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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FRANKIE TOMMY ACOSTA, Appellant.

Nos. 1 CA-CR 16-0097, 1 CA-CR 16-0319

(Consolidated)

Appeal from the Superior Court in Maricopa County

Nos. CR2014-125609-001, CR2005-006385-004

The Honorable Jerry Bernstein, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Elizabeth B. N. Garcia

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Rena Glitsos

Counsel for Appellant
STATE v. ACOSTA

Decision of the Court

2

MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Maurice Portley joined.1

O R O Z C O, Judge:

¶1 Frankie Tommy Acosta appeals his convictions and sentences

for aggravated assault, a class 3 dangerous felony (Count 1); assault, a class 

3 misdemeanor and domestic violence offense (Count 2); and misconduct 

involving weapons, a class 4 felony (Count 3).

2 Because Acosta has shown 

no reversible error, we affirm.

BACKGROUND

¶2 On the morning of May 26, 2014, while shopping at Walmart, 

Kelly Daley saw Acosta and his girlfriend, A.O.3, arguing. Daley was 

concerned for A.O., because she looked “really, really scared” and “afraid 

of [Acosta],” so Daley followed them as they left the store. When Acosta 

started yelling at A.O. in the parking lot, Daley called 9-1-1. Then Daley 

saw Acosta choke A.O. 

 

1 The Honorable Patricia A. Orozco and Honorable Maurice Portley, 

Retired Judges of the Court of Appeals, Division One, have been authorized 

to sit in this matter pursuant to Article VI, Section 3 of the Arizona 

Constitution.

2 Acosta was granted leave to file a delayed notice of appeal on the 

revocation of his probation previously imposed in CR2005-006385-004 DT. 

Acosta’s opening brief, however, fails to comply with Arizona Rule of 

Criminal Procedure 31.13(c)(1)(vi), requiring the brief to contain “the 

contentions of the appellant with respect to the issues presented . . . with 

citations to the authorities, statutes and parts of the record relied on.” 

Accordingly, Acosta has waived any challenge to the revocation of his 

probation and resulting sentence, and therefore we decline to address it.

3 We use the victims’ initials to protect their identity and privacy. See 

State v. Maldonado, 206 Ariz. 339, 341 n.1, ¶ 2 (App. 2003).
STATE v. ACOSTA

Decision of the Court

3

¶3 At the same time, A.S. and his family drove into the Walmart 

parking lot and saw Acosta grab A.O. by the throat, pick her up, slam her 

against a car, and shove her into a white sport utility vehicle. In an attempt 

to assist, A.S. stopped his car in the middle of the aisle and approached the 

couple. As A.S. took a few steps forward, he told Acosta “hey, homie, you 

need to stop.” Acosta turned around and pointed a gun at A.S.’s head and

then his chest. A.S. retreated with his hands in the air, saying “hey man, 

I’ve got my kids with me.” As A.S. backed away, Acosta charged at him, 

then turned, walked away, got into the white SUV, and sped off. A.S. took 

down the license plate of the white SUV. When the police arrived, they 

interviewed Daley and A.S., and took their written statements. Two 

Walmart security cameras captured video, but not audio, of the entire 

encounter from two different angles. 

¶4 Acosta was charged with aggravated assault of victim A.S. 

(Count 1); misdemeanor assault of victim A.O. (Count 2); and misconduct 

involving weapons (Count 3). Given these charges, a petition to revoke 

Acosta’s probation imposed in CR2005-006385-004 DT was filed. A jury 

found Acosta guilty of aggravated assault. Based upon that conviction the 

court found Acosta in automatic violation of his probation for the 2005 

conviction. The trial court found Acosta guilty of misdemeanor assault.

4

In a later proceeding, Acosta pled guilty to misconduct involving weapons, 

which had been severed from the other two counts at the beginning of trial.

5

Acosta was sentenced to 11.5 years’ imprisonment for Count 1; 30 days’

incarceration for Count 2, with credit for time served; two years’ probation 

for Count 3 to be served upon release on Count 1; and four years’ 

imprisonment for the probation violation to be served consecutive to the 

sentence in Count 1. Acosta was granted 734 days’ credit for time served. 

 

4 Pursuant to the comment of Arizona Rule of Criminal Procedure 18.1 

“[a] defendant has a right to a jury trial when charged with . . . an offense 

which carries a sentence more severe than 6 months in jail[.]” Since Count 

2 was amended to a class 3 misdemeanor, Acosta was only facing thirty 

days in jail, therefore the court considered the evidence presented. The jury 

was only asked to reach a verdict on Count 1. 

