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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        TYLER RAY BALLI, Appellant.

                             No. 1 CA-CR 18-0904
                               FILED 3-17-2020


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201800084
              The Honorable Richard D. Lambert, Judge

      AFFIRMED IN PART, REVERSED IN PART, REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                              STATE v. BALLI
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.


C A M P B E L L, Judge:

¶1            Tyler Ray Balli appeals from his convictions and sentences for
first-degree burglary and aggravated harassment by domestic violence. We
affirm the convictions and his sentence for aggravated harassment but
reverse his sentence for first-degree burglary and remand to the superior
court for further proceedings.

                              BACKGROUND1

¶2            Balli was the step-son of the victim2. Balli has a step-sister and
two adult step-nephews, E.B. and B.B. (the victim’s grandsons). In January
2017, the victim obtained an order of protection against Balli. The order
listed the victim’s residence as a protected location and prohibited Balli
from having any contact with the victim.

¶3             In the early hours of Christmas morning 2017, Balli entered
the victim’s home through an unlocked back door without knocking. He
was carrying a large homemade knife. A security camera recorded Balli
entering the house. The camera system alerted one of the grandsons on his
phone. The grandson reviewed the video and saw Balli enter the back door
with a knife. He first called the police and then called the victim to alert him
that Balli was in the house, and the police were on the way. Over an hour
later, Balli exited the house through the same back door. He was still
holding the knife. The grandson who was still watching a live-feed from the
security camera, observed Balli leaving and saw him hide an object behind
a clay pot. Police found Balli trying to climb over the block wall
surrounding the back yard. They found the knife near the back door.3 The
victim’s daughter arrived minutes later and observed that the victim was


1      We view the evidence in the light most favorable to sustaining the
jury’s verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
2      The victim died in February 2018 less than two months after the
incident resulting in Balli’s convictions.
3      The knife was not admitted into evidence at trial.


                                       2
                              STATE v. BALLI
                            Decision of the Court

“physically and emotionally shaken” and frightened after the incident. The
victim’s wife, Balli’s mother, had dementia. By the time the daughter
arrived, Balli’s mother had already forgotten about the incident.

¶4           After his arrest, Balli mailed his mother a postcard
apologizing for “harassing your household/or your home.” He wrote that
he had meant no harm and that he had the knife because there were “wild
animals” around the couple’s house, including “wild snakes, donkeys,
mountain cats and . . . wild fish.”

¶5           A Mohave County grand jury charged Balli, by indictment,
with one count of first-degree burglary (count 1), one count of aggravated
harassment by domestic violence (count 2), and one count of possession of
drug paraphernalia (count 3). The State dismissed count 3 before trial. The
superior court ordered a Rule 11 evaluation of Balli, and he was found to
be competent.

¶6             A jury found Balli guilty of counts 1 and 2. The superior court
found that count 1 was a dangerous offense and sentenced Balli to a
mitigated sentence of nine years in prison. The court sentenced Balli to a
presumptive sentence of one year in prison for count 2 and ordered the
sentences to be served concurrently. Balli timely appealed. He raises ten
issues in his opening brief.

                               DISCUSSION

              A. Request for Change of Counsel

¶7            Balli first argues that the superior court denied him his Sixth
Amendment right to counsel by denying his request for a new attorney. We
review the court’s denial of a request for change of counsel for an abuse of
discretion. State v. Moody, 192 Ariz. 505, 507, ¶ 11 (1998) (citation omitted).

¶8             Balli requested a change of counsel in writing twice before
trial. He claimed that his attorney, Ron Gilleo, was “dragging [his] feet” and
“withholding evidence to slow play my case,” and that Gilleo was “refusing
to file motions for release conditions, Donald hearing, for suppression,
dismissal,” and to “take[] the indictment back to the grand jury.” Balli
alleged that Gilleo had a conflict of interest and indicated that he would be
filing a complaint against Gilleo with the bar association.4




4      It is unclear what Balli perceived Gilleo’s conflict of interest to be.


                                       3
                               STATE v. BALLI
                             Decision of the Court

¶9            Balli claimed that Gilleo was “indifferent” towards his case,
that Gilleo had “done no work in 7 months besides one ineffective interview
and phone call,” that Gilleo had failed to communicate with him and that
Gilleo was a “Prosecutor Assistant.” He also complained that Gilleo had
requested a Rule 11 screening.

¶10           The superior court addressed Balli’s request for a change of
counsel at a status conference in August 2018. Gilleo explained that:

       [W]hen [he] tried to talk to [Balli] . . . he won’t let [him] explain
       the law and the evidence. . . . [H]e’ll either hang up on [him],
       or he’ll say the phone is currently not working. He doesn’t
       allow [him] to do [his] job, which is to explain the law and the
       evidence as to how it’s going to play out at trial. We had a trial
       date that was set, and it was actually [Balli] who said we’re
       not ready for trial . . . whether a different attorney would be
       more successful, maybe, I don’t know.

