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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AVION TESEAN EDDY, Appellant.

No. 1 CA-CR 20-0140 

 1 CA-CR 20-0219

 (Consolidated)

Appeal from the Superior Court in Maricopa County

No. CR2018-159722-001

The Honorable Monica S. Garfinkel, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Michael O'Toole 

Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix

By Jesse Finn Turner 

Counsel for Appellant

FILED 6-29-2021
STATE v. EDDY

Decision of the Court

2

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which 

Presiding Judge D. Steven Williams and Judge Jennifer B. Campbell joined.

M O R S E, Judge:

¶1 Avion Tesean Eddy appeals his convictions and sentences for 

aggravated assault and disorderly conduct. For the following reasons, we 

affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 On December 9, 2018, Eddy pointed a handgun at D.Z. and 

made threatening statements.1 When officers arrived, Eddy entered the

backyard of a residence and discarded the handgun and a backpack. After

Eddy's arrest, officers located the handgun and backpack. The backpack 

contained marijuana and items consistent with drug sales.

¶3 The State charged Eddy with one count each of aggravated 

assault, a class 3 dangerous felony (Count 1), possession of marijuana for 

sale, a class 4 felony (Count 2), misconduct involving weapons, a class 4 

felony (Count 3), criminal trespass in the first degree, a class 1 misdemeanor 

(Count 4), and disorderly conduct, a class 6 dangerous felony (Count 5).

The State dismissed Count 3 short of trial.

¶4 In the first trial, the jury convicted Eddy of possession of 

marijuana for sale, Count 2, and criminal trespass, Count 4. The jury found 

Eddy committed Count 2 for pecuniary gain and both counts while on 

felony release. The jury, however, could not reach a verdict as to Counts 1

and 5. The State elected to retry those counts in a second trial.

¶5 In the second trial, D.Z. testified that he saw Eddy smoking 

marijuana on the steps outside of his apartment. D.Z. testified that Eddy 

was wearing a "puffy" jacket, carrying a backpack, and sitting near a bicycle.

D.Z. saw that Eddy had baggies and paper packaging next to him. D.Z.

asked Eddy to leave, but he refused and stated he did not "abide by the 

1 We use initials to protect the victim's privacy. See Ariz. R. Sup. Ct. 

111(i); State v. Maldonado, 206 Ariz. 339, 341, ¶ 2 n.1 (App. 2003).
STATE v. EDDY

Decision of the Court

3

laws." Eddy pulled out a handgun, pointed it at D.Z., and called himself a

"gangster." When D.Z. did not back down, Eddy grabbed his belongings

and left the apartment complex.

¶6 D.Z.'s wife, J.B., testified that she looked out the apartment 

window and saw Eddy pointing a handgun at D.Z. J.B. testified that Eddy

had a "puffy" jacket-like vest, gray hat, dark clothing, backpack,

headphones, and blonde-tipped dreadlocks. J.B. testified that Eddy's 

handgun was small and dark, and he was standing near a bicycle and what 

looked like cigar packaging. J.B. testified that she contacted 911 and 

provided a description of Eddy. Though J.B. could not recall a specific time 

frame, she testified that officers responded within minutes of her 911 call 

and she was speaking with dispatch when Eddy left on his bicycle. Shortly

after, J.B. performed an on-scene identification of Eddy. J.B. added that she 

recognized his vest, hat, and dreadlocks.

¶7 The first responding officer testified that dispatch informed 

her of a "subject with a gun." She testified the 911 caller, J.B., reported that 

the perpetrator was a black male with a "puffy" vest, dark clothing, gray 

hat, backpack, headphones, and blonde-tipped dreadlocks. J.B. reported 

the perpetrator was smoking marijuana and riding a black bicycle. Though 

the 911 call was not admitted into evidence, the officer used a dispatch 

report to refresh her recollection as to the details of J.B.'s description. When 

the officer responded to the scene, she saw a person later identified as Eddy 

"matching that exact same description." She drove beside Eddy and asked 

him to stop. Eddy refused, yelling he "didn't do anything wrong." Eddy 

eventually dropped his bicycle and entered the backyard of a residence. 

