Opinion
No. 2 CA-CR 2017-0264
06-06-2019
THE STATE OF ARIZONA, Appellee, v. CODY WILLIAM CLARK, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20151234001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Cody Clark appeals from his conviction and sentence for first-degree murder. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Clark. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). Early one morning in March 2015, after a night of drinking, Clark, A.G., and B.R. went to a convenience store to buy snacks. Clark acted "silly" in the store and, according to a customer, the three men "seemed intoxicated." Clark, A.G., and B.R. left the store without buying anything because Clark had forgotten his wallet. The three men went to Clark's apartment so he could get his wallet, and, while he was there, Clark also retrieved his unloaded handgun, and, unbeknownst to B.R. and A.G., a loaded magazine. Subsequently, in the apartment parking lot, another resident yelled at them to be quiet. Clark became angry, waved his unloaded gun around, and dry-fired it, but did not point it at anyone. B.R. told A.G. not to worry because Clark did not have a magazine for the gun, and Clark responded by putting the loaded magazine in it, racking the slide, and firing a shot into the adjacent desert.
¶3 B.R. then ran to his car and drove away. A.G. and Clark got into A.G.'s car, with Clark seated in the backseat behind A.G. For a time, A.G.'s car followed B.R., but at some point went in a different direction. A.G. called B.R. and told him that he was scared, that Clark was "going crazy," and that Clark was pointing his gun at him. B.R. heard Clark in the background telling A.G. where to drive, and A.G. said Clark had shot a hole in his window. Clark took the phone from A.G., told B.R. he would have A.G. call back in a few minutes, and ended the call. Subsequently, while stopped at an intersection, B.R. saw A.G.'s car, with A.G. driving and Clark still seated behind him. B.R. tried to call A.G. several times, but was unable to reach him. Later, B.R. went to A.G.'s home, notifying the police when he did not find him there.
¶4 Later that morning, Clark was arrested when a resident reported that an unknown man was acting strangely in his neighbor's backyard. Police later found A.G.'s car in the desert with the engine still running, the transmission in drive, and A.G. slumped over in the driver's seat with a fatal gunshot wound at the back of his neck. Officers also found: Clark's gun and loaded magazine on the ground near the car; a bullet casing on the ground; a bullet hole in the front windshield; and A.G.'s blood on Clark's gun and clothes. Clark told detectives that he punched A.G.'s face when they were stopped at an intersection, then shot A.G. in self-defense because he thought A.G. was reaching for a weapon in the center console, and then fled.
¶5 Clark was charged with first-degree murder and the jury was instructed on both premeditation and felony murder theories, with the alleged predicate felony of kidnapping. The jury convicted Clark of first-degree murder; five jurors found Clark guilty of both premeditated and felony murder, five found him guilty of only premeditated murder, and two found him guilty of only felony murder. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶6 On appeal, Clark argues: (1) there was insufficient evidence of felony murder; (2) the trial court erred by precluding evidence of his military training and by allowing the state to argue a "reasonable sober person" standard; (3) the court erred in declining to disqualify one of the prosecutors; and (4) the court erred in admitting other-act evidence.
Sufficiency of the Evidence
¶7 Sufficiency of the evidence is a question of law we review de novo, Felix, 237 Ariz. 280, ¶ 30, and we will reverse "only if no substantial evidence supports the conviction," State v. Fimbres, 222 Ariz. 293, ¶ 4 (App. 2009) (quoting State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005)). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290 (1996). "Sufficient evidence may be comprised of both direct and circumstantial evidence." Felix, 237 Ariz. 280, ¶ 30. "If reasonable persons could differ on whether the evidence establishes a fact at issue, that evidence is substantial." State v. Garfield, 208 Ariz. 275, ¶ 6 (App. 2004).
¶8 Clark concedes a kidnapping occurred, but argues there is insufficient evidence to convict him of felony murder because "there was no evidence presented that the death occurred in the course of and in furtherance of the predicate felony of kidnapping with an intent to seize or exercise control over a vehicle." Specifically, he asserts there is not sufficient evidence that the murder "occurred incidentally from an action taken to facilitate the felony of kidnapping," nor any evidence "to support a finding that killing [A.G.] actually furthered the criminal objective of kidnapping with intent to seize or exercise control over [A.G.]'s vehicle." Clark also contends that for the murder to have occurred in the course of or in furtherance of the kidnapping, A.G.'s death either had to result from an action Clark took to further the objective of stealing A.G.'s car, or incidentally result from an action Clark took to facilitate the completion of the kidnapping.
