discretion. See State v. Thompson, 252 Ariz. 279, 293, ¶ 41 (2022).

¶17 Here, the superior court found the evidence was relevant, and
the State does not dispute this finding. The State also did not dispute the

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expert's qualifications or whether marijuana intoxication is a proper subject
for expert testimony. Instead, the court excluded Orona's expert testimony
under Rule 403 because the risk of unfair prejudice "strongly outweighed"
the probative value.

¶18 But even if we considered Plew as instructive on the Rule 403
issue, Orona's case is distinguishable. In Plew, the supreme court held there
was a sufficient factual basis for the expert testimony, relying on evidence
establishing when the supplier ingested cocaine before the fight and how
he had "react[ed] to cocaine intoxication on previous occasions." Plew, 155
Ariz. at 47. Here, the record lacks "a sufficient predicate for evidence on the
effect of [marijuana] intoxication on behavior." Id. As previously discussed,
we see no evidence in the record establishing time of ingestion or the
victim's previous reactions to marijuana. Supra ¶ 14.

¶19 Orona counters the expert testimony is nonetheless relevant
and admissible because the marijuana side effects could corroborate
Orona's testimony about the victim's erratic behavior and Plew encourages
experts to provide "general testimony or hypothetical discourse" and
"refrain from specifically stating that this particular person must have acted
in this precise manner at this exact point." Id. at 49. But this argument
overlooks the supreme court's reliance on other evidence to first establish a
factual predicate tying drug intoxication to the victim's behavior. Id. at 46–
47 (citing evidence that established when supplier took cocaine and his
previous reactions to cocaine intoxication).

¶20 Further, in Plew, the defendant and the supplier were the only
witnesses to the fight, and the defendant claimed the supplier continued
fighting despite being shot multiple times. Id. at 45. Our supreme court
noted that "[w]ithout the expert evidence, Plew's explanation for the
shooting could easily be seen as preposterous and contradicted by
uncontroverted facts." Id. at 50. But here, Orona and the victim were not
the only witnesses. Orona's girlfriend also witnessed the incident and
corroborated Orona's narrative about the victim's aggressive driving.
Additionally, the "heart" of the disputed issue in this case involves whether
the victim had a gun, not whether the victim drove aggressively or
erratically. Orona testified that before shooting the victim, he feared for his
life "[b]ecause of all the things that had unfolded . . . how [the victim]
stopped in front of [Orona], he jumped out of the car with a gun, the several
threats in between, [and] trying to hit [Orona] with his car . . . ." Although
the victim's behavior may have contributed to Orona's fear, Orona stated
that he did not pull out his own gun until he first saw the victim holding a
gun, and he did not shoot the victim until after he saw the victim's gun the

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second time. So, while the expert testimony may have supported Orona's
claim that the victim was behaving erratically, it does not support his
testimony that he saw the victim holding a gun, which then led to the
shooting. Thus, under Plew, the court did not err.

C. Harmless Error

¶21 Even if we assume the court erred by excluding the expert
testimony, such error was harmless beyond a reasonable doubt. The State
offered overwhelming evidence contradicting Orona's claim of self-
defense. See State v. Romero, 240 Ariz. 503, 508, ¶ 9 (App. 2016) (analyzing
whether other evidence is overwhelming in harmless-error analysis
"because it alone may be dispositive"). Orona testified the victim was
driving erratically and pointed a gun out the car window, but a video from
a passing bus captured the shooting and did not show the victim pointing
a gun. Moreover, despite an extensive search, the police did not find a gun
on the victim, in his car, or nearby. And Orona's girlfriend testified that she
never saw a gun. Orona also claimed he could not escape the situation, but
his girlfriend testified that they could have "just driven off" or turned into
a business parking lot.

¶22 The State further demonstrated that Orona's initial statements
to officers were false or inconsistent with his testimony at trial. See State v.
Fulminante, 193 Ariz. 485, 494, ¶ 27 (1999) (observing that State's evidence
of defendant's "several false, misleading, and inconsistent statements"
showed consciousness of guilt); State v. Crain, 250 Ariz. 387, 395, ¶ 25 (App.
2021) ("It is a well-settled principle that false exculpatory statements are
evidence—often strong evidence—of guilt." (citation modified)). After
being arrested, Orona denied knowing about the incident and claimed self-
defense only after the interviewing officer revealed he had spoken with the
girlfriend. Then, while recounting the incident, Orona told the officer that
the first time he saw the victim's gun, he "couldn't see clearly" what was in
the victim's hand. He also stated that the second time he saw the gun, he
fired at the victim using his "peripheral vision." But for the jury, Orona
testified he got a "clear look" at the victim's gun and later "ducked [his]
head" and fired based on "muscle memory of where [the victim] was."

