NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellant,
v.
JAMES HUNTER, Appellee.
No. 1 CA-CR 20-0043
FILED 1-26-2021
Appeal from the Superior Court in Maricopa County
No. CR2017-002018-001
The Honorable John R. Hannah, Judge
AFFIRMED IN PART; VACATED IN PART; AND REMANDED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Appellant
Sharmila Roy Attorney at Law, Naperville, IL
By Sharmila Roy
Counsel for Appellee
STATE v. HUNTER
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Lawrence F. Winthrop joined.
B A I L E Y, Judge:
¶1 The State appeals the trial court’s order (1) granting James
Hunter a new trial after he was convicted of three counts of threatening or
intimidating to promote a criminal street gang, class three felonies, and (2)
denying Hunter a new trial on each count for three lesser-included offenses
of threatening or intimidating, class one misdemeanors. For reasons that
follow, we affirm the trial court’s decision to grant Hunter a new trial on
the felony offenses, but we vacate the court’s decision to deny a new trial
on the misdemeanor offenses. We therefore remand the case for a new trial.
FACTS AND PROCEDURAL HISTORY
¶2 On Thanksgiving night in 2016, Officer Goit was driving his
patrol car in South Phoenix when a black BMW “went zipping past.” Goit
pursued the BMW, and after determining the car was speeding, he initiated
a traffic stop. He turned on his patrol car’s flashing lights and siren, but the
BMW continued for several blocks.
¶3 As Goit followed, the BMW proceeded to a neighborhood
claimed by a criminal street gang called the “West Side City Crips”
(“WCC”). The BMW eventually stopped in front of a house in the area, and
Goit pulled up behind it. Goit walked over to the BMW and spoke to the
driver, S.B. He immediately saw S.B. was “heavily intoxicated.” Hunter,
who was also intoxicated, was sitting in the front passenger seat. Hunter
was a documented member of the WCC, and the BMW had parked next to
Hunter’s mother’s house.
¶4 Goit handcuffed S.B. and placed him in the back of the patrol
car while investigating the failure-to-yield violation he had observed. Goit
then spoke to Hunter, who eventually agreed to get out of the car and sit
on the curb while the officers completed their investigation of S.B. A crowd
of about twelve people from the neighborhood soon gathered at the scene,
demanding to know what was going on and why the police were there.
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STATE v. HUNTER
Decision of the Court
¶5 A short time later, other police officers arrived. One officer
stood next to Hunter so that Goit could complete paperwork for a driving-
under-the-influence investigation of S.B., a process that took more than 40
minutes. During that time, Hunter shouted insults and profanity at the
officers. The crowd became more hostile in response to Hunter’s shouts,
and the officers feared for their safety. Hunter was the “loudest and most
aggressive” person in the crowd.
¶6 The BMW was registered to Hunter’s girlfriend A.C., who
was not with Hunter and S.B. in the car and was not present at the scene.
Goit testified that although A.C. was not involved, the police were required
to impound her car because S.B. had been driving with a suspended license.
At the conclusion of their on-site investigation and while the officers were
having the BMW placed on a tow truck, Hunter repeatedly yelled at them
that he was “West Side City,” the police did not “even know what’s
coming,” the officers were “done,” and he was going to start a “war” with
them.
¶7 The State charged Hunter with three counts of threatening or
intimidating to promote a criminal street gang, class three felonies (Counts
1-3), and assisting a criminal street gang, a class three felony (Count 4). At
trial, the State called a detective as an expert to explain gang culture and
operations. The detective testified that a criminal street gang’s objective is
to gain respect and control in a neighborhood, and gang members use fear
and intimidation to do so. He stated that gang members could achieve a
higher status in a gang by invoking their allegiance to the gang when they
threaten others. The expert explained that gang members threaten police
officers to intimidate them so that they will stay out of the gang’s territory,
and gang members gain respect and show loyalty to the gang when they
threaten officers.
¶8 Following the close of the State’s evidence, Hunter moved for
a judgment of acquittal under Arizona Rule of Criminal Procedure 20,
arguing the State failed to present substantial evidence of his intent to
promote the interests of the WCC. The trial court denied Hunter’s Rule 20
motion on Counts 1 through 3 but granted his motion on Count 4.
