                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellee,

                                        v.

                     GEORGE BRIAN AZAR, Appellant.

                             No. 1 CA-CR 16-0177
                              FILED 4-25-2017


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201400297
                The Honorable Jacqueline Hatch, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                            STATE v. AZAR
                          Decision of the Court



                     MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.


M c M U R D I E, Judge:

¶1           George Brian Azar appeals his convictions and sentences for
second-degree murder, misconduct involving weapons, and possession of
marijuana. For the following reasons, we affirm.

            FACTS AND PROCEDURAL BACKGROUND1

¶2             In early 2014, Azar and the victim were coworkers and
friends. At the time, the victim was grappling with some financial
difficulties, and he approached Azar for help. In March 2014, Azar loaned
the victim $400. The parties agreed that the loan would be repaid by April,
2014, and that the victim could satisfy his obligation under the loan by
completing several home improvements and repairs for Azar.

¶3           Initially, the victim performed work at Azar’s house as
agreed, but he then began failing to show up for work as scheduled.
Believing he was being disrespected and “blown off,” Azar became very
upset with the victim.

¶4            On the morning of April 17, 2014, Azar’s anger grew after he
viewed an online posting by the victim’s wife, thanking the victim for
buying her a pair of designer shoes. That evening, after returning home
from work, Azar drove to the victim’s house to confront him. Azar sent a
text message to the victim and waited in his vehicle for some time for the
victim to come out and meet him. However, the victim did not come out of
his house so eventually Azar returned home.

¶5           Shortly after Azar drove home, the victim arrived at Azar’s
house. Azar’s wife greeted Azar and the victim at the door, and then went
to her bedroom, in the back of the house, to get ready for bed. While
changing into her pajamas, Azar’s wife heard Azar speaking with a
“raised” voice and then heard a “pop.” Alarmed by the sound, she rushed

1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


                                    2
                             STATE v. AZAR
                           Decision of the Court

into the living room and saw the victim sitting “slumped” on the couch
with his eyes closed. She noticed that he had a hole in his forehead and
realized that he had been shot.

¶6             Panicked, Azar’s wife began looking for a phone to call 9-1-1.
Unable to locate a phone, she ran outside to contact a neighbor, and Azar
followed her outside and handed her a phone. While Azar’s wife continued
speaking with the 9-1-1 operator, Azar reentered the house. After unlocking
his safe, emptying the gun he left on the living room coffee table, and
removing the victim’s hat, Azar sent a test message to his employer: “Just
shot [the victim] in for[e]head . . . not working [tomorrow].”

¶7             When the responding police officers arrived at the Azar
residence, they immediately placed Azar in handcuffs and took him into
custody. The officers then swept and secured the premises, allowing
emergency medical personnel to enter and attend to the victim, who had
labored breathing. The medical responders transported the victim to the
hospital, but the on-call neurosurgeon examined the victim and determined
he had no neurological activity. The victim died shortly thereafter.

¶8            Meanwhile, officers transported Azar to a police station
where a detective waited to execute a physical characteristic warrant. While
the detective collected Azar’s fingerprints, nails, hair, and DNA, Azar made
several spontaneous statements: (1) “I’ll probably never see daylight
again,” (2) “That’ll probably be the last chew I ever get” (said while
removing chewing tobacco from his mouth so the detective could swab his
cheek), and (3) “They’re going to hang [me].”

¶9             Later that evening, officers executed a search warrant on
Azar’s home and seized seven guns and 1.13 pounds of marijuana. The
officers who photographed and documented the home found no evidence
of a struggle.

¶10          The State charged Azar with one count of first-degree murder
(Count 1), seven counts of misconduct involving weapons – prohibited
possessor (Counts 2-8), and one count of possession of marijuana for sale
(Count 9).2The State also alleged several aggravating factors.