¶23 There was also evidence that Orona tried to conceal his
conduct from the police. See State v. Weible, 142 Ariz. 113, 116 (1984) ("Flight
or concealment after a crime is admissible because it bears on the issue of
the defendant's consciousness of guilt."). Orona's girlfriend testified that
after the shooting, she and Orona "talk[ed] about [their] stories" and agreed
to lie about and hide Orona's car by having it towed away, painted, and

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covered with a tarp. Then, when Orona was arrested, he told the
interviewing officer multiple times that he sold his car.

¶24 Furthermore, the exclusion of Orona's expert witness was
harmless because Orona was still able to present the substance of his self-
defense claim. See Romero, 240 Ariz. at 510, ¶ 15 ("Whether an error is
harmless may also be considered in the context of a party's ability to present
the substance of his claim or defense."). His girlfriend, as his witness,
testified the victim threatened them and was driving erratically. Orona
testified he saw the victim holding a gun twice, including right before
Orona shot him.

¶25 Although Orona testified otherwise, overwhelming evidence
shows that the victim did not brandish a gun when Orona shot him. In light
of this, we cannot conclude expert testimony on general side effects of
marijuana intoxication would have affected the jury's verdict. See
Henderson, 210 Ariz. at 567, ¶ 18 (stating error is harmless if it "did not
contribute to or affect the verdict or sentence"). Thus, the error was
harmless beyond a reasonable doubt.

II. Jury Instructions.

¶26 Orona contends the superior court erred by refusing to give a
jury instruction on aggravated assault with a simulated weapon. He argues
the victim's conduct leading up to the shooting, such as the hand gesture
and later raising his arm, constitutes a simulated weapon.

¶27 We review the court's refusal to give a requested instruction
for abuse of discretion. State v. Teran, 253 Ariz. 165, 170, ¶ 12 (App. 2022).
The court abuses its discretion if its refusal is "clearly untenable, legally
incorrect, or amount[s] to a denial of justice." Id.

¶28 The State argues Orona was not legally entitled to his
requested instruction because aggravated assault with a simulated weapon
is not an enumerated crime under the crime-prevention justification statute,
A.R.S. § 13-411(A). Orona counters that he "is entitled to an instruction on
any theory reasonably supported by the evidence" and the instruction was
necessary for his general self-defense claim. We disagree.

¶29 The State is correct that aggravated assault with a simulated
weapon is not a crime that supports the crime-prevention justification
defense. As relevant here, the crime-prevention statute provides a person
is justified in using deadly physical force if such force is necessary to
prevent aggravated assault under § 13-1204(A)(1) or (2). A.R.S. § 13-411(A).

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These two subsections apply when "[a] person causes serious physical
injury to another" or "uses a deadly weapon or dangerous instrument."
A.R.S. § 13-1204(A)(1)–(2). The use of a simulated deadly weapon is not
listed in § 13-1204 until subsection (A)(11). Thus, because aggravated
assault with a simulated weapon is not one of the enumerated crimes in the
crime-prevention statute, the court did not err in refusing to give Orona's
requested instruction.

¶30 And although Orona contends otherwise, an instruction on
aggravated assault with a simulated deadly weapon is not relevant for his
claim of general self-defense. The self-defense justification statute provides
a person is justified in using physical force if reasonably necessary to
protect against unlawful physical force. A.R.S. § 13-404(A); see also A.R.S.
§ 13-405 (addressing use of deadly physical force). Orona argues an
instruction on a simulated deadly weapon was relevant to show he was
reasonably in fear. But the jury was properly instructed on that principle
and additional instruction on aggravated assault with a simulated weapon
does not provide guidance for determining whether Orona’s fear was
reasonable. The jury heard Orona's testimony that the victim "gestur[ed]
with a simulated deadly weapon," along with his testimony that he saw the
victim holding an actual gun. The jury could rely on Orona's testimony, as
well as any other evidence presented at trial, to determine whether Orona's
fear was reasonable. An instruction on aggravated assault with a simulated
deadly weapon would not have assisted the jury in deciding that issue and,
thus, was not relevant to his claim of self-defense. The court did not err.

CONCLUSION

¶31 We affirm.

B E C K E, Judge, concurring:

¶32 I concur with paragraphs 1 through 20 and 26 through 31,
which are sufficient to affirm the judgment.

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

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