¶9 During the defense’s case, Hunter’s gang expert, a retired
detective, testified that based on his interview with Hunter, he believed
Hunter was not active in the WCC at the time of the incident or afterward.
The expert explained that, as a gang detective himself, he did not feel
intimidated by threats from gang members, including death threats,
because he expected gang members to be hostile to police officers. He
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STATE v. HUNTER
Decision of the Court
rejected the notion that threats intimidate gang officers or deter them from
performing their duties. He said that he was never reluctant to enter a
neighborhood because of a gang’s presence, nor had he ever heard an
officer say he or she did not want to enter a gang territory because of gang
members’ threats. Hunter did not take the stand in his defense.
¶10 To prove the threatening-or-intimidating offenses as class
three felonies under A.R.S. § 13-1202(A)(3), the State was required to
establish that Hunter threatened or intimidated the officers “in order to
promote, further or assist the interests of” the WCC. The trial court also
instructed the jurors on the lesser-included offense of threatening or
intimidating as a class one misdemeanor, which did not require proof that
Hunter’s threats were intended to benefit the gang. See id. at (A)(1).
¶11 The jury found Hunter guilty on Counts 1 through 3. After
the jury returned the verdicts, Hunter moved for a new trial under Arizona
Rule of Criminal Procedure 24.1 arguing, inter alia, the verdicts were
contrary to law or the weight of the evidence, asserting the State did not
prove he intended to promote the interests of the WCC when he threatened
the officers. The State responded that Hunter’s threats benefitted the gang’s
interests by intimidating the officers to gain respect and control in its
territory.
¶12 In a twelve-page written ruling, the trial court explained that
although the evidence was sufficient to withstand Hunter’s Rule 20 motion,
it found the jury’s verdict contrary to the weight of the evidence:
The question now is whether the evidence, considered as a
whole and in light of the Court’s training and experience,
supports the inference of gang motivation strongly enough to
carry the weight of a just verdict. The Court finds that it does
not. The evidence is more consistent with the conclusion that
the defendant simply lashed out, out of anger and frustration at
the situation in which he found himself, with no conscious
purpose to promote or assist the gang. In other words, the
evidence proved only the lesser-included misdemeanor
offense.
¶13 Consequently, the trial court granted a new trial under Rule
24.1(c)(1) “as to the verdict on each of the three counts of conviction on the
felony offense set forth in A.R.S. section 13-1202(A)(3).” The court,
however, denied the motion “in all other respects, including as it relates to
the verdict on the three counts of conviction on the lesser-included
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STATE v. HUNTER
Decision of the Court
misdemeanor violation of section 13-1202(A)(1).” 1 The court did not set a
new trial and did not vacate the previously scheduled sentencing date.
¶14 The State appealed the court’s order, and the court stayed
Hunter’s sentencing pending resolution of the appeal. We have jurisdiction
under Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 13-
4032(2).
DISCUSSION
A. The trial court did not abuse its discretion by granting Hunter a
new trial on the felony charges.
¶15 The State argues the trial court erred in granting Hunter a new
trial on the felony convictions. “We review a trial court’s decision to grant
a new trial for an abuse of discretion.” State v. Fischer, 242 Ariz. 44, 48, ¶ 10
(2017).
¶16 The trial judge has broad discretion in determining whether
to grant a new trial under Rule 24.1(c)(1) and “may weigh the evidence,
make credibility determinations, and set aside the verdict and grant a new
trial even if there is sufficient evidence in the record to support the verdict.”
Fischer, 242 Ariz. at 50, ¶ 21. The trial judge must examine the strength of
the evidence and consider the trial’s length, the complexity of the issues,
and whether the case involves subjects outside the jurors’ ordinary
knowledge. Id. at 51, ¶ 24. “If, after full consideration of the case, the court
is satisfied that the verdict was contrary to the weight of the evidence, it
may set the verdict aside . . . .” Id. at 49-50, ¶ 17. “[T]he court should explain
with particularity the reasons why the jury’s verdict is against the clear
weight of the evidence.” Id. at 51, ¶ 24.
¶17 The reviewing court must defer to the “discretion of the trial
judge who tried the case and who personally observed the proceedings.”