¶11          At trial, the medical examiner who performed the autopsy on
the victim opined that the victim died from the gunshot wound to his
forehead, and testified that the victim had no other visible injuries other

2     At trial, the State moved to amend Count 9 to possession of
marijuana, which the superior court granted.


                                     3
                               STATE v. AZAR
                             Decision of the Court

than a small, healing abrasion on his foot. The toxicology results from the
autopsy revealed that the victim had ingested both methamphetamine (423
nanograms per milliliter) and marijuana (6.5 nanograms per milliliter)
before his death.

¶12            The criminalist who tested the gun Azar used to shoot the
victim testified that the weapon was in good working condition and there
was no malfunction with the trigger. Based on his examination of the
victim’s hat, the criminalist also concluded that the gun was fired “at or
near contact” with the hat.

¶13           Taking the stand in his own defense, Azar testified that he
never intended to kill the victim. He claimed that on the night in question,
the victim appeared “aggressive” and demanded more money. When Azar
refused, the victim became angry and threatened to approach Azar’s wife
for money if he could not obtain it from Azar directly. Once the victim
mentioned Azar’s wife, Azar retrieved a gun from his coffee table and
ordered the victim to leave. Rather than comply, the victim grabbed for the
gun and the weapon discharged as the men struggled for possession, with
Azar’s finger on the trigger.

¶14            While testifying, Azar admitted that he had: (1) previously
been convicted of a felony, (2) never had his right to possess a firearm
restored, (3) possessed seven firearms on April 17, 2014, and (4) possessed
marijuana on April 17, 2014. He also acknowledged that, immediately after
the shooting, he told his wife that he was going to jail for the rest of his life.

¶15            After an eight-day trial, the jury found Azar guilty of all
counts of misconduct involving weapons, the amended charge of
possession of marijuana, and the lesser-included offense of second-degree
murder. The jury also found one aggravating circumstance, emotional
harm to the victim’s family. After weighing the aggravating and mitigating
factors, the superior court sentenced Azar to an aggravated term of twenty
years’ imprisonment on Count 1, a consecutive, presumptive term of two-
and-one-half years’ imprisonment on Count 2, concurrent, presumptive
terms of two and one-half years’ imprisonment on Counts 3-8, and a
concurrent, presumptive term of one year’ imprisonment on Count 9. Azar
timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).3



3      Absent material revision after the date of an alleged offense, we cite
a statute's or rule’s current version.


                                        4
                              STATE v. AZAR
                            Decision of the Court

                               DISCUSSION

A.     Preclusion of Methamphetamine Pipe.

¶16           Azar argues the superior court improperly precluded
evidence of a methamphetamine pipe that medical personnel discovered on
the victim’s person while examining his body after the shooting.

¶17           Before trial, the State moved in limine to preclude any
evidence of “the glass pipe [found] lodged in between the victim’s
buttocks.” Acknowledging the residue within the pipe later tested positive
for methamphetamine, the State argued the pipe was irrelevant and
cumulative to a toxicology report that demonstrated the victim had a
substantial level of methamphetamine in his system at the time of his death.
After a hearing on the motion, the superior court found that the pipe was
irrelevant and the toxicology report, not the pipe, reflected the victim’s
methamphetamine use the evening of the shooting.

¶18           We review a trial court’s evidentiary ruling for an abuse of
discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006). “Absent a clear
abuse of discretion, we will not second-guess a trial court’s ruling on the
admissibility or relevance of evidence.” State v. Rodriguez, 186 Ariz. 240, 250
(1996).

¶19           In general, relevant evidence is admissible unless it is
otherwise precluded by the federal or state constitution, an applicable
statute, or rule. Ariz. R. Evid. 402. Evidence is relevant if it has “any
tendency” to make a fact of consequence in determining the action “more
or less probable than it would be without the evidence.” Ariz. R. Evid. 401.
Relevant evidence may be excluded, however, if its probative value “is
substantially outweighed” by a danger of unfair prejudice. Ariz. R. Evid.
403.

