State v. Lopez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSE LOPEZ, Appellant.

No. 1 CA-CR 25-0437
FILED 11-10-2026

Appeal from the Superior Court in Yuma County
No. S1400CR202300575
The Honorable Claudia Maria Gonzalez Jimenez, Judge

AFFIRMED

COUNSEL

Zachary Law Group, PLC, Mesa
By Jessica Zachary
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

STATE v. LOPEZ
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge D. Andrew Gaona joined.

F U R U Y A, Judge:

¶1 Jose Lopez appeals from his convictions and sentences,
arguing insufficient evidence supported one of his aggravated assault
convictions. Lopez also argues the superior court erred in aggravating his
sentence and providing a transferred intent jury instruction on all counts.
We disagree and affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In May 2023, Lopez, his cousin, Duke, and friends Jerry and
Chris all attended a party.1 The entire group was armed.

¶3 Shortly after their arrival at the party, Lopez and his group
began arguing with a person later identified as Adam. The argument
quickly escalated to a fight. The fight became a shoot-out. Chris fired a rifle
wildly. One partygoer recorded the shooting and saw Lopez firing in two
directions.

¶4 The shooting eventually stopped and Lopez’s group left the
party together in the same car. They went to a hospital to seek medical
treatment. Chris had a gunshot wound to his leg and Duke had a fatal
wound to his armpit that could have been from either a rifle or handgun.
Four other victims injured during the shooting appeared at that hospital
(the “Bystanders 1–4”), one within minutes of Lopez’s group, all with
varying gunshot injuries.

¶5 Meanwhile, a partygoer and neighbors rendered first aid to
Adam’s many gunshot wounds before first responders arrived. Although
Adam was also taken to the hospital, he died from his wounds.

1 Pursuant to Rule 31.10(f) of the Arizona Rules of Criminal
Procedure, we use pseudonyms to protect victims’ privacy.

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¶6 A grand jury indicted Lopez on two counts of first-degree
murder and five counts of aggravated assault. Lopez pled not guilty to all
counts. A jury found Lopez guilty as charged following trial.

¶7 The superior court sentenced Lopez to consecutive natural
life sentences on the two murder convictions. It also sentenced him to
concurrent and consecutive terms totaling an additional 45 years for his
aggravated assault convictions, to be served after his life sentences. The
court credited Lopez 785 days of pre-sentence incarceration. With the
court’s leave, Lopez filed a delayed notice of appeal. Ariz. R. Crim. P.
31.2(a)(3); Ariz. R. Crim. P. 32.1(f). We have jurisdiction under Article 6,
Section 9 of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) Sections 12-120.21(A)(1) and 13-4033(A)(1).

DISCUSSION

I. Substantial Evidence Sustains Lopez’s Conviction of Aggravated
Assault for Count Seven.

¶8 Lopez argues insufficient evidence supports his conviction
for aggravated assault because Chris’s gunshot wound was allegedly self-
inflicted. When a defendant challenges a jury’s verdict, “[w]e review a
sufficiency of the evidence claim for abuse of discretion.” State v. McCauley, 262 Ariz. 181, 219 ¶ 137 (2026). On appeal, we do not reweigh evidence or
reassess witness credibility, State v. Duncan, 257 Ariz. 360, 368 ¶ 10 (App.
2024), but instead “review the record to determine whether substantial
evidence supports the jury’s finding[s], viewing the facts in the light most
favorable to sustaining the jury verdict,” McCauley, 262 Ariz. at 219 ¶ 137
(cleaned up). “Substantial evidence is such proof that reasonable persons
could accept as adequate and sufficient to support a conclusion of the
defendant’s guilt beyond a reasonable doubt.” Id. (cleaned up). Evidence is
sufficient when reasonable jurors “could differ on the inferences to be
drawn from the evidence.” State v. Cantua-Ramirez, 149 Ariz. 377, 379 (App.
1986).

¶9 Here, the jury convicted Lopez of aggravated assault in
violation of multiple statutes and found the conviction involved the
presence of an accomplice. A.R.S. §§ 13-302; -303; -1203(A)(1); and -
1204(A)(2). The jury was properly instructed that a person commits
aggravated assault if he “intentionally, knowingly or recklessly caus[es]
any physical injury to another person” with a deadly weapon. A.R.S. §§ 13-
1203(A)(1); -1204(A)(2). A person is also guilty of an offense if, with the
intent to promote or facilitate the commission of the offense, he “[a]ids,

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STATE v. LOPEZ
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counsels, agrees to aid or attempts to aid another person in planning or
committing an offense.” A.R.S. § 13-301(2); -302. Thus, a person is criminally
accountable for another’s conduct if he is an accomplice of “such other
person in the commission of an offense including any offense that is a
natural and probable or reasonably foreseeable consequence of the offense
for which the person was an accomplice.” A.R.S. § 13-303(A)(3).