Id. at 50, ¶ 21. “The appellate court’s role is not to weigh the evidence.” Id.
at 52, ¶ 28. We “will not disturb an order granting a new trial unless the
probative force of the evidence clearly demonstrates that the trial court’s
action is wrong and unjust and therefore unreasonable and a manifest
abuse of discretion.” Id. at 51, ¶ 27 (quotation omitted). The appellate court
1 Hunter also moved for a new trial on grounds of prosecutorial
misconduct, failure to grant a mistrial, and inconsistent verdicts. Because
the jury had convicted Hunter of the felony offenses, it did not reach the
lesser-included-misdemeanor offenses. Hunter’s motion did not address
those offenses.
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STATE v. HUNTER
Decision of the Court
“determine[s] whether, resolving every conflict in the evidence in support
of the order, substantial evidence supports the trial judge’s order.” Id. at
52, ¶ 28. Because motions for new trial are “rarely granted,” they are
“almost never reversed on appeal.” See id. at 51, ¶ 25.
¶18 Applying these principles here, first, the trial court’s written
ruling demonstrates it gave “full consideration” to the evidence in deciding
to set aside the verdicts. Id. at 49-50, ¶ 17. As the trial court explained, the
evidence presented the sole question of whether Hunter intended to
promote, further, or assist the interests of the WCC by invoking his
affiliation with the gang when he threatened the officers. The court
analyzed the evidence establishing Hunter’s intent by sorting it “roughly
into three categories”: (1) Hunter’s statements and conduct at the scene, (2)
Hunter’s association with the WCC, and (3) expert testimony explaining
“how gang members’ threats against police officers serve the gang’s
interests.”
¶19 The trial court then comprehensively recounted the evidence
within each of those three categories. The State does not argue, much less
demonstrate, that the court’s account misstated key evidence. See id. at 52,
¶ 30. Nor do we find any such errors in our review. Instead, the record
fully supports the court’s factual summary.
¶20 Second, the trial court “explain[ed] with particularity the
reasons” the verdict was against the weight of the evidence. Id. at 51, ¶ 24.
In examining the first category of evidence, the court noted that although
Hunter’s threatening words escalated from “profanity to anti-police insults
and racial slurs that he repeated” for more than 40 minutes, he did not
mention the WCC until the officers were towing the car, as they were
finishing their investigation. The court reasoned that if Hunter had
intended his threats to “create space for the gang” by deterring officers from
entering the gang’s territory, he would have invoked his allegiance to the
WCC earlier in the encounter or throughout it, while the crowd was larger
and more hostile.
¶21 Based on this evidence, the trial court concluded the “timing
and context of the defendant’s statements about West Side City rebuts the
inference of intent to promote the gang’s interests.” The court found the
“more sensible inference” was a “common-sense explanation for the
defendant’s conduct that had nothing to do with street gangs”: Hunter was
angry when after more than 40 minutes, he saw the police towing A.C.’s car
even though “he could safely take possession of it without driving it,” a
situation the court found would be “highly aggravating to anyone,” and out
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STATE v. HUNTER
Decision of the Court
of his frustration, he invoked the WCC to antagonize the police or make his
threats more credible, but without intent to promote any interest other than
his own.
¶22 In analyzing the second category of evidence, the court found
Hunter’s ties to WCC were “debatable.” The court noted the State did not
introduce any evidence that showed Hunter was actively involved with the
gang when he committed the offenses, even though the court further
acknowledged that the State did not have to prove active involvement in a
gang to convict Hunter under § 13-1202(A)(3). Nonetheless, the court
reasoned that the absence of evidence showing Hunter’s ongoing
association with the gang refuted an inference that Hunter was “acting on
the gang-promotion motive when he threatened the officers,” rather than
merely threatening the officers out of personal anger.
¶23 The trial court next examined the expert testimony in what it
had set forth as the third category of evidence, describing that the testimony
was the “keystone of the State’s proof of intent.” The court found the
testimony of the State’s expert was “limited by its shaky foundation” and
“problematic,” only “partially bridg[ing] the gap in the jurors’ knowledge”
because the expert failed to account for other explanations for Hunter’s
behavior. The court concluded that the testimony of the State’s expert “did
not support an inference of intent strong enough to bear the weight of a just
verdict.”
