Opinion
2 CA-CR 2023-0236
10-09-2024
The State of Arizona, Appellee, v. Ricardo Zavala, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Phillip A. Tomas, Assistant Attorney General, Phoenix Counsel for Appellee E.M. Hale Law, Lakeside By Elizabeth M. Hale Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR202102527 The Honorable Danielle Harris, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Phillip A. Tomas, Assistant Attorney General, Phoenix Counsel for Appellee
E.M. Hale Law, Lakeside By Elizabeth M. Hale Counsel for Appellant
Presiding Judge Gard authored the decision of the Court, in which Chief Judge Staring and Judge Eckerstrom concurred.
MEMORANDUM DECISION
GARD, Presiding Judge
¶1 Ricardo Zavala appeals his convictions and sentences for manslaughter and felony endangerment. Zavala argues the trial court erred by failing to instruct the jurors on self-defense and by precluding certain evidence. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 "We view the evidence in the light most favorable to upholding the jury's verdicts, resolving all reasonable inferences against" Zavala. State v. Copeland, 253 Ariz. 104, ¶ 2 (App. 2022). One night in December 2021, Zavala attended a birthday celebration at his sister's home in Casa Grande. The guests included S.C.; S.C.'s friend, "Gordo"; A.M.; and A.M.'s brother, E.M.
¶3 Immediately after Zavala arrived, he argued with Gordo about his involvement in a drug overdose Gordo's brother had experienced. Gordo threatened to "beat" Zavala, but S.C. diffused the conflict before it became physical. Zavala avoided Gordo and S.C. for the remainder of the evening, consuming a large quantity of alcohol. At one point, Zavala displayed his handgun to other guests, illuminating its affixed light.
¶4 Over the course of the night, Zavala became intoxicated and his mood changed. Appearing upset, he stood in front of the home's only exit door, arms crossed, as though he were guarding it. A.M. and S.C. took Zavala into the carport to discuss what was wrong, but Zavala and S.C. began to argue. By this point, Gordo had left the party. Intending to deescalate the conflict, A.M. advised S.C. to give Zavala a hug. When S.C. attempted to do so, however, Zavala pushed him away. Zavala then drew his handgun, racked the slide, and shot S.C. in the head through his right ear.
¶5 E.M. ran outside and fought Zavala for control of the firearm, but Zavala's sisters pulled E.M. away. Zavala started to raise the weapon toward another party guest, but A.M. stopped him and ordered him to leave. Zavala fled on foot. S.C. was taken to a hospital, but he ultimately died.
¶6 Officers responded to the house, identified Zavala as the suspect, and began searching for him. Soon thereafter, a detective saw Zavala standing in the middle of a roadway, holding a black object. After backup officers arrived, the detective took Zavala into custody; by that time, however, Zavala no longer possessed the black object. During subsequent police questioning, Zavala admitted that he had shot S.C. and that he had discarded his weapon when he realized police were approaching.
¶7 A police dog searched the area where Zavala had been arrested and located a black handgun. Back at the house, officers recovered a live bullet from the carport and a fired shell casing from the gravel nearby. The weapon the police dog had located contained a similar type of ammunition to the live round found in the carport. And a firearms and toolmark examiner opined that the weapon had fired the shell casing recovered from the gravel.
¶8 A grand jury indicted Zavala for the second-degree murder of S.C.; felony endangerment, with A.M. as the victim; and disorderly conduct involving a weapon, with E.M. as the victim. After a six-day trial, a jury failed to reach a verdict on second-degree murder, instead finding Zavala guilty of reckless manslaughter as a lesser-included offense. The jury further found Zavala guilty of endangerment but not guilty of disorderly conduct. It later found the state had proved four aggravating circumstances on the manslaughter count but none on the endangerment count. The trial court sentenced Zavala to an aggravated term of nineteen years' imprisonment for manslaughter and to a consecutive, slightly mitigated term of 1.5 years' imprisonment for endangerment. This appeal followed.
