State v. Aguirre

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ENRIQUE FRANCO AGUIRRE, Appellant.

No. 1 CA-CR 22-0057
FILED 4-4-2023

Appeal from the Superior Court in Maricopa County
No. CR2019-005386-001
The Honorable Jay R. Adleman, Judge

REVERSED AND REMANDED

COUNSEL

Ramos Law Firm, Scottsdale
By Paul A. Ramos
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith,
Michael Woodburn (certified limited practice student)
Counsel for Appellee
 STATE v. AGUIRRE
Opinion of the Court

OPINION

Judge Jennifer B. Campbell delivered the opinion of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 Enrique Franco Aguirre appeals his conviction and sentence
for discharging a firearm at a nonresidential structure, arguing insufficient
evidence supports his conviction. We hold that a conviction for discharging
a firearm at a nonresidential structure requires evidence that a defendant
“knowingly” shot “at” a residential structure, as opposed to firing at a
person and inadvertently striking a structure. See A.R.S. § 13-1211(B).
Because the evidence established only that Aguirre knowingly fired his
weapon at a person and recklessly or accidentally hit the structure, we
reverse and remand.

BACKGROUND1

¶2 In 2018, after engaging in a brief physical altercation outside
a nightclub, Aguirre fired multiple pistol shots at John,2 striking him several
times. Two stray bullets hit the nightclub: one passing through an open
window and striking a metal tripod inside, the other striking the building’s
exterior and damaging the block wall. The State charged Aguirre with one
count of discharging a firearm at a nonresidential structure, a class 3 felony
(count one); four counts of aggravated assault, class 3 felonies (counts two
through five); and three counts of endangerment, class 6 felonies (counts
six through eight). Aguirre claimed he acted in self-defense. See A.R.S.
§ 13-405(A) (“A person is justified in threatening or using deadly physical
force against another . . . [w]hen and to the degree a reasonable person
would believe that deadly physical force is immediately necessary to
protect himself against the other’s use or attempted use of unlawful deadly
physical force.”).

¶3 At trial, John testified that he regularly frequented the
nightclub and had loaned money to Aguirre, who worked as a security

1 We view the evidence in the light most favorable to upholding
Aguirre’s conviction and resolve all reasonable inferences against him. See
State v. Davolt, 207 Ariz. 191, 212, ¶ 87 (2004).
2 We use a pseudonym to protect the non-party’s identity.

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guard. When John left the nightclub on the night of the shooting, he found
Aguirre waiting for him in the parking lot. According to John, Aguirre said
he would not repay the loan. To avoid a confrontation, John responded that
“it’s not the place to talk about [it].” John testified that Aguirre punched
him, and John then pushed Aguirre. As John walked toward his vehicle, he
looked back and saw that Aguirre had a gun pointed “at [his] head.”
Quickly grabbing a gun from his truck, John aimed it at Aguirre, who fired
his weapon at John while running toward him. John asserted that, although
he was armed at the time, he never returned fire.

¶4 Following the State’s case-in-chief, the superior court denied
Aguirre’s motion for judgment of acquittal under Arizona Rule of Criminal
Procedure 20. Aguirre then testified that he shot John in
self-defense. Explaining he knew John as a regular customer at the
nightclub, Aguirre described him as a violent, “bad man,” and a “gun guy”
who was “associated with the cartel.” Denying that he had borrowed
money from John, Aguirre testified that he confronted him that night to
address threats John had made on a previous evening when Aguirre asked
him to remove his firearm before going into the club.

¶5 When questioned about their physical altercation, Aguirre
testified that John instigated it, orally threatening him and shoving him
before he punched back in retaliation. Acknowledging that he was the first
to brandish a weapon, Aguirre explained that he believed John intended to
retrieve a gun when he walked to his vehicle. Aguirre testified that he
pointed his weapon at John while repeatedly warning him “not to pull out
his gun.” Contrary to John’s testimony, Aguirre recounted that he did not
shoot until after John grabbed his gun, turned toward him, and began
firing.

¶6 A jury acquitted Aguirre on all of the aggravated assault
charges but found him guilty of discharging a firearm at a nonresidential
structure. The jurors could not reach verdicts on the endangerment counts.
The superior court sentenced Aguirre to a five-year term of imprisonment.
Aguirre timely appealed.

