                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                      RICKY LEE JARRETT, Appellant.

                             No. 1 CA-CR 13-0476
                               FILED 07-29-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-126225-001
                The Honorable Karen A. Mullins, Judge

  CONVICTION AFFIRMED; REMANDED FOR RESENTENCING


                                   COUNSEL

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

Maricopa County Legal Advocate’s Office, Phoenix
By Consuelo M. Ohanesian
Counsel for Appellant


                       MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in
which Judge Andrew W. Gould and Judge Donn Kessler joined.
                           STATE v. JARRETT
                           Decision of the Court

G E M M I L L, Judge:

¶1            Ricky Lee Jarrett appeals his conviction and sentence for
second degree murder. He contends the trial court erred in precluding a
defense witness from testifying, and he argues the court erred in failing to
instruct the jury on a lesser-included offense of manslaughter. Jarrett
further challenges the court’s order sentencing him to twenty-nine years
in prison. For the reasons that follow, we affirm Jarrett’s conviction but
remand to the superior court for resentencing.

                             BACKGROUND

¶2           When JM and his son (“Son”) pulled into their home’s
driveway during the evening of May 17, 2012, Son exited the vehicle and
walked past Jarrett, who was JM’s friend and had been staying at Jarrett’s
home. Son heard JM scream and turned to see Jarrett leaning through the
driver side window “punching” JM. Jarrett fled on foot, and Son ran after
him. When Son approached Jarrett, he observed Jarrett holding a knife.
Son returned home, but JM followed Jarrett in his truck.

¶3             A few minutes later, Son saw a police car drive by in the
same direction JM had left. Son ran in the direction of the police car, and
arrived at the location where police officers were gathered. Son observed
his father’s truck 315 feet from the home parked in the middle of Durango
Street and JM lying on the ground bleeding. A police officer informed Son
that JM had been stabbed, and officers observed a trail of what appeared
to be fresh blood on the roadway from the home in the direction of the
parked truck. A crime scene investigator located a folding serrated knife
under a dumpster approximately a quarter-mile from the truck, and a
detective observed what appeared to be “human tissue” on the knife
blade. Subsequent DNA testing revealed JM’s blood was on the knife. JM
was transported to a hospital where he later died. The medical examiner
determined the cause of death was a stab wound to the chest.

¶4            Jarrett testified at trial that he confronted JM about tools JM
was supposed to lend him, and he stabbed JM in self-defense after he saw
JM grab a pistol in the truck and raise it. The purported handgun
belonged to Son and was an inoperable pellet air gun that Son had, at
some point in the past, “used . . . to make . . . [D]efendant and another
man think that he had a gun.” Son testified that he did not have the gun
with him when he returned home with JM, and he testified JM was not
holding a gun during the confrontation with Jarrett. During the
investigation, the only gun police located was the air gun in Son’s


                                     2
                            STATE v. JARRETT
                            Decision of the Court

bedroom, and they found no evidence that anyone entered the home after
the stabbing, nor was any evidence discovered suggesting that JM carried
the air gun at any time.

¶5            The jury returned a guilty verdict on the charged offense of
second-degree murder, a class one felony. At the conclusion of the
aggravation phase, the jury found the murder was a dangerous offense;
the offense caused physical, emotional or financial harm to JM’s family;
and Jarrett committed the offense while on release from confinement for
two prior convictions -- one a class two felony, the other a class three
felony -- both of which were dangerous offenses involving Jarrett’s use of
a deadly weapon. The court imposed what it believed to be the maximum
twenty-nine-year sentence of incarceration. Jarrett appealed, and we have
jurisdiction under the Arizona Constitution Article 6, Section 9, and
Arizona Revised Statutes (“A.R.S.”) sections 12–120.21(A)(1), 13–4031 ,
and –4033(A)(1).

                                ANALYSIS

I.     Witness Preclusion

¶6            Near the end of the State’s case in chief, Jarrett disclosed for
the first time his intent to introduce evidence that a toxicology
examination conducted after JM’s autopsy showed JM’s blood tested
positive for methamphetamine in the amount of .83mg/L. Defense
counsel explained that Jarrett only sought to admit the amount of the
drug’s concentration in JM’s blood. The State objected on timeliness and
relevancy grounds, specifically arguing that Jarrett was not offering any
evidence to show how the amount of methamphetamine would have
affected JM’s behavior.