The grand jury also indicted Zavala for a second count of endangerment involving party guest J.P., but the trial court dismissed this count on the state's motion on the first day of trial.
Discussion
¶9 Zavala challenges the trial court's failure to give a self-defense instruction. He further argues the court erred by granting the state's motion to preclude certain evidence relating to S.C., A.M., and Gordo. We address each issue in turn.
I. Self-defense instruction
¶10 Zavala did not ask the trial court to instruct the jury on self-defense, nor did he object to that instruction's omission. When a defendant fails to either affirmatively request a jury instruction or object to its absence, we review the instruction's omission for fundamental error and resulting prejudice. See Ariz. R. Crim. P. 21.3(b) (requiring party to object to trial "court's giving or failing to give any instruction" before jury is released to deliberate and cautioning that "[i]f a party does not make a proper objection, appellate review may be limited"); State v. Sulu-Kerr, 256 Ariz. 530, ¶ 19 (App. 2024) (when party fails to request instruction on justification, court reviews for fundamental and prejudicial error).
¶11 A defendant bears the burden of persuasion on fundamental error review. State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). To carry this burden, a defendant must satisfy a three-prong test. Id. First, he must prove that an error occurred. Id. Second, he must establish that the error qualified as fundamental under the totality of the circumstances in that it either went to the foundation of the case, took from him a right essential to his defense, or was of sufficient magnitude that he could not have received a fair trial. Id. ¶¶ 18-21. Third, unless the basis for finding fundamental error is that he could not have received a fair trial, a defendant must establish that the error caused him prejudice by showing that it "could have" affected the verdicts. Id. ¶¶ 21, 29-32 &29 (emphasis omitted) (quoting State v. Henderson, 210 Ariz. 561, ¶ 27 (2005)).
A. Applicable law
¶12 A defendant must receive a self-defense instruction when the record contains the "slightest evidence" of self-defense. State v. Carson, 243 Ariz. 463, ¶¶ 9, 18 (2018) (quoting State v. King, 225 Ariz. 87, ¶ 14 (2010)). This is a "low standard." King, 225 Ariz. 87, ¶ 15. To meet it, "the defendant need only show some evidence of 'a hostile demonstration, which may be reasonably regarded as placing the accused apparently in imminent danger of losing h[is] life or sustaining great bodily harm.'" Carson, 243 Ariz. 463, ¶ 19 (quoting King, 225 Ariz. 87, ¶ 15). The defendant need not introduce evidence of each element of self-defense, id. ¶¶ 19, 21, but mere speculation or inference is insufficient, State v. Wilson, 253 Ariz. 191, ¶ 11 (App. 2022). And once a defendant identifies the slightest evidence of self-defense, the state must disprove that justification beyond a reasonable doubt. A.R.S. § 13-205(A); Carson, 243 Ariz. 463, ¶ 11.
¶13 A person is justified in using or threatening physical force in self-defense "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). And a person is justified in using or threatening deadly physical force if 1) he would be justified in using physical force under § 13-404, and 2) "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; see Carson, 243 Ariz. 463, ¶ 21 (defendant must "identify some evidence that a reasonable person in his place would have believed that [the victim] would use or attempt to use deadly physical force against him"); State v. Grannis, 183 Ariz. 52, 60 (1995) (person may use deadly force in response to reasonably apparent deadly force), disapproved on other grounds by King, 225 Ariz. 87, ¶ 9; see also A.R.S. § 13-105(14) (defining "deadly physical force" as "force that is used with the purpose of causing death or serious physical injury or in the manner of its use or intended use is capable of creating a substantial risk of causing death or serious physical injury").
¶14 The self-defense statutes "use objective standards that depend on the beliefs of a 'reasonable person' in the defendant's circumstances rather than the defendant's subjective beliefs." Carson, 243 Ariz. 463, ¶ 9. Accordingly, "the proper focus of a justification defense is on an objectively reasonable person in the defendant's position." State v. Ewer, 254 Ariz. 326, ¶ 19 (2023).