According to Clark, because two jurors did not find him guilty of premeditated murder, those jurors "clearly rejected the theory that [Clark] restrained [A.G.] with intent to inflict death by finding that the State failed to prove premeditation" and could only have found Clark kidnapped A.G. with the intent to seize or exercise control over the car.
¶9 The state counters that a reasonable juror could conclude A.G.'s death occurred in furtherance of kidnapping with intent to inflict death, physical injury, or to aid in the commission of a felony, as well as to exercise control over the car. Further, the state contends that because the fatal shooting was immediately preceded by the kidnapping, the murder occurred in the same chain of events, "which means that the death was in the course of and in furtherance of the kidnapping." The state also argues that the evidence presented could support the conclusion that Clark killed A.G. during his immediate flight from the kidnapping.
¶10 A person is guilty of first-degree murder if he "commits or attempts to commit . . . kidnapping under [A.R.S.] § 13-1304 . . . and, in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person." A.R.S. § 13-1105(A)(2). "A person commits kidnapping by knowingly restraining another person with the intent to . . . [i]nflict death, physical injury[,] . . . or to otherwise aid in the commission of a felony; or . . . [s]eize or exercise control over any . . . vehicle." A.R.S. § 13-1304(A)(3), (6). "A death is in furtherance of an underlying felony if the death resulted from an action taken to facilitate accomplishment of the felony." State v. Jones, 188 Ariz. 388, 397 (1997). And, "[a] predicate felony that 'transpired immediately preceding [a] shooting,' when 'the shooting occurred in rapid sequence and as a part of the chain of events which defendant's deliberate acts set in motion,' is not so far removed from a death that it precludes a finding of felony murder." State v. Hardy, 230 Ariz. 281, ¶ 27 (2012) (first alteration added, second alteration in Hardy) (quoting State v. Hitchcock, 87 Ariz. 277, 280 (1960)).
¶11 The jury was instructed that felony murder requires evidence that the defendant committed the kidnapping and caused the death of a person "in the course of and in furtherance of [the kidnapping] or the immediate flight from [the kidnapping]." It was also instructed that "[t]he crime of kidnapping requires proof that the defendant knowingly restrained another person with the intent to inflict death, physical injury or to aid in the commission of a felony or to seize or exercise control over any vehicle." Thus, the jury could have found Clark guilty of felony murder if they found that he kidnapped A.G. with either the intent to kill him, physically injure him, aid in the commission of a felony, or seize or control A. G.'s car, and that Clark shot A.G. in the course of and furtherance of or immediate flight from the kidnapping.
¶12 Viewing the evidence in the light most favorable to sustaining the jury's verdict and resolving all reasonable inferences against him, see Felix, 237 Ariz. 280, ¶ 30, there was sufficient evidence to convict Clark of felony murder. B.R. saw Clark in A.G.'s car, seated directly behind him. B.R. heard A.G. say on the phone that Clark had shot a hole in his windshield, was "going crazy," and was pointing a gun at him. B.R. also heard Clark tell A.G. where to drive and take A.G.'s phone and end the call. Clark admitted to punching A.G. in the face when the car was stopped at an intersection and later shooting him. A.G.'s car was eventually found in the desert, with the engine still running, the transmission in drive, and A.G. slumped over in the driver's seat with a gunshot wound. Clark also left his gun, which was covered in A.G.'s blood, along with a magazine near the car before he fled into a neighborhood, where his clothes that were covered in A.G.'s blood were recovered and he was arrested in a stranger's backyard.
¶13 Based on Clark telling A.G. where to drive at gunpoint, shooting a hole in the car window, and pointing a gun at A.G., the jury could have reasonably found that Clark kidnapped A.G. with the intent to seize or exercise control over the car. The jury could have also reasonably found that Clark kidnapped A.G. with the intent to inflict death or physical injury on A.G. because Clark punched him in the face, pointed a gun at him, shot a hole in the window, and eventually shot him to death. Although two jurors did not find Clark guilty of premeditated murder, that finding does not necessarily preclude the possibility of them inferring from the evidence that Clark kidnapped A.G. with the intent to kill him. Cf. State v. Canion, 199 Ariz. 227, ¶ 11 (App. 2000) ("not guilty" finding on premeditated murder not inconsistent with guilty verdict on felony murder). Moreover, the jury could have reasonably found that Clark shot A.G. when he fled the kidnapping. Thus, the evidence was substantial and sufficient to support his felony murder conviction.
