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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JESSE MICHAEL ETIENNE, Appellant.

No. 1 CA-CR 20-0525 

Appeal from the Superior Court in Yavapai County

No. V1300CR201880344

The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Alice Jones

Counsel for Appellee

Joy Bertrand Esq., Scottsdale

By Joy Bertrand

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in 

which Judge Peter B. Swann and Judge D. Steven Williams joined.

FILED 6-14-2022
STATE v. ETIENNE

Decision of the Court

2

B A I L E Y, Judge:

¶1 Jesse Michael Etienne appeals his conviction and sentence for 

second-degree murder. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The trial evidence revealed the following: Cottonwood police 

officer Roger Scarim was monitoring traffic on a state highway one evening 

when a passing red car registered 107 miles per hour on his speed gun. The 

posted speed limit was 55 miles per hour.

¶3 Officer Scarim followed the red vehicle northbound and 

activated his lights and siren. After the speed limit decreased to 45 miles 

per hour, the officer observed the vehicle enter an intersection against a red 

traffic light without braking, and he lost sight of the vehicle’s taillights. 

Mistakenly thinking the driver turned off the car’s lights, Officer Scarim 

continued the pursuit.

¶4 Meanwhile, B.A. and his wife were travelling southbound on 

the same road. When they were approximately 2,000 feet north of the 

intersection where Officer Scarim lost sight of the speeding vehicle, they 

saw approaching headlights “kind of going all over the road” from a vehicle 

that “didn’t even appear to be on four wheels” while heading toward them.

Seconds later, a northbound red car veered “all the way across right in front 

of” the couple before hitting the curb and flipping “end over end” into an 

adjacent ravine. As B.A. and his wife stopped, they saw Officer Scarim 

drive by them northbound. B.A. called 911 to report the crash, and dispatch 

relayed the information to Officer Scarim, who returned to the scene.

¶5 Officer Scarim located a heavily damaged red BMW sedan on 

its side approximately 60 feet down an embankment along the roadway.

Etienne, the car’s driver, was standing near the vehicle, bleeding profusely

from his head and face. A battered human torso was on the ground next to 

the BMW’s hood.

¶6 The ensuing investigation revealed a “debris field of 

biological matter” stretching more than 100 feet on the roadway northward

from the crosswalk where the car Officer Scarim had been following drove

through a red light. The State’s accident reconstructionist estimated the 

BMW had been travelling 100 to 101 miles per hour when it ran the red light 

and struck the victim in the crosswalk. Investigators also learned that 

Etienne was issued four speeding tickets during the two-year period

preceding the incident.
STATE v. ETIENNE

Decision of the Court

3

¶7 The jury returned a guilty verdict on the charged offense of 

second-degree murder. Etienne timely filed two unsuccessful post-verdict 

motions, one a motion for judgment of acquittal under Arizona Rule of 

Criminal Procedure (“Rule”) 20, and the other a Rule 24.1 motion for new 

trial based on purported instances of prosecutorial error, a lack of evidence 

supporting the verdict, and perceived errors in the jury instructions. At 

sentencing, Etienne admitted he was on probation at the time of the offense, 

and the trial court imposed a presumptive 16-year sentence.

¶8 Etienne timely appealed. We have jurisdiction under Article 

6, Section 9, of the Arizona Constitution and Arizona Revised Statutes 

(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A).

DISCUSSION

I. Sufficiency of the Evidence

¶9 Etienne argues insufficient evidence supports his conviction.

He claims no direct evidence established that the BMW he was driving

struck the victim, and he contends the State failed to prove he acted with 

the requisite state of mind.

¶10 We review claims of insufficient evidence de novo, State v. 

West, 226 Ariz. 559, 562, ¶ 15 (2011), and our review is limited to whether 

substantial evidence exists to support the verdict, see State v. Scott, 177 Ariz. 

131, 138 (1993); Ariz. R. Crim. P. 20(a) (directing courts to enter a judgment 

of acquittal “if there is no substantial evidence to support a conviction”). 

Substantial evidence is such proof that “reasonable persons could accept as 

adequate and sufficient to support a conclusion of defendant’s guilt beyond 

a reasonable doubt.” State v. Mathers, 165 Ariz. 64, 67 (1990) (quoting State 

v. Jones, 125 Ariz. 417, 419 (1980)).