¶7            The trial court granted the State’s motion to preclude the
evidence, reasoning that a mere number indicating the methamphetamine
concentration in JM’s blood was irrelevant to Jarrett’s self-defense claim.
The court additionally found that if Jarrett was to call the toxicologist to
explain the effect such an amount would have on JM at the time of the
offense, Jarrett’s untimely disclosure rendered such expert testimony
highly prejudicial to the State.

¶8            Jarrett contends the court erred in precluding the evidence of
methamphetamine concentration in JM’s blood, which Jarrett asserts was
essential to his defense. Jarrett does not dispute that his disclosure was
untimely. Instead, he specifically argues that the court should have
conducted a hearing to consider the factors necessary to determine


                                      3
                            STATE v. JARRETT
                            Decision of the Court

whether witness preclusion was a proper sanction for his disclosure
violation. See Ariz. R. Crim. P. 15.7(a) (setting forth non-exclusive list of
sanctions available to court to impose for disclosure violations); State v.
Smith, 140 Ariz. 355, 359, 681 P.2d 1374, 1378 (1984) (referring to “four
criteria for determining whether the sanction of preclusion should be
imposed: (1) how vital the witness is to the case, (2) whether the opposing
party will be surprised, (3) whether the discovery violation was motivated
by bad faith, and (4) any other relevant circumstances.”) (“Smith Factors”).

¶9             As Jarrett concedes, we review for fundamental error
because Jarrett failed to assert at trial that such a hearing was required.
See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To
obtain relief under fundamental error review, Jarrett has the burden to
show that error occurred, the error was fundamental, and he was
prejudiced. See id. at 567-68, ¶¶ 20-22, 115 P.3d at 607-08.

¶10           We find no error in the court’s preclusion of the toxicology
examination evidence without sua sponte conducting a hearing. We
initially note that Jarrett’s characterization of the court’s decision as a
“sanction” for the untimely disclosure is not supported by the record. The
court precluded the evidence primarily because the amount of
methamphetamine in JM’s body was irrelevant to Jarrett’s case. Jarrett
affirmed to the court that the amount of methamphetamine in JM’s blood
was the only evidence he sought to admit. Absent evidence of the effect
such an amount would have had on JM’s actions during the altercation
with Jarrett, evidence about merely the methamphetamine concentration
in JM’s blood would not have aided the jury in determining whether
Jarrett may have stabbed JM out of self-defense. See Ariz. R. Evid. 402
(“Irrelevant evidence is not admissible.”); State v. Charo, 156 Ariz. 561, 565,
754 P.2d 288, 292 (1988) (summarily rejecting argument that trial court
erred in precluding evidence of drugs in victim’s system); State v. Krantz,
174 Ariz. 211, 213, 848 P.2d 296, 298 (App. 1992) (affirming a trial court’s
finding that “absent any showing how the drug had affected the victim,”
evidence of methamphetamines in the victim was irrelevant). On this
basis alone, the court did not abuse its discretion in precluding Jarrett’s
proffered evidence. 1 See State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d


1 We reject Jarrett’s assertion that the expert’s testimony about the effect
of methamphetamine was relevant because Jarrett made no offer of proof
about the methamphetamine’s effect, and neither does the record
otherwise indicate what the testimony would have been regarding the



                                      4
                           STATE v. JARRETT
                           Decision of the Court

1260, 1275 (1990) (“The trial court has considerable discretion in
determining the relevance and admissibility of evidence, and we will not
disturb its ruling absent a clear abuse of that discretion.”).