Balli told the court that he believed Gilleo was ineffective and that he had
not contacted any witnesses, including his mother. He claimed that his case
was the result of a “living estate battle,” that he was the victim, “[a]nd
[Gilleo] declined to do any inquiring after 8 months of my version of the
case.”

¶11            The court told Balli that it sounded like he was not
cooperating, not letting Gilleo explain his legal situation, and “if you’re not
going to allow him to do that, I don’t see how any attorney in that situation
can be effective.” The court denied Balli’s request for change of counsel and
expressed that Balli was “lucky to have gotten [Gilleo] as a lawyer.”

¶12             A criminal defendant has a constitutional right to
representation by competent counsel. U.S. Const. amend. VI; Ariz. Const.
art. 2, § 24; State v. LaGrand, 152 Ariz. 483, 486 (1987). “A defendant is not,
however, entitled to counsel of choice, or to a meaningful relationship with
his attorney.” Moody, 192 Ariz. at 507, ¶ 11 (citation omitted). “But when
there is a complete breakdown in communication or an irreconcilable
conflict between a defendant and his appointed counsel, that defendant’s
Sixth Amendment right to counsel has been violated,” and any resulting
conviction must be reversed. State v. Torres, 208 Ariz. 340, 342, ¶ 6 (2004)
(citations omitted). The defendant has the burden of demonstrating either
“a total breakdown in communications” or an “irreconcilable conflict with
his attorney.” Id. at 343, ¶ 8 (citation omitted). “To satisfy this burden, the
defendant must present evidence of a ‘severe and pervasive conflict with



                                        4
                              STATE v. BALLI
                            Decision of the Court

his attorney or evidence that he had such minimal contact with the attorney
that meaningful communication was not possible.’” State v. Hernandez, 232
Ariz. 313, 318, ¶ 15 (2013) (quoting United States v. Lott, 310 F.3d 1231, 1249
(10th Cir. 2002)). A colorable claim “must go beyond personality conflicts
or disagreements with counsel over trial strategy.” Id. (quoting State v.
Cromwell, 211 Ariz. 181, 187, ¶ 30 (2005)). A defendant’s rights must be
balanced with judicial economy. LaGrand, 152 Ariz. at 486. In balancing
these interests, the court should consider whether an irreconcilable conflict
exists, whether new counsel would be confronted with the same conflict,
the timing of the motion, inconvenience to witnesses, time already elapsed
between the offense and trial, proclivity to change counsel, and quality of
counsel. Id. at 486–87 (citations omitted).

¶13           Balli argues that he had an irreconcilable conflict with Gilleo,
and that there was a complete breakdown of the attorney-client
relationship. Based on this conflict, he asks that his convictions be reversed.
The State contends that Balli’s request for change of counsel merely
evidenced differences in trial strategy and not a complete breakdown in the
attorney-client relationship.

¶14            On this record, we find no abuse of discretion. Balli failed to
establish that his relationship with Gilleo was completely fractured either
because of an irreconcilable conflict or because of a total breakdown in
communication. We discern no “severe and pervasive” conflict between
Balli and Gilleo.5 At a subsequent pre-trial conference when Gilleo and Balli
informed the court that he wanted to represent himself, Balli told the court
that he wanted Gilleo to remain as advisory counsel, stating, “I have
confidence in [Gilleo]. He’s a professional.” And the court had previously
noted that Gilleo was “one of the best defense attorneys in the county.” To
the extent that Balli argues that Gilleo was ineffective, we will not consider
those arguments in this direct appeal. See Torres, 208 Ariz. at 345, ¶ 17
(“Ineffective assistance of counsel is a separate issue that can be raised only
in a proceeding for post-conviction relief.”).




5      Although Balli indicated he planned to file a bar complaint against
Gilleo, there is nothing in the record suggesting he ever did so, nor did the
threat prompt Gilleo to request to withdraw. Moreover, a bar complaint
against appointed counsel, by itself, does not create an irreconcilable
conflict that requires an attorney to withdraw. State v. Henry, 189 Ariz. 542,
549 (1997).