¶11 In our review, we do not distinguish between the probative 

value of direct and circumstantial evidence. State v. Bible, 175 Ariz. 549, 560 

n.1 (1993), abrogation on other grounds recognized by McKinney v. Ryan, 813 

F.3d 798, 815 (9th Cir. 2015). Further, we evaluate the evidence in the light 

most favorable to sustaining the verdict, meaning we draw all reasonable 

inferences and resolve any evidentiary conflicts in support thereof. State v. 

Guerra, 161 Ariz. 289, 293 (1989).

¶12 As relevant here, “[a] person commits second degree murder 

if[,] without premeditation [and] [u]nder circumstances manifesting 

extreme indifference to human life, the person recklessly engages in 

conduct that creates a grave risk of death and thereby causes the death of 
STATE v. ETIENNE

Decision of the Court

4

another person.” A.R.S. § 13-1104(A)(3). “‘Recklessly’ means, with respect 

to a result or to a circumstance described by a statute defining an offense, 

that a person is aware of and consciously disregards a substantial and 

unjustifiable risk that the result will occur or that the circumstance exists.”

A.R.S. § 13-105(10)(c).

¶13 Considering the circumstantial evidence, as outlined above, 

the jury could reasonably conclude that Etienne was driving at least 55

miles per hour over the speed limit at night when he failed to stop at a red 

light and struck the victim, killing him instantly. Based on B.A.’s and his 

wife’s description of the red car crossing into oncoming traffic before 

and/or while crashing, the location of the victim’s torso next to Etienne’s 

damaged vehicle, and the location of the debris field of blood and body 

parts, any conclusion that someone other than Etienne struck the victim is 

not reasonable.

¶14 Additionally, based on the same evidence, and especially in 

conjunction with the four speeding tickets issued to Etienne, the jury could 

reasonably conclude that he consciously disregarded the risk associated 

with driving 100 miles per hour through a red light; namely, the risk of 

striking and killing another motorist or pedestrian. And because the State 

does not have “to negate every conceivable hypothesis of innocence when 

guilt has been established by circumstantial evidence,” State v. Nash, 143 

Ariz. 392, 404 (1985) (citation omitted), Etienne’s innocent explanations of 

the evidence do not require a contrary conclusion. Accordingly, substantial 

evidence supports the verdict, and the trial court properly denied Etienne’s 

Rule 20 and Rule 24.1 motions on this basis. See State v. Neal, 143 Ariz. 93, 

98 (1984) (“A Rule 20 motion is designed to test the sufficiency of the state’s 

evidence.”); State v. Mincey, 141 Ariz. 425, 432-33 (1984) (noting the 

similarity of Rule 20 and Rule 24.1 standards and deciding issues regarding 

sufficiency and the weight of the evidence without separate analyses); State 

v. Davis, 226 Ariz. 97, 99, ¶ 7 (App. 2010) (concluding the trial court did not 

abuse its discretion in denying a motion for new trial based on a claim that 

the verdict was against “the weight of the evidence” where the State 

presented evidence sufficient to support a verdict of guilt).

II. Photographic Evidence

¶15 Etienne argues the trial court reversibly erred by admitting, 

over his objection, several “gory” crime scene photographs of the victim’s 

torso in violation of Rules 401 and 403 of the Arizona Rules of Evidence. At 

the close of the State’s case-in-chief, Etienne also unsuccessfully moved for 

a mistrial, arguing again that the photographs were improperly admitted.
STATE v. ETIENNE

Decision of the Court

5

¶16 We review a trial court’s admission of photographs and 

denial of a mistrial motion for an abuse of discretion. State v. Bocharski, 200 

Ariz. 50, 56, ¶ 27 (2001); State v. Walton, 159 Ariz. 571, 581 (1989), overruled 

on other grounds by Ring v. Arizona, 536 U.S. 584, 603 (2002).

¶17 To determine the admissibility of a purportedly gruesome 

photograph, the trial court considers the relevance of the photograph, its 

inflammatory nature, and whether its probative value is outweighed by the 

potential for prejudice. State v. Cruz, 218 Ariz. 149, 168-69, ¶ 125 (2008)

(citations omitted); see also Ariz. R. Evid. 401 (“Evidence is relevant if . . . it 

has any tendency to make a fact more or less probable than it would be 

without the evidence; and . . . the fact is of consequence in determining the 

action.”), 403 (“The court may exclude relevant evidence 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 needlessly presenting cumulative 

evidence.”). Relevant photographs that are gruesome or inflammatory may 

be admissible unless they are “admitted for the sole purpose of inflaming 

the jury.” State v. Morris, 215 Ariz. 324, 339, ¶ 70 (2007) (citation omitted).