B. Analysis
¶15 The record here arguably contains the "slightest evidence" of self-defense, which may have supported a self-defense instruction had Zavala requested one. Carson, 243 Ariz. 463, ¶¶ 9, 18-19. But Zavala failed to do so, and the question before us is the effect of that failure. Zavala contends the court should have given a self-defense instruction on its own initiative because that instruction was necessary for the jurors to properly consider the evidence. The state, however, responds that a court has no duty to give a self-defense instruction a defendant does not request, and that its failure to do so is not fundamentally erroneous.
Specifically, Zavala testified that, immediately before the shooting, SC had come up behind him and put his arm around Zavala's neck. Zavala pushed S.C. away, upsetting S.C. and leading to a verbal confrontation. Zavala drew his weapon to frighten S.C. because he thought that S.C. "was going to beat [him] up right there." S.C. then struck Zavala, and Zavala fired his weapon indiscriminately, without specifically aiming at S.C. Likewise, party guest J.P. testified that he had witnessed the confrontation between Zavala and S.C., during which S.C. attempted to grab Zavala, but A.M. held S.C. back. Zavala shot S.C. immediately thereafter.
¶16 Consistent with the state's argument, another panel of this court recently determined that a trial court did not err by failing to give a self-defense instruction sua sponte. State v. Brown, No. 1 CA-CR 23-0123, 2024 WL 4131854 (Ariz. App. Sept. 10, 2024). The panel recognized a court's obligation to "properly instruct the jury on the elements of the charged offenses and on reasonable doubt," but it concluded that a court has no similar duty to instruct on justification defenses. Id. ¶ 21.
¶17 The panel reasoned that 1) in the almost fifty years since the legislature adopted justification defenses, no Arizona appellate court has imposed on trial courts a duty to sua sponte instruct on those defenses;2) imposing such a duty would require trial courts to anticipate all potentially applicable justification defenses, which would be impractical; 3) a defendant may choose as a matter of trial strategy what justification defenses to pursue or not pursue; and 4) the defendant in Brown had "offer[ed] no answer" as to whether a court would be required to give a justification instruction over a defendant's objection. Id. ¶¶ 26-29. The panel thus concluded that courts have no duty to give unrequested justification instructions, and their failure to do so does not constitute error, let alone fundamental error. Id. ¶ 30. We follow Brown here and conclude no error occurred when the trial court did not, on its own motion, instruct the jurors on self-defense.
The panel in Brown distinguished Sulu-Kerr, 256 Ariz. 530, ¶¶ 15-37, in which this court determined that prejudicial fundamental error had occurred when the trial court failed to sua sponte instruct the jurors on the defense-of-an-occupied-vehicle justification under A.R.S. § 13-418. Brown, 2024 WL 4131854, ¶¶ 23-24. The Brown panel observed that, in Sulu-Kerr, the court had instructed the jurors on a number of other justification theories. Id. ¶ 24. In light of those instructions, the court's omission of the defense-of-an-occupied-vehicle instruction incorrectly stated the law and left the jury with an incomplete understanding of justification. Id. The panel concluded that Sulu-Kerr "properly reflects th[e] common-sense notion that jury instructions given by the court must correctly state the law," rather than "a novel view that trial courts have a sua sponte duty to instruct on all potentially applicable justification defenses." Id.
¶18 But even were we to assume error occurred and the error qualified as fundamental, Zavala has not established it could have affected the trial's outcome. See Escalante, 245 Ariz. 135, ¶¶ 21, 29-32; see also State v. Dickinson, 233 Ariz. 527, ¶ 13 (App. 2013) ("Fundamental error alone is not sufficient for reversal; [a defendant] must show resulting prejudice."). To do so, he must establish "based on the unique facts of the case" that absent the error, "a reasonable jury . . . could have reached a different [verdict]." State v. Fierro, 254 Ariz. 35, ¶ 21 (2022) (alterations in Escalante) (quoting Escalante, 245 Ariz. 135, ¶ 29).