¶11            Even if the court’s preclusion order could properly be
characterized as a sanction for Jarrett’s untimely disclosure of the expert
evidence, the court did not err in failing to conduct a hearing for purposes
of applying the Smith Factors to determine the appropriate sanction.
Jarrett points to no authority that requires a court to sua sponte order such
a hearing in the midst of trial. Further, Jarrett did not make an offer of
proof at trial as to how the witness would testify about the effect of
methamphetamine on JM’s conduct during the altercation with Jarrett.
Thus, Jarrett is foreclosed from challenging the trial court’s preclusion
order. See Ariz. R. Evid. 103(a)(2) (requiring a party to make an offer of
proof at trial in order to challenge a trial court’s order precluding
evidence); State v. Hernandez, 232 Ariz. 313, 321, ¶ 37, 305 P.3d 378, 386
(2013).    Moreover, Jarrett did not, as required by Arizona Rule of
Criminal Procedure 15.6(d), file a motion seeking leave of the court to
extend the time for disclosing the witness and using his testimony at trial.
See Ariz. R. Crim. P. 15.6(d) (requiring a party who has not disclosed
evidence within seven days before trial to obtain leave of the court by
motion to extend the time for disclosure and use the evidence at trial). For
these reasons, we conclude the court did not err, much less commit
fundamental error, in failing to sua sponte conduct a hearing to determine
whether preclusion was an appropriate sanction for Jarrett’s disclosure
violation.

II.   Jury Instruction: Lesser-Included Offense

¶12            Although the court instructed the jury on reckless
manslaughter as a lesser-included offense of second degree murder, the
court did not instruct the jury on the particular form of manslaughter
found in A.R.S. § 13-1103(A)(2), which states in relevant part, “A person
commits manslaughter by . . . [c]ommitting second degree murder . . .
upon a sudden quarrel or heat of passion resulting from adequate
provocation by the victim[.]” (“provocation manslaughter”). In explaining
its decision to not give the instruction, the court remarked, and the parties
agreed, that provocation manslaughter “has different elements” and
therefore is not a lesser-included offense of second degree murder. Jarrett


effect, if any, that .83mg/L of methamphetamine would have had on JM’s
behavior during the confrontation with Jarrett.



                                     5
                            STATE v. JARRETT
                            Decision of the Court

argues the failure to include this instruction constitutes fundamental
error. We review de novo whether an offense is a lesser included of
another offense. State v. Cheramie, 218 Ariz. 447, 448, ¶¶ 7–8, 189 P.3d 374,
375 (2008).

¶13            When a defendant in a non-capital case requests a lesser-
included offense instruction that is supported by the evidence, the court’s
failure to include the instruction may amount to fundamental error if the
failure to do so impedes the defendant’s ability to present his defense.
State v. Valenzuela, 194 Ariz. 404, 407, ¶ 15, 984 P.2d 12, 15 (1999).
Conversely, if a defendant in a non-capital case does not request a lesser-
included instruction at trial, “no error may be urged on appeal for the
failure of the trial court to give an instruction on a lesser included
offense.” State v. Vanderlinden, 111 Ariz. 378, 380, 530 P.2d 1107, 1109
(1975).

¶14            The record reflects some uncertainty as to whether Jarrett
wanted the court to give the provocation manslaughter instruction.
During preliminary discussions regarding the jury instructions on
manslaughter as a lesser-included offense, and after Jarrett expressed he
did not want any instruction on lesser-included offenses, the State
indicated it did not object to including a provocation manslaughter
instruction “if defense wants it in.” When questioned by the court, “Do
you want it in?” defense counsel stated “Yes.” When the court
subsequently concluded it would not give the provocation manslaughter
instruction based on its reasoning that the offense was not a lesser-
included of second degree murder, Jarrett agreed with the court and did
not thereafter object to the omission of the instruction. Our review,
therefore, is for fundamental error.

¶15           Here, the court erred as a matter of law in concluding
provocation manslaughter is not a lesser-included offense of second
degree murder. See Peak v. Acuña, 203 Ariz. 83, 84-85, ¶ 6, 50 P.3d 833, 834-
35 (2002) (referring to “sudden quarrel or heat of passion resulting from
adequate provocation by the victim” in A.R.S. § 13-1103(A)(2) not as an
element additional to those necessary for a second degree murder
conviction, but rather as a “different circumstance”). The question
becomes whether the error was “fundamental,” in that the error “goes to
the foundation of [Defendant’s] case, takes away a right that is essential to
[Defendant’s] defense, and is of such magnitude that [Defendant] could
not have received a fair trial.” Henderson, 210 Ariz. at 568, ¶ 24, 115 P.3d at
608.