"[A]lthough a defendant is entitled to a unanimous jury verdict on whether the criminal act charged has been committed, the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed." State v. Herrera, 176 Ariz. 9, 16 (1993) (quoting State v. Encinas, 132 Ariz. 493, 496-97 (1982)); see also Ariz. Const. art. II, § 23.
Reasonable Person Standard
¶14 Clark argues the trial court erred by precluding evidence of his military training and experience, and by allowing the state to argue a "reasonable sober person" standard during its closing argument. He contends these errors "fail to account for a defendant's knowledge and circumstance, which must be considered when determining whether [he] acted reasonably."
¶15 "[A] person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force." A.R.S. § 13-404(A). A person is justified in using deadly force if he would be justified under § 13-404(A) and "[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." A.R.S. § 13-405(A). "These provisions use objective standards that depend on the beliefs of a 'reasonable person' in the defendant's circumstances rather than the defendant's subjective beliefs." State v. Carson, 243 Ariz. 463, ¶ 9 (2018); see also State v. King, 225 Ariz. 87, ¶ 12 (2010) ("[Section 13-404(A)] no longer turns on the defendant's subjective motivations, but instead focuses on the reaction of an objective 'reasonable person.'"). The reasonable person standard "does not take into account the individual characteristics of the accused." State v. Oaks, 209 Ariz. 432, ¶ 9 (App. 2004); see also State v. Tuzon, 118 Ariz. 205, 209 (1978) ("The standard is a reasonable person's belief, not the unreasonable, even if honest, belief of the accused.").
Preclusion of Clark's Military Training and Experience
¶16 Clark argues the trial court abused its discretion by precluding evidence of his military training and experience. "We review a trial court's exclusion of evidence for an abuse of discretion." State v. Romero, 239 Ariz. 6, ¶ 11 (2016). He also argues he should have been permitted to admit statements he made to police about his military training and experience under the rule of completeness because they "give context to his admissions and his claim of self-defense." Clark, however, did not raise this argument below; therefore, we review only for fundamental error. See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018).
A defendant who fails to object at trial forfeits the right to appellate relief unless he can show trial error exists, and that the error went to the foundation of the case, took from him a right essential to his defense, or was so egregious that he could not possibly have received a fair trial. See Escalante, 245 Ariz. 135, ¶ 21. If a defendant can show an error went to the foundation of the case or deprived him of a right essential to his defense, he must also separately show prejudice resulted from the error. Id. If a defendant shows the error was so egregious he could not have received a fair trial, however, he has necessarily shown prejudice and must receive a new trial. Id.
¶17 Before trial, the state moved to preclude "any testimony or argument that implies [Clark]'s military history somehow factors into the reasonableness determination in [his] self-defense argument." Clark objected, arguing that his military training was "a relevant fact that contributed to his response sequence leading up to the fatal shooting" and was "relevant to show the reasonableness of [his] actions in light of the fact that [A.G.] continued to disobey [his] verbal command, physical punch and warning shot to stop rummaging in the center console for a perceived weapon." At the hearing on the motion, Clark asked to have a military expert testify that he "executed his particular force continuum as he was trained in the military" and that Clark's actions were "a textbook use of [his] military training . . . on that type of handling of a potential threat and that's what [he] was doing." The trial court found that because the reasonable person standard applied, evidence of Clark's military experience and how it may have affected his understanding of threats and when force is necessary was irrelevant and that "the probative value does not outweigh the danger of unfair prejudice." The state then redacted portions of Clark's statement to police where he said that he had learned to trust his gut because of firefights in the military, that he had previously drawn his gun in situations where he thought he was in danger, that he had been trained to shoot twice, and talked about his "rules of engagement." The jury was shown a redacted video of Clark's police interview and given redacted transcripts.
