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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 3-17-2020
STATE v. BALLI

Decision of the Court

2

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.
STATE v. BALLI

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3

“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. 
STATE v. BALLI

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¶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 
STATE v. BALLI

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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).
STATE v. BALLI

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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].” 
STATE v. BALLI

Decision of the Court

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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 crossexamination of the victim’s daughter, but none of the State’s objections or 

the court’s rulings related to her testimony.
STATE v. BALLI

Decision of the Court

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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.
STATE v. BALLI

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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 
STATE v. BALLI

Decision of the Court

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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 crossexamination, 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 
STATE v. BALLI

Decision of the Court

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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).
STATE v. BALLI

Decision of the Court

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¶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 
STATE v. BALLI

Decision of the Court

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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).
STATE v. BALLI

Decision of the Court

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¶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.” 
STATE v. BALLI

Decision of the Court

15

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.” 
STATE v. BALLI

Decision of the Court

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¶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. 
STATE v. BALLI

Decision of the Court

17

¶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 
STATE v. BALLI

Decision of the Court

18

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.
STATE v. BALLI

Decision of the Court

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CONCLUSION

¶49 For the foregoing reasons, we affirm Balli’s convictions and 

his sentence for aggravated harassment but reverse his sentence for firstdegree burglary and remand to the superior court for further proceedings.