Opinion
1 CA-CR 21-0589 1 CA-CR 21-0590
12-08-2022
STATE OF ARIZONA, Appellee, v. GARRETT DARYL WILDER, Appellant.
Arizona Attorney General's Office, Phoenix By Kevin M. Morrow Counsel for Appellee Jill L. Evans Attorney at Law, Flagstaff By Jill L. Evans Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County No. S8015CR202001034 The Honorable Billy K. Sipe, Judge Pro Tempore
COUNSEL
Arizona Attorney General's Office, Phoenix By Kevin M. Morrow Counsel for Appellee
Jill L. Evans Attorney at Law, Flagstaff By Jill L. Evans Counsel for Appellant
Cynthia J. Bailey Judge delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass joined.
MEMORANDUM DECISION
BAILEY, Judge:
¶1 Garrett Daryl Wilder appeals his conviction and sentence for dive-by shooting. Because Wilder has shown no error, we affirm.
We view the facts in the light most favorable to sustaining the verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
¶2 At around 3:00 one Sunday morning in September 2020 in Lake Havasu City, Wilder was driving his girlfriend home in her car when he encountered two men along a residential roadway. Wilder stopped and exchanged words with the men before firing one shot from his handgun, striking one of the men, G.D., in the abdomen. G.D. was seriously injured, but he survived. Wilder, still in the car, drove away. A couple days later, Wilder's girlfriend told police Wilder was the shooter.
¶3 Police officers arrested Wilder, advised him of his rights, and interviewed him after he waived those rights. During his interview, Wilder admitted he did not "need" to use his gun during the encounter because he "could of just left." Wilder explained he fired his gun when the two men tried to open his car door.
¶4 The State charged Wilder with three counts of aggravated assault and one count each of drive-by shooting and disorderly conduct. At trial, G.D. and M.O testified that they rented a home for the evening and stepped outside around 3:00 a.m. to accompany a female friend whose rideshare vehicle had arrived to pick her up. While doing so, G.D. and M.O. heard a male voice taunting them from a car across the street. Returning to the front door, G.D. and M.O. heard a gunshot from the vehicle before it sped off.
¶5 Wilder, on the other hand, testified that he fired his gun because he feared for his and his girlfriend's lives when the men he encountered in the street threatened him and tried to open his car door before kicking it. But during his police interview, Wilder said nothing about the victims kicking the door. G.D. and M.O. denied approaching the car, let alone touching or kicking it. Items admitted in evidence included photographs depicting a shoe print just above the handle of the dented car door and the Gucci shoes G.D. was wearing at the time of the shooting.
¶6 The jury found Wilder guilty of drive-by shooting and not guilty of the remaining charges. Wilder then filed a motion for judgment of acquittal under Arizona Rule of Criminal Procedure ("Rule") 20(b), arguing the conviction was "ambiguous" because the jury acquitted him of disorderly conduct, which Wilder asserted is a lesser-included offense of drive-by shooting. See State v. Hansen, 237 Ariz. 61, 68, ¶ 23 (App. 2015) (noting impropriety of simultaneous verdicts of guilty on a greater offense and not guilty on a separately charged lesser-included offense).
¶7 Wilder also raised claims of juror misconduct in a post-verdict motion for new trial under Rule 24.1(c), arguing that, during deliberations, the jury foreperson improperly compared the sole of her shoe to the imprint left on the car door, and the jury violated the court's final instruction not to consider punishment. Attached to his motion for new trial, Wilder included supporting affidavits from four jurors.
¶8 The trial court heard oral argument on Wilder's motions and denied them. The court found disorderly conduct is not a lesser included offense of drive-by shooting and the verdicts on those offenses were "simply inconsistent[.]" Regarding the Rule 24.1 motion, the court determined as a threshold issue that Wilder's juror misconduct claims did not warrant an evidentiary hearing because the claims related to the jurors' subjective motives and mental processes during deliberations. See Ariz. R. Crim. P. 24.1(d) ("[T]he court may not receive testimony or an affidavit that relates to the subjective motives or mental processes leading a juror to agree or disagree with the verdict."). The court then imposed a presumptive 10.5-year prison term. Wilder timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") §§ 12-120.21(A)(1), 13-4031, and 13-4033.
DISCUSSION
I. The Jury's Acquittal on Disorderly Conduct Did Not Render the Guilty Verdict Invalid
¶9 Challenging the trial court's denial of his Rule 20(b) motion, Wilder argues the court erred in concluding disorderly conduct is not a lesser-included offense of drive-by shooting. Whether an offense is a lesser-included offense is a question of law, which we review de novo. State v. Cheramie, 218 Ariz. 447, 448, ¶ 8 (2008). Wilder's argument fails because disorderly conduct is not a lesser-included offense of drive-by shooting. State v. Torres-Mercado, 191 Ariz. 279, 282 (App. 1997); State v. Cisneroz, 190 Ariz. 315, 316 (App. 1997).
