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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        DERRICK TONEY, Appellant.

                             No. 1 CA-CR 18-0661
                               FILED 10-31-2019


            Appeal from the Superior Court in Navajo County
                        No. S0900CR201600484
            The Honorable David J. Martin, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By William Scott Simon
Counsel for Appellee

Law Office of Elizabeth M. Hale, Lakeside
By Elizabeth M. Hale
Counsel for Appellant
                            STATE v. TONEY
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Kent E. Cattani joined.


W I N T H R O P, Judge:

¶1           Derrick Toney (“Appellant”) appeals from his convictions
and sentences for five counts of aggravated assault, one count of disorderly
conduct with a weapon, and one count of threatening and intimidation. For
the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2            One day in July 2016, K.A. was talking to Z.R., J.S., and M.N.
outside K.A.’s home in Snowflake when a car driven by Andre Duran went
speeding by. K.A. yelled at Duran to slow down, and Duran slammed on
the brakes and returned to K.A.’s house. Duran jumped out of the car and
got into an argument with K.A. Duran stated that he would be back with
“his boys.” Subsequently, K.A.’s neighbor T.N., a Navajo County Deputy
Attorney, arrived at K.A.’s house.

¶3            Not long after, Duran returned with Appellant and Gary
Lupe. Appellant, who appeared agitated, jumped out of the car with a tire
iron in hand and approached K.A., Z.R., J.S., M.N., and T.N. in a threatening
manner. Appellant threatened to “rough up” or “f*** up” the men. K.A.
pulled out a gun and told Appellant that if he took another step onto his
property, he would shoot. The men exchanged trash talk, and Appellant
stated, “You want to play guns? We’ll play guns. Get the AK.” Two more
of K.A.’s neighbors, A.D. and S.D., who were driving by, witnessed the
exchange and decided to stop and see what was happening. Appellant,
Duran, and Lupe jumped into the car and sped off. M.N. called the police.

¶4             A.D. and S.D. decided to follow the three men, hoping to
diffuse the situation. They lost sight of the car but caught up with the men
at Lupe’s grandmother’s house. Appellant was very upset and angry, and
he repeatedly stated that he was going to go back and shoot the people at


1      We view the facts in the light most favorable to upholding the jury’s
verdicts. State v. Stroud, 209 Ariz. 410, 412, ¶ 6 (2005).


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                            STATE v. TONEY
                           Decision of the Court

K.A.’s house. After speaking with A.D., Lupe decided not to go back to
K.A.’s house. Appellant and Duran, however, jumped into the car and sped
back to K.A.’s house, where they were intercepted by police and arrested.

¶5            In August 2016, a Navajo County grand jury indicted
Appellant on six counts of aggravated assault, dangerous class 3 felonies,
one count of misconduct involving weapons, a class 4 felony, and one count
of threatening and intimidating, a class 1 misdemeanor.2 In September
2016, Appellant filed a motion to continue a case management conference
set for September 21, 2016. In the motion, Appellant informed the court
that he intended to file a motion to remove the Navajo County Attorney’s
Office (“NCAO”) due to a conflict of interest. The court granted the
continuance and ordered Appellant to file his conflict of interest motion by
October 14, 2016. He did so, and NCAO agreed to transfer the case to the
Coconino County Attorney’s Office before the court entered its ruling on
the motion.

¶6            A jury convicted Appellant of five counts of aggravated
assault, one count of disorderly conduct with a weapon, and one count of
threatening and intimidation. The trial court sentenced him to presumptive
terms of 11.25 years in prison on counts one, three, four, five, and six, the
presumptive term of 3.75 years in prison on count two, and six months in
jail on count nine, to run concurrently, and gave him credit for 765 days of
presentence incarceration.      Appellant timely appealed.        We have
jurisdiction pursuant to Arizona Constitution Article 6, Section 9, and
Arizona Revised Statutes sections 12-120.21(A)(1), 13-4031, and -4033(A).

                                ANALYSIS

¶7            Appellant raises two issues on appeal: (1) whether his due
process rights were violated because NCAO “refused to recuse itself,” and
(2) whether the trial court abused its discretion and denied Appellant a fair
trial by excluding relevant evidence.

      I.     Timing of NCAO’s Recusal

¶8            Appellant first argues that NCAO should have recused itself
prior to his motion requesting the recusal. He argues that because Navajo
County initially brought the charges against him, the “taint of the conflict”
remained even after NCAO transferred the case to the Coconino County

2      The aggravated assault charged in Count 3 of the indictment was
specific as to T.N., and he was listed as a victim in the State’s initial
disclosure.


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                             STATE v. TONEY
                            Decision of the Court

Attorney’s Office. According to Appellant, there is no way to ascertain
whether he would have been charged in the same way had a neutral office
been involved at the start of the case and argues that the “entire process
was fundamentally unfair.”

