[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
from the Superior Court in Pima County, No. CR20170096001,
The Honorable James E. Marner, Judge.
Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief
Counsel, By Amy M. Thorson, Assistant Attorney General,
Tucson, Counsel for Appellee
& Associates, Tucson, By Amy P. Knight, Counsel for Appellant
Judge Eppich authored the decision of the Court, in which
Judge Espinosa concurred and Judge Eckerstrom concurred in
part and dissented in part.
Easton Murray appeals from his conviction for aggravated
assault with a deadly weapon. He contends he was denied a
fair trial by numerous instances of alleged prosecutorial
misconduct, improperly admitted evidence, and evidence and
argument suggesting conviction for an uncharged offense.
Finding few errors, and none warranting reversal, we affirm.
Factual and Procedural Background
We view the facts in the light most favorable to sustaining
the jurys verdict. See State v. Allen, 235
Ariz. 72, ¶ 2, 326 P.3d 339, 341 (App. 2014). On December 16,
2016, Murray and his brother, who had a rifle in his hand,
approached the victim at his apartment and asked that he hold
some marijuana for them. The victim refused and asked Murray
and his brother to leave. An argument ensued, which quickly
escalated into a fight outside the front door. During the
altercation, Murray shocked the victim with a taser and
Murrays brother shot him in the leg.
After a three-day trial in which Murray and his brother were
tried jointly, a jury convicted Murray of aggravated assault
with a deadly weapon. The trial court sentenced Murray to
five years imprisonment. We have jurisdiction over Murrays
timely appeal pursuant to A.R.S. § § 13-4031 and
Victims Translation of Murrays Foreign-Language
We first address Murrays claim that the trial court erred by
victim to testify that during the confrontation, Murray said
to his brother in Jamaican Patois, "[S]hoot him, shoot
the boy." Murray contends that allowing the victim to
translate the words he heard was improper because the victim
was not "a trained interpreter, and certainly not
Because Murray did not object at trial, we review only for
fundamental error. See State v. Henderson,
210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). "A
defendant establishes fundamental error by showing that (1)
the error went to the foundation of the case, (2) the error
took from the defendant a right essential to his defense, or
(3) the error was so egregious that he could not possibly
have received a fair trial." State v.
Escalante, 245 Ariz. 135, ¶ 21, 425 P.3d 1078, 1085
(2018). The victim, who stated that Jamaican Patois is his
"native language," testified as a witness to a
conversation he personally perceived. Murray cites no case,
and we are aware of none, holding that a witness cannot
testify in English to the meaning of what he or she
personally heard and understood in another language. Indeed,
substantial authority holds such testimony admissible.
See, e.g ., United States v. Villalta, 662
F.2d 1205, 1207 (5th Cir. 1981) (witness with personal
knowledge of conversation competent to testify to content of
conversation in foreign language); People v.
Munoz-Casteneda, 300 P.3d 944, 948-49 (Colo.App. 2012)
(same); Commonwealth v. Shooshanian, 210 Mass. 123,
96 N.E. 70 (1911) ("There was no error in permitting the
witness ... to state in English the substance of the
conversation between him and the defendant held in a foreign
language."). The case Murray cites to argue otherwise,
People v. Allen, 22 Ill.App.3d 800, 317 N.E.2d 633,
633-35 (1974), involved a much different situation where the
trial court, over the defendants objection, allowed the
state to use an interested party as an interpreter for a
Nor does Murray cite any authority for the proposition that
only a "trained interpreter" can testify in English
to the meaning of words he heard in another language. Again,
substantial authority holds otherwise. See, e.g.,
Munoz-Casteneda, 300 P.3d at 949 (witness with
"personal knowledge of the relevant conversation"
who "is capable of testifying to a translation of its
contents without misleading the jury[ ] and is subject to
cross-examination ... may testify without first being
certified as an interpreter"); State v. Roldan,
151 N.H. 283, 855 A.2d 445, 449 (2004) (rules governing court
interpreters inapplicable to witnesses testifying to meaning
of foreign-language evidence). We conclude that the victims
testimony in English to the meaning of what he heard in
Jamaican Patois was proper, and no error occurred,
fundamental or otherwise.
Murray contends that while the indictment alleges he
committed aggravated assault with a firearm, the state
improperly presented additional evidence and argument that
Murray used a taser in the assault, qualifying as use of a
"deadly weapon or dangerous instrument" under the
aggravated assault statute. A.R.S. § 13-1204(A)(2). Murray
argues that because the alleged taser use constituted an
entirely different crime from that alleged, the indictment
was automatically amended to conform to the evidence of an
assault by taser. See Ariz. R. Crim. P. 13.5(b)
("[An indictment] is deemed amended to conform to the
evidence admitted during [trial]."). Murray concludes
that because he had no notice of the alleged assault by
taser, and there is no way "to know whether the jury
rested its verdict on the (proper) firearm allegation or the
(improper) taser allegation," the verdict against him
must be set aside.
Because this is another issue Murray did not timely raise at
trial, we review it for fundamental error.