¶10 Much evidence presented at trial was ambiguous about how
Chris was shot, but none conclusively established Chris’s injury was self-
inflicted. And although the State mentioned Chris shooting himself during
its closing argument, such comments are not evidence. The jury was
instructed accordingly, and we presume it followed that instruction. See
State v. Vargas, 251 Ariz. 157, 179 ¶ 77 (App. 2021) (observing that when
prosecutors imprecisely characterize evidence adduced at trial, “we
presume the jurors followed their instructions that attorneys’ arguments
are not evidence”). Thus, Lopez’s argument hinges on an impermissible
inference that Chris shot himself. But the verdict here shows the jury
adopted a different inference; specifically, that someone other than Chris
inflicted the gunshot wound to his leg. The record supports such an
inference.

¶11 Trial evidence established that bullets ricocheted in the
backyard. Lopez was next to Chris throughout the shooting and fired his
gun in the same direction. Five .45 caliber casings and two .45 bullets were
found, the same caliber as the gun Lopez brought to the party. Further,
police found gunshot holes and damage in almost every direction of the
backyard. They discovered a 9mm pistol and five of its shell casings in the
grass, proof someone fired the pistol. On the other hand, no evidence of the
caliber or type of bullet that struck Chris was admitted.

¶12 On this record, the jury could properly infer from the
evidence that either one of Lopez’s shots ricocheted and struck Chris or
whoever was firing the 9mm pistol shot him. The jurors might reasonably
have parsed the evidence differently and found Chris shot himself. But the
verdict establishes this jury found otherwise and therefore, the evidence is
sufficient as a matter of law. Duncan, 257 Ariz. at 368 ¶ 10.

¶13 Lopez raises a number of contrary theories on the evidence.
But the State need not negate every conceivable “hypothesis of innocence”
when it has established guilt through circumstantial evidence. State v. Nash, 143 Ariz. 392, 404 (1985). Given this record, substantial evidence supports
the jury’s inference that someone else shot Chris. McCauley, 262 Ariz. at 219
¶ 137.

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II. Giving a Transferred Intent Instruction Was Not Error.

¶14 Lopez argues the court abused its discretion when it
instructed the jury on transferred intent on all counts.

¶15 Although we review a court’s decision to give a jury
instruction for abuse of discretion, we review de novo whether the
instruction correctly states the law. State v. Ewer, 254 Ariz. 326, 329 ¶ 10
(2023). Under the abuse of discretion standard, “we uphold a decision if
there is any reasonable evidence in the record to sustain it.” State v.
Salamanca, 233 Ariz. 292, 295 ¶ 8 (App. 2013) (quoting State v. Morris, 215
Ariz. 324, 341 ¶ 77 (2007)) (citation modified).

A. The Instruction Correctly States the Law.

¶16 The court instructed the jury as follows:

You may find that the defendant acted “intentionally” or with
“intent to” as to [Adam] and [Duke] on the charge of First
Degree Murder (Counts 1–2), and as to [Bystander 1],
[Bystander 2], [Bystander 3], [Bystander 4], and [Chris] on the
charge of Aggravated Assault (Counts 3–7), if you find
“transferred intent.” Transferred intent is established if the
actual result of the defendant’s action differs from that which
the defendant intended or contemplated only in the respect
that:

1. A different person or different property is injured or
affected; or

2. The injury or harm intended or contemplated would have
been more serious or extensive than that caused.

¶17 During a trial objection to the transferred intent instruction,
Lopez voiced concerns the jury could find him guilty of reckless
manslaughter or aggravated assault and mistakenly transfer intent to find
him guilty of other offenses. The court explained the instruction was
sufficient because it specifically articulates to what it applies. Lopez now
argues the court erred because it was possible for the jury to improperly
transfer intent between the murder and aggravated assault counts.