¶20           At trial, Azar admitted he brandished the gun and pulled the
trigger, causing the victim’s death. He argued instead that he lacked the
mens rea for murder, and asserted the shooting was either an accident or an
act of self-defense. Therefore, the limited issues before the jury were
whether Azar: (1) acted intentionally, knowingly, or recklessly when he
caused the victim’s death; and (2) reasonably believed that physical force
was immediately necessary to protect himself against the victim’s use or
attempted use of unlawful deadly physical force. See A.R.S. §§
13-1105(A)(1) (defining first-degree murder as causing the death of another
person with premeditation, “intending or knowing that the . . . conduct will
cause death”); 13-1104(A)(3) (defining second-degree murder as causing


                                      5
                              STATE v. AZAR
                            Decision of the Court

the death of another person intentionally, knowingly, or “[u]nder
circumstances manifesting extreme indifference to human life”); 13-404(A)
(setting forth the parameters of self-defense: “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”); 13-405(A)(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”).

¶21           Claiming that both the existence and location of the
methamphetamine pipe were essential to his theory of self-defense, Azar
argues the precluded evidence demonstrated that the victim: (1) ingested
methamphetamine “immediately prior to the altercation,” (2) was
“desperate for money” to support a drug habit, and (3) was “actively
concealing” his drug use from his family and friends. Applying Rule 401 to
these facts, whether the victim carried a methamphetamine pipe on his
person at the time of the shooting was not a fact of consequence for the jury
to consider in determining whether Azar was culpable for the victim’s
death. Stated differently, the presence of the pipe—a fact not known to Azar
until well after the shooting had occurred—did not make it more or less
probable that Azar intentionally, knowingly, or recklessly shot the victim.
Likewise, the presence of the pipe did not make it more or less probable
that the victim used or attempted to use unlawful deadly physical force
against Azar. Furthermore, regarding the location of the pipe, Azar
admitted at trial there was no reason to tell the jury the location of the pipe,
because it would be “overly prejudicial.” Accordingly, the superior court
did not abuse its discretion in precluding the evidence of the
methamphetamine pipe.

B.     Admission of Prior Inconsistent Statements.

¶22            Azar contends the superior court improperly admitted
evidence of his wife’s prior inconsistent statements through the testimony
of one of the investigating detectives. Specifically, he argues these prior
statements were inadmissible because the State never questioned his wife
about them at trial. We review a trial court’s evidentiary ruling for an abuse
of discretion. Ellison, 213 Ariz. at 129, ¶ 42.

¶23           On the second day of trial, the State called Azar’s wife to
testify. During cross-examination, defense counsel elicited testimony that
the Azars were “financially stable” and Azar had the means to make loans


                                       6
                              STATE v. AZAR
                            Decision of the Court

to several people. On redirect, the prosecutor did not challenge Azar’s wife
regarding this portion of her testimony or any prior statements she had
made regarding the Azars’ finances.

¶24           On the fifth day of trial, the prosecutor called one of the
investigating detectives to the stand and elicited testimony that he had
interviewed Azar’s wife the night of the shooting, and then asked whether
she had mentioned anything “about her finances.” Defense counsel
objected, arguing the testimony was hearsay and “an outside witness”
could not be used to introduce another witness’s prior inconsistent
statements; rather, such prior inconsistent statements could only be
introduced during the declarant’s testimony. After hearing from counsel,
the trial court determined that the prior inconsistent statements could be
relayed by the investigating detective, and advised defense counsel that he
was free to recall Azar’s wife and question her directly regarding her prior
statements if he so desired. The investigating detective then recounted
some of the prior interview statements, which explained that Azar was
prescribed several expensive medications and, as a result, the Azars’
monthly expenses exceeded their income.