DISCUSSION

¶7 Aguirre challenges the sufficiency of the evidence to support
his conviction. He asserts the State failed to show he targeted his shots “at”
the nightclub.

¶8 We review a claim of insufficient evidence de novo. State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011). Sufficient evidence on which a

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reasonable jury can convict may be direct or circumstantial and “is such
proof that reasonable persons could accept as adequate” to “support a
conclusion of defendant’s guilt beyond a reasonable doubt.” State v.
Borquez, 232 Ariz. 484, 487, ¶¶ 9, 11 (App. 2013). “In determining whether
substantial evidence exists, we view the facts in the light most favorable to
sustaining the jury verdict and resolve all inferences against [the
defendant].” State v. Stroud, 209 Ariz. 410, 412, ¶ 6 (2005). In evaluating 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 “do not reweigh the evidence to decide if [we] would reach the
same conclusions as the trier of fact[,]” Borquez, 232 Ariz. at 487, ¶ 9 (internal
quotation omitted).

¶9 We also interpret statutes de novo. State v. Neese, 239 Ariz. 84,
86, ¶ 8 (App. 2016). “Statutory interpretation requires us to determine the
meaning of the words the legislature chose to use.” S. Ariz. Home Builders
Ass’n v. Town of Marana, ___ Ariz. ___, ___, ¶ 31, 522 P.3d 671, 676 (2023).
“We do so neither narrowly nor liberally, but rather according to the plain
meaning of the words in their broader statutory context, unless the
legislature directs us to do otherwise.” Id.

¶10 Under A.R.S. § 13-1211(B), “[a] person who knowingly
discharges a firearm at a nonresidential structure is guilty of a class 3
felony.” Aguirre asserts the statute requires that he must have intended to
hit the structure when firing his weapon, and no evidence supported his
conviction because he “targeted” John, “not the business.” In making this
claim, Aguirre does not deny that he discharged his firearm or that two
bullets struck the nightclub. The State counters that it needed only to prove
that Aguirre was aware he was shooting in the direction of the nightclub.
In essence, the State argues it is enough if Aguirre knew the structure was
there and knew he discharged the weapon in the nightclub’s general
direction. The two positions require us to interpret whether, under the
statute, the State must prove a defendant aimed at the structure to be guilty
of the crime.

¶11 “If a statute defining an offense prescribes a culpable mental
state that is sufficient for commission of the offense without distinguishing
among the elements of such offense, the prescribed mental state shall apply
to each such element unless a contrary legislative purpose plainly appears.”
A.R.S. § 13-202(A). Applying this rule of construction here, A.R.S.
§ 13-1211(B) prescribes the culpable mental state of knowingly without
differentiating between the elements of the offense. Thus, the mens rea of
knowingly must be applied to each element of this offense—including the

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requirement that the person discharged a firearm “at” a non-residential
structure. The court gave the standard instruction for the charged crime:
“The crime of discharging a firearm at a nonresidential structure requires
proof that the defendant knowingly: 1. Discharged a firearm; 2. At a
nonresidential structure.” See Revised Arizona Jury Instructions (“RAJI”)
Standard Criminal 12.11 (6th ed. 2022).

¶12 While Aguirre does not challenge the jury instructions given,
he claims the trial evidence was inadequate to support the assertion that he
shot ‘at’ a nonresidential structure. He challenges his conviction on that
basis. Given Aguirre’s testimonial admissions, the only question is whether
the State presented sufficient evidence that he “knowingly” discharged his
firearm “at” the non-residential structure.

¶13 We reject the State’s interpretation of the statute because it
would require us to interpret the statute to apply a reckless mental state to
an element of the offense. A.R.S. § 13-105(10)(c) (“‘Recklessly’ means, with
respect to a result or to a circumstance described by a statute defining an
offense, that a person is aware of and consciously disregards a substantial
and unjustifiable risk that the result will occur or that the circumstance
exists.”). But knowingly engaging in conduct requires more. As statutorily
defined, “knowingly” means “with respect to conduct or to a circumstance
described by a statute defining an offense, that a person is aware or believes
that the person’s conduct is of that nature or that the circumstance exists.”
A.R.S. § 13-105(10)(b).