                                      5
                              STATE v. BALLI
                            Decision of the Court

              B. Request for Continuance

¶15            Balli next argues that the superior court denied him his right
to meaningful self-representation and his right to prepare and present a
defense by failing to grant his request to continue the trial. We review a
defendant’s request for a continuance to accommodate self-representation
for an abuse of discretion. State v. Lamar, 205 Ariz. 431, 436, ¶ 26 (2003).
Whether denying a continuance violates a defendant’s constitutional rights
depends on the circumstances of a particular case. State v. Hein, 138 Ariz.
360, 369 (1983) (citations omitted). The “trial court maintains discretion
because a defendant’s right to represent himself does not exist in a vacuum.
The court must consider the defendant’s right in conjunction with a victim’s
constitutional right to a speedy trial and the court’s prerogative to control
its own docket.” Lamar, 205 Ariz. at 436, ¶ 27 (citation omitted). “[O]nly an
unreasoning and arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the defendant’s constitutional right to
self-representation.” Id. at 436–37, ¶ 27 (internal quotation omitted). In
evaluating a request for continuance made in conjunction with a request for
self-representation, the court “should consider factors such as the reasons
for the defendant’s request, the quality of counsel, the defendant’s
proclivity to substitute counsel and the expected disruption if the trial court
granted the continuance.” Id. at 437, ¶ 29 (internal quotation omitted).

¶16            In August 2018, the superior court set trial for November
2018. Approximately two weeks before trial, Balli moved to represent
himself. After a hearing in early November, the court granted Balli’s motion
and appointed Gilleo as advisory counsel. Balli requested a continuance “to
prepare for [his] defense.” He indicated that witnesses had not been
contacted or interviewed.6 The court denied the motion, noting that Balli
“had plenty of notice” about the trial date and that his request to represent
himself was made “at the last minute, last hour.” After the court denied the
motion, Balli told the court his witnesses included those the State would be
calling, and in addition, he wanted to subpoena his step-father’s next-door
neighbor and his mother, who had moved to Texas.

¶17          The superior court’s decision not to continue the trial was
neither “unreason[ed]” nor “arbitrary.” Balli requested a continuance just
12 days before the first day of trial. This was the second trial setting, and

6      In contrast, at a status conference on September 10, 2018, Gilleo
informed the superior court that he was “completely done with the
interviews,” and “I believe we’re set to go [to trial].”



                                      6
                              STATE v. BALLI
                            Decision of the Court

the jurors had already been summoned. 7 Continuing the trial would have
caused considerable disruption and delay. Accordingly, we find no abuse
of discretion.

              C. Preclusion of Evidence

¶18           Balli next argues that the superior court denied his
constitutional right to present a defense by precluding relevant evidence
and limiting his cross-examination of the two grandsons.8 “We review
limitations on the scope of cross-examination for [an] abuse of discretion.”
State v. Champagne, 247 Ariz. 116, ¶ 47 (2019) (citation omitted).

¶19            Balli was representing himself when he cross-examined the
victim’s grandsons. The State objected based on relevancy when Balli asked
one grandson whether there was a time when his mother was unaware that
there were cameras at the house. The superior court sustained the objection.
Balli later asked, “can you think of a time that my mom or step-dad called
the police regarding this restraining order?” The State objected, explaining,
“It would be sort of converse of Rule 404, whether the existence or the
absence of such calls is not relevant to what happened on one given date.”

¶20             During his cross-examination of the other grandson, Balli
asked, “Have you seen the video?” He responded that he had, and Balli
then said, “The door was left open.” The court stated, “Okay. You’re
making a statement, and you’re not allowed to do that. . . . So if you want
to ask a question and get the answer, go ahead.” Balli did not then restate
the inquiry as a question. Instead, he moved on and asked him, “Are you
aware that I called [the victim and his mother] to wish them a Merry
Christmas?” The court sustained the State’s objection to the question
because it called for facts not in evidence or likely to be presented. Balli then
asked him, “So yes or no, you had no knowledge . . . that [the victim and
his mother] invited me over on Christmas Day?” The court sustained the
State’s objection to the question again because it called for facts not in
evidence or likely to be presented. Later, Balli went on to ask the grandson,
“Are you . . . aware that in my old bedroom . . . that my personal belongings
are still in there?” The State objected, and the court sustained the objection


7      In July 2018, the superior court set a trial date of August 7, 2018. In
July 2018, the court vacated that trial date because of the pending Rule 11
evaluation.
8      Balli also asserts that the superior court limited his cross-
examination of the victim’s daughter, but none of the State’s objections or
the court’s rulings related to her testimony.


                                       7
                              STATE v. BALLI
                            Decision of the Court

stating, “Again, I don’t know where this line of questioning is going,
Mr. Balli. But again, because of . . . a purported lack of discovery to the State
on this issue prior to trial, the Court will not allow you to go down this
vein.” Balli next asked him, “were you aware -- or brought to your attention
that your mom [the victim’s daughter] and I became executive officers of
the estate about three years ago?” The State objected based on relevance,
and Balli stated that the relevance of the question was “Foul play.” The
following exchange then took place:

       THE COURT: . . . And again, so you’ve been charged with the
       burglary count and aggravated harassment count. . . . So
       again, what does this question have to do as far as any[one]
       being an executor or any kind of probate issues? How does
       that have anything to do with the charges in the indictment?