5 See State v. Burns, 237 Ariz. 1, 15, ¶ 39 (2015) (holding that unless the 

parties have stipulated to a defendant’s status as a prohibited possessor, a 

court can conduct a bifurcated trial to adjudicate any charge that requires 

evidence of a prior felony conviction).
STATE v. ACOSTA

Decision of the Court

4

¶5 Acosta timely appealed his convictions and sentences.

6 Upon 

leave of court, he filed a delayed appeal from the finding of a probation 

violation, and the appeals were consolidated. We have jurisdiction 

pursuant to Article VI, Section 9, of the Arizona Constitution and Arizona 

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

7

DISCUSSION

¶6 We review the trial court’s determination of admissibility of 

impeachment evidence for an abuse of discretion. State v. Sucharew, 205 

Ariz. 16, 23, ¶ 19 (App. 2003). We will reverse the court’s determination 

“only when [it] constitute[s] a clear, prejudicial abuse of discretion.” State 

v. Ayala, 178 Ariz. 385, 387 (App. 1994).

I. Preclusion of Written Witness Statements

¶7 Acosta contends the trial court abused its discretion in 

precluding the written statements A.S. and Daley made to police, arguing 

they were admissible for impeachment as extrinsic evidence under Arizona 

Rules of Evidence 613 and 806. Specifically, Acosta asserts the court 

“applied the wrong standard for determining the admissibility of extrinsic 

evidence of prior inconsistent statements.” 

¶8 A.S.’s testimony revealed two statements inconsistent with 

his written statement, and defense counsel impeached him with both. On 

direct examination, A.S. testified a third person came out of the white SUV 

before Acosta pointed the gun at him. A.S. stated this unidentified young 

male “was trying to warn me, when I first got out of my vehicle, just to leave 

the situation alone and just get back in my vehicle and go.” On crossexamination, defense counsel showed A.S. his written statement, which he 

reviewed and authenticated. Upon questioning, A.S. admitted that 

although he testified the third person exited the white SUV before Acosta 

pulled the gun on him, his written statement stated the third person came 

 

6 Since Acosta pled guilty to Count 3, he is precluded from appealing 

that conviction and sentence on direct appeal. See Ariz. Rev. Stat. § 13-

4033.B (“In noncapital cases a defendant may not appeal from a judgment 

or sentence that is entered pursuant to a plea agreement or admission to a

violation of probation.”).

7 Absent material revisions after the time the offense was committed, 

statutes and rules cited refer to the current version unless otherwise 

indicated.
STATE v. ACOSTA

Decision of the Court

5

out after Acosta pointed the gun, and the security video confirmed his 

written account. 

¶9 Additionally A.S. testified that Acosta pointed the gun at him 

once. He said that initially Acosta pointed the gun at his head, then “[i]t 

was lowered, appeared to be down towards my chest. But it could have 

been just lowered, you know . . . .” On cross-examination, defense counsel 

challenged him on his written statement, which indicated Acosta pointed 

the gun at him twice. A.S.’s written statement stated Acosta “choked [A.O.] 

and slammed her against the vehicle [then] pointed a gun to my head [then] 

chest, he continued to throw her into the vehicle watching both me and her 

very nervously he then pointed the gun back at me.” When questioned, 

A.S. admitted the written statement was wrong and confirmed that the 

security video did not show a second pointing of the gun after Acosta 

shoved A.O. into the SUV. 

¶10 Daley’s testimony revealed one statement inconsistent with 

her written statement, and likewise defense counsel impeached her with it. 

On direct examination, Daley testified that she saw Acosta “pull something 

out, do something, and he was holding his arm out” and “waving it 

around.” Based upon the crowd’s reaction, she stated she believed Acosta 

pulled out a gun. On cross-examination, defense counsel showed Daley her 

written statement, which she reviewed and authenticated. Upon 

questioning, Daley admitted that her written statement did not say she saw 

Acosta’s arm movements. She further admitted she did not see exactly 

what happened between Acosta and A.S. because she was hiding behind a 

car. 

¶11 After impeaching both A.S. and Daley, Acosta moved to 

admit the written statements provided to police, but the State objected on 

the grounds that the statements were part of the police report. A bench 

conference followed:

THE COURT: You are trying to get it in under what basis, 

what exception?