See Henderson, 210 Ariz. 561, ¶ 19, 115
P.3d at 607. An indictment "limits the trial to the
specific charge or charges stated in the ...
indictment," and unless the defendant consents, an
indictment "may be amended only to correct mistakes of
fact or remedy formal or technical defects." Ariz. R.
Crim. P. 13.5(b). An amendment to an indictment that instead
changes the nature of the offense violates Rule 13.5(b),
see State v. Freeney, 223 Ariz. 110, ¶ 20,
219 P.3d 1039, 1042 (2009), and a defendants rights under
the Sixth Amendment may be violated— and fundamental
error may thereby occur— if he does not receive
adequate notice of such an amendment. See State
v. Montes Flores, 245 Ariz. 303, ¶¶ 16-17, 428 P.3d 502,
506 (App. 2018) (citing Freeney, 223 Ariz. 110, ¶¶
16-17, 24-29, 219 P.3d at 1042-44).
No error of any kind occurred here, however. In the trial
courts opening instructions to the jury, it read the
allegation in the indictment— that "Murray
assaulted [the victim] with a deadly weapon or dangerous
instrument, to wit, a firearm." Each juror received a
copy of the indictment. We presume that the jury followed its
instruction and considered the charged offense as alleged,
see State v. Jeffrey, 203 Ariz. 111, ¶ 18,
50 P.3d 861, 865 (App. 2002) (juries presumed to follow
instructions), and nothing that occurred at trial overcomes
this presumption. The defendants use of a taser was part and
parcel of the overall altercation, and therefore was
admissible to put the events in context independent of
showing that they used a deadly weapon or dangerous
instrument. Moreover, in closing arguments, the prosecutor
stressed that the defendants used a firearm— a
gun— which qualified as a deadly weapon and made the
assault an aggravated assault. The prosecutor never argued
that the taser was a deadly weapon or dangerous instrument.
In these circumstances, there is no reason to believe Murray
was convicted for anything other than the offense alleged in
the indictment— aggravated assault using a firearm.
At trial, the prosecutor asked the victim if he recognized
what was depicted in a photograph that appears to show a
dark-colored bale wrapped in clear plastic. The victim said
no. The prosecutor then asked if the victim thought he knew
what the photograph depicted. The trial court overruled
Murrays objection that the question had been asked and
answered, and the state restated the question, asking the
victim if he "[knew] what [the photograph] might
be." The court again overruled Murrays objection that
the question had been asked and answered, and the victim
said, "No. I dont know what was in the black bag."
The prosecutor then asked, "Do you think you know what
[the photograph is] even though it doesnt look familiar to
you?" The victim then answered, "I think I know
what it is. It was in the house." When asked what he
thought it was, the victim replied that it was marijuana.
Murray contends the trial court erred by allowing the
prosecutor to continue to question the victim after he
"repeatedly denied any knowledge of what was in the
photo," contending this violated Rule 602, Ariz. R.
Evid., which requires that a witness have "personal
knowledge" of a matter to which he testifies. Murray
asserts that this testimony was the only evidence
establishing the states proposed motive for the
assault— the victims refusal to assist Murray and his
brother in their marijuana business— and therefore the
testimony prejudiced him.
Because Murray objected at trial, we review the trial
courts rulings for abuse of discretion. See
State v. Pandeli, 215 Ariz. 514, ¶ 41, 161 P.3d 557,
570 (2007). Here, the court had discretion to allow the
prosecutor to continue to probe the victim about the contents
of the photograph even after he initially expressed
unfamiliarity with it. Cf. State v. Lynch,
238 Ariz. 84, ¶¶ 11-12, 357 P.3d 119, 128 (2015) (no abuse of
discretion where court overruled objections to prosecutors
aggressive, combative questioning), revd on other
grounds, __ U.S. __, 136 S.Ct. 1818, 195 L.Ed.2d 99
(2016). And even were we to take the witnesss ultimate
answer as speculation rather than an admissible inference
from personal knowledge and experience, see Ariz. R.
Evid. 701; State v. Peltz, 242 Ariz. 23, ¶ 17, 391
P.3d 1215, 1221 (App. 2017), the answer was merely cumulative
of other evidence that Murray and his brother had brought
marijuana to the apartment for the victim to hold for them.
Any error here was therefore harmless. See State
v. Granados, 235 Ariz. 321, ¶ 35, 332 P.3d 68, 76 (App.
After testifying to his experience and knowledge of the local
marijuana trade, a detective testified, without objection,
that evidence he saw in this case was consistent with the
shipping practices common to that trade. During
cross-examination, Murray asked the detective whether the
evidence could have indicated that marijuana was being
received in addition to being shipped, and the detective
testified that it did. Murray also asked about the
significance of finding multiple cell phones at the scene,
and the detective replied it indicated involvement in
narcotics trafficking. Murray argues that this testimony was
presented as lay witness testimony under Rule 701, but was
actually expert testimony the state did not properly disclose
under Rule 15.1, Ariz. R. Crim. ...