¶25           Azar argues that allowing the detective to testify regarding
his wife’s prior inconsistent statements was improper.4 Extrinsic evidence,
including testimony from another witness, regarding a witness’s prior
inconsistent statements is admissible “only if the witness is given an
opportunity to explain or deny the statement and an adverse party is given
an opportunity to examine the witness about it.” Ariz. R. Evid. 613(b).
While Rule 613 did not require the State to provide the witness with an
opportunity to explain the inconsistent statement initially, it did require the
witness to eventually have such an opportunity. State v. Emery, 131 Ariz.
493, 504 (1982). Furthermore, the rule required “the party which intends to
introduce an impeaching statement [to] inform the court so that the
opposing party may keep the witness available to explain.” Id.


4       Azar contends that his wife was not subjected to impeachment
during cross-examination at trial regarding the prior statements, as
required under Rule 801(d)(1)(A), and evidence of the statements was
therefore inadmissible. However, she was subject to cross-examination
regarding her prior inconsistent statements, and the trial court properly
permitted the investigating detective to recount those prior statements
during his testimony. See State v. Hernandez, 232 Ariz. 313, 323, ¶ 47 (2013)
(“A prior inconsistent statement by a witness subject to cross-examination
is not hearsay.”).


                                      7
                             STATE v. AZAR
                           Decision of the Court

¶26          The State in this case failed to inform the court that they
would be introducing extrinsic impeachment evidence of Azar’s wife
through the investigating detective. However, when the court gave Azar
the opportunity to recall his wife as a witness, he did not do so, nor did he
make an offer of proof that she was no longer available to be recalled.
Accordingly, we review only for fundamental, prejudicial error. State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (fundamental error review applies
when a defendant fails to object to alleged trial error).

¶27           The testimony of Azar’s wife regarding their financial status
went to proving Azar’s pecuniary motivation and premeditation of the
murder. However, the jury did not find premeditation had occurred,
instead returning a guilty verdict for second-degree murder. See A.R.S.
§§ 13-1105(A)(1), -1104(A). Moreover, it had no relevance to the issues in
this case—accident or self-defense. Therefore, Azar was not prejudiced by
the inclusion of the inconsistent statements.

C.    Preclusion of Evidence Regarding Gang Affiliation.

¶28            Azar contends the superior court improperly precluded
evidence of the victim’s reputation as a gang member. Specifically, Azar
argues he should have been permitted to recount statements third parties
made to him regarding the victim’s gang affiliation because such evidence
was not offered to prove that the victim was a gang member, but to explain
Azar’s state of mind at the time of the shooting. In addition, Azar argues,
for the first time, that such statements were also admissible pursuant to
Rule 405(A).

¶29           We generally review a trial court’s evidentiary ruling for an
abuse of discretion. Ellison, 213 Ariz. at 129, ¶ 42. Because Azar failed to
raise his Rule 405(A) argument at trial, however, we review that claim only
for fundamental, prejudicial error. See Henderson, 210 Ariz. at 567, ¶ 19.

¶30             Before trial, the State moved in limine to preclude any
evidence that the victim was or had been a gang member. Nonetheless, at
the hearing on the motion, the prosecutor acknowledged that Azar’s belief
that the victim may have been “part of some dangerous, violent gang” was
relevant “to a self-defense claim,” and conceded that in the event Azar
testified at trial, he should be permitted to state his belief.

¶31           During opening statements, defense counsel remarked,
without objection, that the victim had “a history of gang affiliation.” When
Azar testified on direct examination, defense counsel asked whether the
victim had ever described and explained his tattoos. Without objection,


                                     8
                             STATE v. AZAR
                           Decision of the Court

Azar answered that he had seen one of the victim’s tattoos “had a little red
cardinal on it” and the word “Glendale,” and stated the victim told him he
received the tattoo when he was a member of the “Glendale Blood.”
Without objection, Azar also testified that based on this conversation with
the victim, he believed the victim had been a gang member. Later, during
redirect examination, Azar again testified, without objection, that he
believed the victim had been a gang member, and it caused him concern.