¶24 On the other hand, the trial court found Hunter’s expert
credible. In particular, the court agreed with the expert’s opinion that
threats from gang members do not intimidate officers in gang territory or
deter them from enforcing the law. The court noted that based on the
judge’s years of experience learning about police culture from the bench, he
was not persuaded that threats deter police officers from investigating a
gang’s crimes. The court then explained that the “logic of the State’s proof
of intent required the jury to find that the defendant believed his threats”
could deter the officers from enforcing the law in the gang’s territory, but
the State presented no evidence or argument that Hunter believed he could
keep the police away by threatening them with his gang affiliation.
¶25 The State disputes many of the trial court’s findings, arguing
they were “agenda-driven,” inconsistent, and speculative. Specifically, the
State challenges: (1) the court’s categorization of the evidence, contending
it was an improper “divide and conquer” strategy and the “critical flaw” in
the court’s analysis; (2) the court’s conclusion that the “common-sense
explanation” for Hunter’s threats was more consistent with the evidence
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STATE v. HUNTER
Decision of the Court
than the State’s theory; (3) the court’s determination that the State’s expert
provided a less persuasive opinion than that of Hunter’s expert; and (4) the
court’s inference that Hunter did not intend to benefit the WCC because he
would not have believed his threats would be effective in deterring law
enforcement from entering the WCC’s territory.
¶26 In its challenges to the trial court’s findings, the State
effectively asks us to act as a “fourteenth juror” and independently evaluate
the evidence, which is not within the proper scope of our review. Fischer,
242 Ariz. at 52, ¶ 28. We do not substitute our judgment for that of the trial
court. Id. Instead, we resolve every conflict in favor of the court’s decision.
State v. Torres-Soto, 187 Ariz. 144, 145 (App. 1996). Therefore, we will not
overturn the court’s order merely because the evidence supported the
jurors’ verdicts.
¶27 Contrary to the State’s assertions, the trial court reached its
conclusions by permissibly weighing the evidence and making credibility
determinations in its role as the “thirteenth juror.” See Fischer, 242 Ariz. at
52, ¶ 28. Furthermore, the court’s inferences were adequately based on the
trial judge’s experience, training, and observations of the trial. Id. These
determinations are all within the trial court’s broad discretion, and they are
matters to which we defer. And as discussed supra, the court appropriately
followed our supreme court’s directives in Fischer to a trial court when
deciding whether to grant a new trial under Rule 24.1(c)(1). 2
¶28 On these facts, we cannot find that Hunter’s invocation of the
WCC, by itself, compelled the trial court to conclude he intended to benefit
the gang by threatening the officers. In considering the matter, we are
persuaded in particular by the court’s reliance on the “timing and context”
of Hunter’s threats, further bolstered by the court’s assessment that his ties
to the gang at the time of the incident were unclear, given that Hunter
shouted insults at the officers for over 40 minutes as they investigated a
crime in WCC territory, directly in front of his mother’s house and a hostile
crowd, before he ever mentioned the gang. Therefore, the evidence’s
probative force does not clearly demonstrate the court’s decision was
“wrong and unjust.” Fischer, 242 Ariz. at 51, ¶ 27.
2 Likewise, because the court properly followed the controlling
authority in Fischer, we reject the State’s argument that the trial court erred
by concluding State v. Harm, 236 Ariz. 402 (App. 2015), did not require the
court to find Hunter intended to promote the gang’s interests.
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STATE v. HUNTER
Decision of the Court
¶29 Finally, the State complains the trial court improperly used
Hunter’s intoxication to reinforce its ultimate conclusion that he threatened
the officers because they were going to tow the car. To support this
contention, the State cites the court’s statement that witnesses had testified
that “Hunter had been consuming alcohol, which would have made him
much more prone to aggressive behavior.”
¶30 To the extent the court considered Hunter’s intoxication to
examine his mens rea in committing the crimes, the court erred. See State v.
Champagne, 247 Ariz. 116, 137, ¶ 59 (2019). However, the isolated statement
had a minimal bearing, if any, on the court’s ultimate conclusion. And
other parts of the record show the court was fully aware it could not rely
on voluntary intoxication as a defense to a criminal act or state of mind. As
the State acknowledges, the court instructed the jurors that voluntary
intoxication was not a defense, and during argument on the motion for a
new trial, the court expressly rejected Hunter’s request to consider his
intoxication as a defense to his intent. Accordingly, because substantial
evidence supports the trial court’s decision to set aside the jury’s verdicts,
we find no error in its order granting Hunter a new trial.
