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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID JACOB SANCHEZ, Appellant.

No. 1 CA-CR 22-0406 

Appeal from the Superior Court in Maricopa County

No. CR2021-100229-001 

The Honorable Michael W. Kemp, Judge

AFFIRMED

COUNSEL

Bain & Lauritano PLC, Glendale

By Sheri M. Lauritano

Counsel for Appellant

Arizona Attorney General’s Office, Tucson

By Tanja K. Kelly

Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge Andrew M. Jacobs delivered the decision of the Court, in 

which Judge Jennifer M. Perkins and Judge David D. Weinzweig joined.

FILED 3-19-2024
STATE v. SANCHEZ

Decision of the Court

2

J A C O B S, Judge:

¶1 David Jacob Sanchez appeals his conviction for seconddegree murder, arguing: (1) his trial without peremptory strikes was 

unconstitutional; (2) the superior court abused its discretion by not using a 

jury selection questionnaire including questions he proposed; and (3) the 

superior court abused its discretion by not admitting evidence of the 

victim’s behavior the day before the murder. We affirm because there is no 

constitutional right to peremptory challenges, the use of jury questionnaires 

is permissive, and the evidence was not admissible under Arizona Rule of 

Evidence (“Rule”) 404(b). 

FACTS AND PROCEDURAL HISTORY

A. N.F. Had an Argument at AutoZone, During Which He 

Touched, But Did Not Assault, an AutoZone Employee. 

¶2 On January 2, 2021, N.F. visited an AutoZone in Peoria over 

an issue with his car’s battery. During an argument with an AutoZone 

employee, N.F. went behind the sales counter and placed his hands on the 

employee. N.F. left when the AutoZone manager mentioned calling the 

police. Peoria police arrived after N.F. left and wrote a report of the 

incident, reflecting that the AutoZone employee did not want to press 

charges. Although the store manager described N.F. as threatening, the 

police report asserted that “[t]here was no assault to an employee.” 

¶3 That evening, N.F. went to Sanchez’s house to hang out with 

Sanchez’s brother. N.F. asked Sanchez if he could borrow money, which 

Sanchez declined. Sanchez never learned of the AutoZone incident before 

shooting N.F. 

B. On the Next Day, Sanchez Shot N.F., Who Sanchez Believed 

Might Have Been Trying to Break Into His Car.

¶4 On January 3, 2021, at around 9:00 am, N.F. banged on 

Sanchez’s door. Sanchez opened and closed the door twice before N.F. 

walked away from the house. N.F. walked towards his car, “grabbed 

something from within [it],” wrapped his shirt around his hand, and began 

walking towards Sanchez’s car. N.F. then unsuccessfully tried to open 

Sanchez’s car. While this was occurring, Sanchez’s brother was watching 

N.F. from inside the house and informed Sanchez that N.F. may have been 

trying to break into his car. 
STATE v. SANCHEZ

Decision of the Court

3

¶5 Hearing this, Sanchez grabbed a gun and walked out of his 

home to confront N.F. Once outside, Sanchez saw N.F. circling his car on 

the street and then walking towards the driveway. When N.F. was on the 

driveway, they exchanged words and Sanchez shot N.F. twice after N.F. 

“reached and made a turning motion,” resulting in N.F.’s death. After 

shooting N.F., Sanchez went inside. Neighbors saw these events and called 

the police. Once the police arrived, Sanchez told them he shot N.F. twice 

after he saw N.F. touching his car. 

C. The Court Declined to Use a Pretrial Questionnaire After 

Discussions With Counsel and Proceeded with Voir Dire. 

¶6 On April 20, 2022, the court held a hearing during which the

judge, State, and defense counsel discussed whether they would select 

jurors via questionnaire or through voir dire. The court decided to proceed 

with voir dire, finding it could appropriately address any potential issues.

¶7 During a subsequent pretrial hearing, the court considered 

the questions it would ask at voir dire and the State’s motion in limine. 

Prior to the hearing, Sanchez proposed using a questionnaire with the 

following questions: (1) Do you believe a property owner has the right to 

protect himself or herself from being assaulted on the property owner’s 

property? (2) Do you believe a person has the right to protect himself or 

herself when a person is on the person’s property and comes at them in an 

aggressive manner? and (3) Do you believe a person has the right to protect 

his or her own property from being stolen? The court chose to exclude these 

questions after concluding they were “stake-out questions” and 

“inappropriate for purposes of voir dire.” At voir dire, neither party moved 

to dismiss any juror for cause and trial began the next day on May 10, 2022.

D. The Jury Found Sanchez Guilty of Second-Degree Murder

After a Nine-Day Trial in Which the Superior Court 

Precluded Reference to the AutoZone Incident.

¶8 At trial, the State presented its witnesses, including neighbors 

who witnessed the shooting, while Sanchez testified on his own behalf. 