A defendant may simultaneously establish both fundamental error and prejudice by showing that an error was so egregious he could not possibly have received a fair trial. State v. Fierro, 254 Ariz. 35, ¶ 21 (2022); Escalante, 245 Ariz. 135, ¶ 21. Zavala, however, does not develop an argument under this theory of fundamental error, at best mentioning only in passing that the instruction's omission deprived him "of his due process right to a fair trial" but omitting any reference to the standard for proving fundamental error under this theory. In any event, any error here would not meet this standard, particularly where Zavala did not pursue a self-defense theory at trial. See Escalante, 245 Ariz. 135, ¶ 20 (requiring showing that error has "so profoundly distort[ed] the trial that injustice is obvious without the need to further consider prejudice"). Moreover, as our supreme court has recognized, justification instructions generally "implicate no constitutional principles." State v. Gendron, 168 Ariz. 153, 155 (1991).
¶19 Because the alleged error here involves an omitted jury instruction, Zavala must "show that a reasonable jury 'could have reached a different result' had the jury been properly instructed." State v. James, 231 Ariz. 490, ¶ 15 (App. 2013) (quoting Henderson, 210 Ariz. 561, ¶ 27). And in light of the shifting burden in the justification context, the specific question is whether a reasonable jury could have found that the state failed to disprove self-defense beyond a reasonable doubt. § 13-205(A); Carson, 243 Ariz. 463, ¶ 11.
¶20 Under the totality of the circumstances here, no reasonable jury could have made that finding. Zavala's use of deadly physical force against S.C., see § 13-105(14), would have been justified only if an objectively reasonable person in his position would have believed such force was immediately necessary to protect himself against S.C.'s actual, attempted, or reasonably apparent use of deadly force. See § 13-404(A); § 13-405(A); Ewer, 254 Ariz. 326, ¶ 19; Carson, 243 Ariz. 463, ¶ 19; Grannis, 183 Ariz. at 60.
¶21 At most, the testimony establishes that S.C. either struck or attempted to strike Zavala with his hands before Zavala shot him, an action that constitutes physical but not deadly physical force. See § 13-105(32) ("'Physical force' means force used upon or directed toward the body of another person and includes confinement, but does not include deadly physical force."); see also § 13-105(14). Zavala identifies no evidence that S.C. actually used deadly force or that he engaged in behavior that would have suggested to a reasonable person an imminent threatened or apparent use of deadly physical force. Accordingly, no reasonable jury could have found Zavala's use of deadly physical force against S.C. justified.
¶22 Zavala's arguments to the contrary focus primarily on whether the record contains the slightest evidence of self-defense. Although, as we recognized above, Zavala makes a persuasive case that the record contains the minimum quantum of evidence necessary to have received a self-defense instruction had he requested one, the relevant question for prejudice purposes is whether a reasonable jury instructed on self-defense could have found Zavala's use of deadly physical force justified. See James, 231 Ariz. 490, ¶ 15. Zavala does not address this question.
¶23 Zavala's argument that the jury's guilty verdict for the lesser-included offense of reckless manslaughter "indicat[es] that the level of culpability that [it] assigned [Zavala] was less than second-degree murder" is similarly unpersuasive. Zavala fails to explain how the jury's reckless manslaughter verdict is predictive of how it would have evaluated self-defense. And in any event, Zavala cannot show prejudice by focusing on his jury's subjective decision-making. See Fierro, 254 Ariz. 35, ¶ 21 ("The standard is not subjectively what this particular jury might have concluded, but is rather an objective inquiry," under which a defendant must show "that without the error, a reasonable jury could have plausibly and intelligently returned a different verdict." (quoting Escalante, 245 Ariz. 135, ¶ 31)). Nor can he establish prejudice through speculation. See id. ("The 'could have' standard requires a showing far greater than a metaphysical possibility and 'necessarily excludes imaginative guesswork.'" (quoting Escalante, 245 Ariz. 135, ¶ 31)). Zavala has failed to show error, fundamental or otherwise, or prejudice from the trial court's omission of a self-defense instruction.