B. The trial court erred by failing to order the new trial it had granted.
¶31 The State further challenges the trial court’s order denying
Hunter a new trial on the threatening-or-intimidating misdemeanor
charges, contending the court erred by finding Hunter guilty of those
lesser-included offenses instead of allowing the new trial to proceed. We
review for abuse of discretion. Fischer, 242 Ariz. at 50, ¶ 20.
¶32 “A trial court’s discretion under Rule 24.1(c)(1) is not
unlimited, nor does the court have unbridled ‘veto’ power over a jury
verdict such that the court may act as a ‘super juror’ and overturn a verdict
merely because the court personally disagrees with it.” Fischer, 242 Ariz. at
50, ¶ 20. “[T]he court does not usurp the role of the jury in granting a new
trial because the court does not substitute its judgment for that of the jury;
it only allows the parties a new trial before a different jury.” Id. at ¶ 21.
¶33 Although the trial court granted Hunter a new trial on the
felony offenses, it never set a new trial. Instead, the court sua sponte
entered convictions on the lesser-included offenses that the jurors’ verdicts
had not considered. In doing so, the trial court implicitly acquitted Hunter
of the felony charges. Neither Rule 24.1 nor Fischer authorizes a trial judge
to take such action. Cf. Ariz. R. Crim. P. 20; Peak v. Acuna, 203 Ariz. 83, 85,
¶¶ 8-9 (2002), abrogated on other grounds by Fischer, 242 Ariz. at 50, ¶ 20
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STATE v. HUNTER
Decision of the Court
(explaining that a trial court’s decision to set aside a verdict because it is
against the weight of the evidence is not an implied acquittal, unlike when
a conviction is reversed based on an insufficiency of evidence). By barring
the new trial that the court had granted in the same order, the court
impermissibly “vetoed” the jurors’ verdicts. See Fischer, 242 Ariz. at 50,
¶ 20.
¶34 Without discussing Rule 24.1 or Fischer, Hunter cites Rule
31.19 to argue “there is no reason that trial courts considering new trial
motions should not have [the same] authority” as that of an appellate court
to enter a conviction on a lesser-included offense. Hunter’s reliance on Rule
31.19 is unfounded. As Hunter acknowledges, Rule 31.19(d) authorizes
only an appellate court, not a trial court, to modify a conviction to a lesser-
included offense when it finds the evidence was insufficient to establish a
defendant’s guilt for the greater offense. Stated differently, Rule 31.19
confers no authority to a trial court to modify a conviction in any manner,
let alone to do so after granting a new trial.
¶35 Hunter further cites two cases from other jurisdictions to
support his contention that the trial court “should” have the “power to
modify judgments and enter convictions for lesser-included offenses”
without ordering a new trial. Because Fischer supports no such proposition,
we reject his reliance on those cases. See State v. Long, 207 Ariz. 140, 145,
¶ 23 (App. 2004) (“This court is bound by decisions of the Arizona Supreme
Court and has no authority to overturn or refuse to follow its decisions.”).
Moreover, assuming arguendo the cited cases support propositions of law
that do not violate Fischer, we agree with the State that the cases are neither
analogous nor persuasive. See State v. Dean, 226 Ariz. 47, 53, ¶ 19 (App.
2010) (explaining that cases from foreign jurisdictions may be informative
but are not controlling).
¶36 Therefore, because the trial court exceeded its authority by
entering convictions on the threatening-or-intimidating misdemeanor
offenses instead of setting a new trial on the felony charges, we vacate the
portion of the court’s order denying Hunter a new trial on the misdemeanor
offenses and its subsequent order setting sentencing on those purported
convictions.
CONCLUSION
¶37 For the foregoing reasons, we affirm the trial court’s order to
grant Hunter a new trial on the felony offenses but vacate its order denying
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STATE v. HUNTER
Decision of the Court
him a new trial on the misdemeanor offenses. Consequently, we remand
the case for a new trial.
AMY M. WOOD • Clerk of the Court
FILED: AA
11