Sanchez claimed he shot N.F. in self-defense because N.F. walked toward 

him and behaved “aggressively,” while the State argued Sanchez did not 

act in self-defense, given that he emerged from his house, approached N.F.

before shooting him, and had time to consider his own actions. 

¶9 During the trial, the State moved to preclude evidence of 

N.F.’s confrontation with the AutoZone employee on the grounds that it 

was not relevant and was not admissible as an other act under Rule 404(b). 
STATE v. SANCHEZ

Decision of the Court

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Sanchez argued the incident corroborated his theory that N.F. was an 

aggressor, making Sanchez afraid, and buttressed his description of N.F.’s 

demeanor, making it admissible under Rule 404(b). Sanchez’s counsel 

agreed that as between the AutoZone incident and the shooting, “the facts 

aren’t entirely similar.” The court precluded the evidence because the

AutoZone incident was very factually distinct from the shooting, time had 

passed, establishing its facts would require hearsay, and the AutoZone facts 

had very little factual relationship to the shooting. 

¶10 The jury found Sanchez guilty of second-degree murder. The 

court sentenced him to twenty years. Sanchez timely appealed. We have 

jurisdiction under Article VI, Section 9 of the Arizona Constitution and 

Arizona Revised Statutes §§ 12-120.21(A)(1), 13-4031, and 13-4033(A). 

DISCUSSION

I. Trying Sanchez Without Peremptory Strikes Was Constitutional. 

¶11 Sanchez argues he has a constitutional right to peremptory 

strikes that his trial violated. We review his challenge to the conduct of the 

trial for fundamental error because Sanchez did not raise it prior to appeal. 

State v. Escalante, 245 Ariz. 135, 140 ¶ 13 (2018) (explaining that we review 

a challenge first raised on appeal for fundamental error). To prove 

fundamental error, a defendant bears the burden of first showing 

fundamental error and then showing the fundamental error was 

prejudicial. Id. at 140 ¶ 12. 

A. There Is No Constitutional Error in Omitting Sanchez 

Peremptory Strikes Because There Is No Constitutional 

Right to Peremptory Strikes. 

¶12 Sanchez argues that the use of peremptory strikes is rooted in 

tradition and no other state has eliminated their use. While true, none of 

that makes peremptory strikes constitutionally required. See Ross v. 

Oklahoma, 487 U.S. 81, 88 (1988) (explaining “[w]e have long recognized that 

peremptory challenges are not of constitutional dimension.”). Indeed, 

though George Mason and Patrick Henry urged including peremptory 

challenges in the Constitution, the Framers ultimately opted not to do so.

April J. Anderson, Peremptory Challenges at the Turn of the Nineteenth 

Century: Development of Modern Jury Selection Strategies as Seen in 

Practitioners’ Trial Manuals, 16 Stan. J. Civ. Rts. & C.L. 1, 18 n.108 (2020).

There is no constitutional right to peremptory strikes. There is thus no 

constitutional error in omitting them.
STATE v. SANCHEZ

Decision of the Court

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B. Eliminating Peremptory Strikes Did Not Prejudice Sanchez. 

¶13 Sanchez’s argument that without peremptory strikes he did 

not receive a fair trial amounts to arguing that Arizona’s regime of for-cause 

strikes was insufficient to guarantee him fairness. But Sanchez fails to 

identify any prejudice to him from the inclusion of any juror he could have 

stricken peremptorily under the old rules, and thus fails to suggest any 

prejudice to him from the absence of peremptory strikes. Escalante, 245

Ariz. at 140 ¶ 13.

II. The Court Did Not Abuse its Discretion By Conducting Voir Dire 

Without Using a Questionnaire Including Questions Sanchez 

Proposed. 

¶14 Sanchez argues the court abused its discretion by conducting

voir dire without using a jury questionnaire. We review the court’s decision 

not to use a questionnaire for an abuse of discretion. State v. Thompson, 252 

Ariz. 279, 293 ¶ 45 (2022) (reviewing objections concerning voir dire for an 

abuse of discretion). We see no abuse of discretion here for two reasons.

¶15 First, Rule of Criminal Procedure 18.5 gives the superior court 

discretion to decide whether to use a questionnaire. Ariz. R. Crim. Pro. 

18.5(c) (“Unless the court orders otherwise, the court should require each 

prospective juror to complete a case-specific questionnaire in a manner and 

form approved by the court.”). Here, the court ordered otherwise. And 

even absent an “order[] otherwise,” the rule is merely advisory. It states 

that the court should use questionnaires — not that it must. 

¶16 Second, Sanchez fails to identify any error in declining to ask 

questions he proposed by questionnaire. The court found Sanchez’s 

questions were “stake-out questions” that were “inappropriate for 

purposes of voir dire,” and Sanchez fails to explain why this was an abuse 

of discretion. He thus waived this argument. Ramos v. Nichols, 252 Ariz. 

519, 522 ¶ 8 (App. 2022) (holding that a litigant waives issues and 

arguments when they are not supported by authority, citations, or 

explanations). 