MR. CLARK [Acosta’s counsel]: Well, it’s a statement of a 

witness that they wrote in their own handwriting that I asked 

them each individually on the stand if that statement was 

accurate and that that is something that they related to the 

police. Yes. Now we have differing statements and I want to 

- - in some respects we have statements that are different. 
STATE v. ACOSTA

Decision of the Court

6

With respect to [A.S.], when he was on the stand he said stuff 

that was different than what he wrote.

THE COURT: But he said - - and you read from those reports, 

and he said those were - -

MR. CLARK: I did.

THE COURT: So maybe I’m - - so how is that going to 

impeach if he said they were accurate and you read from the 

statements? What purpose are you trying to get it in? Under 

what basis?

MR. CLARK: Well, I don’t want the State to come up here 

[and] argue his different version of events when in fact when 

it was fresh in his mind he wrote in his own handwriting what 

he saw and observed.

THE COURT: I am saying you basically read from it so we 

already know about that, correct?

MR. CLARK: I did.

. . . . 

THE COURT: See, what I’m saying is that before you 

establish that, and he said it was accurate, so how is it 

impeaching it? It’s a recently fabricated statement. He said 

basically, yeah, that was what I said or that’s what I wrote.

MR. CLARK: Under 806 I can do it by attacking under 

supporting declarant’s credibility.

THE COURT: He’s saying that’s what he said. It’s not 

impeaching it. Do you understand what I am saying?

MR. CLARK: I know. My only concern is he said something 

inconsistent on direct.

THE COURT: But you already impeached him and he didn’t 

deny it. Ordinarily I’d say yes, but I’m saying, yes, he said, 

that’s what I wrote.

Upon which, the court denied Acosta’s request. 
STATE v. ACOSTA

Decision of the Court

7

¶12 Evidence of A.S. and Daley making prior statements 

inconsistent with their trial testimony is admissible both for impeachment 

and substantive evidence as non-hearsay. Ariz. R. Evid. 801(d)(1)(A). And 

the superior court allowed such evidence to be admitted during crossexamination. The question here, however, is whether the superior court 

was also required to admit the prior inconsistent written statements in the 

form of Exhibit 18.

¶13 Contrary to Acosta’s assertion, Rule 806 is inapplicable here. 

Under the Rule,

[w]hen a hearsay statement . . . has been admitted in evidence, 

the declarant’s credibility may be attacked . . . by any evidence 

that would be admissible for those purposes if the declarant had 

testified as a witness. The court may admit evidence of the 

declarant’s inconsistent statement . . . regardless of when it 

occurred or whether the declarant had an opportunity to 

explain or deny it. 

(Emphasis added.) 

¶14 We interpret Rule 806 “to specifically permit impeachment of 

hearsay statements by absent declarants.” State v. Hernandez, 191 Ariz. 553, 

557, ¶ 10 (App. 1998) (emphasis added). Here, both A.S. and Daley testified;

thus, Acosta incorrectly attempted to admit their written statements under 

Rule 806. We find no error.

¶15 Next, Acosta contends the trial court erred in precluding the 

written statements under Rule 613. Because Acosta failed to move the 

written statements into evidence under Rule 613 grounds or object to the 

court’s preclusion on that basis, we apply fundamental error review. State 

v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). Acosta thus carries the burden 

of showing not only fundamental error, but also that he was prejudiced by 

it. Id. at ¶ 20. Fundamental error is error that goes to the foundation of the 

case, deprives a defendant of a right essential to his defense, and is of such 

magnitude that he could not possibly have received a fair trial. Id. at ¶ 19.

¶16 Under Rule 613(b), “[e]xtrinsic evidence of a witness’s prior 

inconsistent statement is admissible only if the witness is given an 

opportunity to explain or deny the statement and an adverse party is given 

an opportunity to examine the witness about it, or if justice so requires.” 

Acosta cites to State v. Woods, 141 Ariz. 446, 687 P.2d 1201 (1984), for the 

proposition that extrinsic evidence containing prior inconsistent statements

is admissible, even when the witness admits the inconsistency. Acosta 
STATE v. ACOSTA

Decision of the Court

8

argues the trial court erred as a matter of law because it did not engage in 

any analysis under Woods other than focusing on the fact that A.S. and 

Daley authenticated their written statements and admitted the 

inconsistencies. Acosta asserts the court should have assessed whether 

admitting the writings would have assisted the jury in evaluating the 

credibility of witnesses. Acosta’s reliance on Woods is misplaced.