After Eddy entered a second backyard, officers arrested him and located 

the backpack and handgun. The officer obtained video surveillance of 

Eddy entering the first backyard and confirmed that he matched the 

description provided by J.B. in the 911 call.

¶8 A second officer testified that dispatch informed him of a 

perpetrator pointing a gun at the 911 caller's husband. He testified that the 

caller provided a detailed description of the perpetrator, including an

approximate age and build. The officer responded to the scene and arrested 

Eddy, who matched the description in the 911 call. The officer searched 

Eddy's backpack and located identification cards, cigar packaging, and

marijuana. The officer also seized Eddy's cellular phones and articles of 

clothing. Eddy agreed to speak with the officer but denied any involvement 

in the offenses.
STATE v. EDDY

Decision of the Court

4

¶9 While testifying, both D.Z. and J.B. identified Eddy as the 

perpetrator and confirmed seized items, including the handgun, were 

consistent with items they saw on the day of the offenses. Forensic experts 

testified that an analysis of Eddy's cellular phones and DNA testing of the 

handgun further linked him to the offenses.

¶10 In closing argument, the prosecutor argued J.B. testified based 

on her memory of Eddy's physical appearance, identified him after the 

offenses and at trial, and provided a detailed and accurate description in 

her 911 call. The prosecutor argued Eddy would have addressed

inconsistencies in the 911 call, if they existed, during cross-examination.

Eddy objected, contending that the jury had not heard the 911 call and any 

testimony related to the call was admitted solely to establish the officers'

state of mind. The State argued multiple witnesses provided details of the 

911 call and the testimony fell within the "present sense impression"

exception to the rule against hearsay. The superior court overruled the 

objection. At no point prior to closing argument did Eddy object to

testimony related to the 911 call, take issue with the State's characterization 

of the 911 call, or request the testimony be admitted for a limited purpose.

The superior court instructed the jury not to consider remarks in closing 

argument as evidence.

¶11 The jury found Eddy guilty as charged in Counts 1 and 5. The 

jury did not find that Eddy committed the counts while on felony release.

Before sentencing, Eddy moved for a new trial and argued, in relevant part, 

that the State's use of the 911 call in closing argument prevented him from 

receiving a fair trial. The prosecutor contended statements in the 911 call

fell within hearsay exceptions, the jury heard the statements, and his 

remarks constituted proper argument. The superior court denied the 

motion.

2

¶12 At sentencing, the superior court found Eddy had at least one 

historical prior felony conviction and sentenced him to an aggregate term 

of six years' imprisonment. We have jurisdiction over Eddy's timely appeal 

under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-

120.21(A)(1), 13-4031, and -4033(A)(1), (2).

2 Although the superior court failed to enter a timely ruling on the 

motion for new trial, we deem the motion denied by operation of law and 

treat any claim arising from the motion as adequately preserved. See State 

v. Hill, 174 Ariz. 313, 323 (1993).
STATE v. EDDY

Decision of the Court

5

DISCUSSION

¶13 Eddy argues the superior court erred in overruling his 

objection to the prosecutor's use of the 911 call in closing argument. Eddy 

further claims the superior court erred in denying his motion for new trial 

based on the same issue. We review the superior court's ruling on the

objection for an abuse of discretion. State v. Payne, 233 Ariz. 484, 513, ¶ 118 

(2013). We will not disturb the superior court's denial of the motion for new 

trial absent an affirmative showing the court acted arbitrarily and abused 

its discretion. State v. Durham, 111 Ariz. 19, 23 (1974).