       [BALLI]: This whole surveillance camera[] is the version, the
       deception for the master plan of putting everything in their
       names.

       [PROSECUTOR]: Objection, Your Honor.

       [BALLI]: I’m taking care of my mom and dad, and they keep
       me in jail.

       ...

       [PROSECUTOR]: Move to strike. And I ask that either we
       approach the bench and perhaps send the jury out if he wants
       to make an offer of proof rather than to have him make it here
       in front of the jury.

The court sent the jury out, and Balli made an offer of proof:

       [BALLI]: [I]t’s all about [the victim’s daughter]. This
       interview with this officer here shows it. The police report
       shows it. Nothing by my parents that any substantial
       evidence showing that there is foul play. And it’s in the police
       report that -- the original police report and this interview with
       the police officer here. It’s all of a sudden five or six incidents
       civil, trying to arrest me. In here, I highlighted it. Why are
       they trying to arrest me? Because I’m a harm to my parents?
       No. I have a warrant.




                                       8
                       STATE v. BALLI
                     Decision of the Court

They are trying to get me out of the way so they can do their
maneuvers. I’m the one that was there. I jumped through the
back fence. My . . . mom and I are the victim. My step-dad has
dementia, can’t really take care of himself. My mom has a
form of it too. Up to the last year or so, my mom is declining.
But I mean it was 75/35 for years.

That’s when I got convicted of resisting arrest. It’s about the
same stuff. I wasn’t able to show myself innocent. I saw a
psychiatrist last year. I’ve seen a psychiatrist this year. And
this, it shows -- it’s not a laughing matter. I’m not laughing.
They’re laughing.

[THE COURT]: Who’s laughing?

[BALLI]: I’ve seen the smirk, and in the report says [the
victim’s daughter]’s laughing. Don’t mind the old hag, you
know, because she’s just out of her mind. It’s not a laughing
matter. My step-dad’s not saying nothing. She’s bullying this
whole time my step-father. I believe that she feels like she got
less than all of the brothers and sisters.

Right now there’s been the officers. There’s been -- in here it
says that the police department -- our family’s had the talk of
this police department, even with Robin saying he just came
back from whatever he’s back from, and it’s the talk. He
wouldn’t have known about this situation. But it was the talk
of the police department. And it shows [victims daughter].

Even with the next door property, it’s as tenant. It’s a rental
property of ours. Where’s the rental property going to? They
did not contact -- is it going to [victim’s daughter]? It is going
to my mom? It’s always been one executive officer on their
side of the family and one on ours. Now it’s both on their side.
They’re fighting over it. For 11 months they haven’t even
contacted my mom. Mom’s tried. She can’t talk. My step dad’s
not here. How convenient for them too. One’s not here. One
can’t talk. For them to do what they’re doing. It says it right
here --

[THE COURT]: Okay.

[BALLI]: Get to the point where being sons involved. Her sons
haven’t been involved except the last couple of incidents


                                9
                              STATE v. BALLI
                            Decision of the Court

       because she’s --- now she’s got her sons involved. Before it
       was her all the time.

       [THE COURT]: Let me stop you, Mr. Balli. And I will say one
       thing that the prosecutor said. And I agree a hundred percent
       with this. You have the right to have a probate trial on that
       issue. That’s where you would argue what you’re arguing
       right now. . . .

       All of this stuff about the probate, it’s not relevant. It’s not
       relevant . . . in this criminal case. And so no matter what was
       happening behind the scenes on this whole thing about who
       gets grandma and grandpa’s estate, you’re being accused of
       violating the order of protection and burglarizing the house.

The court then explained that, “The only things . . . you can bring up [are]
what you sent to the State as far as discovery . . . so that way no one is
surprised or shocked by what’s being brought up or what questions are
being asked. Okay?” The court found there was “no offer of proof to
support [Balli’s] questioning . . . regarding any probate or executor issues
regarding the grandparents.”

¶21            The Sixth Amendment guarantees a criminal defendant the
right to confront the State’s witnesses. State v. Carreon, 210 Ariz. 54, 63, ¶ 36
(2005) (citation omitted). The “essential purpose of confrontation is to
secure for the opponent the opportunity for cross-examination.” Davis v.
Alaska, 415 U.S. 308, 315–16 (1974) (citation omitted). “[T]rial judges retain
wide latitude . . . to impose reasonable limits on . . . cross-examination based
on concerns about, among other things, harassment, prejudice, confusion
of the issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The
“Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish. Id. (citation omitted).

¶22          Evidence must be relevant to be admissible. Ariz. R. Evid. 402.
“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 one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or




                                       10
                              STATE v. BALLI
                            Decision of the Court

needlessly presenting cumulative evidence.” Ariz. R. Evid. 403. A witness
may only testify to matters of personal knowledge. Ariz. R. Evid. 602.

