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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DERRICK TONEY, Appellant.

No. 1 CA-CR 18-0661

Appeal from the Superior Court in Navajo County

No. S0900CR201600484

The Honorable David J. Martin, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By William Scott Simon

Counsel for Appellee

Law Office of Elizabeth M. Hale, Lakeside

By Elizabeth M. Hale

Counsel for Appellant

FILED 10-31-2019
STATE v. TONEY

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Maria Elena Cruz and Judge Kent E. Cattani joined.

W I N T H R O P, Judge:

¶1 Derrick Toney (“Appellant”) appeals from his convictions 

and sentences for five counts of aggravated assault, one count of disorderly 

conduct with a weapon, and one count of threatening and intimidation. For 

the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 One day in July 2016, K.A. was talking to Z.R., J.S., and M.N.

outside K.A.’s home in Snowflake when a car driven by Andre Duran went 

speeding by. K.A. yelled at Duran to slow down, and Duran slammed on 

the brakes and returned to K.A.’s house. Duran jumped out of the car and 

got into an argument with K.A. Duran stated that he would be back with 

“his boys.” Subsequently, K.A.’s neighbor T.N., a Navajo County Deputy 

Attorney, arrived at K.A.’s house.

¶3 Not long after, Duran returned with Appellant and Gary 

Lupe. Appellant, who appeared agitated, jumped out of the car with a tire 

iron in hand and approached K.A., Z.R., J.S., M.N., and T.N. in a threatening 

manner. Appellant threatened to “rough up” or “f*** up” the men. K.A. 

pulled out a gun and told Appellant that if he took another step onto his 

property, he would shoot. The men exchanged trash talk, and Appellant 

stated, “You want to play guns? We’ll play guns. Get the AK.” Two more 

of K.A.’s neighbors, A.D. and S.D., who were driving by, witnessed the 

exchange and decided to stop and see what was happening. Appellant, 

Duran, and Lupe jumped into the car and sped off. M.N. called the police.

¶4 A.D. and S.D. decided to follow the three men, hoping to 

diffuse the situation. They lost sight of the car but caught up with the men 

at Lupe’s grandmother’s house. Appellant was very upset and angry, and 

he repeatedly stated that he was going to go back and shoot the people at 

 

1 We view the facts in the light most favorable to upholding the jury’s 

verdicts. State v. Stroud, 209 Ariz. 410, 412, ¶ 6 (2005).
STATE v. TONEY

Decision of the Court

3

K.A.’s house. After speaking with A.D., Lupe decided not to go back to 

K.A.’s house. Appellant and Duran, however, jumped into the car and sped 

back to K.A.’s house, where they were intercepted by police and arrested.

¶5 In August 2016, a Navajo County grand jury indicted 

Appellant on six counts of aggravated assault, dangerous class 3 felonies, 

one count of misconduct involving weapons, a class 4 felony, and one count 

of threatening and intimidating, a class 1 misdemeanor.2 In September 

2016, Appellant filed a motion to continue a case management conference 

set for September 21, 2016. In the motion, Appellant informed the court

that he intended to file a motion to remove the Navajo County Attorney’s 

Office (“NCAO”) due to a conflict of interest. The court granted the 

continuance and ordered Appellant to file his conflict of interest motion by 

October 14, 2016. He did so, and NCAO agreed to transfer the case to the 

Coconino County Attorney’s Office before the court entered its ruling on 

the motion.

¶6 A jury convicted Appellant of five counts of aggravated 

assault, one count of disorderly conduct with a weapon, and one count of 

threatening and intimidation. The trial court sentenced him to presumptive 

terms of 11.25 years in prison on counts one, three, four, five, and six, the 

presumptive term of 3.75 years in prison on count two, and six months in 

jail on count nine, to run concurrently, and gave him credit for 765 days of 

presentence incarceration. Appellant timely appealed. We have 

jurisdiction pursuant to Arizona Constitution Article 6, Section 9, and 

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

ANALYSIS

¶7 Appellant raises two issues on appeal: (1) whether his due 

process rights were violated because NCAO “refused to recuse itself,” and 

(2) whether the trial court abused its discretion and denied Appellant a fair 

trial by excluding relevant evidence.

I. Timing of NCAO’s Recusal

¶8 Appellant first argues that NCAO should have recused itself 

prior to his motion requesting the recusal. He argues that because Navajo 

County initially brought the charges against him, the “taint of the conflict” 

remained even after NCAO transferred the case to the Coconino County 

 

2 The aggravated assault charged in Count 3 of the indictment was 

specific as to T.N., and he was listed as a victim in the State’s initial 

disclosure.
STATE v. TONEY

Decision of the Court

4

Attorney’s Office. According to Appellant, there is no way to ascertain 

whether he would have been charged in the same way had a neutral office 

been involved at the start of the case and argues that the “entire process 

was fundamentally unfair.”