III. The Court Did Not Abuse its Discretion by Granting the State’s 

Motion in Limine Precluding Evidence of the AutoZone Incident. 

¶17 Sanchez argues the court abused its discretion by excluding 

evidence of the AutoZone incident. Sanchez contends Rule 404(b) allows 

evidence of the incident to corroborate his claims of self-defense and that 

N.F. behaved aggressively when Sanchez shot him. The State counters that 
STATE v. SANCHEZ

Decision of the Court

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the AutoZone incident is not admissible because it does not fit within any 

of the categories of other acts listed in Rule 404(b)(2). The State also argues 

the AutoZone incident does not corroborate Sanchez’s testimony. We 

review evidentiary rulings for an abuse of discretion. State v. Romero, 239 

Ariz. 6, 9 ¶ 11 (2016).

A. The AutoZone Incident Was Not Admissible Under Rule 

404(b) to Show a Motive or Intent by N.F. to Attack Sanchez.

¶18 As Sanchez correctly notes, prior acts by victims are 

admissible under Rule 404(b) to show motive and intent only where the 

defendant knew of those acts. State v. Fish, 222 Ariz. 109, 123 ¶ 45 (App. 

2009) (“While the [prior act] evidence was arguably offered in part to show 

the Victim’s motive and intent to attack the Defendant, this stated purpose 

necessarily relates to the Defendant’s state of mind and as such, to be 

admissible, the Defendant must have known of the prior specific 

conduct.”); Ariz. R. Evid. 404(b)(2) (explaining that evidence of other 

crimes, wrongs, or acts may be used for “purposes, such as proof of motive, 

opportunity, intent.”). But the court found Sanchez did not know of the 

AutoZone incident, and he does not appeal that finding. As such, the court 

did not abuse its discretion by precluding reference to the AutoZone 

incident. Fish, 222 Ariz. at 123 ¶ 45.

 B. The AutoZone Incident Was Not Admissible Under Rule 

404(b) to Corroborate Sanchez’s Account of N.F.’s Behavior 

When Sanchez Shot Him.

¶19 Sanchez argues the AutoZone incident was admissible under 

Rule 404(b) to corroborate his descriptions of N.F.’s behavior relating to the 

shooting, citing Fish, 222 Ariz. at 123 ¶ 45. The State argues the incident 

does not corroborate Sanchez’s testimony and does not bolster Sanchez’s 

credibility.

¶20 The State is correct, for reasons the court cited in precluding 

the evidence. The court explained that to be admissible as corroboration, 

“the prior acts have to be very similar to the facts of that [criminal] case, 

which they were in Fish.” Even Sanchez’s counsel admitted that, as 

between AutoZone and the shooting, “the facts aren’t entirely similar.” Yet 

that admission understates it. A verbal altercation over a failed car battery 

that includes touching a store clerk is not like walking around an 

acquaintance’s car and then stepping toward them as they approach you. 

We do not see similarity, much less “very similar” facts, as Fish required for 

admission of a victim’s prior acts that were unknown to a defendant. See 
STATE v. SANCHEZ

Decision of the Court

7

222 Ariz. at 125 ¶ 49 (allowing admission of victim’s other acts unknown to 

defendant because defendant’s description of victim’s unknown other act 

was “very similar” to defendant’s claim of self-defense, and because there 

were no other witnesses to defendant’s actions). 

¶21 The rest of the analysis in Fish shows the superior court did 

not abuse its discretion by precluding the AutoZone incident. The court in 

Fish reversed the exclusion of the other act evidence to corroborate the 

defendant’s claim of self-defense in part because there was an evidentiary 

vacuum: “there was no other witness to the shooting who could testify.” 

See id. Here, as the superior court noted, four witnesses saw Sanchez shoot 

N.F. And the other act evidence had special probative force in Fish, when 

the defendant gave a statement immediately after a shooting that very 

closely tracked the victim’s other acts that were unknown to the defendant. 

Sanchez gave no such statement immediately after shooting N.F. that 

precisely matched the AutoZone facts, making them specially 

corroborative. Accordingly, Fish does not aid Sanchez. 

¶22 In a related vein, Sanchez cites State v. Zaid, 249 Ariz. 154

(App. 2020), which for the same reasons suggests no error in precluding the 

AutoZone incident. There, the court affirmed the superior court’s exclusion 

of evidence of the victim’s prior violent acts, applying Fish. Id. at 159 ¶ 17

(“Zaid has not established any reason the other violent acts would have 

been particularly probative, such as the complete lack of any other 

eyewitnesses or the high degree of similarity between the acts as was 

present in Fish.”). Sanchez correctly cites the standard in Zaid, which is 

drawn in turn from Fish. As explained, the superior court followed Fish in 

precluding the AutoZone incident, and thus did not abuse its discretion.

CONCLUSION

¶23 For these reasons, we affirm.