¶18 To correctly state the law, “[j]ury instructions need only be
substantially free from error.” State v. Tarr, 235 Ariz. 288, 292 ¶ 9 (App. 2014)
(cleaned up). We will only reverse if the instructions, taken as a whole,

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STATE v. LOPEZ
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would mislead jurors. State v. Rios, 255 Ariz. 124, 132 ¶ 32 (App. 2023). And
we consider the instructions in context and in conjunction with closing
arguments. State v. Johnson, 205 Ariz. 413, 417 ¶ 11 (App. 2003) (citing cases).

¶19 Here, Lopez’s arguments are an unreasonable and unnatural
reading of the jury instruction. To begin, there is no apparent error with the
instruction as written. Arizona has codified the doctrine of transferred
intent and extended it to “intentional criminal conduct causing an
unintended result.” State v. Rodriguez-Gonzales, 164 Ariz. 1, 2 (App. 1990);
see A.R.S. § 13-203(B)(1). Subsection (B)(1) of Arizona’s transferred intent
statute applies when the actual result of the intended conduct differs,
specifically when a different person is injured. Cantua-Ramirez, 149 Ariz. at
380. The instruction, as given, accurately reflects the statutory definition of
transferred intent as applied to unintended victims of the same harm. A.R.S.
§ 13-203(B).

¶20 Lopez’s trial objection unreasonably construes the instruction
because the text of the instruction expressly—and properly—limits the
jury’s application of the transferred intent doctrine to the circumstance
where it finds Lopez acted “intentionally” or “with intent to.” There is no
reasonable way to read this language to permit a jury to transfer a finding
of “reckless” intent between the various counts or defendants. Thus, the
instruction could not mislead jurors as Lopez argued at trial. See Rios, 255
Ariz. at 132 ¶ 32.

¶21 Nor is Lopez’s objection on appeal availing. The most natural
reading of the instruction clearly separates the two sets of victims into
categories according to the crimes charged and confines transferred intent
within those categories, rather than allowing intent to flow between them.

¶22 Moreover, we interpret the jury instruction in context and in
conjunction with closing arguments. Johnson, 205 Ariz. at 417 ¶ 11. The other
instructions defined “intentionally” and the crimes charged. And the State’s
closing argument referred to the transferred intent instruction in context of
the “bad aim rule” by stating “[i]ntent follows the bullet from intended
victims to unintended victims.” Following this introduction, the State
exclusively argued about transferring intent between the two murder
victims, not between different categories of crime. Lopez’s only discussion
of the transferred intent instruction was a fleeting remark to the jury to
expect instructions on “transferred intent.” He did not allude to
transferring intent between categories of crime. The record indicates this
jury was engaged and asked questions when clarity was needed.

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STATE v. LOPEZ
Decision of the Court

¶23 Because Lopez’s proposed reading of the instruction argued
on appeal is unnatural and is unsupported by either the text of the
instruction or the context in which it was explained and argued at trial, his
argument that the jury relied on that understanding to reach its verdict is
speculation. Such speculation is insufficient to establish that the jury was
confused by the instruction. See State v. Allen, 248 Ariz. 352, 363 ¶ 34 (2020).
Nothing in the record reflects jury confusion about the instruction and the
instruction did not mislead the jury. Rios, 255 Ariz. 124 at 132 ¶ 32. Because
the instruction was substantially free from error, it correctly stated the law.
Tarr, 235 Ariz. at 292 ¶ 9.

B. Sufficient Evidence Supports the Court’s Decision to
Provide the Instruction.

¶24 Lopez further argues on appeal that the court lacked
sufficient evidence to provide the transferred intent instruction. We
disagree.

¶25 Whether a defendant has the requisite criminal intent is a
question of fact “for the jury’s determination.” State v. Quatsling, 24 Ariz.
App. 105, 108 (1975). We view all facts in the light most favorable to
sustaining the jury verdict. McCauley, 262 Ariz. at 219 ¶ 137; see also State v.
Milton, 85 Ariz. 69, 73 (1958) (the jury is “free to discard or disbelieve” facts
inconsistent with its conclusion when an evidentiary basis for its verdict
exists). Parties are “entitled to an instruction on any theory reasonably
supported by the evidence” and we do not reweigh the evidence on appeal.
Johnson, 205 Ariz. at 417 ¶ 10; Rios, 255 Ariz. at 132 ¶ 32.