II. Precluded evidence
¶24 Zavala next contends the trial court erred by granting the state's motion to preclude certain evidence relating to A.M., S.C., and Gordo. We review a court's decision to preclude evidence for an abuse of discretion, Cruz v. Blair, 255 Ariz. 335, ¶ 13 (2023), and "we may affirm an evidentiary ruling on any basis supported by the record," State v. James, 242 Ariz. 126, ¶ 28 (App. 2017). To the extent Zavala raises new legal arguments for the first time on appeal, we review his claims for fundamental error. See Escalante, 245 Ariz. 135, ¶¶ 21-32. The court did not err by precluding the disputed evidence here.
Citing California v. Trombetta, 467 U.S. 479 (1984), Zavala suggests that the trial court's rulings violated his due-process right to present a complete defense. Zavala, however, does not develop this argument, resulting in its waiver. See Ariz. R. Crim. P. 31.10(a)(7); State v. Moody, 208 Ariz. 424, n.9 (2004); State v. Carver, 160 Ariz. 167, 175 (1989). Waiver aside, no-due process violation occurs when a court properly precludes evidence under applicable rules. State v. Abdi, 226 Ariz. 361, ¶ 32 (App. 2011). As explained, we conclude that, to the extent the court precluded evidence, it appropriately did so under the rules of evidence.
A. Evidence relating to A.M.
¶25 Zavala refers to precluded evidence involving A.M., but he does not clearly identify the evidence at issue or explain, with specific reference to facts and legal authority, how the trial court erred. His claims relating to A.M. are therefore waived for insufficient argument. See Ariz. R. Crim. P. 31.10(a)(7) (opening brief must contain contentions and supporting reasons, with legal and factual citations); State v. Moody, 208 Ariz. 424, n.9 (2004) ("Merely mentioning an argument is not enough: 'In Arizona, opening briefs must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised. Failure to argue a claim usually constitutes abandonment and waiver of that claim.'" (quoting State v. Carver, 160 Ariz. 167, 175 (1989))).
¶26 Even were we to overlook waiver, Zavala's arguments are unpersuasive. See State v. Boteo-Flores, 230 Ariz. 551, ¶ 7 (App. 2012) (waiver is a discretionary doctrine). To the extent Zavala argues the trial court erred by precluding evidence that A.M. had been on felony probation at the time of the shooting, any error was harmless beyond a reasonable doubt because that evidence was ultimately admitted. See Henderson, 210 Ariz. 561, ¶ 18. A.M. spontaneously revealed his status as a probationer during the state's direct examination, thereby enabling Zavala to highlight that fact on cross-examination and in closing argument.
¶27 To the extent Zavala argues the trial court should have permitted him to introduce evidence of A.M.'s alleged cocaine use, he directs us to no specific evidence that was available to present. In fact, Zavala agreed at oral argument on the motion to preclude that no witness had observed A.M. using cocaine and that a witness had in fact heard A.M. tell other partygoers they could not use the drug at the party. Zavala made no offer of proof summarizing any additional evidence that may have existed regarding A.M.'s cocaine use. See Ariz. R. Evid. 103(a)(2) ("A party may claim error in a ruling to . . . exclude evidence only if the error affects a substantial right of the party and . . . [the] party informs the court of its substance by an offer of proof, unless the substance was apparent from the context."); State v. Hernandez, 232 Ariz. 313, ¶ 37 (2013) (when challenging the preclusion of evidence, "[t]he lack of an offer of proof forecloses [a defendant's] argument on appeal"). Given Zavala's concession, and the lack of any proffered evidence substantiating the cocaine-use allegation against A.M., the trial court appropriately precluded any questioning on that topic. See Ariz. R. Evid. 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."); see also State v. Dann, 205 Ariz. 557, ¶ 36 (2003) (tenuous and speculative evidence may mislead the jury or confuse the issues and is excludable under Rule 403).