¶9             “It is within the prosecutor’s discretion to determine whether
to file charges and which charges to file.” State v. Rodriguez, 158 Ariz. 69, 70
(App. 1988). “It would be inappropriate . . . to encroach on reasonable
prosecutorial discretion, absent a clear indication of misconduct.” State v.
White, 194 Ariz. 344, 354, ¶ 42 (1999).

¶10           We find no due process violation. Once the Coconino County
Attorney’s Office assumed prosecution of the case, it had discretion to
continue to pursue the same charges or to seek an indictment on different
charges. It chose the former. Regardless, T.N. did not participate in the
charging of the case. Although NCAO presented the charges, a neutral and
independent Navajo County grand jury returned the indictment against
Appellant after determining that the charges were supported by probable
cause. The charges were brought on behalf of the State, not the County, and
we will presume they were brought in good faith. Appellant has not
demonstrated that the bringing of charges was retaliatory in any respect.
Nor has Appellant shown that the charges were unsupported under the
law. Moreover, if Appellant thought that there was a problem with the
grand jury indictment, he should have raised it after the indictment was
returned and asked for a redetermination of probable cause by a Coconino
County grand jury. Unless asserted in a motion to remand for
redetermination of probable cause, such challenges are waived. See Ariz.
R. Crim. P. 12.9. Further, the jury’s verdicts of guilty beyond a reasonable
doubt contradicts an assertion that the charging decision was unfair.
Appellant’s argument that his trial in Navajo County was fundamentally
unfair because NCAO initially charged the case is based on speculation,
and there is no indication in the subsequent record that he did not receive
a fair trial.

       II.    Appellant’s Precluded Testimony

¶11           Appellant next argues that the trial court erred and violated
his constitutional rights by precluding his proposed testimony that he
believed that K.A.’s house “was a drug house or was used for illicit
activities.” At trial, Appellant testified that when they were pulling up to
KA’s house, he recognized the house and “knew it was a bad place, bad
house.” The State objected on the basis that the testimony was irrelevant,
and the court struck the testimony. Defense counsel warned Appellant,


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                             STATE v. TONEY
                            Decision of the Court

“Don’t go there. It’s not relevant.” Appellant later testified, “I only grabbed
[the tire iron] for my safety because of what I know about the place.” The
State objected and the court struck the testimony. Appellant’s testimony
that the victims “look[ed] suspicious” and that he grabbed the tire iron
because he thought K.A. was carrying a gun came in without objection, and
the trial court subsequently gave the jury Appellant’s requested
justification instructions.

¶12           “Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Ariz. R. Evid. 401.
Relevant evidence may be excluded “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Ariz. R. Evid. 403. We review the trial court’s
rulings on the admissibility of evidence for a clear abuse of discretion. State
v. King, 213 Ariz. 632, 635, ¶ 7 (App. 2006).

¶13            Appellant argues that the trial court abused its discretion by
excluding the testimony, asserting that his state of mind was relevant
regarding whether he grabbed the tire iron out of self-defense rather than
to place the others in fear of being harmed. He acknowledges that his
testimony that K.A.’s house was a drug house was prejudicial, but he
argues that it was not so prejudicial that it outweighed the probative value
of the testimony because it explained why he grabbed the tire iron.

¶14           We find no abuse of discretion. Appellant testified that he
armed himself with the tire iron because the victims were “suspicious” and
K.A. was armed, and the court instructed the jury on self-defense. Whether
Appellant also believed that K.A.’s house was a “bad place” or a drug house
had little additional relevance and would have injected unfairly prejudicial
information in the case. Thus, the trial court did not clearly abuse its
discretion by excluding the testimony.

¶15           Furthermore, even if there was error, it was harmless. The
evidence showed that Appellant jumped out of Duran’s car brandishing a
tire iron and threatened to hurt the victims. Even after leaving the scene,
Appellant expressed that he wanted to return to the house and shoot the
victims. The fact that Appellant voluntarily returned somewhere he
allegedly believed to be a “bad place” undermines his assertion that his
belief regarding potential illicit activity at K.A.’s house was important to
his decision to return or to his defense to the charged offenses. The
testimony and evidence overwhelmingly supported the verdicts. See State


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                            STATE v. TONEY
                           Decision of the Court

v. Williams, 133 Ariz. 220, 225 (1982) (“The test for determining harmless
error is ‘whether there was reasonable probability . . . that a verdict might
have been different had the error not been committed.’”) (quoting State v.
McVay, 127 Ariz. 450, 453 (1980)).

                              CONCLUSION

¶16           For the foregoing reasons, Appellant’s convictions and
sentences are affirmed.




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




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