                                      6
                            STATE v. JARRETT
                            Decision of the Court

¶16           Jarrett pursued an “all or nothing” strategy at trial by
claiming he acted in self-defense. It is precisely in deference to such a
defense strategy that Arizona law does not require a trial court to sua
sponte instruct the jury on a lesser-included offense in non-capital
homicide cases. Vanderlinden, 111 Ariz. at 379-80, 530 P.2d at 1108-09; see
State v. Gipson, 229 Ariz. 484, 486, ¶ 13, 277 P.3d 189, 191 (2012)
(explaining former requirement that trial courts instruct on every lesser-
included offense supported by the evidence was “abandoned through an
amendment to Arizona Rule of Criminal Procedure 21.3(c).”); see also State
v. Krone, 182 Ariz. 319, 323, 897 P.2d 621, 625 (1995) (“A defendant should
not have a lesser included instruction forced upon him.”). Because the
record shows that Jarrett adopted an “all or nothing” defense strategy that
invited the jury to render a specific verdict on the second-degree murder
charge, failing to instruct the jury on provocation manslaughter did not go
to the foundation of, or take away a right essential to, Jarrett’s self-defense
claim, and on this record, Jarrett was not deprived of a fair trial.
Accordingly, the court’s legal error in determining provocation
manslaughter is not a lesser-included offense of second degree murder
was not fundamental, reversible error in this case.

III.   Sentencing

¶17          Jarrett argues the trial court erred in sentencing him to the
maximum of twenty-nine years’ imprisonment because the statutory
revision under which he was sentenced that increased the maximum from
twenty-five to twenty-nine years took effect after the date of the offense.
The State concedes error and agrees remand is necessary for resentencing.

¶18           Jarrett would have been properly sentenced under A.R.S. §
13-710(B) for the second degree murder conviction and under § 13-708(B)
because Jarrett committed the offense while on release. In this case, § 13-
708(B) would have permitted the court to increase the maximum sentence
in § 13-710(B) by up to twenty-five percent if the court finds at least two
substantial statutory aggravating factors. A.R.S. § 13-708(B). At the
sentencing hearing, however, the trial court stated its belief that it had “no
discretion under the law given the fact that Mr. Jarrett was on release and
for the crime that [had] been committed.”

¶19           At the time Jarrett committed the offense, § 13-710(B)
provided a mandatory maximum prison term of twenty-five years for
those convicted of second degree murder and who had a prior conviction
for a class two or three felony conviction involving the use or exhibition of
a deadly weapon. A.R.S. § 13-710(B) (2010). The legislature amended the


                                      7
                           STATE v. JARRETT
                           Decision of the Court

mandatory maximum prison term in § 13-710(B) in 2012, however, from
twenty-five to twenty-nine years. 2012 Ariz. Sess. Laws, ch. 207, § 1 (2nd
Reg. Sess.). That revision became effective after Jarrett committed the
murder in May 2012 but before his sentencing in June 2013. See Id. “When
the penalty for an offense is prescribed by one law and altered by a
subsequent law, the penalty of such second law shall not be inflicted for a
breach of the law committed before the second took effect, but the
offender shall be punished under the law in force when the offense was
committed.” A.R.S. § 1-246.

¶20          On this record, we are unable to determine if the court
imposed the twenty-nine year maximum sentence based mistakenly on
the revised version of § 13-710(B), or if the court considered § 13-708(B) at
all. Accordingly, we remand for the court to sentence Jarrett under the
version of § 13-710(B) in effect at the time Jarrett committed the offense
and exercise its discretion as appropriate under § 13-708(B). See State v.
Garza, 192 Ariz. 171, 176, ¶ 17, 962 P.2d 898, 903 (1998) (“Even when the
sentence imposed is within the trial judge's authority, if the record is
unclear whether the judge knew he had discretion to act otherwise, the
case should be remanded for resentencing.”). 2

                              CONCLUSION

¶21           Jarrett’s conviction is affirmed, but we remand for
resentencing.




                                :gsh




2 Jarrett was ordered to pay the cost of DNA testing pursuant to A.R.S. §
13-610. This court has held that A.R.S. § 13–610 does not authorize trial
courts to order that defendants pay DNA testing costs. State v. Reyes, 232
Ariz. 468, 472, ¶ 11, 307 P.3d 35, 39 (App. 2013). Thus, Jarrett should not
be ordered to pay the cost of DNA testing upon resentencing.



                                       8