¶32           Moments later, however, when Azar attempted to explain a
seemingly incriminating statement he had made to his wife, that the
shooting was “100 percent [his] fault,” by recounting statements his
coworkers had made about the victim, the prosecutor objected on hearsay
grounds, which the trial court sustained. Counsel and the court then
conferenced in chambers, and defense counsel argued that Azar needed to
explain that he made the statement to his wife because he had been warned
by coworkers that the victim was a gang member and had chosen to
befriend him anyway. The trial court sustained the objection, finding the
coworkers’ statements about the victim’s possible gang affiliation or
dangerousness were hearsay and more prejudicial than probative. When
Azar resumed testifying, he explained that he told his wife the shooting was
his “fault” because he felt terrible for the victim’s family, his family, and
“everybody involved,” not because he believed he was culpable for the
victim’s death.

¶33            During closing argument, defense counsel referenced Azar’s
testimony regarding his tattoo conversation with the victim, and argued
that the jury should “factor” that information and its effect on Azar’s state
of mind when evaluating whether he acted reasonably under the
circumstances.

¶34            Out-of-court statements are “admissible when they are
offered to show their effect on one whose conduct is at issue.” State v.
Hernandez, 170 Ariz. 301, 306 (App. 1991). Because Azar sought to introduce
the third-party statements to demonstrate their effect on him, not to prove
the truth of the matter asserted, the statements were not hearsay. See Ariz.
R. Evid. 801.

¶35            Nonetheless, otherwise admissible evidence may be excluded
if its probative value is substantially outweighed by, among other things, a
danger of unfair prejudice, confusion of the issues, or needless presentation
of cumulative evidence. Ariz. R. Evid. 403. “A proper Rule 403 balancing of
probative value and prejudicial effect begins with a proper assessment of
the probative value of the evidence on the issue for which it is offered.”


                                     9
                              STATE v. AZAR
                            Decision of the Court

Shotwell v. Donahoe, 207 Ariz. 287, 296, ¶ 34 (2004) (internal quotation
omitted). “The greater the probative value . . . and the more significant in
the case the issue to which it is addressed, the less probable that factors of
prejudice or confusion can substantially outweigh the value of the
evidence.” Id. (internal quotation omitted). “If the issue is not in dispute, or
if other evidence is available of equal probative value but without the
attendant risks of the offered evidence, then a greater probability of
substantial outweighing exists.” Id.

¶36            Applying these principles here, the third-party statements
that Azar sought to introduce regarding the victim’s prior gang affiliation
were of limited probative value because Azar had already recounted the
victim’s direct statements acknowledging his previous gang membership.
That is, the coworkers’ statements added nothing material to the case, but
served to reinforce that the victim was a disreputable person. Therefore,
because the victim’s direct statements to Azar were of greater probative
value than the third-party statements, and that evidence was not only
available but admitted without objection, the trial court did not abuse its
discretion by precluding the third-party statements under Rule 403.

¶37            Turning to Azar’s claim that the third-party statements
attesting to the victim’s gang affiliation were admissible under Rule 405(A)
to prove the victim’s reputation for violence, we likewise find no error.
First, we note that Azar, notwithstanding his belief that the victim had
previously been a gang member, characterized the victim as a “nice guy”
and a “nice, big, relaxed teddy bear kind of guy.” On this record, there is
no basis to conclude that the third-party statements would have shown, to
the contrary, that the victim had a reputation for violence because defense
counsel only represented that the statements supported Azar’s belief that
the victim had been in a gang. Nonetheless, even if the third-party
statements demonstrated that the victim had a reputation for violence, Azar
has not shown that he was deprived of “a right essential to his defense.” See
Henderson, 210 Ariz. at 567, ¶ 19. He argues on appeal that such evidence
was admissible to show that the victim “may have been the initial aggressor
in the incident,” but he testified that the victim had no weapon and never
touched him, and explained that he only felt intimidated because the
victim, though seated, “made himself [look] big.” Thus, Azar made no
claim that the victim was in any way physically aggressive before Azar
brandished the gun. Equally important, Azar had the opportunity to
present his defense that he acted reasonably based on his belief that the
victim had been a gang member, both through his testimony and defense
counsel’s closing argument. Therefore, the trial court did not err, much less