¶23           The issues at trial were limited to whether Balli entered the
victim’s home with the intent to commit a felony and whether he caused a
communication with the victim with the intent to harass, while subject to a
valid order of protection. His questions about the victim and his mother’s
estate would not have made it more or less probable that he committed the
charged offenses. Although Balli characterizes the estate matter as a
defense, it was an explanation about why Balli thought the order of
protection had been obtained rather than a defense to violating that order.
Finally, although the court sustained the State’s objection to Balli asking one
grandson whether he knew if the victim and Balli’s mother had invited him
over on Christmas day, after Gilleo took over as defense counsel he asked
the grandson whether he had knowledge of Balli’s mother ever inviting him
over “during this period of time,” and he replied that he did not. We find
no abuse of discretion.

              D. Judicial Bias

¶24            Balli next argues that he was denied a fair trial due to judicial
bias because the superior court sustained the State’s objections to questions
he asked during cross-examination, interrupted him during his offer of
proof, and admonished him about representing himself. Balli did not raise
judicial bias below or ask the court to recuse itself. He suggests that he is
entitled to structural error review, which does not require a defendant to
object at the trial level. See State v. Granados, 235 Ariz. 321, 324, ¶ 6 (App.
2014). To implicate structural error review of judicial bias, a defendant
“must allege a type of bias that would implicate his due process rights, such
as bias based on a ‘direct, personal, substantial pecuniary interest.’” Id. at
325, ¶ 11 (citations omitted). Other types of bias, such as “personal bias or
prejudice,” do not require structural error review. Id. (citations omitted).
Balli’s complaints about the trial judge on appeal do not implicate structural
error review. His allegations of bias are based solely on the court’s rulings
and admonishment. Because Balli failed to object based on the court’s bias
below, we review for fundamental, prejudicial error. See id. at 326, ¶ 13
(citations omitted).

¶25           “A trial judge is presumed to be free of bias and prejudice.”
State v. Hurley, 197 Ariz. 400, 404, ¶ 24 (App. 2000) (citations omitted).
Judicial rulings alone rarely constitute a valid basis for a claim that the
superior court was biased. Granados, 235 Ariz. at 326, ¶ 14 (citation omitted).




                                      11
                               STATE v. BALLI
                             Decision of the Court

¶26            As discussed supra ¶¶ 18–23, the superior court did not abuse
its discretion by sustaining the State’s objections during cross-examination.
And the court’s comments to Balli, which were made after the jurors left the
courtroom, did not evidence any improper bias. The record reflects that the
court listened to Balli’s offer of proof, which was long, rambling, and full of
irrelevant statements before stopping him and explaining the court’s ruling.
The court admonished Balli about his self-representation and explained
some of the mistakes he had made on the first day of trial (such as trying to
make an argument instead of an opening statement and “getting tangled
up in the rules and the statutes.”). However, Balli has failed to point out
any specific comment or action by the court that would show “a hostile
feeling or spirit of ill-will.” See State v. Myers, 117 Ariz. 79, 86 (1977). Because
Balli’s arguments are without merit, we find no error, fundamental or
otherwise.

               E. Motion in Limine

¶27            Balli next argues that the superior court erred by granting the
State’s motion in limine to preclude him from collaterally attacking the
order of protection. We review the court’s ruling on a motion in limine for
an abuse of discretion. State v. Gamez, 227 Ariz. 445, 449, ¶ 25 (App. 2011)
(citation omitted). “The decision whether to admit or exclude evidence is
left to the sound discretion of the trial court.” State v. Murray, 162 Ariz. 211,
214 (App. 1989) (citation omitted).

¶28            The State requested the superior court enter a ruling that Balli
not be permitted to challenge the validity of the order of protection and “an
admonition clearly forbidding [Balli] from blurting out his conspiracy
theory.” The State was “concerned that [Balli], should he testify, will
spontaneously express his view that the Order of Protection should not
have been granted.” The court heard arguments on the motion in limine on
the first day of trial. Balli, who was then representing himself, argued that
the order of protection was the result of a “living trust battle.” He did not
make any legal arguments. The court granted the motion in limine and
informed Balli, “You cannot in opening statement bring up the fact that you
think that the order of protection was not valid in some way. In closing
argument, same thing, you can’t bring that up. When you cross-examine
witnesses or call your own witnesses, you cannot ask questions about the
validity of the order of protection at all.”

¶29           A judgment may not be attacked collaterally unless it is void
on its face. Walker v. Davies, 113 Ariz. 233, 235 (1976) (citation omitted). If
the court entering judgment had “(a) jurisdiction of the subject-matter of


                                        12
                              STATE v. BALLI
                            Decision of the Court

the case, (b) jurisdiction of the persons involved in the litigation, and (c)
jurisdiction to render the particular judgment given . . . the judgment . . . is
not void as against collateral attack” even if it is erroneous or wrong. Id.