¶18 Clark contends the trial court's ruling precluded evidence "that spoke directly to his defense" and that doing so "took away a right essential to [his] defense that went to the foundation of his case." He also argues the statements about his military training should have been admitted under the rule of completeness, Ariz. R. Evid. 106. The state maintains its argument that Clark's military training was properly excluded because it was irrelevant and, therefore, no error occurred. The state also argues that even if precluding Clark's statements was error, "[n]othing in the redacted statements would have caused the jury to accept Clark's self-defense claim," because even if Clark's military training could be relevant, "there was no evidence that [A.G.] had used or attempted to use unlawful deadly physical force."
¶19 "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Ariz. R. Evid. 401. Relevant evidence, including evidence admissible under Rule 106, however, may be excluded "if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury . . . ." Ariz. R. Evid. 403; see also State v. Prasertphong, 210 Ariz. 496, ¶ 15 (2005). Generally, we will not disturb a trial court's Rule 403 determination absent a clear abuse of discretion. See State v. Bocharski, 200 Ariz. 50, ¶ 21 (2001).
¶20 Rule 106 provides: "If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time." "Under the rule of completeness, however, only the portion of a statement 'necessary to qualify, explain or place into context the portion already introduced' need be admitted." State v. Cruz, 218 Ariz. 149, ¶ 58 (2008) (quoting Prasertphong, 210 Ariz. 496, ¶ 15). Therefore, "a party may not invoke the rule to inject irrelevant issues into the case." State v. Pina-Barajas, 244 Ariz. 106, ¶ 12 (App. 2018).
¶21 Here, the relevant issue was whether Clark acted in self-defense under A.R.S. § 13-405(A). As noted, the standard for self-defense is "[w]hen and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself," § 13-405(A)(2), and does not take into account individual characteristics of the defendant, cf. Oaks, 209 Ariz. 432, ¶ 9. Because this is an objective standard, Clark's military training—an individual characteristic—was irrelevant and devoid of any probative value on the issue of whether a reasonable person would have believed deadly force was necessary in this instance. Thus, the trial court did not abuse its discretion in allowing the state to redact Clark's irrelevant statements.
Admitting the statements also risked misleading the jury or confusing the issue of whether a reasonable person would have acted as he did by suggesting Clark might have been justified in shooting A.G. because of his military training. See Ariz. R. Evid. 403.
¶22 Because Clark's military training and experience were irrelevant under the reasonable person standard, his statements about his military training were not necessary to explain, qualify, or put the rest of his statements into context. Therefore, his statements were properly excluded under Rule 106. We find no error, let alone fundamental, in the preclusion of Clark's statements.
State's Closing Argument
¶23 Clark argues the trial court erred in allowing the prosecutor to "add[] another element into the reasonable person standard by arguing that it is a reasonable 'sober' person standard." He does not challenge the jury instructions and thus appears to argue the court erred in its interpretation of the reasonable person standard prescribed in A.R.S. § 13-405(A). We review the interpretation of statutes de novo. State v. Godoy, 244 Ariz. 327, ¶ 7 (App. 2017).
¶24 In its closing argument, the state discussed Clark's self-defense claim and said: "And so really your standard is would a reasonable, sober person in that circumstance, would it be reasonable for a sober—a reasonable, sober person, would they think that they are being threatened with apparent deadly force where they have to also use deadly force." Clark objected when the state mentioned the "reasonable, sober person" standard for a fourth time; he argued it was the "improper legal standard" and was overruled.
¶25 On appeal, Clark argues the trial court erred in allowing the state to argue a "reasonable 'sober' person standard" because the correct standard is "whether a reasonable person in the defendant's circumstances was justified in believing that force was necessary." Specifically, he contends that "the standard for justification is one of a reasonable person in the defendant's circumstances, including individual characteristics." Clark also asserts that under our supreme court's recent decision in State v. Richter, 245 Ariz. 1 (2018), the objective reasonableness standard "must be considered in light of the defendant's circumstances, knowledge, and belief." By arguing the standard is one of "a reasonable person" and not "a reasonable sober person" and that the standard takes into account the defendant's circumstances, including individual characteristics, Clark appears to assert that his voluntary intoxication was a circumstance that should have been considered.