B. Felonies and incarceration
¶28 Zavala appears to argue the trial court precluded evidence that S.C. and Gordo had been convicted of felony offenses and had served prison time. The record, however, does not support his position. Rather, the court denied the state's motion to preclude evidence of S.C.'s criminal and incarceration history and allowed Zavala to testify as to his personal knowledge of those topics. Zavala thereafter testified that S.C. had told him on an earlier occasion that he had been in prison. Zavala identifies no additional evidence on this point that he was precluded from presenting, nor did he memorialize any such evidence in an offer of proof. See Ariz. R. Evid. 103(a)(2); Hernandez, 232 Ariz. 313, ¶ 37.
¶29 Although the trial court initially granted the state's motion to preclude Gordo's criminal and prison history, it reversed that ruling mid-trial after the state had played Zavala's police interview, in which he told officers that S.C. and Gordo were felons. Zavala then testified that he had learned from Gordo's brother that Gordo had been incarcerated. Again, Zavala directs us to no additional evidence he was prevented from offering on this topic, and he did not make an offer of proof setting forth any such evidence. See Ariz. R. Evid. 103(a)(2); Hernandez, 232 Ariz. 313, ¶ 37. There was no abuse of discretion.
C. Gang membership
¶30 Zavala contends the trial court erred by precluding evidence that S.C. and Gordo belonged to a criminal street gang. Zavala reasons that the evidence was relevant to self-defense, as well as to whether he acted knowingly, as required for second-degree murder, see A.R.S. § 13-1104(A)(2), or recklessly, as required for manslaughter, see A.R.S. § 13-1103(A)(1).
¶31 In general, all relevant evidence is admissible. Ariz. R. Evid. 402. And "[e]vidence 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. But relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial impact or concerns about confusing the issues or misleading the jury. Ariz. R. Evid. 403.
¶32 In its motion to preclude, the state argued the gang evidence was irrelevant, see Ariz. R. Evid. 401, and that its prejudicial impact and potential to create confusion outweighed its probative value, see Ariz. R. Evid. 403. In response, Zavala maintained that the evidence concerning S.C. was relevant and admissible under Rule 404(a)(2), Ariz. R. Evid., which permits a defendant to offer evidence relating to a victim's "pertinent trait of character." He further argued that evidence relating to both S.C. and Gordo was relevant to his state of mind at the time of the murder.
¶33 At oral argument on the motion, Zavala explained his case theory and how the gang evidence fit into it. Zavala announced that he intended to seek an instruction on provocation manslaughter and that his knowledge that S.C. and Gordo were gang members was relevant to whether there had been a sudden quarrel or heat of passion resulting from adequate provocation by S.C. See § 13-1103(A)(2). The trial court granted the motion to preclude as to both S.C. and Gordo.
¶34 Zavala's argument on appeal differs from his argument below. On appeal, Zavala does not assert that the evidence was relevant to the adequate-provocation question but rather to self-defense and whether he acted with a culpable mental state of knowingly or recklessly. Because Zavala did not make these arguments below, we review them for fundamental error and resulting prejudice. See Escalante, 245 Ariz. 135, ¶ 1; see also State v. Long, 119 Ariz. 327, 328 (1978) ("[R]aising one objection at trial does not preserve another objection on appeal."); State v. Peltz, 242 Ariz. 23, ¶ 7 (App. 2017) (defendant forfeited appellate review of prosecutorial misconduct claim based on different theories than those raised at trial).