¶18 The torso photographs—each depicting the BMW and the 

adjacent torso from a different angle—were relevant because they helped

illustrate what happened. See State v. Rienhardt, 190 Ariz. 579, 584 (1997), 

abrogation on other grounds recognized by McKinney, 813 F.3d at 816; see also

Morris, 215 Ariz. at 339, ¶ 70 (“Photographs of a victim’s body are always 

relevant because ‘the fact and cause of death are always relevant in a 

murder prosecution.’” (citations omitted)). Indeed, the photographs were 

highly probative because, as noted, they depicted a key piece of evidence 

tying Etienne to the killing. And specifically, the visible state of the victim’s 

torso was relevant for determining Etienne’s excessive speed at the time of 

the collision. As the State’s expert testified, a vehicle travelling 45 miles per 

hour can dismember a human body. In light of the photographs’ relevance, 

the trial court acted within its discretion in determining the torso 

photographs were not introduced to inflame the jury. See Rienhardt, 190 

Ariz. at 584 (“There is nothing sanitary about murder, and there is nothing 

in Rule 403, Ariz. R. Evid., that requires a trial judge to make it so.”). The 

court did not err by admitting the photographs.

1

1 Because the photographs were relevant to establish Etienne was 

driving over the speed limit when he struck the victim, we reject Etienne’s 

argument that the prosecutor engaged in misconduct by proffering the 
STATE v. ETIENNE

Decision of the Court

6

III. Prosecutorial Error

¶19 Etienne contends he was entitled to a new trial based on 

multiple instances of prosecutorial error or misconduct during closing 

arguments.2 We disagree.

¶20 We review the trial court’s denial of a new trial motion based 

on claims of prosecutorial error for an abuse of discretion. See generally

Miller v. Superior Ct., 189 Ariz. 127, 129 (App. 1997); see also State v. Lee, 189 

Ariz. 608, 616 (1997) (noting that, because the trial court is in the best 

position to determine the effect of a prosecutor’s comments on the jury, we 

will not disturb the trial court’s ruling absent an abuse of discretion).

¶21 “To prevail on a claim of prosecutorial [error], a defendant 

must demonstrate that ‘(1) misconduct is indeed present; and (2) a 

reasonable likelihood exists that the misconduct could have affected the 

jury’s verdict, thereby denying defendant a fair trial.’” State v. Moody, 208 

Ariz. 424, 459, ¶ 145 (2004) (citation omitted). That is, if a defendant 

establishes the presence of prosecutorial error, he must demonstrate that it 

“so infected the trial with unfairness as to make the resulting conviction a 

denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). 

evidence for purposes of determining his driving speed. Although the 

State’s case agent, who was trained and experienced in investigating vehicle 

accidents, testified that the significantly damaged torso’s visible 

characteristics alone were insufficient to determine the driver’s speed, it 

does not necessarily follow that the torso photographs were immaterial for 

such a purpose. The case agent also estimated that Etienne was driving 100 

miles per hour when he struck the victim, and the photographs were 

admissible to corroborate that testimony. See Morris, 215 Ariz. at 339, 

¶¶ 70-71 (concluding that photographic evidence of the victim’s body was 

admissible for corroboration purposes). The prosecutor’s stated rationale 

for admitting the photographs was proper.

2 In 2020, our supreme court instructed that a distinction be made 

between prosecutorial “error” and “misconduct.” See In re Martinez, 248 

Ariz. 458, 470, ¶ 47 (2020) (“When reviewing the conduct of prosecutors in 

the context of ‘prosecutorial misconduct’ claims, courts should differentiate 

between ‘error,’ which may not necessarily imply a concurrent ethical rules 

violation, and ‘misconduct,’ which may suggest an ethical violation.”).

Cases decided before Martinez generally do not make that distinction, 

referring to instances of prosecutorial impropriety as “misconduct.” See, 

e.g., id. at 463-65, ¶¶ 9-19.
STATE v. ETIENNE

Decision of the Court

7

“Reversal on the basis of prosecutorial misconduct requires that the 

conduct be so pronounced and persistent that it permeates the entire 

atmosphere of the trial.” State v. Atwood, 171 Ariz. 576, 611 (1992) (internal 

quotation marks and citations omitted), disapproved on other grounds by State 

v. Nordstrom, 200 Ariz. 229, 241, ¶ 25 (2001); accord Lee, 189 Ariz. at 616.