¶26 The state counters that Clark's intoxication was "an individual characteristic, rather than a circumstance to be considered" and because voluntary intoxication is not a defense, the prosecutor correctly stated that the "reasonable person standard is necessarily that of a reasonable person who is sober." The state also argues Richter is distinguishable because it involved the interpretation of the duress justification statute, A.R.S. § 13-412, and was factually distinguishable. Moreover, the state argues any error was harmless because the jury was properly instructed on the reasonable person standard.
¶27 First, whether Clark's intoxication is an individual characteristic or a circumstance, his intoxication is irrelevant to the reasonable person evaluation under § 13-405(A). In Arizona, voluntary intoxication "is not a defense for any criminal act or requisite state of mind," A.R.S. § 13-503, and thus, cannot be properly considered in any defense, including Clark's self-defense claim here. See State v. Gates, 243 Ariz. 451, ¶ 7 (2018) ("Statutes relating to the same subject or having the same general purpose 'should be read in connection with, or should be construed together with other related statutes, as though they constituted one law.'" (quoting State ex rel. Larson v. Farley, 106 Ariz. 119, 122 (1970))).
¶28 Second, Richter is distinguishable because it involved a duress defense—not self-defense. The duress statute, § 13-412, provides:
Conduct which would otherwise constitute an offense is justified if a reasonable person would believe that he was compelled to engage in the proscribed conduct by the threat or use of
immediate physical force against his person or the person of another which resulted or could result in serious physical injury which a reasonable person in the situation would not have resisted.In Richter, our supreme court held that a defendant who raised a duress defense was entitled to introduce evidence of her husband abusing her in the past to establish that defense. 245 Ariz. 1, ¶ 29. The court reasoned that, in duress cases, "[k]nowledge of the circumstances under which the defendant committed the alleged crimes is essential to the jury's determination of whether the defendant's actions were reasonable." Id. The court also explained "the plain language of § 13-412(A) itself requires that a duress claim be evaluated from the perspective of a reasonable person in the defendant's situation." Id. The self-defense statute that applies to Clark, however, does not refer to "a reasonable person in the situation"—rather, it states the standard is "a reasonable person" and does not include language accounting for the defendant's circumstances, knowledge, or beliefs. See § 13-405(A); see also § 13-404. Thus, Richter is inapposite.
Trial Court's Refusal to Disqualify Prosecutor
¶29 Clark argues the trial court abused its discretion by failing to disqualify a prosecutor who was a material witness. We review a trial court's ruling on a motion to disqualify a prosecutor for an abuse of discretion. See State v. Williams, 136 Ariz. 52, 56-57 (1983).
¶30 On the first day of trial, Clark moved to disqualify one of the prosecutors on the grounds that she was a "material fact witness" because surveillance video showed that she was in the same convenience store at the same time as Clark on the morning of the murder. The prosecutor, however, did not remember anything about being in the same store as Clark. Clark argued the prosecutor's lack of memory was relevant because it would contradict the testimony of a witness, E.O., who was also in the store and recalled Clark's intoxicated behavior and the odor of alcohol on him. The court found the prosecutor was not a necessary witness because she had no recollection of being in the convenience store while Clark was there, and denied Clark's motion to disqualify her.
¶31 A prosecutor need only be disqualified if his or her proposed testimony is relevant and material, and if that testimony is unobtainable elsewhere. See Sec. Gen. Life Ins. Co. v. Superior Court, 149 Ariz. 332, 335 (1986). "A party's mere declaration of an intention to call opposing counsel as a witness is an insufficient basis for disqualification even if that counsel could give relevant testimony." Id. As noted, evidence is relevant if it has a tendency to make a fact more or less probable and that fact is of consequence in determining the action. Ariz. R. Evid. 401.
¶32 On appeal, Clark maintains his argument that although the prosecutor did not recall seeing Clark, her lack of memory was "highly relevant and material" because her testimony that she could not recall seeing Clark in the store "directly contradicted [E.O.]'s testimony that [Clark] was severely intoxicated and that his behavior was very memorable and outrageous." Thus, Clark asserts that the prosecutor's testimony would be relevant to "the defense that [Clark] was not as drunk as the State claimed shortly before the shooting" and to impeaching E.O.'s testimony.