¶30           On appeal, Balli acknowledges that “the underlying validity
of [the] order may have been irrelevant,” but argues that the superior
court’s ruling prevented him from raising the defenses that he did not enter
the victim’s home unlawfully, that he lacked the intent to harass, and that
the victim’s daughter had a motive to lie. However, the court’s ruling on
the motion in limine merely precluded Balli from challenging the validity
of the order of protection. Accordingly, we find no abuse of discretion.

              F. Sufficiency of the Evidence

¶31            Balli next argues there was insufficient evidence to support
his convictions for first-degree burglary and aggravated harassment. We
review a claim of insufficient evidence de novo. State v. West, 226 Ariz. 559,
562, ¶ 15 (2011) (citation omitted). We view the evidence in the light most
favorable to sustaining the verdict and resolve all reasonable inferences
against the defendant. State v. Greene, 192 Ariz. 431, 436, ¶ 12 (1998) (citation
omitted). We will not disturb the jury’s verdict unless no probative facts
support it. State v. Felix, 237 Ariz. 280, 289, ¶ 30 (App. 2015) (citation
omitted). Sufficient evidence may either be direct or circumstantial. Id.
(citation omitted). “Circumstantial evidence” is “[e]vidence based on
inference and not on personal knowledge or observation.” Evidence, Black’s
Law Dictionary (11th ed. 2019). The probative value of evidence is not
reduced because it is circumstantial. State v. Blevins, 128 Ariz. 64, 67 (App.
1981) (citation omitted).

                      1. Aggravated Harassment

¶32           “A person commits harassment if, with intent to harass or
with knowledge that the person is harassing another person, the person . .
. causes a communication with another person . . . in a manner that
harasses.” A.R.S. § 13-2921(A)(1). “A person commits aggravated
harassment if the person commits harassment . . . and . . . [a] court has
issued an order of protection . . . against the person and in favor of the
victim of harassment and the order . . . has been served and is still valid.”
A.R.S. § 13-2921.01(A)(1). “Harassment” is “conduct that is directed at a
specific person and that would cause a reasonable person to be seriously
alarmed, annoyed, or harassed and the conduct in fact seriously alarms,
annoys, or harasses the person.” A.R.S. § 13-2921(E).




                                       13
                             STATE v. BALLI
                           Decision of the Court

¶33            Balli argues there was insufficient evidence that he intended
to harass the victim and that there was no evidence that he caused a
communication with another in a manner that harassed. We disagree. The
evidence showed that the victim had a valid order of protection against
Balli. The evidence also established that Balli caused a communication with
the victim by entering his residence because in doing so, he caused the
victim’s grandson to call and advise what he had seen on the security
camera footage. The jury could also find Balli’s intent to harass from the
evidence. Balli entered the residence without knocking, through the back
door, early in the morning when the victim was asleep. He did so while
carrying a large knife. Balli’s behavior frightened the victim and caused him
to be “physically and emotionally shaken.” And Balli subsequently
admitted to his mother that he had “harass[ed]” her “household.”

                     2. First Degree Burglary

¶34             “A person commits burglary in the first degree if such
person” commits burglary in the second degree “and knowingly possesses
explosives, a deadly weapon or a dangerous instrument in the course of
committing any theft or any felony.” A.R.S. § 13-1508(A). “A person
commits burglary in the second degree by entering or remaining
unlawfully in or on a residential structure with the intent to commit any
theft or any felony therein.”9 A.R.S. § 13-1507(A) (emphasis added). A
dangerous instrument is “anything that under the circumstances in which
it is used, attempted to be used or threatened to be used is readily capable
of causing death or serious physical injury.” A.R.S. § 13-105(12).10

¶35          Balli argues that there was insufficient evidence that 1) he
entered the victim’s home with the intent to commit a felony (aggravated
harassment), 2) he communicated or caused a communication in a manner

9       Aggravated harassment under A.R.S. § 13-2921.01(A)(1) is a class 6
felony. A.R.S. § 13-2921.01(C).
10       The superior court instructed the jury that “[t]he crime of burglary
in the first degree requires proof of the following: [n]umber 1, the defendant
entered or remained unlawfully in or on a residential structure; and
number 2, the defendant intended to commit any theft or felony therein;
and number 3, at some time between the moment of entry through flight
from the scene, the defendant knowingly possessed a dangerous
instrument.” The court further instructed the jury that “[d]angerous
instrument means anything that is readily capable of causing death or
serious physical injury under the circumstances in which it is used,
attempted to be used, or threatened to be used.”