¶22 Etienne points to five statements that he contends amounted 

to prosecutorial error. We address each in turn, keeping in mind that 

counsel have “wide latitude” when arguing to the jury. State v. Jones, 197 

Ariz. 290, 305, ¶ 37 (2000).

¶23 First, referring to the four speeding tickets, the prosecutor 

urged the jury to find that Etienne was “aware of the dangers of speeding.” 

That comment was proper because it was a reasonable inference to draw 

from the evidence. See Bible, 175 Ariz. at 602 (“[D]uring closing arguments 

counsel may summarize the evidence, make submittals to the jury, urge the 

jury to draw reasonable inferences from the evidence, and suggest ultimate 

conclusions.” (citations omitted)).

¶24 Second, the prosecutor argued that Etienne “was aware of 

and consciously disregarded a substantial and unjustifiable risk that 

someone might die as a result of his conduct.” (Emphasis added.) But the 

second-degree murder statute requires proof that a defendant “recklessly 

engages in conduct that creates a grave risk of death and thereby causes the 

death of another person.” A.R.S. § 13-1104(A)(3). Nonetheless, whatever

error occurred based on the prosecutor’s use of the word “might” was 

cured by both the final jury instructions, which correctly mirrored the

statutory language of § 13-1104(A)(3), and the prosecutor’s correction when 

he immediately thereafter stated: “[D]efendant was aware of and 

consciously disregarded a substantial and unjustifiable risk that someone 

will die as a result of his conduct.” On this record, we conclude that the 

prosecutor’s use of the word “might” did not affect the verdict.

¶25 Third, during initial closing argument, the prosecutor stated: 

“The State is not required to prove the why or defendant’s motive for 

driving at over 100 miles per hour through a red light striking and killing

[the victim] in the crosswalk. The State just needs to prove he did this.” In 

rebuttal, the prosecutor continued:

The State does not need to prove defendant’s intent or 

knowledge. The State needs to prove the defendant acted 

recklessly; that defendant is aware of and consciously 

disregards a substantial and unjustifiable risk that his conduct 
STATE v. ETIENNE

Decision of the Court

8

will result in death. That is what the State needs to prove, not 

the why.

¶26 Despite Etienne’s objection, the prosecutor was not arguing

that the State did not bear the burden of proving Etienne’s mental state. 

Rather, the prosecutor correctly informed the jury that second-degree 

murder requires proof of recklessness, not that Etienne intended or knew 

the victim would die as a result of his driving. Further, the prosecutor’s 

statement that proof of motive was not required correctly reflected the law. 

See State v. Hunter, 136 Ariz. 45, 50 (1983) (noting that, although motive is 

relevant, it is not an element of murder).

¶27 Fourth, the prosecutor referred to defense counsel’s crossexamination of the accident reconstructionist on the topic of converting

miles per hour to feet per second and noted that the expert “corrected 

defense counsel on her math, and she agreed she was mistaken.” The 

prosecutor’s statement correctly reflected the exchange between defense 

counsel and the witness, and viewed in context, it was not denigrating 

toward defense counsel as Etienne asserts. Rather, the prosecutor was 

reminding the jurors that, consistent with their instructions, “what defense 

counsel and I say is not evidence.” We discern no error.

¶28 Fifth, as he approached the conclusion of his initial closing

argument, the prosecutor told the jury:

Don’t be misled. Don’t be confused. The defense is 

going to challenge and attack the two very things they know. 

They know that demonstrates extreme indifference to human 

life; running a red light at over 100 miles per hour. Don’t 

believe them. Don’t be fooled by them. Confusion is the 

jury’s biggest problem. If defense counsel is able to confuse 

you, she will put doubt in your minds.

¶29 Defense counsel objected, arguing at the ensuing bench 

conference that the prosecutor was “maligning my integrity.” The court 

sustained the objection and asked defense counsel, “How do you suggest 

we correct it?” Defense counsel responded, “I think the State has to say that 

. . . they are in no way maligning my integrity.” When the proceedings 

resumed in front of the jury, the prosecutor did as suggested, stating, “I 

would like to say that in no way are my comments that I’m making right 

now [] maligning the integrity of defense counsel. Don’t be confused by the 

evidence that may be presented to you.” Given the prosecutor’s latter 
STATE v. ETIENNE

Decision of the Court

9

statement, we conclude that any initial error by the prosecutor did not 

impact the verdict.

