State v. Eppinger

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RYAN LEE EPPINGER, Appellant.

No. 1 CA-CR 24-0385
FILED 11-14-2025

Appeal from the Superior Court in Yavapai County
No. S1300CR202380286
The Honorable Thomas K. Kelly, Judge Pro Tempore

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

The Zickerman Law Office PLLC, Flagstaff
By Adam Zickerman
Counsel for Appellant
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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 Ryan Lee Eppinger appeals his convictions and sentences for
two counts each of sexual assault and attempted sexual assault, one count
each of kidnapping, and second-degree burglary. Eppinger’s counsel filed
a brief per 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, nonfrivolous question of law. Eppinger was allowed to
file a supplemental brief but did not do so. Counsel asks this court to search
for arguable issues. See Penson v. Ohio, 488 U.S. 75 (1988); State v. Clark, 196
Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record, we affirm
Eppinger’s convictions and sentences but strike the “domestic violence
offense” designation from the two convictions for attempted sexual assault.

FACTS AND PROCEDURAL BACKGROUND

¶2 Eppinger and the victim, Bonnie (a pseudonym), had a
sporadic relationship for about a year and a half until Bonnie cut off all
communication with Eppinger in late May 2023. Eppinger came to Bonnie’s
apartment twice after the breakup, once refusing to leave and once staying
until Bonnie got in a car and drove away.

¶3 In the early morning hours of June 2, 2023, Eppinger entered
Bonnie’s apartment through an unlocked back door. Bonnie woke to find
Eppinger shaking her leg. Bonnie told Eppinger to leave, but he refused to
leave her bedroom for several hours. When Bonnie tried to use her phone
to call for help, Eppinger took her phone and kept it the entire time he was
there. Eppinger physically blocked Bonnie from leaving the bedroom,
wrestling her back into the room when she tried to push her way out. He
covered Bonnie’s mouth when she tried to scream for help. After several
hours, Eppinger told Bonnie to show him her butt and that he would leave
if she did. She first refused, but then showed it to Eppinger to get him to
leave.

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¶4 Eppinger then forcefully put his hand down her pants and
inserted his fingers into Bonnie’s vagina. Eppinger then told her to “suck
his penis or jack him off,” which Bonnie refused to do. Eppinger told Bonnie
that if she “got him off,” he would leave. Bonnie refused and tried to fight
Eppinger off, but later “gave up.” Eppinger ejaculated onto Bonnie’s back
and left her apartment. Boonie took a picture of Eppinger’s license plate as
he left and called 9-1-1 to report Eppinger for the sexual assault.

¶5 After speaking with the police, Bonnie underwent a sexual
assault and strangulation examination in Glendale, where she received
treatment for her injuries. Police then questioned Eppinger and arrested
him later that day. A grand jury indicted Eppinger on two counts of sexual
assault, one count of kidnapping, two counts of attempted sexual assault
(all listed as domestic violence offenses), and one count of second-degree
burglary (listed as an offense committed with sexual motivation). Eppinger
declined the State’s plea offer to plead guilty to one count of sexual assault
and one count of attempted sexual assault after being advised of the
sentences for each count.

¶6 The State filed a motion in limine to preclude evidence that
Bonnie was a heavy drinker and marijuana user and once drove drunk,
prior acts where Bonnie “put[] hands” on Eppinger, potential cheating by
Bonnie during their relationship, and Bonnie’s prior abortion. The superior
court declined to make pretrial evidentiary rulings on those matters, and
Eppinger did not offer such evidence at trial. It later allowed evidence that
Eppinger came to Bonnie’s apartment multiple times in the week before the
incident, questioning about whether Bonnie was impaired at the time of the
incident, and evidence that Eppinger and Bonnie were in a previous sexual
relationship before the incident.

¶7 A jury found Eppinger guilty of each count and that the
sexual assault, kidnapping, and attempted sexual assault offenses were
domestic violence offenses. The jury also found aggravating factors for each
conviction. The superior court sentenced Eppinger to two consecutive
seven-year flat-time imprisonment terms for the sexual assault convictions,
with 385 days’ presentence incarceration credit, concurrent five years’
imprisonment for kidnapping, three and a half years’ imprisonment for
second-degree burglary with sexual motivation, and consecutive lifetime
probation for the attempted sexual assault convictions with a sexual
offender registry term.

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DISCUSSION

¶8 We have read and considered counsel’s brief and have
reviewed the record for arguable issues. See Leon, 104 Ariz. at 300. Having
reviewed the record, we vacate the jury’s domestic violence designation but
otherwise affirm Eppinger’s convictions and sentences, despite one
additional arguable issue. We note that Eppinger was present and
represented by counsel at all stages of the proceedings against him. The
record shows that the superior court afforded Eppinger all his
constitutional and statutory rights and conducted the proceedings in
accordance with the Arizona Rules of Criminal Procedure. The court held
appropriate pretrial hearings, and the evidence presented at trial,
summarized above, was sufficient to support the jury’s verdicts. Eppinger’s
sentences fall within the range prescribed by law, with proper credit given
for presentence incarceration. See A.R.S. §§ 13-1406, 13-1401, 13-3601,
13-1415, 13-610, 13-701, 13-702, 13-801, 13-1304, 13-1301, 13-1507, 13-3821,
13-118, 13-1001, 13-902.