                                     14
                              STATE v. BALLI
                            Decision of the Court

that harassed, and 3) he possessed a dangerous instrument. As discussed
supra ¶¶ 32–33, there was sufficient evidence that Balli intended to harass
the victim and that he caused a harassing communication. The evidence
also established that he possessed a dangerous instrument. Even though the
knife was not introduced into evidence, the video clips showed Balli
holding a large knife while entering and exiting the home. In the postcard
he sent his mother, Balli admitted that he had a knife and apologized for
harassing her household. Further, Deputy Smith testified that the knife
looked like it could cause serious physical injury. The jury was free to
disregard Balli’s claim in the postcard that he “meant no harm” and only
had the knife as protection against wild animals. Accordingly, sufficient
evidence supported Balli’s conviction for first-degree burglary.

              G. Dangerous Offense

¶36            Balli next argues that the superior court erred by finding that
his conviction for first-degree burglary was a dangerous offense because
the allegation of dangerousness should have been submitted to the jury. At
sentencing, the State argued that count 1 was inherently a dangerous
offense because one of the elements of first-degree burglary was the use or
possession of a dangerous instrument. Defense counsel conceded, “this is a
dangerous offense because of the nature of the charge.” He later agreed
with the State’s and the court’s conclusion that count 1 was dangerous. The
court found that count 1 was a dangerous offense. Defense counsel did not
object to the finding or argue that the jury should have made the finding.
Absent an objection, we review the superior court’s decision to enhance a
defendant’s sentence without a jury finding for fundamental error. State v.
Henderson, 210 Ariz. 561, 568, ¶ 22 (2005). To establish fundamental error, a
defendant “must show that the error complained of goes to the foundation
of his case, takes away a right that is essential to his defense, and is of such
magnitude that he could not have received a fair trial.” Id. at ¶ 24.

¶37            A.R.S. § 13-704 provides an enhanced sentencing scheme for
defendants convicted of dangerous offenses. State v. McCray, 218 Ariz. 252,
¶ 19 (2008) (allegation of dangerousness “adds to the underlying offense an
element that subjects the defendant to increased penalties.”). A dangerous
offense requires “the discharge, use or threatening exhibition of a deadly
weapon or dangerous instrument.” A.R.S. § 13-105(13). First-degree
burglary requires a defendant or an accomplice to “knowingly possess[]
explosives, a deadly weapon or a dangerous instrument in the course of
committing any theft or any felony.” A.R.S. § 13-1508(A). Balli’s indictment
alleged that he “knowingly entered or remained unlawfully in another’s
residence while armed with a dangerous instrument.”


                                      15
                               STATE v. BALLI
                             Decision of the Court

¶38            “Generally, an allegation of dangerousness must be found by
a jury. However, a jury need not make a finding of dangerousness where it
is ‘inherent in the crime.’” State v. Larin, 233 Ariz. 202, 212, ¶ 38 (App. 2013)
(citations omitted). As the State concedes, first-degree burglary is not an
inherently dangerous offense as charged in this case. This is because a
defendant may knowingly possess a deadly weapon or dangerous
instrument without the discharge, use, or threatening exhibition of it. Id. at
213, ¶ 40. The superior court erred by denying Balli the right to have
dangerousness decided by a jury beyond a reasonable doubt. The error
went to the foundation of Balli’s case and was, therefore, fundamental error.
See Henderson, 210 Ariz. at 568, ¶ 25.

¶39            The State argues that Balli failed to establish any prejudice
because “no reasonable juror would have failed to find that the charge
involved . . . the ‘threatening exhibition of a deadly weapon or dangerous
instrument.’” See A.R.S. § 13-105(13). We disagree. There was no evidence
at trial that Balli threatened the victim with the knife. The only evidence
was that he was carrying the knife when he entered and left the house. More
importantly, a criminal defendant, not his lawyer, must personally waive a
jury-trial right. See State v. Conroy, 168 Ariz. 373, 376 (1991) (jury trial waiver
is valid only if the defendant is aware of the right and manifests an
intentional relinquishment or abandonment of such right). Accordingly, we
reverse Balli’s sentence for first-degree burglary and remand for further
proceedings.

               H. Jury Instructions

¶40            Balli next argues that the superior court erred by failing to
instruct the jury on the lesser included offenses of second-degree burglary
and criminal trespass. Balli did not object to the final jury instructions.
While discussing the final jury instructions with the prosecutor and the
court, defense counsel affirmatively told the court not to instruct the jurors
on criminal trespass:

               Mr. Gilleo: Your Honor . . . There’s some
               different court opinions that seem[] to indicate
               -- which I don’t necessarily agree with, but
               basically a criminal trespass is not a lesser
               included offense of burglary. And so I don’t
               believe it’s probably proper to have it as a lesser
               included offense. . . . I think there’s some case
               law that suggests that it’s not.