¶30 In sum, none of the prosecutor’s challenged statements 

standing alone denied Etienne a fair trial. They also did not cumulatively 

do so because the prosecutor’s errors were not “persistent and pervasive,” 

and nothing in the record indicates the prosecutor intentionally erred to 

prejudice Etienne. See State v. Hulsey, 243 Ariz. 367, 394, ¶ 122 (2018)

(“When assessing cumulative error, this Court considers whether persistent 

and pervasive misconduct occurred and whether the cumulative effect of 

the incidents shows that the prosecutor intentionally engaged in improper 

conduct and did so with indifference, if not specific intent, to prejudice the 

defendant.” (internal quotation marks and citation omitted)). Accordingly, 

Etienne was not entitled to a new trial on the basis of prosecutorial error or 

misconduct.

IV. Jury Instructions

¶31 Etienne argues the trial court erred by denying his request for 

two jury instructions. We review the refusal to give requested jury 

instructions for an abuse of discretion, deferring to the trial court’s 

evaluation of the evidence. State v. Wall, 212 Ariz. 1, 3, 5, ¶¶ 12, 23 (2006). 

A party is entitled to a jury instruction on any theory reasonably supported 

by the evidence, Moody, 208 Ariz. at 467, ¶ 197, but a court does not err by 

refusing to give an instruction that “does not fit the facts of the particular 

case[] or is adequately covered by the other instructions,” State v. Hussain, 

189 Ariz. 336, 337 (App. 1997) (citation omitted); see also State v. Mott, 187 

Ariz. 536, 546 (1997) (“A trial court is not required to give a proposed 

instruction when its substance is adequately covered by other instructions.”

(citation omitted)). Conversely, “[a] court abuses its discretion by giving an 

instruction contrary to law or unsupported by the record.” State v. Aragon

ex rel. Pima Cnty., 252 Ariz. 525, 528, ¶ 6 (2022) (citations omitted).

¶32 Etienne contends he was entitled to an instruction under 

A.R.S. § 28-672, which makes it a class 1 misdemeanor to seriously injure or 

kill someone as a result of violating a traffic regulation. According to 

Etienne, that offense is a “proper” lesser-included offense of second-degree 

murder and should have been available for the jury’s consideration.

¶33 A lesser-included offense is an offense “composed solely of 

some but not all of the elements of the greater crime so that it is impossible 

to have committed the crime charged without having committed the lesser 

one.” State v. Celaya, 135 Ariz. 248, 251 (1983) (citation omitted). This court 
STATE v. ETIENNE

Decision of the Court

10

has recently addressed whether violation of § 28-672 is a lesser-included 

offense of second-degree murder and concluded it is not. See State v. Teran, 

1 CA-CR 21-0148, 2022 WL 1146355, *6, ¶ 36 (Ariz. App. Apr. 19, 2022). We 

perceive no reason to depart from Teran. The trial court therefore did not 

abuse its discretion by denying Etienne’s request to instruct the jury under 

§ 28-672. See Wall, 212 Ariz. at 3, ¶¶ 13-14 (noting the trial court is required 

to instruct only on “necessarily included offenses”); accord State v. Gipson, 

229 Ariz. 484, 486, ¶ 14 n.2 (2012) (“An offense is necessarily included ‘when 

it is lesser included’ and ‘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.’” (quoting Wall, 212 Ariz. at 3, ¶ 14)).

¶34 Etienne also asserts the trial court erred by denying his 

request for a causation instruction under Revised Arizona Jury Instructions

(“RAJI”) Statutory Criminal Instruction 2.03 (5th ed. 2019). That 

superseding cause instruction reads as follows:

Conduct is the cause of a result when both of the following 

exist: 

1. But for the conduct the result in question would not have 

occurred. 

2. The relationship between the conduct and result satisfies 

any additional causal requirements imposed by the definition 

of the offense.

In order to find the defendant guilty of [the crime], you must 

find that the [death] [injury] was proximately caused by the 

acts of the defendant. 

The proximate cause of a [death] [injury] is a cause which, in 

natural and continuous sequence, produces the [death] 

[injury], and without which the [death] [injury] would not 

have occurred. 