¶10 Though Wilder acknowledges that disorderly conduct is not a per se lesser-included offense of drive-by shooting, he argues we should look to the offenses as charged. As charged here, drive-by shooting requires proof that Wilder (1) intentionally (2) discharged a weapon from a motor vehicle (3) at a person. A.R.S. § 13-1209(A). Disorderly conduct requires proof that Wilder (1) with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so (2) recklessly handled, displayed or discharged a deadly weapon or dangerous instrument. A.R.S. § 13-2904(A)(6).
¶11 Wilder argues that if he intentionally shot at G.D. from his car, he necessarily must have also committed disorderly conduct by intentionally disturbing the peace of G.D. (or knowing this would result) while he recklessly handled, displayed or discharged his weapon. He therefore argues, as charged, disorderly conduct is a lesser-included offense of drive-by shooting.
¶12 But Cisneroz plainly held, "Disorderly conduct requires that the defendant intend or know that his conduct will disturb someone's peace and quiet. There is no such element in the offense of drive-by shooting." 190 Ariz. at 317. Even as charged here, the holding of Cisneroz applies; disorderly conduct requires proof of an element not included in drive-by shooting and is thus not a lesser-included offense. And contrary to Wilder's argument, a person using a firearm in self-defense could shoot in the attacker's direction solely with the intent to preserve his own life-with no knowledge of whether the attacker's peace will be disturbed.
¶13 And the additional Arizona cases Wilder cites to support his position do not apply here. In State v. Foster, 191 Ariz. 355, 357, ¶¶ 9-10 (App. 1998), for instance, the court addressed whether disorderly conduct is a lesser-included offense of aggravated assault charged in one count under A.R.S. § 13-1203(A)(1) and charged in another count under § 13-1203(A)(2). Our supreme court's opinion in Peak v. Acuna is similarly inapposite. See 203 Ariz. 83, 84-85, ¶¶ 5-6 (2002) (addressing whether manslaughter is a lesser-included offense of second-degree murder), abrogated on other grounds by State v. Fischer, 242 Ariz. 44 (2017); see also State v. Hurley, 197 Ariz. 400, 402-03, ¶¶ 12-14 (App. 2000) (same).
¶14 Wilder alternatively argues that the guilty verdicts for drive-by shooting and disorderly conduct are "mutually exclusive," because "a guilty verdict logically excludes a finding of guilt on the other." That argument lacks merit because the jury found Wilder not guilty of disorderly conduct. To the extent Wilder contends the verdicts were inconsistent, he correctly concedes that inconsistent verdicts are generally valid in Arizona. See Hansen, 237 Ariz. at 67, ¶ 19 ("[I]n Arizona[,] we do not disturb inconsistent verdicts.").
¶15 The trial court did not err by concluding disorderly conduct is not a lesser-included offense of drive-by shooting. Accordingly, the court properly denied Wilder's Rule 20(b) motion for judgment of acquittal.
II. The Trial Court Did Not Err by Rejecting Wilder's Claims of Juror Misconduct
¶16 Continuing with his challenge to the trial court's denial of his post-verdict motions, Wilder contends juror misconduct entitled him to a new trial under Rule 24.1(c)(3)(A). We review the denial of a motion for a new trial based on alleged juror misconduct for an abuse of discretion. State v. Hall, 204 Ariz. 442, 447, ¶ 16 (2003).
¶17 Wilder's new trial motion was based on two alleged instances of the jury improperly considering extrinsic evidence. See Ariz. R. Crim. P. 24.1(c)(3)(A) ("The court may grant a new trial . . . if . . . one or more jurors commit misconduct by . . . receiving evidence not admitted during the trial."). First, he asserted that, during deliberations, the foreperson matched her apparently non-Gucci shoe's sole to the shoe imprint on the door of the car Wilder was driving at the time of the shooting. Second, Wilder claimed the jurors found him guilty of drive-by shooting because they improperly considered punishment in violation of the court's final instructions.
¶18 Regarding the foreperson's comparison of her shoe to the sole print on the car door, the trial court stated:
I am aware of situations where the jurors will put big pieces of paper on the walls in the jury room to write things out and compare things. And these are things that they just simply do during deliberations. And I don't see that it's -- the jury's receiving extrinsic evidence if the foreperson, trying to make a point, takes off a shoe and says, "Well, this is a common
print or a print similar to a Gucci shoe." Again, I'm assuming that the jurors do similar things during deliberations when they're discussing where they're stuck on some sort of point.