                                        16
                              STATE v. BALLI
                            Decision of the Court

¶41            “[E]xpressly requesting the superior court not to give a
lesser-included offense instruction amounts to invited error precluding the
defendant from arguing on appeal that the instruction should have been
given.” State v. Lucero, 223 Ariz. 129, 136, ¶ 20 (App. 2009) (citation omitted).
Because Balli requested the superior court not to instruct the jury that
trespass was a lesser-included offense of burglary, he is precluded from
raising the issue on appeal.

¶42           Because Balli did not request the superior court instruct the
jury on the lesser included offense of second-degree burglary or object to
the jury instructions at trial, our review is limited to fundamental error
review. State v. Erivez, 236 Ariz. 472, 475, ¶ 13 (App. 2015) (citations
omitted). Balli must, therefore, establish that fundamental error exists and
that he was prejudiced. Id. (citations omitted).

¶43           “[I]f the facts of the case as presented at trial are such that a
jury could reasonably find that only the elements of a lesser offense have
been proved, the defendant is entitled to have the judge instruct the jury on
the lesser-included offense.” State v. Wall, 212 Ariz. 1, 3, ¶ 14 (2006). The
difference between first-degree burglary and second-degree burglary is the
“knowing[] possess[ion] of explosives, a deadly weapon or a dangerous
instrument in the course of committing any theft or any felony.” Compare
A.R.S. § 13-1507(A) with A.R.S. § 13-1508(A).

¶44             Balli did not present any evidence to contradict the evidence
that he entered the victim’s house armed with a knife. As discussed supra
¶ 35, the jury saw video clips of Balli entering and exiting the house holding
a large knife. Balli admitted having a knife in the postcard he sent to his
mother. An instruction on first-degree burglary was the only warranted
instruction because no rational juror could conclude that Balli committed
the lesser-included offense of second-degree burglary. Because the
evidence did not support the lesser-included instruction for second-degree
burglary, we find no error in the superior court’s failure to sua sponte
instruct the jury on the lesser-included offense of second-degree burglary,
fundamental or otherwise.

              I. Testimony About Booking Photo

¶45           Balli next argues that the admission of a deputy’s testimony
that he recognized Balli from a booking photo was reversible error. At trial,
Deputy Smith testified that he recognized Balli “from a booking photo”
when he encountered him in the back yard. Balli did not object to the




                                       17
                              STATE v. BALLI
                            Decision of the Court

testimony, nor request a curative instruction, and there were no additional
references to the booking photo at trial.

¶46            Ordinarily, a defendant’s failure to object to testimony waives
the matter on appeal. State v. Corrales, 138 Ariz. 583, 594 (1983) (citation
omitted). However, if “the error goes to the foundation of the case or is of
such dimensions that it cannot be said it is possible for a defendant to have
had a fair trial, the defendant’s failure to object does not waive his rights on
appeal.” Id. (internal quotation omitted). Because Balli did not object to the
testimony, we review for fundamental, prejudicial error. State v. Escalante,
245 Ariz. 135, 138, ¶ 1 (2018). Introducing evidence that a defendant had
mug shots taken before the arrest in the case at trial “can be error when [the
evidence infers] that the defendant has a prior arrest record.” State v. Kelly,
111 Ariz. 181, 189 (1974). “[T]o reverse a case, the error must be prejudicial
under the facts of the case under consideration.” State v. Ybarra, 97 Ariz. 200,
202 (1965). There must be a reasonable probability that the verdict might
have been different had the error not been committed. Id. (citations
omitted).

¶47           Balli argues that the reference to his booking photo was an
inference of his prior criminal record and so highly prejudicial that his
convictions should be reversed. Although the admission of testimony about
Balli’s booking photo was error, there is no reasonable probability that the
verdict might have different without Deputy Smith’s single, brief reference
to the photo. The evidence was that the victim had a valid order of
protection against Balli when he entered the backdoor of the home without
knocking early in the morning while the victim was asleep. The jury saw
Balli on the video and the large knife he carried, heard testimony that the
victim was physically and emotionally shaken after the incident, and read
the postcard Balli sent to his mother in which he admitted to having
harassed her household and to having the knife.

              J. Presence of Deadly Weapon Aggravator

¶48          Finally, Balli argues that the superior court committed
fundamental error by finding the aggravating factor of a deadly weapon or
dangerous instrument as to count 1. The State concedes that the court
erroneously considered the possession of a deadly weapon in aggravation
of count 1 but argues that Balli cannot establish that he was prejudiced.
Because we are remanding on the dangerousness issue, we need not decide
this claim.




                                      18
                            STATE v. BALLI
                          Decision of the Court

                              CONCLUSION

¶49           For the foregoing reasons, we affirm Balli’s convictions and
his sentence for aggravated harassment but reverse his sentence for first-
degree burglary and remand to the superior court for further proceedings.




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




                                       19