Proximate cause does not exist if the chain of natural effects 

and cause either does not exist or is broken by a superseding 

intervening event that was unforeseeable by the defendant 

and, with the benefit of hindsight, may be described as 

abnormal or extraordinary. 
STATE v. ETIENNE

Decision of the Court

11

The State must prove beyond a reasonable doubt that a 

superseding intervening event did not cause the [death] 

[injury]. 

RAJI Stat. Crim. 2.03 (emphasis added).

¶35 “[B]oth ‘but for’ causation and proximate cause must be

established in a criminal case.” State v. Marty, 166 Ariz. 233, 236 (App. 1990)

(citation omitted). Under the facts of this case, the State was required to

prove that “but for” Etienne’s conduct, the victim’s death would not have

occurred. See id.; see also A.R.S. § 13-203(A)(1) (stating that conduct is the 

cause of a result when the result in question would not have occurred but 

for the conduct at issue). To establish proximate cause, the State was 

required to establish that the difference between the result intended and the 

harm actually suffered was not so extraordinary that it would be unfair to 

hold Etienne responsible for the victim’s death. See Marty, 166 Ariz. at 237

(citation omitted). Proximate cause may be interrupted when “another 

cause ‘with which the defendant was in no way connected intervenes, and 

but for which death would not have occurred.’” Id. (citations omitted). An

intervening cause is a superseding event, but only when unforeseeable and,

with benefit of hindsight, abnormal or extraordinary. State v. Bass, 198 Ariz.

571, 575-76, ¶¶ 11-13 (2000).

¶36 “To determine whether a defendant is entitled to a 

superseding cause jury instruction, a court should first determine whether 

the event is an intervening event.” Aragon, 252 Ariz. at 530, ¶ 17. “[A]n 

intervening event is ‘one that actively operates in producing harm after the 

original actor’s act or omission has been committed.’” Id. (quoting Herzberg

v. White, 49 Ariz. 313, 321 (1937)) (ellipsis and additional citations omitted).

“[W]here the defendant’s course of conduct actively continues up to the 

time the injury is sustained, then any outside force which is also a 

substantial factor in bringing about the injury is a concurrent cause of the 

injury and never an intervening force.” Id. at 529, ¶ 11 (internal quotation 

marks and citations omitted).

¶37 Here, the victim’s dark clothing and theoretical jaywalking3

did not “actively operate” to cause his death after Etienne ran the red light 

3 The debris field was the only evidence establishing the victim’s 

location at the time he was struck, and it indicated he was in the 

intersection’s crosswalk. Nonetheless, Etienne argued to the jury that 

vehicles passing through the debris field possibly disrupted it, thereby 

indicating that the point of impact could have been outside the crosswalk.
STATE v. ETIENNE

Decision of the Court

12

at a high rate of speed. The victim’s behavior was not an intervening event

and therefore not a superseding cause. See id. at ¶ 10 (explaining that, if an 

event is not an intervening one, it is not a superseding cause for purposes 

of determining whether a defendant is entitled to a superseding cause 

instruction). Accordingly, the trial court did not abuse its discretion in 

denying the causation instruction.

¶38 Because we have determined the trial court correctly denied 

Etienne’s requested jury instructions, the court did not err in denying 

Etienne’s motion for new trial on this basis.

V. Sentence

¶39 Finally, Etienne argues his 16-year flat-time sentence was 

improperly enhanced because, as compared to other vehicular homicide 

cases, it reflects an arbitrarily harsh outcome in violation of his due process 

rights. But the trial court was required by statute to impose the sentence 

because Etienne was on probation at the time of the offense. See A.R.S. 

§§ 13-708, -710(A). Etienne’s argument is more properly made to the 

Arizona Legislature, not this court. See State v. Jackson, 186 Ariz. 490, 491-

92 (App. 1996).

¶40 Etienne’s similar claim—that his sentence violates the Eighth 

Amendment’s and Arizona’s prohibitions against cruel and unusual 

punishment—is without merit. See U.S. Const. amend. VIII; Ariz. Const. 

art. 2, § 15; see also State v. Long, 207 Ariz. 140, 144, ¶ 21 n.2 (App. 2004) 

(treating the provisions as coterminous). Etienne engaged in highly 

reckless conduct that endangered other motorists and led to the violent 

death of an innocent person. In these circumstances, a 16-year prison term 

is not disproportionate, much less grossly so. See Jackson, 186 Ariz. at 492.

CONCLUSION

¶41 Etienne’s conviction and sentence are affirmed.