                                      10
                               STATE v. AZAR
                             Decision of the Court

commit fundamental, prejudicial error, by excluding the third-party
statements.5

D.     Jury Instructions.

¶38             Azar argues the trial court erred by failing to sua sponte
instruct the jury on the lesser-included offenses of manslaughter and
negligent homicide. Because Azar failed to object to the instructions given
and did not request the lesser-included offense instructions, we review this
claim only for fundamental, prejudicial error. See Henderson, 210 Ariz. at
567, ¶ 19; see also Ariz. R. Crim. P. 21.3(c) (“No party may assign as error on
appeal the court’s giving or failing to give any instruction or portion thereof
. . . unless the party objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which the party objects and the
grounds of his or her objection.”).

¶39            In a non-capital case, the trial court is not required to instruct
on every lesser-included offense supported by the record. State v. Gipson,
229 Ariz. 484, 486, ¶ 13 (2012); see Ariz. R. Crim. P. 21.3(c) cmt. Instead, the
court has a duty to provide a lesser-included offense instruction only when
the absence of such an instruction “would fundamentally violate [the]
defendant’s right to a fair trial” and interfere with the defendant’s “ability
to conduct his defense.” State v. Lucas, 146 Ariz. 597, 604 (1985), overruled in
part on other grounds by State v. Ives, 187 Ariz. 102, 106–08 (1996). Indeed, trial
judges should “exercise restraint in instructing sua sponte on lesser included
offenses,” and, in general, a trial court “should withhold charging on lesser
included offenses unless one of the parties requests it” because the issue is
“best resolved . . . by permitting counsel to decide on tactics.” Gipson, 229
Ariz. at 487, ¶¶ 15–16 (internal quotations omitted).



5       Citing State v. Zamora, 140 Ariz. 338, 341 (App. 1984), the State argues
that gang membership does not correlate to a “reputation for violence” and
therefore evidence of gang affiliation is not admissible under Rule 405(A).
As noted by the State, in Zamora this court upheld the trial court’s
determination “that the victim’s alleged gang membership was not relevant
to his reputation for violence.” Id. In affirming the trial court’s exclusion of
the gang affiliation evidence, however, we expressly noted that the
defendant had not shown that he knew the victim was a member of a gang
or that “such alleged membership in any way affected or was related to the
reasonableness of his actions on the night in question.” Id. Therefore,
Zamora is inapposite.



                                        11
                              STATE v. AZAR
                            Decision of the Court

¶40            In this case, Azar’s strategy by claiming the shooting was
either an accident, or an act of self-defense, was to avoid conviction of any
lesser included offenses. Indeed, he objected to the trial court’s inclusion of
an instruction on the lesser-included offense of second-degree murder.
When a defendant assesses the evidence presented by the State and
concludes that the evidence may be insufficient “to secure a conviction of
the greater crime,” the decision to forego jury instructions on lesser-
included offenses may not constitute strategic error, but a viable strategy to
“secure a complete acquittal.” State v. Vanderlinden, 111 Ariz. 378, 379–80
(1975); see State v. Krone, 182 Ariz. 319, 323 (1995) (there may well be cases
in which the defendant will be confident enough that the State has not
proven murder that he will want to forego lesser-included offense
instructions and take his chances with the jury.) Because the record reflects
that Azar adopted this strategy, the trial court’s failure to instruct the jury
on manslaughter and negligent homicide did not interfere with his right to
present his defense. Id. (“A defendant should not have a lesser included
instruction forced upon him.”). Therefore, the trial court did not commit
fundamental, prejudicial error by failing to sua sponte instruct the jury on
the lesser-included offenses.

                               CONCLUSION

¶41           For the foregoing reasons, we affirm Azar’s convictions and
sentences.




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




                                        12