¶19 The trial court did not abuse its discretion in finding that the juror's purported shoe comparison did not constitute the receipt of extrinsic evidence. The trial evidence included a photograph of the shoe print on the car door and G.D.'s shoe, and in comparing the two, the jury foreperson purportedly used her shoe to demonstrate her view that it- not the victim's shoe-matched the shoe print on the car door. The use of the foreperson's shoe in this manner was not an improper receipt of extrinsic evidence. Instead, it merely assisted the jury in testing the trial evidence to determine whether the shoe print on the car door matched the victim's shoe tread. See State v. Gomez, 211 Ariz. 111, 113, ¶ 8 (App. 2005) ("[J]urors inking their own fingers to compare to known and latent print evidence [is] not an improper experiment but a mere test of the credibility of evidence received during the trial" (citing State v. Jackson, 596 N.W.2d 262, 266 (Minn.App. 1999))); see also State v. Dickens, 187 Ariz. 1, 16 (1996) ("We cannot expect jurors to forget their life experience, accumulated knowledge, or leave behind a lifetime of accumulated views. Like it or not, we acknowledge that jurors will raise such information in their deliberations."), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239 (2012).
¶20 As for the allegation that the jury improperly considered punishment, we agree with the trial court that a failure to follow the court's instructions does not constitute an improper consideration of extrinsic evidence that warrants a new trial. See State v. Callahan, 119 Ariz. 217, 220 (App. 1978) (concluding that deliberating jury's consideration of defendant's failure to testify at trial in contravention of the court's instructions did not amount to extrinsic evidence for purposes of establishing misconduct under Rule 24.1(c)(3)); see also State v. Covington, 136 Ariz. 393, 396-97 (App. 1983). The court did not abuse its discretion in denying the new trial motion on this basis.
III. The Trial Court's Preclusion of Evidence Was Not Error
¶21 Wilder argues the trial court erred by precluding evidence he sought to admit. We review the court's evidentiary rulings for an abuse of discretion. State v. Davolt, 207 Ariz. 191, 208, ¶ 60 (2004).
¶22 First, Wilder sought to admit screenshots of various styles of Gucci shoes and a photograph of G.D. wearing Gucci sandals. Wilder argues the evidence was relevant to establishing that the shoe print found on the car door matched the victim's shoes. This argument fails because, as noted, the actual shoes G.D. was wearing at the time of the shooting were admitted into evidence along with a photograph of the shoe print on the vehicle. Thus, the jury had the best evidence available to compare G.D.'s shoe tread to the imprint on the car door. Any evidentiary value the photographs of G.D.'s shoes had was cumulative to the admitted evidence. The trial court did not abuse its discretion in precluding the shoe images. See Ariz. R. Evid. 403 (trial court may preclude relevant evidence that is "needlessly . . . cumulative").
¶23 Wilder next argues the trial court should have admitted photographs of G.D. snowboarding and riding a motorcycle "soon after being shot[.]" Wilder contends the proffered evidence rebutted G.D.'s testimony that he was seriously injured from the shooting. Similarly, Wilder contends a screen shot of a GoFundMe web page was admissible to rebut G.D.'s testimony that he "checked out of the hospital early because he did not have funds." But as Wilder notes, G.D. testified about snowboarding three months after being shot. The proffered photographs were therefore cumulative. Additionally, evidence of G.D.'s ability to pay for health care after the shooting was not relevant to determining Wilder's guilt. The trial court did not abuse its discretion by precluding the evidence. See Ariz. Rs. Evid. 402 and 403.
¶24 Finally, Wilder contends that the victims' on-line "Naughty Boyz" videos and images should have been admitted to rebut evidence that the victims were peaceful. Wilder argues that this other-act evidence of the victims' "aggressive behavior," although unknown to him at the time of the shooting, was relevant to his claim of self-defense. See State v. Fish, 222 Ariz. 109, 122, ¶ 41 (App. 2009) (holding that specific other-act evidence of the victim's violence and aggression was relevant to corroborating the defendant's claim of self-defense).
¶25 The trial court found none of the videos or images went to a pertinent character trait of the victims. See Ariz. R. Evid. 404(a)(2) (providing, as an exception to the general rule precluding admissibility of evidence indicating a person's character trait: "Evidence of a pertinent trait of character of the victim of the crime offered by an accused [is admissible]." (emphasis added)). Specifically, the court stated:
I don't find that what the defense is trying to present is combative sort of behavior. Looking at what the defense wants to get into, this appears to be two young adults having a good time, who like to party and like girls, and that's a
pretty common thing that young adults do. And there's really nothing about this that convinces me this is a pertinent character trait to show aggressiveness or to show who was the more aggressive party or to show any sort of violent disposition.
¶26 Having reviewed the videos and photographs, we agree with the trial court's comments. The court did not abuse its discretion in precluding the evidence.
CONCLUSION
¶27 For the foregoing reasons, Wilder's conviction and sentence are affirmed.