¶17 In Woods, the defendant’s accomplice testified at trial. 141 

Ariz. at 449. The accomplice’s testimony was inconsistent in some respects 

with his previously recorded statements given to a private investigator. Id. 

at 451. The defendant argued the trial court erred in precluding the 

admission of the taped statements even though the accomplice admitted all 

the inconsistences when cross-examined. Id. The court discussed situations 

wherein admission of extrinsic evidence of inconsistent statements should 

be allowed despite the consumption of time; when the inconsistency 

addressed a key element of whether the defendant was guilty. Id. at 451, 

453. However, the court held it was not an abuse of discretion in that case 

to preclude the tape because the key part of the accomplice’s testimony was 

consistent with the recorded statement; the defendant killed the victim and 

the accomplice had no prior knowledge of defendant’s intention to kill. Id.

at 453. The court held that whether the jury believed either of the 

accomplice’s versions “was collateral to a determination of defendant’s 

guilt or innocence. Under either version defendant was guilty.” Id. at 451. 

¶18 Acosta’s main contention is that he pulled the gun on A.S. in 

self-defense, fearing for his safety because A.S. approached him from 

behind. And because it was A.S.’s word against Acosta’s in this regard, 

Acotsa argues the written statements should have been admitted to help 

assess their credibility. The credibility of A.S. and Acosta and the weight to 

be given to their testimony are questions exclusively for the trier-of-fact. 

See State v. Cox, 217 Ariz. 353, 357, ¶ 27 (2007).

¶19 Acosta testified that he and A.O. were arguing because he was 

trying to take her to a drug rehabilitation facility. Acosta grabbed A.O. in 

the parking lot to get her into the SUV. Acosta testified that when he was 

putting A.O. in the SUV, he became aware of someone approaching him 

from behind. He testified he grabbed the gun in A.O.’s purse, turned

around, and pointed it at A.S. because he feared for his life and only wanted 

to scare him away. Acosta admitted he pointed the gun at A.S. twice; his 

arm “[w]ent up and down.” Although he maintains he feared for his life, 

Acosta admitted that A.S. did not threaten him in any manner, nor did A.S. 

have any weapons. Acosta admitted that he initially lied to police, telling

them the gun he pointed at A.S. was just a pellet gun resembling a Glock, 
STATE v. ACOSTA

Decision of the Court

9

when in fact it was a real gun. Further, Acosta only admitted that he 

pointed the gun at A.S. when confronted with the video evidence. 

¶20 Two security videos were played for the jury. Although the 

video quality was grainy and they did not have audio, it was daylight and 

the incident was unmistakably captured. Acosta appears as he and A.O. 

exit Walmart. Acosta is in a red shirt and red hat. He grabs A.O. by the 

throat, drags her to the parked white SUV, and shoves her into the door. 

Then, A.S. is seen getting out of his dark-colored minivan in the middle of 

the aisle and walking toward Acosta and A.O., who are near the SUV. A.S. 

does not run or charge at Acosta, and it does not appear he is yelling or 

approaching in any aggressive manner. Almost immediately, when A.S. is 

still several feet away from them, he begins walking backwards and puts

his hands up. Acosta is seen charging after A.S., even as A.S. is retreating 

with his hands in the air. No gun is visible in Acosta’s hands. Acosta then

turns, walks to the white SUV, gets in, and drives away. 

¶21 Overwhelming evidence supports Acosta’s convictions. 

Whether the jury believed A.S.’s written statement (a third person exited 

the SUV after Acosta pointed the gun at him and Acosta pointed the gun at 

him twice) or his trial testimony (a third person exited the SUV before Acosta 

pointed the gun at him, and Acosta pointed the gun at him once) is collateral 

to a determination of Acosta’s guilt. Here, under either version, Acosta is 

guilty of aggravated assault. Likewise, whether the jury believed Daley’s 

written statement (she did not see any of Acosta’s arm movements) or her 

trial testimony (she saw Acosta “pull something out, do something, and he 

was holding his arm out” and “waving it around.”) is inconsequential. 

¶22 On this record, the superior court did not abuse its discretion 

by not admitting the written statements in addition to the verbal testimony 

of the prior inconsistent statements. Thus, Acosta has shown no error.

CONCLUSION

¶23 Because Acosta has shown no reversible error, we affirm his 

convictions and sentences.