¶14 Counsel must not "comment upon evidence which has not 

previously been offered and placed before the jury," State v. Gonzales, 105 

Ariz. 434, 437 (1970), or "bolster a witness's credibility by reference to 

matters outside the record," State v. Acuna Valenzuela, 245 Ariz. 197, 217, ¶ 

75 (2018). Our courts, however, have long afforded counsel wide latitude 

in closing argument when commenting on admitted evidence and arguing

reasonable inferences therefrom. See Gonzales, 105 Ariz. at 436-37. In 

criminal cases, prosecutors are entitled to criticize defense tactics, argue 

their case was not contradicted, and suggest ultimate conclusions. See State 

v. Bible, 175 Ariz. 549, 602 (1993); State v. Byrd, 109 Ariz. 10, 11 (1972); State 

v. Ramos, 235 Ariz. 230, 238, ¶ 25 (App. 2014). We will not reverse if 

"remarks in the prosecutor's closing argument served only to call the 

attention of the jurors to matters which they were justified in considering 

in determining their verdict." State v. Jones, 109 Ariz. 378, 380 (1973).

¶15 The record does not support Eddy's claim the prosecutor 

injected facts not in evidence, nor does it support his contention the 

evidence was admitted for a limited purpose. Although the State did not 

play the 911 call for the jury, multiple witnesses testified about the 

information conveyed during that call. Officers informed the jury of the 

description J.B. provided to 911 dispatch, confirmed Eddy matched that 

description, and referred to the dispatch report when necessary. J.B.

testified that she contacted 911 and gave dispatch a description of Eddy.

Aside from Eddy's objection in closing argument, he did not object to 

testimony regarding the 911 call, nor did he request the 911 call information 

be used for a limited purpose. See State v. McGann, 132 Ariz. 296, 299 (1982) 

(failing to raise an objection renders evidence admissible for all purposes). 

Absent any indication of limited admissibility, the prosecutor's comment 

on the testimony constituted proper argument. Thus, the superior court 

did not abuse its discretion in overruling the objection or denying the 

motion for new trial on the same basis. 
STATE v. EDDY

Decision of the Court

6

¶16 Eddy's claim that the prosecutor's argument improperly 

bolstered J.B.'s credibility similarly fails. The evidence supported an 

inference that J.B. provided accurate details in her 911 call. In arguing that 

the officer's observations corroborated J.B.'s description to dispatch, and 

vice versa, the prosecutor did not refer to facts outside the record or call the 

jury's attention to matters outside its consideration. See Acuna Valenzuela, 

245 Ariz. at 217, ¶ 75; Jones, 109 Ariz. at 380. Moreover, the prosecutor was 

entitled to argue that Eddy's failure to raise issues with the 911 call during

cross-examination further demonstrated its accuracy. See Ramos, 235 Ariz. 

at 238, ¶ 25. The prosecutor properly suggested that consistent, 

uncontradicted testimony supported the State's theory of the case. See Byrd, 

109 Ariz. at 11.

¶17 To the extent Eddy argues admission of the testimony 

constituted error, we review only for fundamental, prejudicial error. See

State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018); State v. Marlow, 163 Ariz. 65, 

69 (1989) ("Failure to make a timely objection to the introduction of evidence 

waives all except fundamental error."). To prevail on a claim of 

fundamental error, a defendant must first demonstrate trial error. Escalante, 

245 Ariz. at 142, ¶ 21. Here, we agree with the State's assertion that 

statements from the 911 call were admissible under the "Present Sense 

Impression" exception to the rule against hearsay. See Ariz. R. Evid. 803(1).

Statements fall within the "Present Sense Impression" exception if they 

describe "an event or condition, made while or immediately after the 

declarant perceived it." Id. Such statements are "deemed reliable because 

they are made close in time to the events they describe." State v. Tucker, 205 

Ariz. 157, 165, ¶ 42 (2003). J.B. testified that she observed Eddy's conduct 

and appearance as she was providing descriptions to 911 dispatch. The 

admission of J.B.'s contemporaneous statements to dispatch did not 

constitute error, fundamental or otherwise.

¶18 Finally, the superior court mitigated any potential error in 

instructing the jury that remarks in closing argument were not evidence. 

See State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006) (presuming that jurors

follow jury instructions).
STATE v. EDDY

Decision of the Court

7

CONCLUSION

¶19 We affirm Eddy's convictions and resulting sentences.