¶9 “It is within the prosecutor’s discretion to determine whether 

to file charges and which charges to file.” State v. Rodriguez, 158 Ariz. 69, 70

(App. 1988). “It would be inappropriate . . . to encroach on reasonable 

prosecutorial discretion, absent a clear indication of misconduct.” State v. 

White, 194 Ariz. 344, 354, ¶ 42 (1999).

¶10 We find no due process violation. Once the Coconino County

Attorney’s Office assumed prosecution of the case, it had discretion to 

continue to pursue the same charges or to seek an indictment on different 

charges. It chose the former. Regardless, T.N. did not participate in the 

charging of the case. Although NCAO presented the charges, a neutral and 

independent Navajo County grand jury returned the indictment against 

Appellant after determining that the charges were supported by probable 

cause. The charges were brought on behalf of the State, not the County, and 

we will presume they were brought in good faith. Appellant has not 

demonstrated that the bringing of charges was retaliatory in any respect. 

Nor has Appellant shown that the charges were unsupported under the 

law. Moreover, if Appellant thought that there was a problem with the 

grand jury indictment, he should have raised it after the indictment was 

returned and asked for a redetermination of probable cause by a Coconino 

County grand jury. Unless asserted in a motion to remand for 

redetermination of probable cause, such challenges are waived. See Ariz. 

R. Crim. P. 12.9. Further, the jury’s verdicts of guilty beyond a reasonable 

doubt contradicts an assertion that the charging decision was unfair. 

Appellant’s argument that his trial in Navajo County was fundamentally 

unfair because NCAO initially charged the case is based on speculation, 

and there is no indication in the subsequent record that he did not receive 

a fair trial.

II. Appellant’s Precluded Testimony

¶11 Appellant next argues that the trial court erred and violated 

his constitutional rights by precluding his proposed testimony that he 

believed that K.A.’s house “was a drug house or was used for illicit 

activities.” At trial, Appellant testified that when they were pulling up to 

KA’s house, he recognized the house and “knew it was a bad place, bad 

house.” The State objected on the basis that the testimony was irrelevant, 

and the court struck the testimony. Defense counsel warned Appellant, 
STATE v. TONEY

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5

“Don’t go there. It’s not relevant.” Appellant later testified, “I only grabbed 

[the tire iron] for my safety because of what I know about the place.” The 

State objected and the court struck the testimony. Appellant’s testimony 

that the victims “look[ed] suspicious” and that he grabbed the tire iron 

because he thought K.A. was carrying a gun came in without objection, and 

the trial court subsequently gave the jury Appellant’s requested 

justification instructions.

¶12 “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 . . . unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” Ariz. R. Evid. 403. We review the trial court’s 

rulings on the admissibility of evidence for a clear abuse of discretion. State 

v. King, 213 Ariz. 632, 635, ¶ 7 (App. 2006).

¶13 Appellant argues that the trial court abused its discretion by 

excluding the testimony, asserting that his state of mind was relevant 

regarding whether he grabbed the tire iron out of self-defense rather than

to place the others in fear of being harmed. He acknowledges that his 

testimony that K.A.’s house was a drug house was prejudicial, but he 

argues that it was not so prejudicial that it outweighed the probative value 

of the testimony because it explained why he grabbed the tire iron.

¶14 We find no abuse of discretion. Appellant testified that he 

armed himself with the tire iron because the victims were “suspicious” and 

K.A. was armed, and the court instructed the jury on self-defense. Whether 

Appellant also believed that K.A.’s house was a “bad place” or a drug house 

had little additional relevance and would have injected unfairly prejudicial 

information in the case. Thus, the trial court did not clearly abuse its 

discretion by excluding the testimony.

¶15 Furthermore, even if there was error, it was harmless. The 

evidence showed that Appellant jumped out of Duran’s car brandishing a 

tire iron and threatened to hurt the victims. Even after leaving the scene, 

Appellant expressed that he wanted to return to the house and shoot the 

victims. The fact that Appellant voluntarily returned somewhere he 

allegedly believed to be a “bad place” undermines his assertion that his 

belief regarding potential illicit activity at K.A.’s house was important to 

his decision to return or to his defense to the charged offenses. The 

testimony and evidence overwhelmingly supported the verdicts. See State 
STATE v. TONEY

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v. Williams, 133 Ariz. 220, 225 (1982) (“The test for determining harmless 

error is ‘whether there was reasonable probability . . . that a verdict might 

have been different had the error not been committed.’”) (quoting State v. 

McVay, 127 Ariz. 450, 453 (1980)).

CONCLUSION

¶16 For the foregoing reasons, Appellant’s convictions and 

sentences are affirmed.