¶26 Here, reasonable evidence supported the State’s “bad aim”
theory and request for the transferred intent instruction as to the two
murder charges and among the five aggravated assault charges. Lopez’s
group appeared to have “intent to go after somebody” when they
surrounded Adam. Lopez aimed his gun in the direction of Adam and
Duke. He testified that he “reacted quick” upon hearing one shot and said
that he fired warning rounds. But evidence also establishes that he was
inattentive to his surroundings and people escaped over walls near him as
the shooting intensified. Multiple victims with gunshot injuries appeared
at the hospital soon after the shooting, including one who was shot as he
hopped the wall.

¶27 Evidence showed Lopez aimed at Adam and missed. And
Duke died from wounds that could have been caused by a handgun. This
is reasonable evidence to support giving the transferred intent instruction

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STATE v. LOPEZ
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as to the murder charge concerning Duke’s death. See Salamanca, 233 Ariz.
at 295 ¶ 8.

¶28 Lopez argues it was possible the jury could have viewed the
evidence differently, perhaps in a manner that would not support giving
the instruction. But our presumptions require us to view the evidence in the
light most favorable to sustaining the jury’s verdicts. McCauley, 262 Ariz. at
219 ¶ 137. During closing arguments, the State theorized that Lopez fired
“five shots all in [Adam]’s direction or [Bystanders 1–4].” Though different
interpretations of this evidence are possible and contradictory evidence was
introduced, the jury can disbelieve facts inconsistent with its conclusion
when an evidentiary basis exists for its verdict. Milton, 85 Ariz. at 73. Such
a basis exists here. The evidence showed Lopez aimed in Adam’s direction
but also fired in two directions. He was right next to Chris, who fired a rifle
wildly.

¶29 Viewing the facts most favorably to sustaining the jury’s
verdicts, evidence was admitted supporting the jury’s implicit finding that
Lopez intended to kill Adam, then turned his gun on those escaping over
the walls to help Chris. The intent to commit assault is transferable between
the aggravated assault charges because each count dealt with the same
physical harm, with only the victims differing. See Johnson, 205 Ariz. at 418
¶ 15. Sufficient evidence supported the court’s decision to give the
transferred intent instruction.

III. Lopez Has Not Established Fundamental, Prejudicial Error
Occurred When the Court Aggravated His Sentence.

¶30 The jury reached multiple verdicts regarding the aggravating
circumstances alleged by the State. It found all the convictions involved at
least one aggravating factor: the presence of an accomplice proven beyond
a reasonable doubt. And it found that victims suffered physical harm.
Lopez argues the court fundamentally erred in using the physical harm
suffered by victims as an aggravating factor because that factor is also an
essential element to aggravated assault.

A. Standard of Review

¶31 Because Lopez failed to object when the State alleged the
aggravating factor of physical harm suffered by victims, we review for
fundamental error. Allen, 248 Ariz. at 360 ¶ 18 (citing cases). To obtain relief,
Lopez must demonstrate the court committed error, the error was
fundamental, and the error prejudiced him. State v. Escalante, 245 Ariz. 135,
142 ¶ 21 (2018).

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STATE v. LOPEZ
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B. Lopez Has Not Established Fundamental Error.

¶32 The maximum term for dangerous offenses may only be
imposed if the jury finds one or more alleged aggravating factors are true
beyond a reasonable doubt. A.R.S. § 13-701(C). To impose an aggravated
sentence, the court must find, beyond a reasonable doubt, at least one
specific statutory aggravating factor on the record at sentencing. State v.
Bonfiglio, 231 Ariz. 371, 372–373 ¶¶ 1, 8 (2013); A.R.S. § 13-701(D)(1)–(27).

¶33 After finding the aggravated assault counts were dangerous
offenses, the court sentenced Lopez to an amalgam of sentences using the
jury’s aggravating factors. See supra ¶ 27. Despite acknowledging that
Arizona law allows using physical harm suffered by victims as an
aggravating factor, Lopez contends the court’s use of it led to an absurd
result. But even if this were so, the jury also found the aggravated assault
convictions involved the presence of an accomplice. Because A.R.S. § 13-
701(D)(4) enumerates the presence of an accomplice as an aggravating
factor, the court could aggravate Lopez’s sentence independently of
physical harm. Bonfiglio, 231 Ariz. at 372 ¶ 1. Lopez did not establish the
error needed for relief because the court needs the presence of only one
circumstance to aggravate his sentence. Id. Thus, even assuming that
physical harm could not be used to aggravate Lopez’s sentences, the jury’s
finding of the presence of an accomplice properly supports the aggravated
sentences as well. A.R.S. § 13-701(D)(4). Lopez has failed to show any
prejudice.

CONCLUSION

¶34 We affirm.

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

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