A. Attempt Crimes Cannot be Characterized as Domestic Violence
Offenses.

¶9 The indictment listed attempted sexual assault as a domestic
violence offense, and the court instructed the jurors to find whether the
attempted sexual assaults were domestic violence offenses. The final jury
instructions defined a “domestic violence offense” as “any Sexual Assault,
Attempted Sexual Assault, or Kidnapping offense wherein [Bonnie] and the
defendant were previously in a romantic or sexual relationship.” (Emphasis
omitted.) But the domestic violence designation does not extend to attempt
crimes. A.R.S. § 13-3601; see also State v. Bryars, 2025 WL 212079, at *2, ¶ 6
(Ariz. App. Jan. 16, 2025) (mem. decision) (A.R.S. § 13-1601 does not apply
to attempted sexual assault because “while the preparatory offense of
attempt is defined and prohibited by statute, it is not included in the
definition of domestic violence.”). Thus, it was error to categorize
attempted sexual assault as a domestic violence offense.

¶10 As Eppinger did not object at trial, we review for fundamental
error—error going to the foundation of the case, taking away an essential
right to the appellant’s defense, or inhibiting the appellant from receiving a
fair trial. State v. Henderson, 210 Ariz. 561, 567, 568, ¶¶ 19, 24 (2005).
“Imposition of an illegal sentence constitutes fundamental error that may
be reversed on appeal, despite the lack of an objection in the trial court.”
State v. Provenzino, 221 Ariz. 364, 369, ¶ 18 (App. 2009); State v. Thues, 203
Ariz. 339, 340, ¶ 4 (App. 2002).

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¶11 The jury’s domestic violence finding for the attempted sexual
assault counts did not affect the consequences imposed for these
convictions. Lifetime probation and sex offender registry are allowable
consequences under the statutes governing attempted sexual assault
sentencing. See A.R.S. §§ 13-1406, 13-1001, 13-902(A), 13-902(E), 13-702,
13-3821. Thus, we affirm the convictions and sentences but vacate the
domestic violence designation.

B. The State Misstated the Evidence in Rebuttal.

¶12 After the State’s rebuttal arguments, Eppinger moved for a
mistrial, claiming the State referred to facts not in evidence. Eppinger
objected to the State’s assertion that police interviewed the “victim’s
mother, friend [and] cousin” and that Eppinger could have introduced their
testimony. The State responded that the assertion was only made to rebut
Eppinger’s implication that the lack of trial testimony from the witnesses
discredited the State’s other evidence. The superior court denied Eppinger’s
mistrial motion and, instead, again instructed the jury that “what the
lawyers say and do in their opening and closing arguments is not facts.”

¶13 The superior court correctly determined that the State “may
properly comment on a defendant’s failure to present exculpatory evidence
which would substantiate the defendant’s story, as long as it does not
constitute a comment on the defendant’s silence.” State v. Vargas, 251 Ariz.
157, 177, ¶ 71 (App. 2021) (quotation omitted) (cleaned up). But the State
misstated the evidence when it claimed that police testified that they had
interviewed Bonnie’s mother.

¶14 “We review a trial court’s decision to deny a motion for a
mistrial based on prosecutorial misconduct for an abuse of discretion.” State
v. Forde, 233 Ariz. 543, 568, ¶ 103 (2014). Counsel has “wide latitude” in
closing arguments and may argue all reasonable inferences from the
evidence. Vargas, 251 Ariz. at 178, ¶ 76. That said, misstatements of
evidence are reversible error if (1) “the prosecutor’s statements constituted
misconduct,” and (2) “a reasonable likelihood exists that those statements
could have affected the jury’s verdict.” Forde, 233 Ariz. at 568, ¶ 103.
Prosecutorial misconduct requires intentional conduct that the prosecutor
“knows to be improper and prejudicial,” not legal error, negligence, or
mistake. State v. Lapan, 249 Ariz. 540, 549, ¶ 25 (App. 2020)(quotation
omitted). Instructions from the court carry more weight than counsel’s
arguments, and a jury is presumed to follow the court’s instructions. Vargas,
251 Ariz. at 178-79, ¶¶ 76-77. Potential prejudice from the state misstating
evidence in closing arguments can be overcome by jury instructions that

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counsel’s arguments and statements are not evidence or facts. Forde, 233
Ariz. at 568-69, ¶ 104; see also Vargas, 251 Ariz. at 165, ¶ 17.

¶15 First, the misstatement appears to be a mistake, not
intentional misconduct. The prosecutor’s response suggests he confused
the evidence, as he explained that “the detective testified that he
interviewed both those witnesses.” Second, Eppinger was not prejudiced
by the mistake because the interview had no bearing on the jury’s analysis
of whether Eppinger committed the crimes. And the superior court issued
several instructions to the jury, stating that counsel’s arguments and
statements in opening and closing arguments are not evidence or fact. Any
prejudice was thereby cured through repeated instructions not to consider
counsel’s arguments in deliberation. See Forde, 233 Ariz. at 568-69, ¶ 104
(Court affirmed denial of motion for mistrial based on prosecutor’s
misstatement of evidence during closing arguments because the defendant
addressed the misstatement and the trial court instructed the jury that the
lawyers’ arguments were not evidence.). The court did not err by denying
the mistrial motion.

CONCLUSION

¶16 We affirm Eppinger’s convictions and sentences but vacate
the domestic violence designation for the two attempted sexual assault
convictions.

¶17 Upon the filing of this decision, defense counsel shall inform
Eppinger of the status of the appeal and of his future options. Counsel has
no further obligations unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984).

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

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