¶33 As a threshold matter, and as noted, Clark's intoxication is irrelevant. See A.R.S. § 13-503. Even if it were, the prosecutor's testimony would not have been relevant or material because she did not recall seeing Clark in the store. Her testimony would not have the tendency to make how Clark was acting in the store more or less probable than it would be without her testimony. As Clark notes, the state called E.O., who did recall seeing Clark in the store and who testified that she smelled alcohol on Clark when he stumbled backwards towards her and that Clark "seemed intoxicated." That testimony, however, would not be contradicted by the prosecutor's testimony that she did not recall seeing Clark. Cf. State v. McFall, 103 Ariz. 234, 236 (1968) ("An answer by a witness that he does not remember whether an event occurred is not a denial that the event did not occur."). Therefore, the prosecutor's testimony would not have been relevant and would not have been material. The trial court did not abuse its discretion in refusing to disqualify the prosecutor.
¶34 Further, to the extent that Clark argues the trial court violated his constitutional right to a fair trial, to present a complete defense, and to compulsory process, his claim fails. Because Clark did not raise this argument below, we review only for fundamental error. See Escalante, 245 Ariz. 135, ¶ 12; State v. Bible, 175 Ariz. 549, 572 (1993) (principle that, absent fundamental error, party cannot raise argument on appeal without proper objection below applies to constitutional error); cf. State v. Alvarez, 213 Ariz. 467, ¶ 7 (App. 2006) (objection to evidence based on state law does not preserve claim of constitutional error for appeal). "[T]he Sixth Amendment right to present evidence in one's defense is limited to evidence which is relevant and not unduly prejudicial." State v. Oliver, 158 Ariz. 22, 30 (1988). As noted, the prosecutor's testimony would not have been relevant. Thus, we find no error, let alone fundamental error, in the court's refusal to disqualify the prosecutor.
Other-Acts Evidence
¶35 Clark argues the trial court erred in admitting "prejudicial other act evidence that C[lark] had fired his gun into the desert at his apartment when it was not admissible as intertwined evidence or under [Rule 404(b), Ariz. R. Evid.,] and was admitted solely for the purpose of proving action in conformity therewith." We review a court's ruling on the admission of evidence for an abuse of discretion. See State v. Cota, 229 Ariz. 136, ¶ 10 (2012).
¶36 At trial, Clark moved to preclude evidence that he fired his gun into the desert earlier on the morning he shot A.G. The state argued that the shot into the desert was relevant and that Rule 404(b) did not apply because the shot was part of the same incident as the murder. Clark countered that the shot was not part of the same incident because it was not directed at A.G. or any person, and was "a reckless discharge" separate from the shooting of A.G. The trial court found that the probative value was not outweighed by the danger of unfair prejudice and denied Clark's motion.
¶37 Rule 404(b) excludes evidence of other acts "to prove the character of a person in order to show action in conformity therewith," but does allow other-acts evidence to prove, among other things, motive, opportunity, and intent. "[C]ertain acts are so closely related to the charged act that they cannot fairly be considered 'other' acts, but rather are part of the charged act itself." State v. Ferrero, 229 Ariz. 239, ¶ 14 (2012). Under the doctrine of intrinsic evidence, such acts are not considered "other acts" and therefore may be admitted, despite the danger of showing the defendant's propensity to act in a certain way. Id. Our supreme court has explained that "evidence is intrinsic in Arizona if it (1) directly proves the charged act, or (2) is performed contemporaneously with and directly facilitates commission of the charged act." Id. ¶ 20. "The intrinsic evidence doctrine thus may not be invoked merely to 'complete the story' or because evidence 'arises out of the same transaction or course of events' as the charged act." Id.
¶38 Here, the act of Clark firing his gun into the desert at his apartment complex did not merely arise out of the same course of events as the kidnapping of A.G. Clark, A.G., and B.R. were socializing together and no one left until immediately after Clark fired his gun into the desert. Indeed, that first shot was the act that set the others in motion: after Clark fired his gun, B.R. fled in his car, A.G. got into his car, and Clark followed, sitting directly behind A.G., where he drew his gun, told A.G. where to drive, and ultimately shot A.G. That first round fired into the desert was performed contemporaneously with and directly facilitated the kidnapping that facilitated the murder and, therefore, was intrinsic to both the kidnapping and the murder. See id. The trial court did not abuse its discretion in admitting evidence of the first shot.
Disposition
¶39 For the foregoing reasons, we affirm Clark's conviction and sentence.