¶35 Here, there was no error, fundamental or otherwise. There was no allegation at trial that the shooting was gang motivated or that any of the participants' potential gang affiliations played any direct role in the evening's events. Zavala's argument that the gang evidence was relevant to self-defense is not persuasive because, as discussed above, self-defense was not an issue at trial. As a result, whether Zavala acted in self-defense was not a fact "of consequence." Ariz. R. Evid. 401(b). And because the trial court did not instruct the jury on self-defense, Zavala cannot show that the gang evidence's inclusion could have resulted in a not-guilty verdict based on that justification. See Escalante, 245 Ariz. 135, ¶¶ 21, 29-32.
¶36 Nor does Zavala explain how the gang evidence was relevant to the jury's decision whether he possessed the culpable mental state for the charged offense, and no reason is readily apparent. See Ariz. R. Evid. 401; see generally § 13-105(10)(b) (defining "knowingly"), (c) (defining "recklessly"). And even if the gang evidence were relevant to that question, Zavala has not shown that it could have affected the jury's verdict. See Escalante, 245 Ariz. 135, ¶¶ 21, 29-32. To the extent Zavala contends the evidence tended to show he had acted with the lesser mental state of recklessly instead of the greater mental state of knowingly, that fact would not have affected the outcome. See A.R.S. § 13-202(C) (establishing order of severity of culpable mental states). By finding him guilty of reckless manslaughter rather than second-degree murder, the jury necessarily found that Zavala had acted recklessly. See §§ 13-1103(A)(1); 13-1104(A)(2). Zavala thus cannot show error, fundamental or otherwise, or prejudice from the gang evidence's exclusion.
D. S.C.'s drug use
¶37 Finally, Zavala contends the trial court erred by precluding evidence that S.C. had used drugs before his death. He argues that such evidence "was relevant to a determination as to whether [S.C.] was under the influence when he was assaulting" Zavala.
¶38 At trial, the state moved under Rules 401 and 403 to preclude evidence of drug use at the party, as well as evidence that S.C. had a cocaine metabolite in his system at the time of autopsy. The state argued that the drug use was irrelevant, that the presence of a metabolite in S.C.'s system showed only that he had used cocaine at some unknown time in the past, and that the evidence was more prejudicial than probative. In response, Zavala argued that witnesses had seen S.C. use cocaine during the party and that S.C.'s drug use was "relevant to his behavior as the aggressor" and to Zavala's perception of S.C.'s "capacity to become violent." The state observed in its reply that Zavala had disclosed no witness to testify regarding the effects of cocaine, how quickly those effects dissipate, and whether using cocaine would have made S.C. more aggressive than usual.
¶39 At oral argument, Zavala acknowledged that the medical examiner would be able to testify only that "there was a toxicology test showing that there was a metabolite of cocaine" in S.C.'s system but would not be able to "testify [to] anything further." The trial court granted the state's motion but did not explain its reasoning.
¶40 We may affirm the trial court's ruling on any basis supported by the record, James, 242 Ariz. 126, ¶ 28, and, here, the record supports the conclusion that the evidence's prejudicial impact, as well as its tendency to confuse the issues and mislead the jury, substantially outweighed its probative value. See Ariz. R. Evid. 403. Even assuming S.C. used cocaine at the party, Zavala proffered no witness qualified to testify about how cocaine affects behavior and aggression. Without evidence of a behavioral link, S.C.'s cocaine use was minimally probative, particularly where, as discussed above, self-defense was not at issue. And on the other side of the scale, the use of illegal drugs carries a substantial prejudicial impact and, because any consideration of the drug's effects would necessarily be based on speculation, the evidence was likely to confuse or mislead the jurors. See Dann, 205 Ariz. 557, ¶¶ 37-39. The trial court did not abuse its discretion by precluding this evidence.
In light of our resolution, we decline Zavala's invitation to clarify the scope and applicability of Rule 404(b), Ariz. R. Evid.
Disposition
¶41 For the reasons set forth above, we affirm Zavala's convictions and sentences.