¶14 The statute does not define the word “at,” so we apply its
common meaning and look to dictionaries for guidance. See State v. Pena, 235 Ariz. 277, 279, ¶ 6 (2014). “At” is used “to indicate the goal of an
indicated or implied action or motion.” At, Merriam-Webster’s College
Dictionary (11th ed. 2018). A “goal” is “the end toward which effort is
directed.” Goal, Merriam-Webster’s College Dictionary (11th ed. 2018). A
person aims to “indicate the goal” when discharging a firearm. See Aim,
Merriam-Webster’s College Dictionary (11th ed. 2018) (To “aim” is to
“direct toward a specified object or goal.”).

¶15 In the context of discharging a firearm “at a nonresidential”
structure, the statute requires that the defendant knowingly aimed at the
structure—not simply that he was aware of the risk that he may miss his
intended target and the projectile might end up lodged in a non-residential
structure. See A.R.S. § 13-1211(B) (emphasis added). Had the legislature
intended this result, the statute would include a mens rea of recklessly
engaging in conduct instead of knowingly doing so. This interpretation of

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A.R.S. § 13-1211(B) also ensures that the provision “at a non-residential
structure” is given meaning. See Nicaise v. Sundaram, 245 Ariz. 566, 568, ¶ 11
(2019) (“A cardinal principle of statutory interpretation is to give meaning,
if possible, to every word and provision so that no word or provision is
rendered superfluous.”).

¶16 The State presented evidence that Aguirre knowingly shot at
John, and Aguirre admitted as much during his trial testimony. But there is
no evidence that Aguirre was aware of or believed he was shooting “at” the
nightclub. The State argued in closing: “The defendant knowingly -– does
he have any intention –- does he knowingly, was he aware of the risk that
when he’s shooting, at his intended target, does he know the bullets can go
into [the nightclub]? Yes.” But the State’s argument outlines the mens rea
of a reckless act—not a knowing act, which is what the State was required
to prove. See A.R.S. § 13-105(10)(c).

¶17 Without question, two stray bullets struck the nightclub, but
that fact, without more, shows only that Aguirre acted recklessly or
carelessly by striking the structure. And the doctrine of transferred intent
cannot be used to reach the required mens rea either. This doctrine applies
to crimes that require a showing of intentional actions. Because the
transferred intent doctrine does not apply to crimes that require a
“knowingly” mens rea, the fact that Aguirre knowingly shot at John does
not transfer his intention so as to prove that he knowingly shot at the
nightclub. See A.R.S. § 13-203(B), (C).

¶18 The State argues that evidence that “Aguirre discharged his
firearm from the club parking lot while facing the club” substantially
supported the jury’s finding that he knowingly discharged his firearm at
the nightclub. We disagree. Under the statute, the State needed to prove not
that Aguirre was aware he was shooting in the general direction of the
nightclub, but that he was aware or believed that he was shooting “at” the
nightclub. See A.R.S. §§ 13-105(10)(b), -1211(B).

¶19 Because Aguirre testified that he knowingly shot at John—
thereby admitting all the elements of aggravated assault—the jury must
have found he acted in self-defense to acquit him of the aggravated assault
charges. See A.R.S. §§ 13-1203(A)(1) (defining assault as “intentionally,
knowingly or recklessly causing any physical injury to another person”);
-1204(A)(2) (defining aggravated assault as committing assault by using “a
deadly weapon or dangerous instrument”). If Aguirre discharged his
weapon in self-defense at his intended target, John, his poor aim was not
evidence of the mens rea necessary to sustain a conviction for knowingly

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discharging his firearm “at” a nonresidential structure. See A.R.S. § 13-
203(B).

¶20 To be sure, even when discharging a firearm in self-defense,
the shooter bears a responsibility to the innocent public. As the State
charged in this case, endangerment charges are appropriate if a defendant
imperils others while defending himself against the aggression of another.
See A.R.S. § 13-1201 (“A person commits endangerment by recklessly
endangering another person with a substantial risk of imminent death or
physical injury.”) But in this case, the jury did not convict Aguirre of either
count of endangerment charged by the State.

CONCLUSION

¶21 Because no evidence supports Aguirre’s conviction and
sentence, we reverse and remand for further proceedings consistent with
this opinion.

AMY M. WOOD • Clerk of the Court
FILED: AA

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